MOST REV. P.M.A. METROPOLITAN AND ORS. v. MORAN MAR MARTHOMA AND ANR.

A We have also pleasure to accept the Metropolitans under him (patriarch) in Malankara subject to the provisions of the said constitution. • Let the abundant grace and blessings of God Almighty be with you always. B Let it be through the prayers of St. Mary the mother of God, Mar Thoma Sleeba, the Patron saint of India and all the saints. Amen.

Our father that art in the heavens etc. etc." c After the exchange of these letters, Ex.A-19 and Ex.A-20 dispute started between the Patriarch and the Catholico over the use of the word 'Holiness'. 'Throne of St. Thomas', and 'Church of the East' and 'Catholicos of the east' etc. as the expressions according to the Patriarch D could be used by the supreme head, that is, Patriarch of Antioch and not by Catholico to which the reply was that this was not new and it was provided for in the Constitution of 1934. It is not necessary to extract the various points of difference raised in the letters issued by the two. In a letter sent in August 1960 marked as Ex.A-26 after reiterating the stand which was taken in earlier letters it concluded with these words: E "To conclude, I wish to state that the prestige and influence of the throne of Antioch here depend very largely upon the wish co- operation of Your Holiness. The Malankara Church with its catholicate and synod of bishops and the association has certainly to adhere to the provisions of the constitution and has to abide by F the Supreme Court decision. But that does not mean any kind of disrespect or hostility towards Antioch. There are enough provisions in the constitution to keep our connection meaningful and alive 11 •

G The relations thereafter appear to have become cordial so much so that in 1961 Ex.A-30 was written by Patriarch yakub-Ill in which it was mentioned.

"I am placing your Beatitude's photo properly in our palace so that all people who are in and out should see it and understand the intimate unity and real re-conciliation and the essential relation- H ship between the Apostolic Throne and our church in

P.M.A. METROPOLITAN,-. M.M. MARTH OMA [R.M. SAHAI •.T.] 577

Malankara ............ We are eager to see perfect peace in our church in Malankara. We hope that all the disputes will be over and the church go ahead powerfully in the path of light, prosperity and progress during your Beatitude's old age itself.

Please convey our Apostolic Blessings to all our spiritual children both priests and faithfuls who are under your authority.''

But from letter dated 18th January 1962 sent by Baselius Gecvarghese II, Catholicos of the East, it appears some local dispute had surfaced ··again. Allegations were made against one Mar Philixenos and the same person about whom reference has been made earlier and who in fact was respon- c sible for dissension once again and it was stated. 'they profess outwardly to be pro-Antioch, but really they are anti Patriarchal as well as anti- Catholicate. Now since at this time I am in my declining age I think it appropriate to invite your Holiness be pleased to visit us at your earliest con 1ience and bless us by your presence as well as prayers'. It appears D Mar Baselius Geevarghese died in January 1964 and he members of the Holy Episcopal Synod installed one Ougen Mar Themotheus, Metropolitan as his successo~ as his election by the Malankara Association on 17th May 1962 was approved by the Holy Synod on 21st March 1963. The letter was sent requesting the patriarch Yakub-III for the installation ceremony. He did come in 1964 and installed Mar Ougen I. Then there are letters and other E memoranda Ex.A-3G and A-37 submitted to the Catholicos regarding prevailing discontentment amongst some sections. The exchange of these letters and their contents indicate a simmering discontent which surfaced in June, 1970 when the Patriarch once again dug up the closed issue of use of expression 'Holiness' and, 'Throne of St. Thomas' by the Catholico. The F initial anxiety of reconciliation and peace got set back with vengeance as the Catholico openly challenged the authority of Patriarch. Events moved swiftly, thereafter, when the Patriarch ordained Metropolitan who in his turn ordained Bishops started interfering resulting in filing of suits by Catholico against Patriarch ordained Bishop, obtaining of injunction sharp- G ly reacted by the Patriarch by issuing show-cause notice, starting discipli- nary proceedings, summoning the Synod at Damascus and Ex-communicating the Catholico. The breakaway was complete. There was vertical split. The two groups once again were up in arms. Two hundred suits were filed. Eight of which covering entire issues were consolidated and tried together. H

578 SUPREME COURT REPORTS (1995[ SUPP. 1 S.C.R.

A This completes the factual narration and the background in which the suits out of which these appeals have arisen came to be filed. Although both the parties have furnished in great detail the events which took place after the judgment was delivered in 1959, but it appears unnecessary to mention each of them, except to observe that a mere look on these dates indicates that initially there was an anxiety for peace and reconciliation by both groups which was shaken by pinpricks here and there and was finally thrown to winds between 1970-75. Religious cover was again put forward to gain control over temporal affairs resulting in setting in motion the same old tortuous process of litigation. In the first part beginning from Decem- ber, 1958 a meeting of the Malankara Association was held in which almost all the Churches participated, irrespective of the faction. The meeting was attended even by the elected priest-trustee and the lay trustee and the delegate of the Patriarch as a special invitee. In January, 1959 the Patriarch Group submitted a memorandum to the Catholicos seeking among other things reconstitution of the Managing Committee of the Malankara As- D sociation which was considered in a Synod held on 21st February, 1959 and pursuant to the decision taken theiein, dioceses were re-allocated. From the year 1959 to 1964 number of meetings were held in which both the groups participated and attempted to function as one unit. Form 1960 to 1962 there are various letters, for instance Exhts. A-28, A-29, A-30, A-31 and A-39 which indicate cordial relationship between the Patriarch and E Catholico. Even in 1964 when Mar Ougen I was installed by the Malankara Episcopal Synod, the Patriarch himself presided in the ceremony. In a meeting held in December, 1965 Malankara Association elected five can- didates for ordination as Bishops and elected members to the Managing Committee which included members of the Patriarch group as well. In 1967 F the Constitution was amended in consequence of meeting in which both the groups deliberated.

From June 1970 started the second part which was in contrast of the earlier. In June 1970 the dispute about use of expression 'Holiness' and 'The Throne of St. thomas' was again questioned followed by sending a G delegate in 1972 which was objected to leading to ordination by the Patriarch of one of the appellants who was impleaded as defendant no. 1 in Suit no. 4179. Thereafter as stated there was no end. When the Catholico succeeded in obtaining injunction from Civil Court in 1973 restraining the appellant from interfering, the Patriarch issued chargesheet in June 1974 H which was not only objected but asserted to be without jurisdiction. Various

P.M.A. METROPOLITAN v. M.M. MARTI10MA [RM. SARAI. .I.] 579

ordinations followed. Each was challenged in courts. And when on 5th A January 1975 the Catholico in their Synod declared that Malankara As- sociation was autocephelous then the Patriarch in a Synod held at Damas- cus from 16th to 20th June 1975 decided that the only apostolic see of the Syrian Orthodox Church in the world was the See of Antioch founded by St. Peter, that the Malankara Church was an indivisible part of the Syrian B Orthodox Church dependent on the Patriarch in all spiritual matters, that acknowledgment of Patriarch's and position by those ordained was essen- tial, and the Catholicos having rebelled against the Patriarch stood dis- qualified from their ecclesiastical grade and also guilty of violation of fundamental faith. It was followed by letter dated 23rd June 1975 asking the Catholicos if he was willing to submit to the decision of the alleged C universal Synod. On 21st August 1975 the Patriarch by Kalpana Ex.B-72 excommunicated Catholicos and on 7th September 1979 installed at Damascus Mar Paulose Philexinos (who had earlier been deposed by the Malankara Episcopal synod for proved ecclesiastical indiscipline) as a Catholicos in the name of Baselius Paulose II. D

Out of these suits eight covering all the issues were transferred to the High Court. The Single Judge even while accepting the Constitution as valid held that it was not binding on the Churches and Parishioners unless there was express surrender. The Court held that they had no concern with those Churches which continued with Patriarch of Amioch. The learned E Single Judge held that the Malankara Church was Episcopal to a limit in spiritual affairs. In matters of temporalities, the Church was congregation- al. It was further held that the Parish Churches were independent automonous units as far as governance and administration of temporalities were concerned. The suits were dismissed. In appeal, the Bench framed as many as 31 questions to cover the wide range of controversy raised before it, reversed the decision of the learned Single Judge and decreed the suit, except in relation to Churches known as 'Simhasana Churches' and the Churches establishes by the Evangelistic Association. Relevant findings on the questions framed by it are extracted below. The first three questions related to the validity of the Cannon. They read as under :

"(1) Whether Ext. A90 or Ext. B161 is the correct version of Hudaya Canons accepted by the Malankara Jacobite Syrian Com- munity as valid and binding? H

580 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A (2) Are the plaintiffs barred by res judicata from contending that the binding version of Hudaya canons is Ext. A90 by reason of the judgment in XLT T.L.R. 1, order in the Review Petition and the judgment in 45 T.L.R. 116?

(3) Are the defendants barred by res judicata from contending that the binding version of Hudaya Canons is not Ext. B161 by reason of the decision in the Samudayam suit?".

