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

"An appellate judgment operates by way of e.'toppel as regards all fmdings of the lower Court, which though not referred to in it, are necessary to make the appellate decree possible only on such fmdings."

This Court having held that Issue Nos. 14 to 20 could not have been decided without a decision on Issue No. 13 and set aside the order of the High Court and restored the decree of the Trial Court the finding recorded by the Trial Court on Issue No. 13 has to be read as part of appellate judgment rendered by this Court.

Even otherwise there is no power in canon produced by the Patriarch for excommunicating a Catholico. In fact it could not be. All this controver- E sy was raised, with respect, without having regard to it that the canon framed in 13th Century could not have provided for ex-communication of Catholico of East who was himself visualised as high spiritual authority no doubt lower in hierarchy to Patriarch of Antioch but otherwise not sub-or- dinate to him. In absence of any such express provision in the canon, the Patriarch of Antioch could not exercise this power as even if it was .there it did not mention Catholicos. Who could exercise this power is not necessary to be gone into. Suffice it to say that where scriptures are silent the courts cannot substitute their own opinion but when the excommunica- tion of high spiritual authority is involved which, as seen earlier, has serious repercussion not only on the individual status of the man but also of religious society, then such an action by a general body of ecclesiastics like a properly requisitioned Synod of all the groups may have that sanctity which may compel the courts to stay its hands. But the Synod summoned at Damascus was certainly not empowered to excommunicate.

There is one additional feature in this case that Clause 5 of the H

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

A Constitution framed in 1934 read as under :

"5. The Canon accepted by this church is the Hudaya canon of Bar-Hebreaus (This is the Canon that has been printed in Paris in 1890)."

B This Constitution has been upheld by this Court in Moran Mar Basse/ius (supra). It is now binding on the Syrian Christians. Any action taken against the respondent contrary to it could not have been upheld. Religious persons in all religions have been men of great learning and character. Spiritual superiority emanates from purity of character. Any C person elected or nominated to such high spiritual office as Catholicate of East could not be subjected to ex-communication. That is why the Canons did not contain any provision. The entire proceedings of ex-communica- tion, therefore, were unsustainable. If the spiritual heads of such high stature start ex-communicating each other, it may not be conducive for the religious order. That is why even though the Sultan of Turkey withdrew the Firman issued in favour of Abdul Messiah, the court in absence of any material to show that such withdrawal resulted in deprivation of his spiritual superiority refused to act upon it. Apart from it, once a Constitu- tion for Malankara Association was framed, accepted and upheld by the Court, the ex-communication, if any, could be in exercise of that power only. The power to ex-communicate can be exercised by a spiritual head either when the scriptures specifically permit it or it is in respect of the authorities which function under him and are subordinate to it. Normally in religious matters such decisions depend either on the text and if there is no text on the Constitution of the trust or on convention developed in course of time. From the history of Orthodox Syrian Church, it appears such important decisions are taken by the synod that is a general body of bishops, vicars, clergies etc. and, therefore, before ex-communication can be held to be valid two things were required to be proved, one, that such power existed either in the spiritual head or in the general body and the power was exercised in respect of a person or holder of an office for whom it could be exercised. It has already been indicated that in consequence of Ex. A-14 the Kalpana issued by Abdul Messiah the entire power, spiritual or temporal, which was exercised by the Patriarch of Antioch was conferred on the Catholico of the East. The only relation which was to be observed in future was the communion of the two. In fact if the history is traced from the Mulunthuruthy Synod held in 1876 to 1912 then it is

', P.M.A. METROPOLITAN v. M.M. MARTIIOMA [RM. SAHA!, J.l 617

apparent that Catholicate of the East was not treated as subordinate to the A Patriarch of Antioch. He exercised same spiritual and temporal powers as Patriarch but with respectful communion. The ex-communication thus cannot be upheld ca11onically, traditionally or constitutionally. It was viola- tive of the norms which are mandatorily required to be observed conven- tionally. B Having dealt with ex-communication, the controversy about spiritual and temporal powers of the Patriarch and Catholicos, their inter-relation- ship and the extent to which they have become final by earlier decisions, particularly Moran Mar Basselios (supra) and operate as res judicata, may be examined. The pleadings of the parties giving rise to various issues and the questions framed by the Division Bench and answered by it have been extracted in extenso. The crucial issue that had been argued was whether the direction of this Court in Moran Mar Masselios (supra) 'that the judgment of the Kerala High Court is set aside, the decree of the trial court dismissing the suit must be restored', resulted in restoring the decree and not the judgment, therefore, any fmding recorded in that suit could not operate as res judicata. In Satyadhya11 Ghosal & Ors. v. Sm Deoraji11 Debi & Anr., (1960) 3 SCR 590 this Court insisted on finality in the strict sense of the term and observed as under :

"The very fact that in future litigation it will not be open to either of the parties to challenge the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term".

This was affirmed by a Constitution Bench in The Mysore State Electricity F Board v. &ngalore Woollen, Cotton and Silk Mills Ltd. & Ors., [1963] Supp. 2 SCR 127 and it was observed :

"It is well settled that in order to decide whether a decision in an earlier litigation operates as res judicata, the court must look at G the nature of the litigation, what were the issues raised therein and what was actually decided in it..... it is indeed true that what becomes res judicata is the "matter" which is actually .decided and not the reason which leads the court to decide the 'matter'."

These observations are well settled and reiterate established principle laid H

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

A down by the courts for the same, sound and general purpose for which the rule of res judicata has been accepted, acted, adhered and applied, dictated by wisdom of giving finality even at the cost of absolute justice. In a recent English decision - Ampthill Peerage Case, [1976] 2 All England Law Reports p.411, finality at cost of fallibility has been graphically described B at pages 423 and 424 thus:-

"Our forensic system, with its machinery of cross-examination of witnesses and forced disclosure of documents, it characterised by a ruthless investigation of truth. Nevertheless, the law recognises that the process cannot go on indifinitely. There is a fundamental c principle of English law (going back to Coke's Commentary on Littleton) generally expressed by a Latin maxim which can be translated: 'It is in the interest of society that there should be some end to litigation'. This fundamental principle finds expression in many forms. Parliament has passed Acts (the latest only last year) D limiting the same within which actions at law must be brought. Truth may be thus shut out, but society considers that truth may be bought at too high a price, that truth bought at such expense is the negation of justice. The great American Judge, Story, J. delivering the judgment of the Supreme Court of the United States . ,. in Bell v. Monison, called the first of these Acts of limitation 'a E statute of repose'; and in England Best CJ called it 'an act of peace' (A'Cowt v. Cross). The courts of equity, originally set up to make good deficiencies in the common Jaw, worked out for themselves a parallel doctrine. It went by the technical name of !aches. Courts of equity would only give relief to those who pursued their remedies with promptitude. Then, people who have long enjoyed possession, even if they cannot demonstrate a legal title, can rarely be dispossessed. Scottish law goes even further than English: delay in vindicating a claim will not only bar the remedy but actually extinguish the right. But the fundamental principle that it is in society's interest that there should be some end to litigation is seen most characteristically in the recognition by our law- by every system of law- of the finality of a judgment. If the judgment has been obtained by fraud or collusion it is considered a nullity and the law provides machinery whereby its nullity can be so estab- lished. If the judgment has been obtained in consequence of some procedural irregularity, it may sometimes be set aside. But such

P.M.A. MEIBOPOLITANv. M.M. MARTHOMA (R.M. SAHA!, J.I 619

exceptional cases conclude the matter. That, indeed, is one of society's purposes in substituting the law suit for the vendet- ta .....And once the final appellate court has pronounced its judg- ment, the parties and those who claim through them are.concluded, and, if the judgment is as to the status of a person, it is called a judgment in rem and everyone must accept it. A line can thus be drawn closing the account between the contestants. Important though the issues may be, how extensive so ever the evidence, whatever the eagerness for further fray, society says: 'We have provided courts in which your rival contentions have been heard. We have provided a code of law by which they have been adjudged. Since judges and jun·es are fallible human beings, we have provided appellate courts which do their own fallible best to con-ect error. But in the end you must accept what has been decided. Enough is enough'. And the law echoes: 'res judicata, the matter is adjudged'. • The judgment creates an estoppel - which merely means that what has been decided must be taken to be established as a fact, that the decided issue cannot be reopened by those who are bound by the judgment, that the clamouring voices must be stilled, that the bitter waters of civil contention (even though channeled into litiga- tion must be allowed to subside".

[emphasis supplied] E

Such is the principle of finality. True that the questions must have been adjudicated stricto senso as observed by this Court. Conclusiveness accord- ing to the learned counsel applied to decree and not the judgment. For reasons given while discussing the authenticity of canons, it is difficult to agree that once decree of the trial court was restored it did not result in making the findings operative which were basis of the decree, except to the extent it was expressly or impliedly set aside by this Court. ·

Therefore, the judgment of this Court in Moran Mar Basselios (supra) would preclude the parties from agitating those issues which have been concluded. Effect of the judgment delivered by this Court in 1958 on the rights of Catholicos was twofold, one their status was defined and two, their relationship with Patriarch of Antioch was explained. What stands out clearly from the decision after decision rendered right from 1899 to 1959 is that the Patriarch of Antioch is the spiritual bead of the Syrian Orthodox H

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

A Church. It was held so clearly in the appeJlate judgment of the Royal Court of Appeal. It was reiterated in Court of Appeal judgment delivered in 1905. In the Interpleader Suit filed by the Secretary of State the claim of Catholicos was upheld. The findings recorded therein were held to operate as res judicata in Moran Mar Basselious (supra) which arose out of a suit B filed by the Patriarch Group as far back as 1938. The claim of the Patriarch that the Catholicos had becomes heretics and ceased to be members of the Syron Orthodox Church, was repelled. The Court held that the reduction of power of the Patriarch of Antioch to 'vanishing point', ipso facto did not constitute heresy nor it amounted to voluntary separation of setting up a new Church. But the most vital finding was that the creation of Catholicate C of the East of Abdul Messiah, the disentitled Patriarch of Antioch, by Kalpana, Exhibit A-14 (latter order) issued in 1912 was not invalid. The result of creation of Catholicate of East with power to ordain metropolitan and perform aJI those functions which could be performed by Patriarch Antioch was that even the spiritual power which was held to be vesting in D him in earlier judgments stood reduced to 'vanishing point'. What is meant by this expression shaJI be explained later. The verdict was accepted by the Patriarch himself when he issued Kalpana-Exhibit A-19 after the Supreme Court decision to bring peace. The specific objection on behalf of the Patriarch that "the re-establishment of the Institution of the Catholicos in the East in Malabar having jurisdiction over India, Burma and Ceylon" was E "different from the Catholicate that was the subject-matter of Interpleader Suit" was repeJled by this Court in Moran Mar Basse/ios (supra) and it was observed at page 48 as under:-

"We do not think there is any substance whatever in this contention. A reference to paragraphs 30 and 31 of the written statement F clearly indicates that the institution of Catholicate, which is relied upon by the defendants, is no other than the Catholicate estab- lished in Malabar in 1088 by Patriarch Abdul Messiah''.