The answer given by it was that the decision in 41 TLR 1, Exhibit 18 therein, and (Ext. BP in the Samudayam suit and Exht. B-161 in these cases) is the version of the Hudaya Canons accepted as binding on the Malankara Church has not become concluded and does not operate as res judicata between the parties. The Bench further held that there was no independent evidence on the basis of which it could be held that either of the versions was binding on the Malankara Orthodox Syrian Christian Con1munity and since findings in the previous litigations were not res judicata neither version of the Canon was proved to be binding on the community. In respect of Question Nos. 4-6, which read as under,

"(4). Whether the Catholicate established under Ext. A14 by Patriarch Abdul Messiah with powers as provided for in Ext. A14 E is valid and binding on the entire Malankara church?

(5). Whether by such establishment of the Catholicate the Patriarch was deprived of his powers to ordain Metropolitans, consecrate/send morone or to exercise any other spiritual power over the Malankara church thereby reducing his powers to a F vanishing point?

(6). Whether contentions in points 4 and 5 are barred by res judicata against parties in Patriarch's group by reason of the decision of the Travancore High Court in Interpleader suit ( 45 TLR 116) and by in reason of the decision of the Supreme Court G in Samudayam suit AIR (1959) SC 3.1?

It was held that the Catholicate established under Exht. A14 with powers as provided therein was valid and binding on the Malankara Church, that by such establishment Patriarch has not been deprived of his powers to ordain Metropolitans or consecrate Marone or to exercise any other

P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!, J.l 581

recognised spiritual power, though the power to ordain Metropolitans is subject to acceptance of t]je Malankara community represented by the Association and that by the establishment of the Catholicate spiritual power of the Patriarch has not been reduced to a vanishing point, though the Patriarch could not be regarded as" having active spiritual supremacy.

The Question Nos. 7 to 15 related to the Constitution of 1934 and status of Parish Churches: They were answered as follows:-

''(a) 1934 Constitution is valid and binding on the Malankara Association, Community, Dioceses as well as parish churches and parishioners. c (b) Parish churches are not congregational or independent, but are constituent units of Malankara church; they have fair degree of autonomy subject to the supi;rvisory powers vesting in the Managing Committee of the Malankara Association, Catholicos and the Malankara Metropolitan as the case may be. Administra- D tion of the day-lo-day affairs of parish churches vests in parish assembly and elected committees of the parishes.

(c) Malankara church is not purely episcopal but has only some episcopal charcteistics. E (d) Malankara Association is a representative body which has right to bind the Malankara church, the community, parishes and parishioners by its deliberations and actions.

The most sensitive issue which has been subject of great debate in this Court was posed as Question No. 18, F

'Has the Malankara Church become an autocephalous church?"

and it was answered against the respondent by recording the finding:-

"We, therefore, hold that the Malankara Church is not an G autoccphalous church but is a part or division of the world Or- thodox Syrian Church and set aside the finding of learned single judge that the Catholicos group has now established an autocephalous church. We hold that while Patriarch of Antioch is the head of the W.orlil Orthodox Syrian church Catholicos of the H

582 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A East who is subject to the Constitution is head of the Malankara Church and the relationship between Patriarchate and the Malankara Church is governed by the provisions of the Constitu- tion.11

This was the finding recorded in Moran Mar Basselios (supra) as well. It B has not been challenged, therefore, it has become final.

Some of the churches claiming to be socially and culturally different, for instance, Knanaya Church or the Kanandra Church established in pursuance of Royal Charter issued by the Queen or registered under C Societies Registration Act or having their own bye-laws claimed to be independent and autonomous. Their claim was under Question Nos. 23, 24 and 25 and the answer given was that except Simhasana Churches and Evangelistic Association Churches the others were constituents of Malankara Sabha. The appellants are the members of Patriarch Group. D Separate appeals have been filed by those churches which claim to be independent. The Catholic Group is aggrieved by the decision in respect of Churches of Evangelistic Association and Simhasana Churches.

Factual canvas having been spread out the stage is now set for grappling with intricate issues of jurisdiction and law which have been canvassed neatly, by, both the learned senior counsel, Mr. K. Parasaran for the appellant and Mr. F. Nariman for the respondents, without expression of any emotio~, admirable understanding and respect for each other, with utmost congenial coolness and exemplary precision and clarity. To support their respective claims, the learned counsel for both the parties advanced extensive arguments covering wide range of various aspects ranging from maintainability of the suit, jurisdiction of the civil courts to entertain religious disputes, misjoinder and non-joinder of the parties, intricate questions of res judicata, religious nature of the Trust and even religious matters, such as whether the Catholicate of the East is entitled to be addressed as 'Holiness' sitting on the 'Throne of St. Thomas'. It is proposed to deal with the preliminary objections both to the maintainability of the suit under Section 9 of the Civil Procedure Code and the non-main- tainability due to enactment of the Places of Worship (Special provisions) Act, 1991 as if any of these is accepted then no further controversy would arise. Thereafter, what shall be examined is whether the claim of the appellant that they had ex-communicated the respondent in accordance

P.M.A METROPOLITAN v. MM. MARTH OMA [RM SAHA!. J.) 583

wi_th Hudaya Canon governing the Church is wall founded as if even this plea is accepted, then no other issue shall survive. If the answer is in favour of the respondents, then it shall have to be decided, how far the dispute between parties has been settled by earlier decisions and what was the scope of Samudayam Suit and the finality arising out of it. Ancillary to this would be the question whether Catholicate of the East was established in B Malankara in the year 1912 and whether it has been validly established, if so, what is its binding effect.

To begin with the objection to the maintainability of the suit under Section 9 of the Civil Procedure Code was probably not raised in 1954 and 1959 and if raised was not pressed. But that by itself may not preclude C defendant-appellant from raising i~ even in this Court as the bar or lack of jurisdiction can be entertained, at any stage, since an order or decree / passed without jurisdiction is 11on est in law. What then is the scope of the Section? Does it comprehend suits for declaration that the Syrian Churches are episcopal? Could the respondent-Plaintiff claim declarati_on that D Malankara Association had become autocephalous and no priest could refuse to recognise the authority of the Catholico? Could the plaintiff seek injunction, restricting the priests or Deacon from performing any other sacramental services and prohibit the defendants from interfering with the Malankara Church? How would the bar of jurisdicate operate if only part of relief is cognisable? To appreciate these aspects it is necessary to set out the Section itself and examine its scope and then advert to facts:

"9. Courts to try all civil suits unless barred.

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation I - A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

Explanation II - For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or nol such office is attached to a particular place. 11 H

584 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A One nf the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognisable unless it is barred, 'there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit Of one's choice. It is no answer to a suit, ho\vsoever frivolous the claim, that the law confers no such right to sue' Smt. Ganga Bai v. Vijay Kumar & O""• AIR (1974) SC 1126. The expansive nature of the Section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars (ntry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added I 1976 bring out clearly the legislative intention of extending operation of the Section to such religious matters where right to property or office is involved irrespective of whether any foes is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. D The headinb which is normally key to the Section brings out unequivocally that all civil suits arc cognizable unless barred. What is meant by it is explained further by widening the ambit of the Section by use of the word 'shall' and the expression, all suits of a civil nature' unless 'expressly or impliedly barred'.

E Each \Vord and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word 'shall' makes it mandatory. No... court can refuse to entertain a suit if it is of description mentioned in the Section. That is amplified by use of expression, 'all suits of civil nature'. The word ·civil' according to dictionary means, 'relating to the citizen as an individual; civil rights'. In Black's Legal Dictionary it is defined as, 'relating to provide rights ·aiJ,d remedies sought by civil actions as con- trasted with criminal proceedings'. In. law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they top pertain to the larger family of 'civil'. There is thus no doubt_ about the width of the word 'civil'. Its width has been stretched further by uslhg the word 'nature along with it. That is even those suits are cognisable which are not only civil but are even of civil nature. In Article 133 of the Constitution an appeal lies to this Court against any judgment, decree or order in a 'civil proceeding'. This expression came up for construction in H SA.L. Narayan Row & Anr. Etc. Etc. v. Ishwar/a/ Bhagwandas & Anr. Etc.