Relevant clauses of 1934 Constitution declaring the status of Patriarch and G Catholicate in the Malankara church are extracted below :- "l. The Malankara Church is a division of the Orthodox Syrian Church and the Primate of he Orthodox Syrian Church is the Patriarch.

H 2. The Malankara Church was founded by St. Thomas the Apostle

P.M.A. METROPOLITAN v. M.M. MARTHOMA [R.M. SA.HAI, J.) 621

and is included in the Orthodox Syrian Church of the East and the A Primate of the Orthodox Syrian Church of the East is the Catholicosn.

The basis for it was the Kalpana issued in 1913, the relevant portion of which is reproduced : B "We commend you into the hands of Jesus Christ, our Lord, the Great Sherpherd of the flock. May He keep you! We rest confident that the Catholicos and Metropolitans - your shepherds - will fulfil all your wants. The Catholicos, aided by the Metropolitans, will ordain melpattakkars, in accordance with the Canons of Our Holy C Fathers and consecrate Holy Morone. In your Metropolitans is vested the sanction and authority to install a catholicos, when a catholicos dies. No one can resist you in exercise of this right and,

-· do all things properly, and in conformity with precedents with the advice of this committee, presided over by Dionysius, Metropolitan of Malankara. We beseech our Lord Jesus that Ye fain( not in your D true faith of Saint Peter, on which is built, the holy Catholic and Apostolic Church. What we enjoin your true love is that the unlawful conduct of a usurper, may not induce you to sever that communion which is the bond of love connecting you with the Apostolic Throne of Antioch". E

Relevant portion of Exhibit A-19 issued hy Patriarch after the decision of the Court read as under :-

"To bring forth peace in the Malankara church we hereby accept with pleasure Mar Baselious Gheevarghese as Catholicose". F

The combined reading of these documents along with the findings recorded by this Court in Moran Mar Basse/ios (supra), thus, leaves no doubt that Catholicate of East whether due to disuse of the Catholicate which, un- disputedly, existed at Tigris or because of creation of a new one by the G Kalpana of 1912 or for any other reason did come into existence. The power and jurisdiction to be exercised by such Catholicate is spelt out from the Kalpana A-12 and A-13 and the Constitution of 1934. In fact, going by the history it was nothing new or unusual as it has already been narrated that even in the first Eccuminical Council when Patriarch of Antioch was created, the Catholicate of the East was also created and he was entrusted H

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

A with the power and prerogative to manage the affairs or Eastern Churches subject to that Patriarch of Antioch was common and could exercise all the functions. Then from 1654 tu 1800 the ordination of Bishops in Mafabar used to take place by the delegates of the Patriarch. Even though after 1810, i.e. the Cochin Award, the individual persons went to Antioch and got themselves ordained which was accepted as well, but due to its disuse and in any case after issuance of Kalpanas in 1912 and framing of the Constitution the controversy arose whether the supremacy in spiritual matters also was not reduced to 'vanishing point'. It was negatived by the Court as it was held that it was not so and nor any separate Church came into existence. The documents which have been referred earlier if properly construed and the course of activity, thereafter, is stndied in correct perspective, then the Syrian Church in Malabar and the Patriarch of Antioch, the two authorities with nearly same spiritual powers, one local and the other at Syria entered into relationship of happy communion between the two. This communion meant that each was supreme, but if both of them were present then it was the Patriarch of Antioch who was higher in the hierarchy. In religious orders the two supreme authorities one ·- highest and the other higher without the latter being subordinate is not unknown. This was the change in the power and prerogative of Patriarch as compared from 325 A.O. where he had the supreme power. But this change has been recognised, accepted and acted upon. Further, now the relationship is governed by a Constitution which has been held to be valid.

This was fairly observed. Between 1912 to 1970 four Catholicos were appointed, the first B. Paulose I by Abdul Messiah in 1912, second Bas- selius Gheevarghese I in 1924, third in 1929 after the Vattipanam Suit, F fourth Mar Ougen I in 1964. What is significant is that second and third were not installed by or with the consent of Patriarch. And the fourth was installed after the judgment of this Court in Moran Mar basse/ios (supra) by the Malankara Synod presided over by the Patriarch Yakub III. But what led to filing of suits by members of the Catholico group and the Catholico himself and successors-elect was the wrongful consecration by G the Patriarch of Paulose Athanasius on 3.9.1973 (the first ordination by the Patriarch after 15 years). Original Suit no. 274 of 1973 filed in the District Court was numbered as O.S.No. 2/79 in the High Court. The suit was filed as Paulose Athanasius had never been elected by the Malankara Associa- tion and, therefore, was not entitled to function as Metropolitan in the H Malankara Church. In view of the findings recorded by the Travancore

P.MA METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.] 623

Royal Court of Final Appeal pronounced on July 12, 1889 that a A Metropolitan of the Jacobite Syrian Church could be a native of Malabar consecrated by the Patriarch or the delegates and accepted by the people to be entitled to be spiritual and temporal head of the local Church, which finding was endorsed by the Court in 1958, the suit was filed to prevent Athanasius from interfering with administration of the Malankara Church B and any of its constituent diocese including the Kottayam Diocese, as he was neither qualified nor entitled to be appointed. Since the Patriarch ordination created the apprehension and the defendants threatened to act on strength of his ordination from the Patriarch of Antioch the Court granted an injunction in October 1973 restraining him from interfering in the administration of the Malankara Church. As a sequel to this injunction C a show cause notice was issued on 30th January, 1974 by the Patriarch against the first plaintiff leveing various charges and describing the action of the plaintiff as uncanonical and a challenge to the authority of the Patriarch. The matters thereafter grew worse and when the Patriarch ordained two more bishops the Catholico Mar Ougen I and Catholico-elect D Mathew Athanasius filed Suit No. 142/74 which was re-numbered in the High Court as 0.S.No. 4/79 once again protesting against the direct ordina- tion by the Patriarch of Bishops not accepted by the Malankara Associa- tion. In this manner nearly 8 suits came to be filed by the Catholico Mar Ougen 1 along with his successor-elect Mathew Athanasius. The main defence in the suits apart from others was that the plaintiff had been E ex-communicated. Both the learned Single Judge and the Division Bench did not find any merit in the claim that after the death of first plaintiff the third plaintiff who was successor-elect was not entitled to continue the suit. It was held that they were not apostate and aliens to the Jacobite faith and the decision of the Universal Episcopal Synod and the Syrian Orthodox F Church held from 16.6.1975 was not in accordance with the rule of the Church. The judgment thus in Moran Mar Bassi/ios (supra) and the find- ings recorded by the trial court to the extent it was not set aside by this Court, operative as res judicata.

Two more issues remain, one the nature of Parish churches whether G they are congregational, episcopal, voluntary association or autonomous bodies, public charities or private charities and their relation with the Malankara Association; second, legal status of the Patriarch of Antioch whether he is a corporation sole as argued by Ms. Lily Thomas the learned counsel for the intervener, and if to, his rights, privileges and prerogative. H

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

A Taking up the issues on Parish Churches and whether they are autonomous - units, the constitution and the status of he Parishes may be discussed ??.

A Parish Church is a, 'district committed to the charge of one incumbent having the cure of souls in it'. [Halsbury's Law of England, Vol. B 14 para 534]. 'The ancient parishes appear to have been gradually formed between the 7th and 12th or 13th Centuries. Their boundaries seem to have been originally identical with or determined by those of manors, as a manor very sarfdom extends over more than one of these parishes, although in many cases one parish contains two or more manors. Besides being ec- clesiastical units, ancient parishes have been at different periods, and in C many cases still are, administrative areas for various civil purposes, al- though the boundaries for parishes for civil purposes have in many cases been altered under statutory authority'. [Halsbury's Laws of England Vol. 14 para 535]. 'The word 'Parish' was in use as early as the third century, but it was at that time equivalent to the term Diocese (which see). In D primitive time the diocese of a bishop was neither more nor less than what is now called a Parish; and even when the jurisdiction of bishops had become extensive, the diocese long continued to be called the parish. Afterwards the word was limited to the district attached to a single church over which a presbyter presided, who was hence called parochus ...... . During this formation of the parochial system, the ....... measures were E adopted to retain these churches in a state of dependence on the mother or cathedral church. The diocesans, however, were often obliged to allow the parish churches a greater degree of independence than they were of their own accord willing to concede to them ...... For sometime after the first introduction of the parochial system, the revanues of a diocese con- F tinued to be regarded as a whole the distribution of which was subjected to the bishop; that is to say, whatever obalations or the like were made in parish churches were paid into the treaswy of the cathedral church, as the one heart of the body and thence distributed among the clergy after the claims of the parish had been satisfied [emphasis supplied]. This arrangement remained generally in force until the end of 5th century, many parish G Churches having in the meantime greatly increased in wealth by means of bequests and donations and having come into the receipt of considerable obalations ...... But in the course of the sixth century the revenues of the parochial clergy came to be considered simply as their own, the bishops being obliged to relay their hold of them' Faiths of the World, by James H Gardner p.617.