P.M.A. METROPOLITAN v. M.M. MARTIJOMA [RM. SA.HAL J.] 585

Etc., AIR (1965) SC 1818. The Constitution Bench held 'a proceedings for A relief against infringement of civil right of a person is a civil proceedings'. In Arbind Kumar Singh v. Nand Kishore Prasad & Anr., AIR (1968) SC 1227, it was held 'to extend to all proceedings which directly affect civil rights'. The dictionary meaning of the word 'proceedings' Is 'the institution of a icgal action, 'any step taken in a legal action.' In Black's Law Diction- B ary it is explained as, 'In a general sense, the form and manner of conduct- ing juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to ad- ministrative proceedings before agencies, tribunals, bureaus, or the like'. The word 'nature' has been defined as, 'the fundamental qualities of a C person or thing; identity or essential character; sort; kind; character'. It is thus wider in content. The word 'civil nature' is wider than the word 'civil proceeding'. The Section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature. D

Are rnligious rights, for instance right to worship in a religious place, entry in a temple, administration of religious shrines for instance a temple, mosque or a church are rights of civil nature? is the suit filed by the respondent bad as the declaration, injunction and prohibition sought are in respect of matters which are not civil in nature? The answer is given by E Explanation I. The Civil Procedure Code was enacted during British period. The legislature enacting the law was aware that there were no ecclesiastical courts either in ancient or Medieval India as in England. 'The term "ecclesiastical law" may be used both in a general and in a technical sense. In its general sense it means the law relating to any matter concern- F ing the Church of England administered and enforced in any court; in its

-· technical sense it means the law administered by ecclesiastical courts and persons' [Halsbury's Laws of England Vol. 14 para 137]. 'The ecclesiastical law of England is as much the law of the land as any other part of the law' [Halsbury's Laws of England Vol. 14 para 139]. There was no such law in our country. The ecclesiastical courts are peculiar to England. The Parlia- G ment was aware of it. That is why it added Explanation I to Section 9 of the Civil Procedure Code. It obviates any ambiguity by making it clear that where even right to an office is contested then it would be a suit of a civil nature even though that right- may entirely depend on the decision of a question as to religiolis rites or ceremonies. Explanation 11 \\•idens it further H

586 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A to even those offices to which no fees are attached. Therefore, it was visualised from the inception that a suit in which the right to property or religious office was involved it would be a suit of civil nature. Reason for this is both historical and legal. In England ecclesiastical law was accepted • as a part of the common law binding on all. But, 'the introduction of B English Law into a colory does not carry with it English ecclesiastical law'. (Halsbury Laws of England Vol. 14 para 315). In ancient or medieval India the courts were established by King which heard all disputes. No religious institution was so strong and powerful as church in England. The Indian outlook was always secular. Therefore, no parallel can be drawn between the administration of the churches by ecclesiastical courts in England. C Religion in India has always been ritualistic. The Muslim rulers were by and large tolerant and understanding. They made India their home. They invaded, ruled and became Indian. But Britishers made it a colony. How- ever they did not interfere With religion. Disputes pertaining to religious office including performance of rituals were always decided by the courts established by law. As far back as 1885 Justice Mehmood in Queen Empress v. Ramzan & Ors. (1885) 7 ILR Allahabad p. 461 repelled the argument that the courts were precluded from considering Muslim Ecclesiastical Law and observed at page 468 as under :-

"I am unable to accept this view, because, if it is conceded that the decision of this case depends (as I shall presently endeavour to show it does depend) upon the interpretation of the Muhammadan Ecclesiastical Law, it is to my mind the duty of this Court, and of all Courts subordinate to it, to take judicial notice of such law''.

There are numerous authorities where dispute about entry in the temple, right to worship, performing certain rituals have been taken cognizance of and decided by civil courts. In Narasimma Chariar & Ors. v. Sri Krishna Tata Chariar, 6 Mad. H.C. Report 449 it was claimed by the plaintiff that they had the exclusive rights to Adhyapaka Mirass of reciting certain texts or chants in a temple. In that suit it was held : G "The claim is for a specific pecuniary benefit to which plaintiffs declare themselves entitled on condition of reciting certain hymns.

There can exist no doubt that the right to such benefits is a question which the Courts are pound to entertain, and cannot H. cease to be such a question, because claimed on account of some

P.M.A. METROPOLITAN v. M.M. MARTIIOMA [R.M. SAHA!, J.] 587

service connected with religion. A If, to determine the right to such pecuniary benefit, it becomes necessary to determine incidentally the right to perform certain religious services, we know of no principle which would exonerate the Court from considering and deciding the point." B It was approved by the Privy Council in Krish11ama & Ors. v. Kiish11asamy & 01'., [1879) !LR 2 Mad. 62 and the passage extracted above was approved by observing that it was "perfectly correct". This was a decision when Explanation II was not there. The dispute had two rounds of litiga- tion. In the second round after remand the High Court observed, c "It is certainly not the duty of the Civil Court to pronounce on the truth of religious tenents nor to regulate religious ceremony; but, in protecting persons in the enjoyment of a certain status or > property, it may incidentally become the duty of the Civil Court to determine what are the accepted tenants of the followers of a creed D and what is the usage they have accepted as established for the 11 regulation of their rights inter se.

The Law Commission in its 27th Report in Civil Procedure Code, Decem- ber 1964 at page 91 while considering the addition of Explanation II to Section 9 observed as under: E "It may be added, that ihe decision of the Privy Council to the effect that a suit for pecuniary benefits is a civil suit, even if it becomes necessary to determine a right to perform religious ser- vices, does not imply that other suits relating to religious offices cannot be entertained.n F

In Sri11ivasalu Naidu v. Kavalmari Mwmuswami Naidu, AIR (1967) Madras .., 451 is was observed,

"The explanation certainly does not confine the limits of the nature G of suits contemplated by the main section. What the Explanation states is only that though religious rites and ceremonies may form the basis of a right that is claimed, such right being a right to property or to office, a suit to establish such right would be a suit of a civil nature. The Section takes within its broad sweep all questions where one person claims any privilege in himself as H

588 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A against others. There is no doubt that such a question would be one of a civil nature. 11

On the plain phraseology of the Section, therefore, it is clear that a suit filed after coming into force of the Constitution for vindication of rights related to worship of status, office or property is maintainable in civil court B and it would be duty of the court to decide even purely religious questions if they have a material bearing on the right alleged in the plaint regarding worship, status or office or property. In Nagar Chandra Chatterjee & Anr. v. Kai/ash Chandra Monda/ & Ors., AIR (1921) Calcutta 328 it was held :

c "Where there were no Ecclesiastical Courts, there was nothing to prevent civil courts from holding that Pujari has been removed from his office on valid grounds."

Sir Ashutosh Mookerjee quoted thus:

D "There is manifestly nothing wrong in principle that the holder of a spiritual office should be subject to discipline and should be liable to deprivation for what may be called misconduct from an ecclesiastical point of view or for flagrant and continued neglect of duty..... It is plain that although so far as Hindus are concerned, - there is now no State Church and no ecclesiastical court, there is E nothing to prevent civil courts from determining questions such as those raised in the present litigation and from holding that the Pujari has been removed from his office on valid grounds."

In U. W. Baya v. U. Zaw Ta., AIR (1914) Lower Burma 178(1) where a F question arose as to which was the forum where an action for violation of religious rights could be brought, it was held,

"there are, therefore, no ecclesiastical authorities in Lower Burma. Section 9, Civil P.C. enacts that the courts shall subject to the provisions herein contained, have jurisdiction to try all suits of a G civil nature excepting suits of which the cognizance is either ex- pressly or impliedly barred. This is a suit of a civil nature. It is a claim of certain lands and manuscripts.

The civil courts, in our opinion, clearly have jurisdiction to H decide the suit and should do so''.

P.MA METROPOLITAN v. M.M. MARTIIOMA [RM. SAIW, J.] 589

In Sri Sinna Ramanuja Jeer & Ors. v. S1i Ranga Ramanuja Jeer & Anr., A (1962] 2 SCR 509 this Court observed:

"prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a civil court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may ~epend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not ce~se to be· one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies'.

In Ugamsingh & Mishrimal v. Kesrimal & Ors., (1971] 2 SCR 836, it was held that right to worship is a civil right which can be subject matter of a ~dTu~~~~: D "It is clear therefore that a right to worship is a civil right, int_er- ference with which raises a dispute of a civil nature."

• That the right to conduct worship is also a civil right has been recognised E by the courts in TA. Aiyangar Swamigal & Ors. v. L.S. Aiyangar & Ors., 31 Madras Law Journal 758. InDevendra Narain Sarkar& Ors. v. Satya Charan Mukelji & Ors., AIR (1927) Calcutta 783 it was held that a suit by a person claiming to be entitled to a religious office against an usurper, for a declaration of his right to the office is a suit of a civil nature. Similarly in S.Ramnuja Jeer (supra) this Court observed as under : F ·., ''.From the aforesaid passage it is clear that so long as the holder of a purely religious office is under a legal obligation to discharge duties attached to the said office for the non-observance of which he may be visited with penalties, a civil court could grant a G ·' declaration as to who would be or could be the holder or such office."

It was vehemently urged that declaration of the character of a church, viz., whether it was autocephalous was solely dependent upon the canonical laws and it necessarily involved an adjudication of what was the application H

590 SUPREME COURT REPORTS (1995] SUPP. lS.C.R.

A canon, what was its interpretation and what are the religious beliefs, practices, customs and usage in the church which pertained to the ec- clesiastical jurisdiction and the civil courts could not embark on such an enquiry. This is the farthest or the highest stand that could be taken by the appellant. The answer is two fold, one section 9 of the Civil Procedure B Code and other Article 25 of the Constitution. The latter guarantees constitutionally freedom of conscience and the right freely to profess, practice and propagate religion to every person. lts reach has been ex- plained in various decisions. In His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami Etc. v. The State of Tamil Nadu, AIR (1972) SC 1586 it was held that this Article guarantees freedom to practice rituals and C ceremonies which are integral parts of a religion. In Rev. Stainislaus v. State of Madhya Pradesh & Ors., AIR (1977) SC 908 it was held that right to practice and propagate not only matters of faith or belief but all those rituals and practices which are regarded as integral parts of a religion by the followers of a doctrine. In S.P. Mittal v. Union of India & Ors., AIR D (1983) SC 1, it was held that freedom or right involving the conscience must naturally receive a wide interpretation. The suit filed was thus main- ..... tainable. The injunction and prohibition sought from interfering in ad- ministration of Church are certainly matters which pertain to the religious office. Even the declaration that the Church is episcopal is covered in the expansive expression of religion as explained in Mittal's case (supra). The word 'episcopal, means 'of or pertaining to bishops, Having a govt. vested in bishop'. A suit for declaration of such a right would be maintainable under section 9. Not only because it is claim to an office but also because there is no other forum where such dispute can be resolved. If a dispute arises whether a particular religious shrine bas ceased to be so due to its anti-religion activities then the followers of that religion or belief and faith cannot be denied the right to approach the court. Explanation I is not restrictive of the right or matters pertaining to religion. It only removes the doubt to enable the courts to entertain suits where dispute about religious office in involved. The right to religion having become fundamental right, it would include the right to seek declaration that the Church was Epis- copal. But the court may refrain from adjudicating upon purely religious matters as it may be handicapped to enter into the hazardous, hemisphere of religion. Maintainability of the suit should not be confused with exercise of jurisdiction. Nor is there any merit in the submission that Explanation I H could not have suits where the right to property or to an office was not

P.M.A. METROPOLITAN v. M.M. MARIBOMA [RM. SAHA!, J.] 591

contested or where the said right depended on decisions of questions as A to religious faith, belief, doctrine or creed. The emphasis on the expression 'is contested' used in Explanation I is not of any consequence. It widens the ambit of the Explanation and include in its fold any right which is contested to be a right of civil nature even though such right may depend on decisions of questions relating to religious rights or ceremonies. But B from that it cannot be inferred that where the right to office or property is not contested it would cease to be a suit cognisable under Section 9. The argument is not available on facts but that shall be adverted later. Suffice it to mention that in Ugamsingh (supra) the plaintiffs claim was that they were entitled to worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to tenants observed by the C ._Digambri Sect on the Jain religion. It was held that from the pleadings and the controversy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship. If the Digambaries have a right to worship at the temple, the attempt of the Swetamberies to put Chakshus or to place Dhwandand D or Kalash in accordance with their tenets and to claim that the idol is a Swatamberi idol was to preclude the Digambaries from exercising their right to worship at the temple, with respect to which a civil suit is main- tainable under Section 9 of the Civil Procedure Code. The scope of the Section was thus expanded to include even right to worship. E 'Religion is the belief which binds spiritual nature of men to super-natural being'. It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is the right of a person believing in a particular faith to practice it, preach it and profess it. It is civil in nature. The dispute about the religious office is a civil dispute as it involves disputes relating to rights which may be religious in nature but are civil in consequence. Civil wrong is explained by Salmond as a private wrong. He has extracted Blackstone who has described private wrongs as,

- 'infringement or privation of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries'. Any infringement with a right as a member of any religious order is violative of civil wrong. This is the letter and spirit of Explanation I to Section 9. In American Jurisprudence volume 66, paragraph 45, the law is explained thus: H

592 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 'The (the) civil courts have steadily asserted their want of jurisdic- tion to hear and determine any controversy relating thereto. On the other hand, the civil courts have without hesitation exercised .. their jurisdiction to protect the temporalities of such bodies, for whenever rights of property are invaded, the law must interpose equally in those instances where the dispute is as to church proper- B ty and in those where it is not'.

G The law being such it may be seen whether the suit filed by the respondent is covered within the forecorners of Section 9. Whether the relief sought by the respondent was regarding the status or office of the - Metropolitan? In Original Suit No. 4 of 1979 it is claimed that various persons said to be ordained as metropolitans have no right to act as such H and priest ordained in turn by them would equally have no right to act as

P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.] 593

such, all these being usurpers. Further the office of metropolitan in the A Malankara Church has, with it, attached legal obligations for the non-per- formance of which sanctions or penalties are provided is clear both from the canonical law as well as the Constitution. Apart from this four suits, namely, Original Suit Nos. 2/79, 5179, 6179 and 8/79 concern themselves solely with the interference in the administration of Church properties B being scheduled specifically in the respective plaints. Similarly the claim founded on allegations against wrong persons exercising the functions by those who have been wrongly designated as metropolitans and are inter- fering with the right to worship in Churches appears to be squarely covered in Section 9. The prayers in Original Suit No. 4/79 were 'A' to 'H'. Even if the prayer 'A' which seeks a declaration that Malankara Church is epis- C copal in character ignored the suit for reliefs 'E', 'F', 'G' and 'H' which read as under cannot be held to be touching. only religious rites and therefore, are not cognisable by Civil Court:

"E. To declare that any Priest who refuses to recognize the authority of the Catholicos and Malankara Metropolitan, the 2nd plaintiff and other Metropolitans under him is not en- titled to minister in any of the churches or its institutions in Malankara.

F. To prohibit defendants 1 to 3 by an order or permanent injunction from ordaining Priests or deacons or performing any other sacraments, services, Etc. for the Malankara church or its institutions.

G. To prohibit defendants 4 onwards from performing any religious services a sacraments whatsoever in or about any of the church of Malankara and for the Malankara church or its constituent churches or institutions.

H. To prohibit the defendants from interfering in any manner with the administration of the Malankara church." G The appellant placed reliance on various averments in different I.As, written arguments and affidavits to demonstrate that the nature of relief sought was beyond the pale of Section 9. In fact this dispute was not seriously raised before the courts below. The dispute is going on since long and this is as stated the third round in this Court. But it appears that in ,H

594 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A earlier litigations in the Royal Court of Final Appeal and the Supreme Court no such objection was taken that the suit was not maintainable. The submission that the locus standi of the respondent was suspect as they having been ex-communicated by the Synod of the orthodox church ;,,ith Patriarch as its head, did not have any substance as in Sardar Syedna Taher B Saifuddin Saheb v. 77ze State of Bombay, [1962] Supp. 2 SCR 496 a Constitution Bench of this Court held that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in matters of religion and since Articles 25 and 26 of the Constitution protect not merely religious, doctrine and beliefs but also acts done in pursuance of religion and themselves carrying the rituals and observations, ceremonies and right of worship which are in- tegral part of religion it is difficult to agree that there was no forum for vindication of such right.

Even the argument that the declaration that the Church was autocephalous or Episcopal is cognisable only in the ecclesiastical jurisdic- tion and the civil courts could not embark on such an enquiry does not appear to be well founded. A civil court may be precluded from deciding \Vhat rites are necessary to impart religious character. For instance, whether kaivapu, that is placing of the hand by the spiritual head for ordination is necessary or Marone, that is, the oil of see must be there may be a matter for the Synod. But who has a right to perform it or whether it has been performed as provided in the religious book and whether a Church has become autocephalous due to adoption of Constitution by a Synod are matters which can surely and certainly be decided by the courts. The learned counsel submitted ·that question whether the Malankara F Church was governed in its administration by the Constitution of Malankara Church with reference to the Constitution passed in M.O. Seminary meeting in 1934, which dealt with religious and ecclesiastical aspects of the Church, could not be adjudicated upon by the civil courts. According to learned counsel the Constitution expressly adopted the Catholico version of the canon and made provisions in regard to ordination of priecs, bishops, Catholicos and the discipline to which they were sub- jected, these were mere matters of religious rites and ceremonies and involved an adjudication of the question of religious faith, creed and doctrine which would be wholly outside the scope of the civil courts. The learned counsel submitted that the single most important question on which the fate of these appeals and suits would turn was as to which was

P.MA. METROPOLITAN v. M.M. MAR1HOMA [RM. SAHA!, J.] 595

the correct version of the canon applicable to Malankara Church and this was a matter which entirely depended on questions relating to the religious faith, doctrine and belief. It was also emphasised that the various decisions given by this Court, namely, Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, [1962] Supp. 2 SCR 496;Ugamsingh & Mishramal v. Kesrimal & Ors., (1971] 2 SCR 836;Thirnvenkata Ramanuja Pedda Jivyan- B gar/u Valu v. Prathivathi Bhayankaram Venkatachar/u & Ors., AIR (1947) PC 53;M. Appadorai Ayyangar & Ors. v. P.B. Annangarachariar & Ors., AIR (1939) Mad. 102:,Kattalai Michael Pillai & Ors. v. J.M. Barthe & Ors., AIR (1917) Mad. 43l;E.C. Kent v. E.E.L. Kent, AIR (1926) Madras 59 and Sri Sinna Ramanuja Jeer & Ors. v. Sri Ranga Ramanuja Jeer & Anr., (1962) 2 SCR 509 would indicate that Explanation 1 to Section 9 saved only those suits where the right to property or to an office was contested. But where no contest was raised the suit would not be covered within the forecorners of the Section. Reference was made to paragraphs 301 to 304, 313 to 315, 318, 321, 332 to 339, 343 to 346, 352, 354 and 356 of vol. 14 of Halsbury's Laws of England and it was urged that these paragraphs would show that the position of the crown in England in respect of Church was entirely different. The learned counsel submitted that passages which have been relied to deal with the Anglican Church relate to colonies where the supremacy of the Crown in ecclesiastical affairs still exists. He urged that those passagos have no relevance to a sovereign secular country like India. The learned counsel pointed out that the decisions in Long (supra) and E Dame (supra) arose in different colonies which accepted the supremacy of the Crown in ecclesiastical matters and apart from the regular hierarchical set up in the Anglican Churches or the Churches in the colonies the civil courts also exercised jurisdiction. These decisions arising from jurisdictions where Church was part of the State could not apply in a country like India p where eligious neutrality was mandated by the secular constitution. In the end the learned counsel submitted that the judiciary should keep its hands off in respect of such religious matters.