P.M.A. METROPOLITAN v. M.M. MARTH OMA [RM. SAHAI. J.] 625

A Parish Church, thus, is an ecclesiastical authority operating in a A specific area. But they are of a religious order. Their autonomy, their financial powers, their administrative control have been thus different in different ages depending on the terms of creation of the trust, the purpose and objective of its establishment, the personality of the person occupying it, the financial strength of it etc. The Syrian Churches, as the history narrated earlier indicates, were established for religious worship and public charity and every church, small or big, claimed that its spiritual head was the Patriarch of Antioch. OW- 28 - Gheevarghese Moran Mar Basselios II who was ordained as Metropolitan by Abdul Messiah and examined in O.S.No. 111/1113 and on whose testimony reliance was placed by the appellant, stated that the Churches are established after obtaining sanction of the Metropolitan and the Government.

When the Malankara Association was formed in the Mulunthuruthy Synod a resolution was passed constituting 8 of the priests assembled there and 16 of the laymen of the fi;st class with the ruling Metropolitan as D President entrusted with the complete responsibility of management for • I every matter connected with th~ common religious and communal affairs of the entire Syrian .community. The other resolution passed was that the 'committee shall have liberty to collect other amounts as well in addition to the amounts above mentioned to cause its increase, to make sub-com- mittees and to do everything beneficial'. In respect of administration of property it was resolved that 'for altering the existing rules relating to the administration of the property belonging to, the church and to the Syrian community, and for enacting new laws for the same, for examining and approving the accounts of the various churches, for confirming the epithopas (stuarts of the Church) of the respective churches decided by the Yogam, for printing the books useful and necessary for the community, for repairing the churches which have fallen into disrepair, for building new churches and for erecting schools, the above said committee shall have full responsibility'. The Committee was further entrusted with responsibility to _ collect and send the "Ressissa" due to His Holiness the Patriarch, to collect the 'Kaimuthu and other income due to the metropolitans from the chur- ches and in case it was not sufficient to find other ways for the same and also for maintenance of the Dayaras (Monasteries), to effect payment of salaries to the vicars according to the capacity of the parish and pay the salary of the Secretary and others. Thereafter when the Constitution of 1934 was made a full chapter was devoted to the Parish church. The H

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

A detailed procedure was given about the membership, maintenance of register, the payment of subscription, the convening of the Parish Assembly meeting, the duration at which the Assembly should meet in a year and the manner in which the fund was to be spent. It was also provided that the Vicar shall report to the diocesan Metropolitan about the election of the B Parish Committee which shall not have any authority to take any decision in matters relating to religion which shall be referred to the Diocesan Metropolitan. Right of appeal was also provided to Metropolitan. Clause 37 provided that when the Diocesan Metropolitan came to the Church on his Parish visit he shall sign the register maintained in every Parish of moveable and immoveable properties. All this indicates that the Parish C Churches were under the control and supervision of the Metropolitan. This I-

Constitution was amended in 1967 with participation of Patriarch group and apart from reiterating what was said in 1934 it was provided in Clause 120 that Vicar of every Parish Church shall collect 'Ressissa' at the rate of 2 annas every year from every male member who has passed the age of 21 D years and shall send the same to the Catholico. The Constitution further contemplates entire hierarchy in which the Catholico and metropolitan were placed at the highest. From the scheme unfolded by the Resolution passed in the Mulunthuruthy Synod read with the Constitution it appears every syrian Parish Church even though established independently has necessarily to have relation with the Malankara Association. The relation- E ship between the two that is, the Parishes and the Malankara Association has been subject matter of consideration in every decision which came up before the courts. Even in the suit out of which this appeal has arisen the issues framed were whether Parish Churches were independent and autonomous units and whether the administration and conduct of their F affairs and their assets were to be under the immediate control, direction and supervision of the Diocesan Metropolitan as provided for in the Constitution and whether vicars, priests and office bearers in Parish Chur- ches had to be approved and appointed by him or the Metropolitan had only spiritual supervision and no temporal control. Both these issues were decided by the learned Single Judge in favour of the Parish Churches. But G the Division Bench after elaborate discussion of law and fact held, 'Parish Churches' were 'not congregational or independent' and the Constitution is valid and binding on the Malankara Association, community diocese as well as Parish Churches and Parishes.

H Whether the finding is well founded or not and whether the Division

P.M.A. METROPOLITAN v. M.M. MARTIJOMA [RM. SAHA!. J.) 627

Bench was justified in further recording the finding that the Malankara A Church was episcopal to a limited extent, only, shall be adverted presently, but before doing so it is necessary to deal with one submission of Mr. Parasaran on this aspect at the outset, which was more preliminary in nature, as to whether the relief sought by the plaintiffs that the Malankara Church was episcopal in character was lo a Union or Federation of B Autonomous Church Units and was governed in its administration by the Constitution of the Malankara Church could not be granted in absence of impleadment of each Parish Church. Prima facie the submission appeared attractive but a closer scrutiny of the pleading demonstrates that the nature of Parish Churches was very much in issue of which parties were aware and the suits were tried on the footing whether Parish Churches were autonomous or not. In any event, it is worthwhile referring to the pleading.

In paragraph 11 onwards of the Plaint (in Original Suit No. 142174 re-numbered as Original Suit No. 4179 in the High Court) it was averred that the Malankara Church consisted of an aggregate of about 15 lakhs of worshippers worshiping in more than 1000 Parish Churches. A list of churches was appended to the Plaint. It was claimed that each Church founded became a constituent of the Malankara Church a well established religious community administered under the authority of the Malankara Metropolitan. It was claimed that the Parishioners of each Church were entitled to the benefits from the Church and its properties. The Malankara E Church was neither a Union with a Federation of Congregational Units but a Church with a unique solidarity derived form apostolic succession and authority of Malankara Metropolitan and the doctrines and creed followed by the Church. It was alleged that the Constitution of 1934 was binding on every Church and the temporal, ecclesiastical and spiritual powers of the F administration vested in the Malankara metropolitan who invariably in a native of Malankara or elected by a group by the community. In paragraph 19 it was averred that defendants were impleaded in their individual capacity and as representatives of Malankara Jacobite Syrian Christian Association. Permission to sue in representative capacity under Order 1 Rule 8 was also sought. G

In the written statement filed by different defendants the entire claim of the Catholicos was denied. The averments went to the extent of denying establishment or revival of Catholicate in Malabar. The basic claim was that the Catholicate of East was deputy to the Patriarch of Antioch. It was H

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

A alleged that Syrian Christian Association formed at the Mulunthuruthy Synod was given the power to take decisions on common matters ''of the community but it was not vested with any power over the individual Parish Churches or their administration. It was alleged that no Parish Church has surrendered their powers of administration to the said Association. It was B claimed that Parish Churches and their properties belonged to the respec- tive Parishioners and the plaintiffs or the hierarchy in the Malankara Church had no manner of right, title, possession or management over these Churches. ll was denied that the Parish Churches and other Churches mentioned in the list Were constituents of the Malankara Church and that the Malankara Metropolitan had the authority to administer all those C Churches. Written statements were filed. The defendants raised all possible defence even contrary to earlier decision. Different written statements were filed by different defendants including the two, that is, Knanaya Associa- tion and Evangelistic Association which were impleaded on their own instance. These averments would indicate that the parties were very much D at issue on the question whether Parish Churches were constituents of Malankara Church or not. That is why when applications were filed on behalf of the Parish Churches for being impleaded as party it was rejected and the dispute became final after the High Court held that it was not necessary to implead every Parish Church individual•!.

E It is too late, therefore, to urge that no declaration on the status of Parish Churches be granted. No such objection was taken either before the learned Single Judge or the Division Bench. May be that the 1000 Parish Churches were not impleaded. But it was a representative suit. Then the suit was for a declaration that the Malankara Church was episcopal in F character and not a Union of Federation of Autonomous Churches. It was not necessary to implead every Parish church as a party. The question whether Malankara Church is episcopal or not had to be decided on the pleading of the plaintiff. The defence raised by the defendants, who were ordained by the Patriarch of Antioch, was that they were the metropolitans and, therefore, entitled to protect the interest of Parish Churches. G Moreover the declaration sought is as a matter of law. No factual dispute arises. The suit was filed for enforcement of this right. Once it was found by this Court in 1958 that the Constitution was validly framed the Catholicos could not be denied this declaration. In paragraph 94 of the 1954 Constitution it was provided that, 'the (The) Prime jurisdiction regarding the temporal ecclesiastical and spiritual administration of the

• P.M.A. MErn.OPOLITAN v. M.M. MARTHOMA [R.M. SAHAI •.T.] 629

Malankara Church is vested in the Malankara Metropolitan subject to the provisions of this constitution'. Whether a particular Parish Church is a member of the Malankara Association is not relevant. Therefore, the submission that the non-impleadmcnt of individual Parishes precluded the court from ·granting any declaration about the nature and status of Parish Churches, does not appear to be correct. B 'Congregationalims' is defined in New English Dictionary of Histori- cal Principles (By Sir John Murray, Vol. III, Part I, page 245) as under :

"A system of ecclesiastical polity which regards all legislative dis- ciplinary and judicial functions as vested in the individual church or local congregation of believers."