The submissions do not appear to stand the test in light of what has been stated earlier. The relevant passage from Halsbury's Laws of England G have already been extracted to demonstrate that the ecclesiastical law of England does not apply to colonies. There is no statute framed even during British regime which had adopted the statutory or common law to the Churches in India. The mere fact that the Churches in England are governed by ecclesiastical law could by no stretch of imagination furnish H

596 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A foundation for the submission that the Churches in India would also be governed by ecclesiastical law. The jurisdiction of courts depends either on statute or on common law. The jurisdiction is always local and in absence of any statutory provision the cognizance of such dispute has to be taken either by a hierarchy of ecclesiastical courts established in the country B where the religious institutions are situated or by a statutory law framed by the Parliament. Admittedly no law in respect of Christian Churches has been framed, therefore, there is no statutory law. Consequently any dispute in respect of religious office in respect of Christians is also cognisable by the civil court. The submission that the Christians stand on a different footing than Hindus and Buddhists, need not be discussed or elaborated. C Suffice it to say that religion of Christians, Hindus, Muslims, Sikhs, Budhs, Jains or Parsee may be different but they are all citizens of one country which provides one and only one forum that is the civil court for adjudica- tion of their rights, civil or of civil nature.

D In reading Section 9 widely and construing it expansively the juris- diction to entertain a suit for declaration whether the Church was episcopal or congregational and whether the appellants could have been ordained by the Patriarch when it was contrary to the earlier decision given by this Court that the ordination was required to be approved by Synod, the court is not being asked to adjudicate on faith but whether the exercise of right in respect of faith was valid. The Grace no doubt comes from Patriarch and on that there is no dispute but whether the Grace came in accordance with the Canon or the Constitution is certainly a matter which would fall within Section 9 C.P.C. Status and office are no doubt different but what was challenged is not the status or faith in Patriarch but the exercise of right by Patriarch which interfered with the Office of Catholico held validly. Apart from it, as stated earlier, after coming into force of the Constitution Article 25 guarantees a fundamental right to every citizen of his conscience, faith and belief, irrespective of cast, creed and sex, the infringement of which is enforceable in a court of law and such court can be none else except the civil courts. It would be travesty of justice to say that the fundamental right guaranteed by the constitution is incapable of enforce- ment as there is no court which can take cognisance of it. There is yet another aspect of the matters that Section 9 debars only those suits which are expressly or impliedly barred. No such statutory bar could be pointed out. Therefore, the objection that the suit under Section 9 C.P.C. was not maintainable cannot be accepted.

P.M.A. ME1ROPOLITAN "· M'.M. MARTIIOMA (RM. SARAI, J.] 597

The other objection to the maintainability of the suit was based on the Places of Worship (Special Provisions) Act, 1991 ('Act' for short). This Act was eoacted to prohibit conversion of any place of worship and to provide for the maintenance of its religious character as it existed on the 15th day of August, 1947 and for matters connected therewith or incidental thereto. Section 2( c) defines 'worship' to mean 'a temple, mosque, gurudara, church, monastery or any other place of public religious worship of any religious denomination or any section thereof, by whatever name called'. Section 3 bars any person from converting any place of worship or any religious denomination into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. Section 4 declares that the religious character of a C place of worship existing on 15th day of August, 1947 shall continue to be same as it existed on that date. Therefore, it was urged that the suit having been filed for declaration that the Syrian Churches were apostolic and autocephalous, it amounted to seeking a declaration as to religious char- acter of the places of worship and consequently it was barred and the court D cannot assume jurisdiction to grant such declaration. The learned counsel urged that each Parish Church is a place of worship within the meaning of Section 2(c) of the Act and the religious denomination is the Jacobite Syrian Orthodox church in Malabar. According to learned counsel, it having been held in successive decisions that there were two sections of the said religious denomination, one, the Patriarch Group and the other, E Catholicos and these two denominations existed on 15th day of August, 1947, factually and legally, the suit filed by the respondents for a declara- tion that the Jacobite Church was autocephalous was not maintainable and liable tu be dismissed on this ground alone. The learned counsel submitted that the Parish Churches believed in uninterrupted apostolic succession of p St. Peter through the Patriarch and that the spirit!Jal grace emanates through such Patriarchs and, therefore, the declaration sought by the respondents could result in destroying the basic character of the religious denomination. It is not necessary to deal with these submissions at length as sub-s_ection (3) of Section 4 is a complete answer to it. It reads as under:- G "Nothing contained in sub-section (1) and sub-section (2) shall apply to, -

(a) any place of worship referred to in the said sub-sections which is an ancient and historical monument or an archaeological H

598 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R,

A site or remains covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958) or any other law for the time being in force;

(b) any suit, appeal or other proceeding, with respect to any matter referred to in sub-section (2), finally decided, settled B or disposed of by a court, tribunal or other authority before the commencement of this Act.

(c) any dispute with regard to any such matter settled by the parties amongst themselves before such commencement; c (d) any conversion of any such place effected before such com- mencement by acquiescence;

(e) any conversion of any such place effected before such com- mencement which is not liable to be challenged in any court, D tribunal or other authority being barred by limitation under any law for the time being in force".

The Syrian Jaco bite Church is an ancient and historical monument which was established sometime in 51-52 century A.O. the respondents did not seek a declaration for conversion of the church or place of worship. The E matter of the religious denomination was settled as far back as 1876 in the Mulunthuruthy Synod. Even the declaration sought that the Church is autocephalous is founded on the Kalpana issued in 1912 and the Constitu- tion framed in 1934. No declaration is sought for change of the place as it existed in 1947. Further, whether the declaration sought for can be granted or not is a different matter than claiming that the declaration if granted would result in com<erting the place of worship or the religious denomina- tion. This objection, too, therefore, is not available on facts of this case.

Reverting to merits the principal issue that calls for adjudication is about the scope of ex-communication in ecclesiastical matters and the extent to which the Court can examine it and lastly whether the ex-com- munication of the Catholico by the Synod held at Damascus under the Presidentship of the Patriarch of Antioch was valid either canonically or conventionally? The principal defence in the suit from which these appeals have arisen, was that the Catholico-plaintiffs were ex-communicated, there- H fore, the suits were liable to be dismissed. Two questions arise, one, the

P.M.A. METROPOLITAN v. M.M. MARTI!OMA [R.M. SAHA!, J.] 599

Ex-communication in religious order and that. top of a spiritual head entails serious consequences both religious and civil. 'Ex-communication' is defined in Black's Law Dictionary as 'a sentence of censure pronounced H

600 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A by one of the spiritual courts for offences falling under the ecciesiastical cognizance. It is described as two-fold: (1) The lesser excommunication, which is an ecclesiastical censure, excluding the party from the sacraments; (2) the greater, which excludes him from the company of all Christians. Formerly, too, an excommunicated man was under various civil disabilities. B He could not serve upon juries,.or be a witness in any court; neither could he bring an action to recover lands or money due to him. These penalties were abolished in England by St. 53 Geo. III, c.127. Excommunication is still a censure under Canon Law". in Faiths of the World by James Gardner, it is discussed under 'Anathema' and 'Censure'. The Anathema was usually administered to offenders. 'It is well known that a solemn curse or C anathema "with bell, book, and candle" against all heretics, is annually pronounced by the Pope at Rome, and by other ecclesiastics in other places on the Thursday of Passion week, the day before Good Friday, the anniver- sary of the Saviour's crucifixion''. The substance of the "Anathema" is in these words : D "Excommunicated and accursed may they be, and given body and soul to the devil. Cursed be they in cities, in towns, in fields, in ways, in paths, in houses, out of houses, and all other places, standing, lying, or rising, walking running, waking, sleeping, eating, drinking, and whatsoever things they do besides. We separate them E from the threshold, and from all prayers of the church."

'Censures (Ecclesiastical)" is 'the various punishments inflicted by the Christian church upon delinquent members of her communion, in virtue of that authority which has been committed to her by Christ, the great King and Head of the church'. F One of the effects of such action is that the person concerned is deprived of the right of worship. Under our Constitution it is a fundamental right. Any interference with it or its deprivation can be challenged in a court of law. Even in England the Courts extend protection regarding ecclesiastical matters if they affect the right as is clear from paragraph 337 of Halsbury's Laws of England, Fourth Edition, Volume 14.

In the light of the law thus stated it may be examined if the ex- communication of Catholico by the Patriarch was valid as if the power of ex-communication was validly exercised then the suit filed by them was not

P.M.A. METROPOLITAN v. M.M. MARTH OMA {R.M. SAHA!, J.] 601 .. maintainable. The specific case in this regard of the appellants was that, A 'canonically', and, 'traditionally' the Patriarch of Antioch is the supreme '·'. head of the Holy Universal Syrian Orthodox Church and the Catholicos, is subordinate to the Patriarch of Antioch'. Therefore, the Catholico was validly ex-communicated in accordance with the canon filed as Ex.18, which is the foundation of the power and jurisdiction of Patriarch. How B far is this correct? In Moran Mar Basselios (supra} it was held that the Catholicos had not committed any act of heresy. Could they be held to have committed act of hereby when, then used the word 'Holiness' and on the 'Throne of St. Thomas'. From The new Testament - The Gospel according to St. Mathew, Chapter 19 it appears there was throne for each apostle :- c "Then answered Peter and said unto him, Behold, we have foresaken all, and followed thee; what shall we have therefore?"

- "And Jesus said unto them, Verily I say unto you, That ye which have followed me, in.the regeneration when the Son of, man shall D

-- sit in the throne of his glory, ye also shall sit upon twelve thrones, judging the twelve tribes of Israel".

St. Thomas was, 'one of the original apostles of Jesus Christ' [Religions of India by Dr. Karan Singh, p.15]. In a book written by E.M. Philip, one of the authors on Syrian Church, the effect of the judgment by Royal Court E of Appeal is described thus, 'of course, the majority judgment prevailed and Mar Dionysius was established on the Throne of St. thomas'. The expression 'Melapattakaran of the throne in Malayalam' has been used by Royal Court of Cochin in its judgment thus,

"He upheld the contention of Mar Thomas Athanasius, and found F

- that the syrian Church was independent of the Patriarch of An- tioch. Of course, the majority judgment prevailed, and Mar Dionysius v. was established on the throne of St. Thomas".

In Exht. A-4 (Notice for M.D. Seminary Meeting of 1934} issued to Vicars, G Priests, Kykars and Parishioners, it was mentioned :-

"From the meek Baselius Catholicos under the Gheevarghese I! seated on the Throne of Apostle St. thomas in the East".

In the letter dated 8th June, 1959, Ex. A-24, the Catholic in his reply to H

602 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A the Patriarch wrote as under:-

"3. His Holiness: The propriety of using the title 'His Holiness' along with my name is questioned. Now I must bring to your notice that fact that customarily the same ephithets have been attached to the Patriarch and the Catholicos in our church as evinced by B our Holy writs and other books. For example, in the diptych (first intercession of the Church, during the Holy Qurbans, the people are asked to pray for our Patriarchs Aboon Mar Ignatius and Aboon Mar Baselios. The very same titles are here seen applied to the Patriarch and the Catholicos, alike, the later himself being c called a Patriarch. The inference is that the titles proper to the Patriarch of Antioch are proper also to be Catholicos of the East. We also see that such epithets as Moran, Aboon, Etc. are applied

D to both the prelates in common. Further this title has been in use here for long time.

4. The Throne of St. Thomas : Your Holiness says 'It is never heard - that St. Thomas established a throne of the Catholicos or the .... Mapriano, either in India or in my other place'. I must, without presumption, ask your Holiness, whether for that matter, any apostle has established a throne anywhere. Is it not that such E honours have been connected, with them in latter times. There is also no special thronal ascension for any dignitary of our church except the installation ceremony (..... ) done at the time of the consecration of Bishops and other prelates and at their acceptance by their respective dioceses. Besides, we see that this term 'throne' F is added to the Patriarchs, Metropolitans and Bishops alike in the Hudaya Canon and other books (Canon Chap. VII, Section I) and

G the ceremony of enthronement is done over for Bishops.

Your Holiness knows that the very eminent Syrian Historical writer Gregories Bar Hebraous regards St. Thomas, the apostle, as the first bishop of the East. Let me also bring to your notice - that the Malankara Church Historian, E.M. Philip who had been a staunch partisan of the Patriarch, refers to the throne of St. Thomas; in his history of the Malankara Syrian Church (2nd Edition page 253). That being the case, can we say that St. Thomas, H one among the twelve eminent apostles, had no throne at all.

P.M.A. METROPOLITAN v. M.M. MARTHOMA [RM. SAHA!, J.] 603

• Your Holiness says 'Also we could not find such a throne in the document given by Abdul Messiah II'. I am indeed happy that your Holiness respects and depends upon the Kalpana given by Abdul Messiah II. But it must caution your Holiness that the Kalpana yon refer to may be the General Kalpana that he issued just before he left Malankara (1913). The earlier Kalpana L<sned by him from Niranam Church on the day he installed Mar Ivanios of Mnrimattom as Catholicos, had to be necessarily referred to. To make things clear, I shall quote a sentence from it. "According as yon requested we have consecrated our spiritual and beloved Ivanious as Mapriano under the name Baselios of the East, on the throne of the Diocese of St. Thomas in India and other places". C (1912;. This is very definite and no one could say that a.throne like this was a now fmd or one found· without the knowledge of the throne of Antioch".

This letter explained the justification for use of the expression, 'Throne of St. Thomas' and 'Holiness'. Whatever may be its religious D significance but in view of what has been stated above coupled with. the conduct of the Patriarch in not only condoning and accepting its use but even presiding in the installation ceremony, it is difficult to treat it as an act of heresy deserving ex-communication. E Apart from it, the four charges levied in the show-cause notice were as under :-

(i) That the Catholicos claimed to be seated on the Throne of St. Thomas. F (ii) That he declared that he was equal in status to the Patriarch which was uncanonical as he was a subordinate.

(iii) That he did not accept the Patriarch delegate in India (sent in 1972) and resorted by all means "to send him off'. G (iv) That at the time of ordination of three Metropolitans in 1966 by the Catholicos, the Catholicos did not take an oath of subordination to the Patriarch.

None of them individually or collectively could attract the punishment of excommunication even if found to be true. The nature and the power to H

604 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A be exercised for excommunication have been indicated earlier. They are not lightly exercised as they deprive a person of his right of worship. The accusation that the Catholico was subordinate to Patriarch was not an accurate description. The Patriarch of Antioch was and is undoubtedly the highest ecclesiastical functionary. But the second highest dignitary was and B is the Catholicate of the East. The concept of subordinate amongst such spiritual heads is out of place. They function in their own sphere according to religious canon. When Patriarch of Antioch was established in Synod of Nicea the Catholico of the East was established at Tigris. The two authorities in the hierarchy existed from 4th century. Therefore, the crea- tion of Catholico in 1912 in Malankara conferring jurisdiction over India, C Ceylon and Burma was neither against scriptures nor against faith. The exercise of power by the Catholico in pursuance of such creation and under the Constitution which was framed in 1934 could not entail ex- communica- tion. The action of Patriarch in ex-communicating the Catholico deprived him of the religious right guaranteed to him under the Constitution, there- D fore, it had to be in accordance with law. Even the meeting summoned at Damascus being in violation of the Constitution of 1934 was invalid. There- fore, the ex-communication of Catholicos was not in accordance with law.

Was the ex-communication canonical? If the religion is a bond uniting man to God then canon is a rule or decree, a body of principles E and standards the practice and observance of which identifies the man with the religion. 'The identity of the religious community described as church consist in the identity of its doctrine, creeds, formularies, rituals etc.'. [Hidayatullah, J. in Nina/ Daniel v. Most Rev. Ubanon Marthoma, Metropolitan of Mar Thoma Church, and Others, Civil Appeal No. 947 of p 1964 decided on 7th January, 1965.]

Canon is explained in Black's Law Dictionary as under :

"A law, rule or ordinance in general, and of the church in par- G ticular. An ecclesiastical law or statute. A rule of doctrine or discipline. A criterion or standard of judgment. A body of prin- ciples, standards, rules, or norms.u

Canon means both a norm and attribute of the scripture. The term H 'canon law' is explained in Ihe Encyclopedia of Religion Vol. 3 as under :

P.MA. METRO PO UTAN v. M.M. MARTHOMA [R.M. SAHA!, J.] 605

"The term canon is based on the Greek word Kanon. Originally A signifying a straight rod or bar, especially one used to keep some- thing else straight, canon came to mean something that is fixed, a rule or norm. The term has several applications in church usage: the canon of scripture, or that fixed list of books that are deter- mined to belong to sacred scripture; the canon of the Mass, the B fixed portion of the eucharistic prayer; the process of declaring a deceased person to be among the fixed list of saints in heaven, or canonization. From the third century, directives for church living and norms for church structures and procedures have been issued as canons. c Canon law refers to the law internal to the church. In the early centuries of Christianity, canon was used for internal church norms, to distinguish them from the imperial nomos (leges in Latin) or laws. Church norms have also been known as sacred or divine, to distinguish them from civil or human laws. At times they D 11 11 are referred to as the "sacred canons" or the canonical order The •

term ecclesiastical law is used synonymously with canon law, al- .• though at times ecclesiastical law also refers to the civil. law adopted in various nations to regulate church affairs. The term canon law is used in the Roman Catholic, Anglican, and Orthodox communions. E

Canon law is drawn from sources in scripture, custom, and various decisions of church bodies and individual church authorities. Over the centuries these have been gathered in a variety of ~ollections that serve as the law books for various churches."