'Congregationalism' is defined in Chambers Encyclopedia, Vol.IV. page 13 as under:

"Congregationalism is the doctrine held by churches which put emphasis on the autonomy of the individual congcegations. Con- gregationalism has for its sign manual the words of Jessus:

'Where 2 or 3 are gathered together in my name, there am I in the midst of them'." E In Black's Law Dictionary 'Congregation' is explained thus:

"An assembly or gathering, specifically, an assembly or society of persons who together constitute the principal supporters of a particular Parish, or habitually meet at the same church for 11 religious exercises. F

The word is explained in the Faiths of the World Vol. 1 at page 589 thus:

"This word, like the term Church (which see) is sometimes used in a more extended and at other times in a more restricted sense. In its widest acceptation, it includes the whole body of the Christian G people. It is thus employed by the Psalmist when he says, "Let the congregation of saints praise Him." But the word more frequently implies an association of professing Christians, who regularly as- semble for divine worship in one place under a stated pastor. In order to constitute a congregation in this latter sense of the term, H

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

A among the Jews at least ten men are required, who have passed the thirteenth year of their age. In every place in which this number of Jews can be statedly assembled, they procure a synagogue. Among Christians, on the other hand, no such precise regulation is found, our Lord himself having declared, "Whereever two or three are met together in my name, there am I in the midst of B them." Guided by such intimations of the will of Christ, Christian sects of all kinds are in the habit of organising congregations though the number composing them may be much smaller than that fixed by the jewish Rabbies."

C 'Episcopal' is defined in Webster Comprehensive Dictionary to mean, 'of or pertaining to bishops. Having-a government vested in bishops; characterised by episcopacy'. Whereas 'Episcopacy' is defined as under:-

"Government of a church by bishops".

D New English Dictionary of Historical Principles by Sir John Murray, Volume III, explains it to mean:

"Theory of Church Polity which places the supreme authority in the hands of episcopal or pasteral orders".

E 'Episcopacy' is explained in the Faiths of the World by James Gardner, Volume I, at page 836 as under:-

"that form of church government which recognises a distinction of ranks among the minister of religion, having as its fundamental article that a bishop is superior to a presbyter". F 'Bishop' in the same book is defined as nuder :-

"one who in episcopalian churches has the oversight of the clergy of a diocese or district 11 • G 'Metropolitan' is defined in the same book at page 445 as under :-

"the bishop who presides over the other bishops of a province. In the Latin church it is used as synonymous with an archbishop. In England, the archbishops of Canterbury and York are both H Metropolitans ..... The title was not in use before the council of Nice

P.M.A. MEfROPOUfANv. M.M. MARTHOMA [RM. SAHAI.J.) 631

in the fourth century ....The rise of the authority of Metropolitans A seems to have taken place without any distinct interference on the part of the church. The council of nice was the first to give an express deliverance on the subject, particular with reference to the Alexandrian Church. The sixth canon of that council ran in these terms : 'Let the ancient custom which has prevailed in Egypt, B Libya, and Pentapolis, that the bishop of Alexandria should have authority over all these places, be still maintained, since this is the customs also with the Roman bishop. In like manner, at Antioch, and in the other provinces, the churches shall retain their ancient prerogatives'. c These definitions of 'congregationalism' and 'episcopal' have been extracted to give an idea how the expressions are understood as the entire submission of autonomy of the Churches is based on whether the Parishes are congregational or episcopal. The basic ·or essential characteristic as appears from the above definitions and explanation of 'Congregationalism' D and 'episcopal' is that in the former the authority vests in the congregation whereas in the latter it is controlled by the bishop as he is deemed to be successor of the apostle. That the Syrian Orthodox Church of Malankara accept and acknowledge the theory of apostle succession is beyond doubt. In Faiths of the World, the word 'Eiscopalians' is explained and it is stated that it is a name given to those who hold that peculiar form of Church government which is called 'Episcopacy'. The Church of Rome is Epis- copalian in its constitution, and acknowledges the Pope as Universal Bishop, to whom all the various orders of clergy, cardinals, primates, and patriarchs, archbishops and bishops are subordinate.... The Armenian church is similar in government to the Greek church, their Catholicos being equivalent in rank and authority to the Greek patriarch .... All the ancient Eastern churches, including the Copts, Abyssinians, and others, are Epis- copalian. The church of England is strictly Episcopalian in its ecclesiastical constitution'. The claim, therefore, that they are congregational cannot be accepted. G

Even factually it was not open to the Patriarch to take up this defence. The Canon on which reliance was placed by them and filed as Ex. B-161 dealing with properties and income of the Churches provided. 'If the valuable souls of the beliain can be entrusted to the (Episcops Bishop) it H

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

A is quite apt that he bears authority over the property of the church. Everything should be administered by his order and be given to the Priests, Decons and those who are in needs'. The resolution in the Mulunthuruthy Synod also accepted this. In the Yattipanam Suit Justice Chatfield in paragraph 15 of the judgment has noticed, 'it may be stated that both sides B admit that the administration of the temporalities of the Syrian Jacobite church in Malankara is with the local Metropolitan and the other Metropolitans'. That is why in the Arthat case it was held that the plaintiff churches, that is the Parish Churches of Arthat were subject to spiritual, temporal and ecclesistical jurisdiction of the Metropolitan of Malankara. Paragraph 95 of 1934 Constitution itself provides that, 'there will be an C Episcopal Synod in Malankara'.

Whether a public institution or a public Church unlike private religious places is autonomous or not depends on its trust deed, the intention of the members who found it, the purpose for which it was D established. The establishment of a Church is normally understood as an institution established for public charities. Its objective is religious and spiritual. Whenever a charity is created it is either public or private. The latter is for individual, may be for fixed period or for determinate person. But public charities are of permanent character, the membership of which keeps on fluctuating. Lewin on Trust explained a 'charitable trust' thus, 'a E public or charitable trust, on the other hand, has for its object the members of an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement upon a private trust. These trusts may be said to have as their object some purpose recognised by the law rather than human F beneficiaries'. Tudor on Charities at page 131 of 6th Edn. has stated thus, 'when a charity has been founded and trusts have been declared, the founder has M power to revoke, vary or add to the trusts. This is so irrespective of whether the trusts have been declared by an individual, or by a body of subscribers or by trustees'. That the Parish Churches were established for promoting ideals of Syrian Orthodox or Jacobite Church G has been the consistent claim of both the Patriarch and the Catholicos. Its nature cannot be changed by the persons who are entrusted to manage it. They were episcopal in character when they were found, they continue to be so at present and shall remain so in future. The character of public charities from episcipal to congregational cannot be changed as it would H be against basic purpose for which these Churches were established. In

P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHAI, J.] 633

' . Attomey General v. Pearson & Ors., [1814-23] All England Law Reports A p.60 at 63 it was observed as under :

"But if, on the other hand, it turns out that the institution was established for the express purpose of such form of religious worship, or the teaching of such particular doctrines, as the founder has thought most conformable to the principles of the Christian religion, I do not apprehend that it is in the power of individuals, having the management of that institution, at any time to alter the purpose for which it was founded, or to say to the remaining members; 'We have changed our opinions, and you, who assemble in this place for the purpose of hearing the doctrines and joining in the worship prescribed by the founder, shall no longer enjoy the benefit he intended for you unless you conform to the alteration which has taken place in our opinions'." •• Therefore, once these public charities were found whether before the D

..'.. establishment of catholicate or after it their nature could not change. On the material on record the courts have found them to be so. Therefore, the submission that they are autonomous does not appear to be well founded. antonomy for what, religious worship or temporal matters. Former cannot be pleaded as once a Church was found for religious worship it continued to be so. The autonomy in temporal matters as claimed appears to be two-fold, one, freedom to disassociate from Malankara Association and second to control and supervise its internal affairs. The first cannot arise. In law it is not open to members of public or public trust to appropriate trust properly for themselves. Under Hill on the Law of Tmsts and Tmstees has explained in thus, 'However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the association for the time being. The members for the time being cannot under the association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the association for the time being'. Non of the Parish Churches claim autonomy in the sense that they have changed their faith and belief. Each of them claims that their spiritual head is Patriarch of Antioch. That is they are the believers and followers of Syrian Church. So are the members of Malankara Association and Catholicate of East. Therefore, the existence or exercise of autonomy H

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

A for Parishes has no meaning. Similarly the independence or autonomy in temporal matters is not of any consequence. The Parishes are bound by the Constitution framed in 1934.