Canons are thus the principal scriptural bases for the religious prac- tices observed in a Church. Syrian Orthodox Church is very old. But its canon appears to have come in existence sometime in 13th Century col- lected and written by Bar Hebrew who was the Catholico of Tigris. In the appeal arising out of interpleader suit this Court after examining the evidence in detail particularly of C.Philip, P.W.5, who was the Professor of the Sriram College, Calcutta and was examined, as expert on canon law held that there was no authorised edition of these canons even though o.ne of the resolutions at the Mulunthuruthy Synod ran thus: H

606 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A "It will be very good if a book containing the Canons and procedure necessary for the firmness in the Orthodox faith is printed in Syriac or Malayalam as per orders (of the Holy father) and a copy with his seal given to each church and decided that future conduct shall not be except in accordance with that."

B The absence of any canon in such an old Church existing since 51-52 Century AD. with such extensive and widespread following not only in this country but even others is a tribute to the honest, firm and sincere belief in the Syrian Church. Even without any written Code or rule their never was any controversy over faith, practice, belief, rituals etc. But what is surprising is that till the advent of late 19th and the beginning of 20th Century there was no authentic publication of it. Consequently when the battle in courts of law started between the two groups there appeared two divergent versions differing on vital aspects. To add to this the courts have not been consistent in accepting one or the other version. More so because of the accusation of interpolation and tampering. Even though the first occasion to examine the canons arose in the appellate judgment of the Royal Court, the scope was limited as to whether the Patriarch alone had the power to consecrate Marone. The authority to ex-communicate etc. in which the interpolation is alleged was never examined. The decision, therefore, cannot be taken to be as putting its seal of approval on the authority of the canon produced on behalf of Patriarch of Antioch. And when the power and jurisdiction to ex-communicate in accordance with canon law was raised in the interpleader suit (Vattipanam suit) both the sides came with different versions, the one filed by Catholico was accepted by the trial court whereas the High Court found the version placed by the p Patriarch as authentic. Both the judgments abound in thorough and careful analysis of difficult subject. The discussion is extensive and learned. But all this labour was lost when the appeal in the High Court was dismissed in consequence of the review judgment. It is true that the Bench while admitting the review petition had confined its scope but one it found that the excommunication was invalid for violation of principles of natural justice and question having been raised that the ordination of defendant no. 1 (that is catholico) as Malankara Metropolitan was invalid he was the Malankara trustee. Justice Chatfield with whom Justice Pillay agreed that, 'he (that is catholicos) did not forefeit these positions afterwards by any heresy or schism. The meeting of the Malankara Association which removed the 5th & 6th defendants (that is Patriarch) was presided over by

P.M.AMETROPOLITAN v. M.M. MARTIIOMA [RM. SAHA!, J.] 607

the Malankara Metropolitan and the reason given in the original judgment .;\. of this court for holding that their removal was illegal cannot therefore stand'. On these findings it was held :

"In the result therefore by reason of the decision on the contentions as to natural justice and apostacy the appeal must fail quite apart from the decision of the other questions in dispute in this suit. It would not be necessary to consider these other questions even if it were open to this court to do so in view of the orders already referred to. 11

The effect in law of this order, on review, was that the finding recorded by the High Court on the authenticity of the canon etc. in its original order ceased to be operative. But the learned counsel for the appellant vehemently urged that since the Bench which admitted the review petition had restricted its scope and made it subject to the findings recorded on the authenticity of the canon and the power of the Patriarch D to ex-communicate without any intervention by the Synod, the findings recorded on these aspects were not destroyed in consequence of the order passed on the review petition. The submission does not appear to be correct either legally or factually. When a review petition is entertained and notice is issued by a court it is open to it to restrict the scope of hearing but once the petition is heard and the court is satisfied that the order under review was erroneous at the fact of it then it is not precluded from allowing the petition and setting aside the findings which were earlier not permitted to be re-opened. After the review petition was admitted and the Catholicos were restricted from re-opening other points, an application was filed on their behalf which was rejected but while rejecting the application it was observed, 'if it is found that any of these questions is so legally·connected with the questions relating to natural justice that the latter questions cannot be properly dealt with without considering such excluded questions then for this purpose and for this purpose alone the excluded questions may be considered'. This observation of Chatfield, J. was concurred by other judges also. And when the review petition was heard on merits the court was of the opinion, 'these (These) orders did not prevent the defendants (that is Patriarch) from relying on contentions not expressly found in their favour in the original judgment and they have in fact relied on the conten- tions previously set up by them that the defendants 1 to 3 have become aliens to the faith of Syrian Jacobite Church and for this reason alone are H

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A capable of acting as trustees. The plaintiffs on the other hand have failed to show that any of the questions which have been declared to be excluded from consideration at the re-hearing are inseparably connected with these questions and thereupon in disposing of this appeal the excluded questions will not be referred to'. It is thus clear that the Bench heard the appeal B not only on the questions on which the review was entertained but even on other questions as the questions of natural justice and apostacy were closely connected with and could not be separated from the issues which had earlier been closed. It was after these observations that Justice Chat- field made the observations which have been extracted earlier. To argue, therefore, that the finding recorded in the earlier judgment by the High C Court the Ex.18 filed by the Patriarch group and relied as authentic canon survived, does not appear to be correct.

Even assuming, although there appears no doubt, that the finding recorded by the High Court in its earlier judgment on the authenticity of the canon survived, there is yet another reason to disregard it. If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on other issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains in on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Das, AIR (1917) PC 201 the Court while considering the expression, 'heard and finally decided' in Section 10 of the British Baluchis- tan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh, !LR (1897) Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of

P.M.A. METROPOLITAN v. M.M. MARTIIOMA [R.M. SAHAl,J.] 609

percentage had not been heard and finally decided in the suit of 1885. The A appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits. " The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the B finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary. On the same rationale, once the Royal Court of Appeal allowed the Review c Petition and dismissed the appeal as the ex-communication of Dionysius was contrary to principles of natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon ajld power of the Patriarch etc. recorded in the D earlier order could not operate as res judicata in subsequent proceedings.

Last but not the least reason to hold that the finding in the Vat- tipanam Suit recorded by the High Court in its original judgment op: canon etc. could not operate as res judicata is where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a E plea of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. v. Naresh Narayan Roy, AIR (1922) PC 241]. Mr. Parasaran, the learned senior counsel for the appellant, urged F that this is not an absolute rule as there is mutuality in res judicata and even the succeeding party is bound by the question decided against him. Reliance was placed on Mt. Munni Bibi & Anr. v. Tirloki Nath & Ors., AIR (1931) PC 114;V.P.R. V. Chockallagam Chetty v. Seethai Ache & Ors., AIR (1927) PC 202; Sham Nath Madan v. Mohammed Abdullah & Ors., AIR j (1967) J&K 85 and Arjun Singh & Ors. v. Tara Das Ghosh & Ors., AIR G (1974) Patna 1. The two Privy Council decisions do not appear to be of any assistance as the first one, Mt. Munni Bibi (supra), is the· leading decision on the principle of res judicata amongst co- defendants. True the Patriarch and Catholico were co-defendants and there was lis too but in view of the finding on natural justice and apostacy the finding on other H

610 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A issues was rendered unnecessary. The rule of res judicata amongst co- defendants is also governed by those rules which apply to normal rule of res judicata. The decision in Clwckalingam Chetty (supra) is an authority for the principle that where an appeal is filed without impleading a defendant through whom other defendants derived title then the decision in his favour operates as res judicata between plaintiff and other defendants as well. Similarly, in the decision of the Patna High Court in A1ju11 Si11gh (supra) the primary question was whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision was in his favour and it was held that there was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts it was found that the Appellate Court while maintaining the order of dismiss- al of the suit on preliminary issue recorded findings on other issues which were against the plaintiff, yet the plaintiff was not entitled to file an appeal as the findings on merits which were adverse to him could not operate as res judicata. In Sham Nath's case (supra) the learned Single Judge rejected the plea of res judicata raised on behalf of the plaintiff, but while consider- ing the alternative argument, observed that an adverse finding recorded against a defendant in a suit dismissed could not operate as res judicata unless the adverse finding formed a fundamental part of the decree itself. None of the decisions, therefore, are of any help to ! he appellant. In any case the findings on cannon or power of Patriarch which were the findings adverse to the Catholico could not form fundamental part of the decree itself, therefore, it could not operate as re judicata. Truly speaking, the findings on the authenticity of the canon and the power of Patriarch etc. recorded in the earlier judgment and the finding on apostacy and breach of natural justice recorded in the review judgment could not go together. F Otherwise in Mora11 Mar Besse/ios (supra) it would not have been possible for this Court to come to a finding that the findings recorded on Issue Nos. 14 15, 16 and 19 in the Vettipanam Suit operated as res judicata in the Samudayam Suit. The finding recorded by the learned Single Judge and the Division Bench, therefore, that, 'the decision in XLI T.L.R. that Ext.18 there in (Ext.BP in the Samudayarn case and Ext. B161 in these cases) is G the version of Hudaya canons accepted as binding on the Malankara Church has not become concluded and does not operate as res judicata between the parties', its well founded.