Mr. Parasaran submitted that the Malankara Church was from very ancient times episcopal to a limited extent in spiritual and ecclesiastical matters but has been congregational/autonomous in temporal matters. It was urged that if Jacobite Syrian Orthodox Church has been or WdS episcopal as claimed by the respondents then the Patriarch would have had control over temporal matters also. The learned counsel submitted that Malankara Church being essentially congregational it was to be presumed that every Parish Church was an independent Church. The learned counsel criticised the Constitution of 1934 as the deliberate departure from the established norms and practice of the Church and the attempt by it to invest it with episcopal character in temporal matters. The learned counsel submitted that the custom which was prevalent in the Malankara church throughout has been that the Parish Churches and its properties were administered by the congregation that is Parishioners and in that sense the Malankara church has been congregational in temporal matters and this well established custom must prevail even over the provisions of the canon. It was urged that this was already recognised in the Samudayam suit by the Trial Judge and the admission of the Catholicos before the District Judge. E The learned counsel submitted that the status of the Parish Churches even before Malankara Synod was independent and if indeed the Church was episcopal in temporal matters there was no necessity for the creation of an Association in the meeting of 1876 for the purpose of raising funds since the Patriarch directly or through the Malankara Metropolitan could have raised the necessary finance from the Parish Churches and above all if the Parish Churches were episcopal then where was the question of entering into an Udampadi with every individual Parish Church. The learned coun- cil submitted that the entire claim of the respondents that the entire body of Churches, institutions and common properties formed one organic unit to be administered by the provisions of the impugned Constitution was based on a misrepresentation of the words 'Church' and 'Sabha' and is contrary to the history, customs and proceedings and the Malankara Church. Reliance was placed on the evidence of P.W. 4 and P.W. 8 and it was urged that if they were read along with Ex.A-19 and A-80 then they would indicate that it did not result into bringing into effect any voluntary association. The learned counsel submitted that if the exchange of Kai-

P.M.A. METROPOLITANv. M.M. MARTIIOMA [R.M. SAHA!.].] ·635

panas are sought to be treated as legally binding on individual Parish A Churches amounting to unification and acceptance of the Constitution on the basis that the Patriarch will bind the Parish Churches then necessarily Patriarch will have to be accepted as the supreme ecclesiastical and temporal superior. It was urged that it was so because the Constitution framed in 1934 deals with all the three aspects and can be imposed on the B Parish Churches only on the basis that they did not have autonomy in respect of any one of the three and the Patriarch will have the power to impose such a constitution on the individual Parish Churches without obtaining their individual consent. According to learned counsel if Patriarch had such a spiritual, ecclesiastical and temporal supremacy snch C supremacy could not only be in regard to Parish Churches in the Patriarch section but also in regard to the Churches of the Catholico section. And otherwise the religious beliefs, practice etc. would be different in Parish Churches in the two sections and there cannot be any unification. It was urged that Ex.A-19 could not be construed as a surrender of the authority which existed in the Patriarch in favour of the Catholico as if the Kalpana D is construed as such then it would amount to a change of faith so far the Parish Churches in the Patriarch section were concerned and on the principle of religious trust the properties and the Churches could not go to Catholicos section. Minutes of the meetings held by the Association in 1959, 1962, 1965 and 1970 including the presence of the Patriarch in the installation ceremony of Mar Ougen as Catholico was placed. It was urged that if these are construed as claimed by the respondents then it would inevitably result in applying the law relating to religious trusts. But that would not be in consonance with law. According to learned counsel on the principle of voluntary association even if it is assumed that they decided to be under Catholico there was nothing to prevent them in law from opting out of it. Attention was draw to various suits filed during this period and the failure of the Catholico to impose their constitution. In respect ·of presence of the Patriarch at the installation ceremony of the Catholieo the learned counsel urged that it only strengthened their claim that Patriarch was the supreme head as a person as delegation of power can be made G ... only by a person who is superior then the person whom he ordains. In any case if the Patriarch was authorised to delegate and participate in the installation ceremony as the head of the Syrian Orthodox Church then there was nothing in law to prevent him from withdrawing it. The submis- sion was placed on yet another aspect that the Catholicos had never H

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

A claimed supremacy to the exclusion of the Patriarch. But on t)le other hand by their conduct and action they accepted the spiritual and ecclesiastical supremacy as was clear from various documents where the Catholico requested the consent of Patriarch for relaxing the rigour of canonical penaces. The learned counsel submitted that the respondents were claim- B ing that the Malankara Association had become autocephalous. Therefore, applying the principle of religious trusts if the Parish Churches and proper- ties which were originally .founded for the benefit of the Parishioners who believed in uninterrupted apostolic succession from St. Peter through the Patriarch then the use of such Parish Churches and their properties by those who claimed to be Malankara Church would be contrary to original C faith and character of the Sabha (Sabha means the Church I as a whole) attached to the Parish which are established for worship according to the faith, custom and practice of the Sabha. Attention was drawn to Ex.B-269 and Ex.A-120 and it was claimed that the Constitution of these Parishes would indicate that they were part of the Malankara Church subject to • D superior authority of the Diocesan Metropolitan of the Malankara Metropolitan. The learned counsel submitted that according to the Or- thodox teachings the Church or Sabha is a body with Christ as its head and together they from an integral whole and by consecration a Parish Church - becomes the abode of God and becomes a part of the Sabha. Reliance was placed on the evidence of P.W. 8 and admissions of D.W.2. It was urged E that Church being a public trust of a religious nature the beneficiaries of which at a time have no right to deal with it as is clea~ from what has been stated by Lewin on Trusts.

The nature of public charities has already been explained. Non of the p submissions appear to have substance. A Church is either episcipal or congregational. It cannot be episcopal in spiritual matters and congrega- tional in temporal matters. That would be against the basic characteristic of such a Church. It would be against specific provisions in the Constitu- tion. The temporal matters or administration of Churches flows from its . establishment for religious purposes, namely, 'the cure of souls'. Where a G building is consecrated as a Church, 'it continues to exist in the eye of law as a church and the body corporate which had been endowed in respect of it remains in possession of the endowment even though the material building is destroyed'. Every Parish Church of Malankara acknowledges the Patriarch of Antioch as the spiritual head. They have been paying ressissa to Patriarch. The ordination, consecration and every spiritual or

P.M.A. METROPOLITAN v. M.M. MARTH OMA [RM. SAHA!, J.j 637

temporal power has always been exercised by the Patriarch of Antioch so long it was not decided on basis of the Synod held at Mulunthuruthy that 1 the Patriarch was only the spiritual head and the temporal powers vested in the Metropolitan. This division of power could not destroy the basic characteristic of episcopacy. The Church in England is also an episcopal Church. In Halsbury's Laws of England Vol. 14 para 562 the right of B Parishioners has been described, 'to enter the church remain there for purpose of participating in divine worship to have a seat and to obey the reasonable directions of the church to ordain'. the property vests in the endowment. That is the fundamental different in congretational and epis- copal. In the former it vests in the Parishioner. But in the latter in C endowment. Once it is conceded that the Syrian Churches are episcopal in character then the distinction between spiritual and temporal is of no consequence. Therefore, the property of the Church vests in the endow- ment and not the Parishioners. The right to manage such property vests in the trustees under the bye-law subject to the control by the Catholicos and

- Metropolitan in ·accordance with the Constitution. The fact that every Church has its own bye law does not militate against its nature of being episcopal as Clause 122 of the Constitution of 1934 itself provides that, 'byelaws which are not inconsistent with the principles contained in this constitution may be passed from time to time by the Parish Assembly, the D

Diocesan Assembly or the Diocesan Council and may be brought into force with the approval of the Rule Committee'. The Parish Churches are thus governed in their administration by the Constitution of the Malankara Church. The nature of relationship between the two bodies can be gathered either from the circumstances or from the documents if they are on record. The Resolution of the Mulunthuruthy Synod, the Constitution of 1934 and its amendment in 1967 unmistakenly demonstrate a close link between the Malankara Association and each Parish Church. A Church is established by followers of a religious faith. The mere establishment is not sufficient unless it assures the realisation of the ultimate goal that is salvation and that could come only when such a body has a link with the higher spiritual body which religiously is considered to be the one which could help in G -~ permitting a man to achieve the end. It is not the case of the appellants that the Parish Churches are independent in the sense that they have no link with any higher spiritual power. It is their specific case that they claim . their spiritual link from the Patriarch of Antioch. The ordination of the i.tetropolitan-consecrate of Bishop even according to them has to be from H

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

A Antioch. When D.W. 28 was asked whether after creation of Catholicate the Patriarch ceased to have any power, he stated 'ordaining a Metropolitan is not a power. It is a bond and duty'. The witness denied that Patriarch of Antioch was only the head of the Jacobite Church and he had no power over or concerning the Malankara Church. Therefore, they are not independent and autonomous in the sense in which it was claimed by the learned counsel. If it be so and if what has been stated earlier that the Patriarch of Antioch himself created a Catholico of the East in 1912 with all the spiritual powers then it is difficult to visualise that how the Parish Churches can claim that they are independent and separate from the Malankara Association. In Moran Mar Basselios (supra) it has been decided that the Constitution was framed after notices were sent to every Parish Church. Therefore, whether they attended or not is not material and in any case once the Constitution was framed and its validity has been upheld then under the provisions of the Constitution the Metropolitan appointed by the Malankara Association has control over the Parish Chur- 0 ches. It is not necessary to refer to various observations made in the earlier judgments by the courts which undoubtedly indicate that the Malankara Association which was a creation of Malankara Synod and is the repre- sentative body that has the right to bind the holy community and all the Churches by its deliberations and actions. The Full Bench of the Royal - E Court of Cochin in 1905 held that the Churches and its properties were subject to spiritual, temporal and ecclesiastical jurisdiction of the Metropolitan of Malankara. Even in the very first judgment of 1889 it was held that, 'once Metropolitan of the Syrian Jacobite Church was accepted by the people it would, 'entitle him to spiritual and temporal governance of the local churches'. In the Samudayam suit this Court had observed that the whole of the Malankara Church was represented by the Malankara Association. The District Judge whose decree had been restored by this Court, and in appeal this Court had not said anything contrary to what was observed by him, observed, 'It cannot therefore be denied that this Jacobite .. 'Syrian Association' which was a creation of the Mulunthurn Synod was and is the representative body that has the right to bind the whole com- munity and all the churches by iLs deliberations and action.' The claim, therefore, that the Patriarch Churches are autonomous and independent in temporal matters cannot be accepted. That would be contrary to the Mulunthuruthy Synod, the decision in the Royal Court of Appeal, the H Arthat Case and the Constitution of 1934. A power which vested in

P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!, J.J 639

Malankara Association could not be denuded merely because the spiritual power of the Patriarch descended on the Catholico, who could be Metropolitan as well, on the analogy that if Patriarch did not have temporal power then it could not be deemed to vest in Catholico. Temporal power always vested in Metropolitan. It could not be divested because even the spiritual power came to be vested in him. The extent of power also remains the same, namely, not to interfere in day to day administration of a member which is governed by its own bye-laws.