Could the finding ou the authenticity of the canon be relied as a H precedent? For that it must fall either under Section 42 or Section 43 of

P.M.A METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.J 611

the Indian Evidence Act. Section 42 which makes any judgment relating to A public nature admissible itself provides but 'such judgments are not con- clusive proof of that which they state'. Section 43 makes a judgment admissible if existence of such a judgment is in issue. In Kumar Gopika Raman Roy v. Atal Singh & Ors., AIR (1929) PC 99, it was held that 'the Indian Evidence Act does not make finding of fact arrived at on the· B evidence before the court in one case evidence of that fact in another case'. In Benode Lal v. Secret01y of State, AIR (1931) Calcutta 239 where the law was clearly explained, it was observed, 'when an appeal is taken against a decree, the decree of the lower gets merged in the decree of the Appellate Court and so the judgment of the trial court is not final adjudication on the point in issue between the parties in the suit'. The Court further observed that even assuming that, 'the existing judgment may be relevant, but the truth of it, by which it is understood, the decision of the Judge and the opinion expressed by him, is not relevant'. Applying these principles once the appellate judgment was set aside, the appeal was dismissed and the order of the trial curt was maintained, the findings recorded on canon etc. in the appeal could not be relied.

That is why when he suit was file din 1938, that is the Samudayam Suit, the parties joined issue, once again, on the authenticity of the canon and the Court framed the issue as to which was the correct and genuine version. No issue about res judicata was raised hy the Patriarch. Coinciden- E tally same story was repeated, the Trial Court accepting the version filed by the Patriarch. But when the matter came to this Court in 1959 it while considering the objection of Patriarch that by inserting Clause 5 in the Constitution the Catholicos were guilty of heresy as it was contrary to the authentic version produced by them did observe that for deciding this p aspect it was necessary to decide the issue which related to authenticity of the version. Since this Court had not recorded any finding itself on the authenticity of the canon the dispute again arose, when these suits were filed, about the authenticity of the canon and the findings and conclusions recorded in earlier suits that is the Vattipanam Suit and the Samudayam Suit and whether any one of them operated as res judicata. It has already G been explained why the findmgs recorded in Vattipanam Suit could not operate as res judicata. or the finding could be treated as binding prece- dent.

Can the same be said about the finding in the Samudayam Suit? It H

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A is not disputed that the Trial Court not only framed Issue No. 13 but even recorded specific finding tbat the canon produced by the Patriarch group was not the authentic version. But its binding effect was rendered nugatory both according to the Division Bench and the learned counsel for the appellant because when this Court restored only the decree of the Trial B Court and not judgment then the findings recorded by the Trial Court could not be taken to be binding or final. Two legal questions, therefore, arise one, whether the authenticity of the canon was directly and substan- tially in issue and second the effect of restoration of the decree of the Trial Court. The first was answered by this Court itself while adjudicating upon the plea advanced on behalf of the Patriarch group to support the judgment C of the High Court. To appreciate it, it is appropriate to extract Issue No. 13 which reads as under :

"13. Which is the correct and genuine version of the Hoodaya Canons compiled by Mar Habraeus? Whether it is the book marked as Ext.A or the book Marked as Ext.XVIII in O.S.91 of D 1088."

Issues Nos. 19 and 20 related to as to whether the defendants, that is, the Catholicos formed themselves into a separate Church and whether the acts mentioned under the Issues constituted separation. This Could did not E permit the appellants, that is, Patriarchs to support the order of the High Court on the ground that insertion of clause 5 in the Constitution of 1934 was contrary to canons, as it was not raised in the pleadings. Nor did the Court find any merit in the submission that Issues Nos. 13 and 16 which related to loss of status as members of the Church was wide enough to f include it. But it held that reference to pleadings would indicate why Issue No. 13 was raised. It further found that to decide Issues Nos. 16, 17, 19 and 20 it was, 'absolutely necessary to determine which is the correct book of canons, for the plaintiff (that is the Patriarch Group) founded their charges on Ex.B.P. - Ex. 18 in O.S. No. 94 of 1088 and the defendants took their stand on Ex.26 - Ex. A in O.S. No. 94 of 1088. Issue No. 13 was directed to determine that question'. The issue whether the Hudaya canon filed by the Patriarch Group as Ex.18 in the earlier suit and as Ex. BP in the present was authentic was not only directly and substantially in issue but as held by this Court was necessary to be decided for the principal and the main dispute which arose in that case. In the circumstances it is difficult to agree with the Division Bench, that, 'this does not mean that findings

P.M.A. METROPOLITANv. M.M.MARTHOMA [R.M:SAHAl,J.] 613

were really relevant or necessary for the ultimate decision in the litigation by the Supreme Court. Issue Nos. 14 to 17 and 19 and 20 were raised by the plaintiffs and had to be decided'. The Trial court no doubt observed that it was not necessary to decide. the issue in the broad and general sense but it held that the discussion and conclusions in the earlier suit that in Vattipanam Suit on the question of canon did not operate as res judicata. B It did make some observations which furnished occasion to the appellants to urge that once the Court found that it was not necessary to decide the larger issue it should not have discussed the smaller one only because additional evidence had been led and the counsel had argued the matter. But this submission cannot he accepted as in view of the observation made by this Court that the finding on Issue'No. 13 was necessary the observa- C tions lose importance. And the finding if recorded by the Trial Court would have to be accepted and_ any observation to the contrary ignored. The finding of the Trial Court on Issue No. 13 was that no Hudaya canon book approved as authentic and genuine by the Patriarch was ever supplied to the Malankara Sabha and the manuscript were of questionable origin and it could not be shown that,

"either in Malankara or in Syria or Turkey or other places under the Patriarch or any where in the Jacobite church outside Malankara, there is or has been in existence and in use any version of the Hudaya canon corresponding to Ext. BP or that such a version has been approved and accepted by the Jacobite church as a correct version".

[Emphasis supplied] F In appeal (The Most. Rev. Mar Pou/ose Athanasius & Ors. v. Moran Mar Basselios Catho/icos & Ors., (1957) KLT 63) the findings recorded by the Trial Court were not set aside, on merits but the canon filed by Patriarch was accepted as authentic since, 'in the final judgment after review the question of natural justice alone was considered and decided and this G means that the earlier finding on the question of canons, which was a matter directly and substantially in issue in this suit, was accepted as correct even for the purpose of the final decision on the question of natural justice. Thus by implication the finding on the question of the canons forms an integral part of the final decision in 45 T.L.R. 116 because, without maintaining the finding, the question of natural justice could not have H

614 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A arisen at all'. But that judgment did not and could not operate as res judicata for reasons explained earlier. The judgment of the High Court in 171e Most. Rev. Mar Poulose Athanasius & 01!. v. Moran Mar Bassaelios Catho/icos & Ors., (1957) KLT 63. was reversed by this Court. It was held that Catholico had not become heretic or separated from the Church. But B for recording this finding the decision on Issue No. 13 was as observed by this Court necessary. Therefore, the appellate judgment of this Court precluded the Patriarch from claiming that the Hudaya Canon filed by them was authentic as the earlier judgment operated as bar to this plea as once this Court recorded the finding that the Catholico had not separated the finding on Issue No. l3 stood affirmed even though it was not referred since the finding on the Catholic having become heretic or separated from the Church depended as observed by this Court itself, on finding on Issue No. 13. If the finding of the trial court on Issue No. l3 was necessary for deciding whether the Catholico had become heretic and that finding was affirmed in the review judgment then the finding of the High Court in its earlier judgment on the authenticity of the canon cannot stand. It could neither be res judicata nor a precedent.

The next aspect is the legal effect of rest~ration of decree of the Trial Court. Did it result in revival of the findings on authenticity of the canons as well. The Division Bench held that, 'once an appeal is disposed of it is the appellate judgment which should be considered for the purpose of deciding the question of res judicata. Appellate judgment supersedes the judgment of the trial court, and it is no longer open to look into the judgment of the trial court except to the extent it might have been specifi- cally confirmed by the appellate court. See Benodial Chakravarthy v. p Secreta1y of State for India, AIR (1931) Cal. 239 and Ve11kiteswarnlu v. Venkitanarasimham and Others, AIR (1967) A.P. 557. The reasoning that once an appeal is taken to higher court then it is the appellate decree which is final and binding cannot be faulted with. But the other observation that the findings of the Trial Court cannot be locked into except to the extent it might have been specifically confirmed is not wholly correct. None of the decisions referred in the order support it. The Calcutta decision has already been referred to. In Venkateswarlu v. Venkata Narasimham & Ors., AIR (1957) Andh. Pradesh 557, the High Court observed, 'Now the appel- late court rested its conclusion not on the ground that Ex.A-1 was unsup- ported by consideration but on the ground that the transaction was such as not to bind the joint family. Though the trial court found that the

P.M.A. MEIBOPOLITANv. M.M. MARTIIOMA (RM. SAHA!, J.) 615

consideration for the sale Ex.A-1 was wholly fictitious, the appellate court did not give a finding upon that question but confirmed the decree of the trial court on the ground that the sale was for a consideration not binding on the joint family'. But what the Division Bench ignored was that the High Court did not look into the earlier judgment as the order was upheld on a different ground, therefore, it could not be held that it was express or implied approval of the decision of the Trial Court. In Narayanan Chetty v. KannammaiAchi & Ors., !LR Madras (1905) Vol. XXVIII which is more in point it was held :