Apart from the Syrian Orthodox Church there are various other churches such as the Evangelistic Association, the Simhasana churches the • five churches established between 1951 to 1956 and Malankara Suriyani C Knanaya Samudayan who claimed that though they are followers of Or- thodox Syrian Christian tenets and beliefs but they have been established ·• separately either under the Societies Registration Act or by their own rules and their churche~ were established with explicit declaration that they were under the spiritual supremacy of Patriarch of Antioch from whom the grace emanates. It was claimed by them that the suits against them were miscon- D •· ceived and in any dase some of them, for instance,· the churches established between 1951 and 11956 having come into existence after the Constitution of 1934 was framdd by the Malankara Association they could not be held to be under the spiritual or administrative control of the Catholicate of the East. Each of them were subject matter of separate suit. The issues were framed separately and the evidence was also led. Both the learned Single Judge and the Division Bench after consideration of the material on record and examining the finding recorded in the earlier decisions rendered by the Tr.avancore Cochin High Court and thi' Court in Moran Mar Basselios (supra) had held that except churches of the Evangelistic Association and the Simhasana churches and St. Anthony church the others were under the F Catholico of the East. The findings recorded .in the case of Knanaya Samudayam is subject-matier of Appeal No. 4953 whereas Appeal No. 4954 to 4956 has been filed by Kundara Church and Appeal No. 4989 has been filed by five churches established during 1951-56. The Catholicos have challenged the findings of the Division Bench in respect of Evangelistic ~ Association and Simhasana Churches which is the subject-matter of SLP G No. 14783-86 of 1991.

The Malankara Suriyani Knanya Samudayam referred to as 'Knanaya Samudayam' traces its origin from one Mar Thomas of Corra and one Bishop Joseph who migrated along with 400 persons comprising of 72 H

640 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A families from a place called Cana in 345 A.O. They claim that they are - different racially, culturally and socially from the Syrian Christians and the membership in the community is only by virtue of birth. It is claimed that the community all along kept its status separate and functioned under the guidance and supervision of spiritual leadership of the Patriarch of An- B tioch. It claimed that Patriarch ordained Mar Sevoten as the Metropolitan in 1910 and Mar Clemis in 1951 who is still continuing. Attention was also drawn to the Constitution framed in 1912 and amended in 1918, 1932, 1939, 1951 and 1959 wherein the supremacy of Patriarch of Antioch was always offered. Various other provisions were pointed out and it was urged that it was clear that it was an autonomous church. The followers of Kundara C church claimed that it was established by followers of Mar Cyrial who had come to India as prelate of the Patriarch of Antioch who resolved the differences between Mar Athanasius and M. Dionysius, but failed in his attempt due to the Roya Proclamation which was in operation. It is claimed that it was at the instance of the Patriarch that the Queen of England issued D a second proclamation permitting the followers to establish a new church. Therefore, their fore-fathers were associated with Kundara Old Church now called 'Valiapaly'. According to them, this church was established as Athanasius denied spiritual supremacy of Antioch. However, it is not denied that once ex-communication of Gheevarghese was cancelled in 1912 E and when I. Ibrahim Kathanan, the priest of the Church died his son Fr. J. Abrahim was ordained as priest by Gheevarghese Dionysius, the Metropolitan of Malankara. The claim of Kothamangalam Church was that it was only an Archdiocese of the Syrain Orthodox Church under the Patriarch of Antioch which is administered by its Parishioners according to congregational principles of governance and its administration is carried on in accordance with its Constitution which provided for Edavaka Yogam, a managing committee, a working committee and Thonnanda Kaikors. In the appeal filed by the five churches established during 1951-56 it was claimed that when Catholicos were declared as aliens to the church by the Travancore High Court, they established the church under the Patriarch G of Antioch. They claimed that they have their own Constitution and mode of administration. }hey are registered under the Societies Registration Act to whom the Constitution of Sabha was never made applicable. According to them, they having been established exclusively by the Patriarch Group, there can presumably be no doubt as to the object of its foundation and its basic faith. In the SLP filed by the Catholicos against the Evangelistic

P.M.A. METROPOLITAN"· M.M. M.\RTirOMA [R.M. SA.HAI •.T.I 641

Association referred as 'Samajam' and 'Simhasana Churches', it is claimed that the object of the Evangelistic Association indicates that it is composed of the members of the Malankara Church and it provided that any person holding the faith of the .T acobite Syrian Church and acknowledging the authority of that church can be a member of that Association. It was claimed that even though Samajam is registered under the Societies B Registration Act, but it being established in the territorial jurisdiction of the Catholicos and having acknowledged the spiritual headship of the Patriarch of Antioch as a supreme patron of the Samajam, they too should be treated as a part of the Malankara Church. It was pointed out that in 1966 the Samajam amended Clauses 7 and 9 of its Regulations and Rules and incorporated in clause 7(a) and (b), but their claim was rejected by C the Division Bench as this amendment was subsequently withdrawn. In respect of the Simhasana Churches, it was claimed that they were estab- lished with the object of seeking grace from Patriarch of Antioch and, therefore, they too should be deemed to be part of Malankara Church. D Since the basic controversy is the same and both the learned Single Judge and the Division Bench have recorded the finding for or against the catholicos in respect of different churches after considering the material on record in each case and with full understanding and correct apprecia- tion of law it is nol necessary to deal with them in any detail except lo hold that they do not call for any interference. Suffice it to say that the parishes are the churches which cannot claim to be separate or autonomous bodies only because their racial and cultural origin was different. Once they were established whether they came from outside or they were local persons it did not make any difference as after the establishment of the church with the permission of the Government and the Metropolitan and acknow- ledging the spiritual headship of Patriarch of Antioch which follows the apostolic succession, the nature of these churches was episcopal and, therefore, it was not open to them to claim that they should be treated as autonomous bodies merely because they have their separate bye-laws. As stated earlier, the framing of the bye-laws in each church is necessary for purposes of governance and administration. But once a church is estab- G lished then the property vests in the endowment and it becomes a public charity, the administration and control of which has to be governed in accordance with the objective of the endowment. Since the objective is to follow Syrian Orthodox Church of which Patriarch of Antioch is the head, they cannot claim to be independent, especially after the Constitution of 1934 was framed. H

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

A What remains to be dealt with is the argument advanced by Ms Lily Thomas, the learned counsel for intervener that the Patriarch of Anti 0ch being corporation sole his powers, spiritual or temporal were not partible nor the integrality can be split up. Reliance was placed on paragraph 1206 of Halsbury's laws of England Vol. 9 and General Assembly of Free Church B of Scotland & Others Etc. v. Lord Ove1toun and Other Etc. (1904) Appeal Cases 515. The characteristics of a corporation sole which was, 'originally ecclesiastical for the most part' is, 'that its identity is continuous, that is that the original member or members and his or their successors are one' [Halsbury's Laws of England Vol. 9 paras 1207-1208f. But does it help? The personality of the Patriarch is not being split. His integrality is not being destroyed. He remains the spiritual head. The difference is degree of exercise of spirituality does not detract bis status from being corporation sole. The mere fact that it has been reduced to 'vanishing point' does not mean that he has ceased to be so, in fact much sensitivity has been generated for nothing. The Patriarch of Antioch and Catholicate always existed in the hierarchy as the two dignitraties. 'This dignitary P.atriarch) usually resides in a monastery near Mardin. The second dignitary, the primate of Tagrit, resides near Mosul, and is termed Maphrida or fruit- bearer' [Faiths of the World Vol. JI p.195]. In General Assembly of Free Church (supra) what was held that nature of public trust cannot be changed. Has it been changed by the Catholicate? The answer has to be in the negative. Even the first clause of the Constitution framed in 1934 acknowledges the supremacy of the Patriarch.

The conclusions thus reached are,

l(a). The civil courts have jurisdiction to entertain the suits for violation of fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India and suits.

(b). The expression 'civil nature' used in Section 9 of the Civil Procedure Code is wider than even civil proceedings, and thus extends to such religious matters which have civil con- G sequence.

(c). Section 9 is very wide. In absence of any ecclesiastical courts any religious dispute is cognizable, except in very rare cases where the declaration sought may be what constitutes religious rite.

P.MA. METROPOLITAN v. M.M. MARTIIOMA [R.M. SAllAI, J.] 643

2. Places of Wors)lip (Special Provisions) Act, 1991 does ncit debar those cases where declaration is sought for a period prior to the Act came into force or for enforcement of right which was recognised before coming into force of the Act.

3. The following findings in Moran Mar Basselios (supra) have become final and operate as res judicata:- B

(a) The Catholicate of the East was created in Malankara in 1912.

(b) The Constitution framed in 1934 by Malankara Association is valid. c (c) The Catholicos were not heretics nor they had established separate church.

(d) The meeting held by Patriarch Group in 1935 was invalid.

4(a). The effect of the two judgments rendered by the Appellate D Court of the Royal Court and in Moran Mar Basselios (supra) by this Court is that both Catholicos and Patriarch Group continue to be members of the Syrian Orthodox church.

(b) The Patriarch of Antioch has no temporal powers over the E churches.

(c) Effect of the creation of Catholicate at Malankara and 1934 Constitution is that the Patriarch can exercise spiritual powers subject to the Constitution. F (d) The spiritual powers of the Patriarch of Antioch can be exercised by the Catholico in accordance with the Constitu- ti on.

5.(a). The Hudaya Canon roduced by the Patriarch is not the authentic version. G (b). There is no power in the Hudaya Canon to ex-communicate Catholicos.

6. The ex-communication of the Catholicos by the Patriarch was invalid. H

644 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A 7. All churches, except those which are of Evangelistic Associa- tion or Simhasna or St. Mary are under spiritual and temporal control of the Malankara Association in accordance with 1934 Constitution.

B Legal issues of jurisdiction, maintainability of the suits, ex-com- munication of the Catholico, authenticity of the canon, res judicata of the findigs recorded in the Samudayam Suit, relationship of Malankara As- sociation with Parish churches having been resolved not much difficulty remains in the manner in which these appeals should be decided. But before doing so the stage is also ripe for recording the deep anguish on baffling tenacity, to fight till finish, between fwo groups, rather, members of the same family of a community which is, 'a living tradition of faith and culture' which teaches honesty, simplicity and above all sacrifice." What is astonishing is that the two groups have had several rounds of bouts in the courts, where mass evidence both oral and documentary was led not on ideological clash, religious difference, theological conflict or any scriptural dispute or controversy about the right of worship, rituals and ceremonies or belief and faith surfaced but on matters which appear to be extraneous to establishment of the Syrian church a religious institution which has a glorious history and proud record of service. Mr. Parasaran was justified in submitting that SyriaD..f,hurches could not be thoght of without Patriarch E of Antioch. But where is the dispute about it. Even the Catholicos acknow- ledge that he is the highest spiritual head. Extent of his powers and pregrogative and not the existence or his being highest spiritual authority was disputed. Therefore, in nutshell the entire exercise was much ado about nothing. If the Catholicos went to one extreme and claimed that a F declaration be granted that the Church had become autocephalous then the Patriarch went to other extreme by raising all possible defence denying even the most basic and fundamental concepts which had been settled either by judicial decision or the Constitution and Kalpanas issued from time to time. Even when Patriarch of Antioch was constituted in the G meeting of Nice a held in 325 A.D. the other higher spiritual authority was the Catholico of the East. It was agreed even at that time that the Catholico could perform every spiritual function but the Patriarch had the overall superiority. There is no deviation from that, except to the extent it is provided in the Constitution with consent of all and in accordance with the convention and custom which has developed for all these long years. H Therefore, in order to bring down the curtain and avoid any future digging

P.M.A. METROPOLITAN v. M.M. MARlHOMA [R.M. SAHAl,I.1 645

of the grave activated by personal prejudices and rivalry, it is necessary to hold that the Constitution of 1934 as amended from time to time accepted and acted upon till the spurt of activities in 1970 shall be taken as final, . governing the right and relationship of all the parties.

When hearing of these appeals commenced it was felt both at the outset and in the midst that if both parties agreed, the dispute could be referred to .some high-powered committee of religious authorities. But probably the issue being less religious and more legalistic and technical, both the parties through their counsel reposed confidence in this Court and entreated the Bench to bring an end to this litigation. Therefore, now after dealing with various legal matters which could not have probably been satisfactorily resolved it is appropriate to declare that,

(1) Relationship between the two spiritual superiors, that is, the Patriarch of Antioch and Catholico of the East at Malankara is neither of superior no subordinate but of two independent spiritual authorities with Patriarch at the highest in the hierar- D chy.

(2) The Catholicos and the Patriarch are declared as followers of one creed, namely, Syrian Orthodox Church.

(3) The Constitution framed by the Malankara Association as amended from time to time shall govern the Churches at- tached to the Malankara Association.

Before concluding it may be observed that while highlighting the relationship between Malankara Association and the Parish Churches, it was submitted by Mr. Parasaran that the provisions in the Constitution permitting every church to send same number of representatives irrespec- tive of the strength of churches was not very fair. May be. But this is a provision governing matters not only of administration of churches but of faith and religion. The Malankara Association is like the executive body of the Malankara Church to exercise control over religion and temporal matters. The Courts' function is restricted to ensure its proper implemen- tation and not to determine whether the provisions in the Constitution frmaed by the religious body was fair or unfair. Religion is not governed, necessarily, by logic. In any case, it is not in the domain of secular courts to substitute itw own opinion of fairness. Further, no foundation was laid H

646 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R. • A for it either in the pleading in the trial court or in the SLPs filed in this Court nor any argument appears to have been advanced either before the Single judge or the Division Bench. In fact, if the figures given in the Encyclopedia of Religion is any guide then the numerical strength of Catholicos in 1970 was more than the Patriarch. However paragraphs 120 B and 121 of the Constitution of 1934 provide for a Rule Committee which is empowered to amend the Constitution from time to time. The grievance, therefore of fair representation, if it has any substance, can be raised before the Committee.

In a separate judgment written by Brother Jeevan Reddy, J., he has agreed, although for different reasons, that the creation of catholicate in 1912 was valid and that the Constitution framed in 1934 was binding and it could not be appealed by the Patriarch Group, therefore the Patriarch of Antioch could not act on his own even in spiritual matters. He has also agreed that the ex-communication of Catholico was invalid and the Malankara Church was episcoal in character to the extent it was so declared in 1934 Constitution which also governs the affairs of the Parish Churches. In respect of Hudaya canon he did not record any finding as according to him in view of subsequent developments it was not necessary to decide whether the canon filed by the Patriarch Group was authantic. He, in fact, has agreed with every conclusion reached on merits in my judgment. The narrow difference bas arisen on the power of this Court to direct any amendment in the Constitution framed by a Religious body and whether the fairness of such amendment can be judged by this Court. However, the direction issued by him in this regard in appeals arising out of suits does not make any difference so far as merits of the appeals are concerned. F Consequently the appeals are decided by affirming the conclusions of the Division Bench of the Kerala High Court which do not call for any interference.

The parties shall bear their own costs. G B.P. JEEVAN REDDY, J. Leave granted in Special Leave Petitions.

These appeals represent the latest round of litigation between two rival sections in the Malankara Jacobite Syrian Christian Community. A brief reference to the _earlier rounds of litigation is necessary for a proper H appreciation of the questions arising herein.

P.M.A. MEIROPOLITAN '· M.M. MARTIIOMA (B.P. JEEVAN REDDY. J.] 647

St. Thomas, one of the disciples of Jesus Christ came to Malabar in A 52 A.O. to spread his message. He died in India.

At the Council held at Nicea in 325 A.D. - First General Council - convened by the Roman Emporer Constantine, four Patriarchates were established spanning the Christendom as it was known then, viz., Rome, B Constantinople, Alexandria and Antioch, each headed by a Patriarch. Within the jurisdiction of Patriarch of Antioch was established another office, viz., the great metropolitan of the East, also known as "Catholicos". The office of Catholicate fell into disuse later and was revived in 628 A.O. Sometime later, it again fell into disuse. All these are matters of faith and are stated merely by way of introduction. C

By the 16th century, Christianity had gained a fairly substantial foothold in the area now comprised in Kerala. The dominant faith was of the Syrian Orthodox Church. 16th century saw the rise of Portugese political power on the West Coast of India. The Portugese were Roman D Catholics. They compelled the local christians to accept Roman Catholic faith. They succeeded to some extent but not for long. In the year 1654, the Christians of Malabar rebelled against the imposition of an alien faith and affirmed their loyalty to Syrian Orthodox Christian Church headed by the Patriarch by taking an oath e11 masse at Mattancherry, known as the "Koonan Cross Oath". Since then the Patriarch of Antioch was exercising ecclesiastical supremacy over what may be called the "Malankara Syrian Christian Church". With the rise of the British power in the Southern India during the 19th century, they in turn pressurised the Malankara Syrian Christian Community to embrace the Protestant faith. They too succeeded in some measure. Disputes arose between the two groups (one that embraced the Protestant faith and the other adhering to the Orthodox faith), which was settled by an award called "Cochin Award" rendered on April 4, 1840. As per this award, the Church properties were divided between the Church Mission Society (Protestants) and the Malankara Jacobite Syrian Church (Orthodox faith). The amount of 3,000 Star Pagodas deposited by Mar Thoma VI (Dionysius the Great) with the East G Indian Company at eight percent interest came to be allotted to Malankara Jacobite Syrian Church in this division.

On account of certain disputes and bickerings between the members of Malankara Jacobite Syrian Church, Patriarch Peter III of Antioch came H

648 SUPREME COURT REPORTS (1995] Sl)PP. 1 S.C.R.

~A to Malabar in 1876. He called a meeting of the accredited representatives of all Churches in Malabar which is known as the "Mulanthuruthy Synod". At this Synod, Malankara Syrian Christian Association, popularly called the "Malankara Association", was formed to manage the affairs of the Church and the Community. The Malankara Metropolitan was made the B ex-officio President of this Association. Each member Church was to send three representatives lo the Association. A Managing Committee of twenty four, called the "Standing Working Committee of the Association" was also constituted. Until 1876, the entire Malabar was comprised in one Diocese. But thereafter it was divided into seven Dioceses, each Diocese headed by a Metropolitan. One of them was to be designated as Malankara C Metropolitan who exercised spiritual and temporal powers over all the Dioceses.

SEMINARY SUIT:

D On July 4, 1879 Mar Joseph Dionysius claiming to be the properly consecrated Metropolitan of Malankara Jacobite Syrian Church and as the President of Malankara Association filed 0.S.No. 439 of 1054 in the Zilla Court of Alleppey against one Mar Thomas Athanasius. The main dispute between them was while the plaintiff asserted the supremacy of Patriarch comprised in consecrating and appointing Metropolitans from time to time to govern and rule over the Malankara Edavagai, in sending Morane (the sanctified oil) for baptismal purposes, in receiving the Ressissa (tribute) from the Community to maintain his dignity and in generally controlling the ecclesiastical and temporal affairs of the Edavaga~ the defendants denied any such Patriarchal supremacy. The suit was ultimately disposed of by the judgment of Travancore Royal Court of Final Appeal in the year

1889. The Royal Court found that the ecclesiastical supremacy of the Patriarch of Antioch over Malankara Syrian Christian Church in Travan- core had all along been recognised and acknowledged by Jacobite Syrian Christian Community and their Metropolitans; that the exercise of supreme power consisted in ordaining, either directly or through a duly authorised delegates, Metropolitans from time to time to manage the spiritual matters of the local Church, in sending Morone to be used in the Churches for baptismal and other purposes and in general supervision over the spiritual government of the Church. The Royal Court further ruled that the authority of Patriarch never extended to temporal affairs of the Church H which in that behalf was an independent Church. It was further declared

P.M.A. MEfROPOLIT AN'· M.M. MARTHOMA (B.P. JEEVAN REDDY. J.] 649

that the Metropolitan of the Syrian Christian Church in Travancore should A be a native of Malabar consecrated by the Patriarch or by his duly authorised delegate and accepted by the people as their Metropolitan. The Court found that the plaintiff was so consecrated by Patriarch and accepted by the majority of the people and, therefore, entitled to be recognised and declared as the Malankara Metropolitan and as the trustee of the Church B properties.

ARTHAT SUIT:

It appears that the Patriarch of Antioch did not relish the judgment of the Royal Court of Travancore insofar as it declared that he had no C control over the temporal affairs of the Malankara Church. Some local Christians supported him in that behalf which led to the institution of a suit in 1877 which resulted in the judgment of the Court of Appeal of Cochin dated August 15, 1905, re-affirming the findings of the Travancore Royal Court. The Cochin Court of Appeal declared that while the Patriarch of Antioch is the spiritual head of Malankara Syrian Jacobite D Christian Church, the Churches and their properties are subject to the spiritual, temporal and ecclesiastical jurisdiction of the Malankara Metropolitan. In other words, the Patriarch's claim of control over the temporal affairs of the Malankara Church was negatived once again. E THE REVIVAL OF CATHOLJCATE IN 1912:

The Sultan of Turkey withdrew the recognition given to Abdul Messiah as the Patriarch of Antioch and recognised Abdulla II as the Patriarch. There is a difference of opi~ion as to the effect of this withdrawal of recognition by the Sultan. While one view in that this F recognition resulted in Abdul Messiah ceasing to exercise any and all the powers of Patriarch, the other view is that the said withdrawal did not affect the spiritual authority of Abdul Messiah. Be that as it· may, there were not two rival claimants to the Patriarchate of Antioch and as we shall presently indicate it is this dispute between Abdul Messiah and Abdulla II G which led to the formation of two groups in the Malankara Church.

In the year 1907, Mar Geevarghese Dionysius was ordained as Metropolitan by the Patriarch Abdulla II at Jerusalam. In 19Q9, Mar Geevarghese Dionysius became the Malankara Metropolitan on tlie death of Mar Joseph Dionysius. Because of certain differences arising between H

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

A Mar Geevarghese Dionysius and Abdulla II, the latter ex-communicated the former on March 31, 1911. A few months later, Abdulla II appointed one Paulose Mar Kurlios as the Malankara Metropolitan. Mar Geevar- ghese Dionysius responded by convening a meeting of the Malankara Syrian Christian Jacobite Church which declared his excommunication as B invalid. In the year 1912, Patriarch Abdul Messiah came to Malankara and declared the excommunication of Mar Geevarghese Dionysius by Abdulla II as invalid. In addition to that, Abdul Messiah also purported to revive and re-establish the Catholicate by consecrating one Mar Ivanios as the Catholicos. It is relevant to notice the proceedings relating to the revival of Catholicate. c Two documents are put forward as the Kalpana of Abdul Messiah reviving the Catholicate, namely, Exs. A.13 and A.14. The Patriarch group (who are the appellants before us) dispute Ex.A.13. They say that Ex.A.14 is the only version while Catholicos group (who are respondents before us) D say that Ex.A.14 was preceded by Ex.A.13 and that without Ex.A.13 there .' could not have been Ex.A.14. We may notice the contents of both the documents. Ex.A.13 which is dated September 17, 1912, says inter alia, "by virtue of the order of the office of the Shepherd, entrusted to Simon Peter by our Lord Jesus Messiah, we are prompted to perpetuate for you Catholicos or Mapriyana to seive all spiritual requirements that are necessary for the conduct of the order of the holy tme Church in accordance with its faith ..... With Geevarghese Mar Dionysius Metropolitan, who is the head of the Metropolitans in Malankara and with other Metropolitans, Ascetics, Deacons and a large number of faithfuls, we have ordained in person our spiritually beloved Evanios in the name of Baselius as Mapriyana, i.e., as the Catholicos on the Throne of St. Thomas in the East, i.e., in India and other places at the St. Mary's Church, Niranam on Sunday, 2nd Kanni, 1912 A.O. as per your request" (emphasis added). A.13 then sets out the authority and the jurisdiction of Catholicos so revived in the following words:

G "The authority to serve all spiritual elements in public, which are necessary for protecting the tradition of the Holy Church has been given to him (Evanios) by the Holy Ghost as was given to the Holy Apostles by our Lord Jesus Messiah. Authority means the authority to ordain Metropolitans, Episcopas, and to consecrate Holy H Morone and to serve all the other spiritual items and also to

P.M.A. METROPOLITAN>. M.M. MARTHOMA [B.P. JEEVAN REDDY,J.J 651

administer the Kandanadu Diocese as he was earlier. .... You must respect and love him properly and suitably because he is your head, Shepherd and spiritual father. He who respects him, respects us. He who receives him, receives us. Those who do not accept his right words and those who standing against his opinions which are in accordance with the Canon of the Church, defy him and quarrel with him, will become guilty.... ".

Coming to ExA.14, which is dated February 19, 1913, the third paragraph starts by saying "After bestowing on you our blessings a second time, we desire to make knowrt to you our true affection that ever since your letters reached our weakness in midiat, we have been deeply grieved at the dissensions sown by Abdulla Effendi among our spiritual children in all our Churches in Malabar". A little later A14 says:

"Accordingly, we, by the Grace of God, in response to your request, ordained a Maphrian, that is, Catholicos by name Poulose Basselios D and three new Metropolitans, the first being Gheevarghese • Gregorius, the second Joachim Evanios and the third, Gheevar- ghese Philexinos. It appears to us that, unless we do install a Catholicos, our Church, owing to various causes, is not likely to stand firm, in purity and holiness. And, now, we do realise that by the might of our Lord, it will endure unto Eternity, in purity and holiness, and more than in times bast, be confinned in the loving bond of communion with the Throne of Antioch. The Joy of our Heart is herein realised. Our children, abide ye now in peace. As for ourselves, we leave you, Rest assured that though we leave you, we shall never be unmindful of you. We shall incessantly lift up our eyes unto heaven and offer our prayers and intercessions for the guileless lambs, redeemed by the previous blood of our Saviour Jesus Christ. Pray Ye for U5, and for our entire community. Abide ye in love, peace and concord. Pray ye for your enemies, and, for those that revile you without cause. Be not afraid of the uncanoni- cal and unjustifiable interdicts and curses of the usurper. Heed not those who create dissensions. God will reward them for their action, be they good or bad. We commend you into the hands of Jesus Chcist, our Lord, the Great Shepherd of the flock. May he keep you. We rest confident that the Catholicos and Metropolitans - your shepherds - will fulfil all your wants. The Catholicos, aided H

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

A by the Metropolitans, will ordain melpattakkars, in accordance with the Canon of our Holy fathers and consecrate Holy Morone. In your Metropolitans is vested the sanction and authority to instal a Catlw/icos, when a Catholicos died. No one can resist you in the exercise of this right and, do all things properly, and in conformity with precedents with the advice of the committee, presided over B by Dionysius, Metropolitan of Malankara. We beseech your love, and counsel you in the name of our Lord Jesus that Ye faint not in your true faith of Saint Peter, on which is built, the Holy Catholic and Apostolic Church. What we enjoin your true love is that the unlawful conduct of a usurper, may not induce you to sever that c communion which is the bond of love connecting you with the Apostolic Throne of Antioch."

(Emphasis added)

The mam difference between Ex.A.13 and ExA.14 is two fold: D Firstly, A.13 speaks of "Catholicos on the Throne of St. Thomas in the East", which words are not to be found in A.14. Secondly, A. 14 contains • the following words: "in your Metropolitans is vested the sanction and authority to install a catholicos, when a catholicos dies. No one can resist you in the exercise of this right and do all things properly, and in conform- E ity with precedents with the advice of the committee, presided over by Dionysius, Metropolitan of Malankara", which are not found in Ex.A.13. More about these documents later.

Mar Ivanios, who was consecrated as the Catholicos, died on April 16, 1913. Abdul Messiah died on August 30, 1915 and Abdulla II died on F November 25, 1915. No one was installed as the Catholicos till 1925, when one Mar Geevarghese Philixinos of Vakathanam was installed as the second Catholicos but without reference to the Patriarch. On the death of Mar Philixinos on December 17, 1928, Geevarghese Gregorius was in- stalled as the third Catholicos, again without reference to the Patriarch.

G VATTIPANAM SUIT:

Dispute arose as to the persons entitled to the interest on 3,000 Star Pagodas aforementioned. In view of the dispute, the Secretary of State for India instituted an interpleader Suit No. O.S.94 of 1088 in the District H Court, Trivandrum, It was later converted into a representative suit be-

P.M.A METROPOLITAN>. M.M. MARTHOMA [B.P. JEEVAN REDDY,J.I 653

tween two groups, viz., defendants 1 to 3 representing what may be called the Catholicos group (i.e. the group owing allegiance to the Catholicos installed by Patriarch Abdul Messiah) and defendants 4 to 6 representing what may be called the Patriarch group (i.e., the group owing allegiance only to the Patriarch). The first defendant claimed to have been appointed as Malankara Metropolitan by Abdul Messiah and disputed the validity of the Bull of excommunication issued by Abdulla II. On the other hand, defendants 4 to 6 claimed that the first defendant having been ex-communi- cated by the Patriarch Abdulla II, ceased to be the Malankara Metropolitan and that the fourth defendant has been validly appointed by Abdulla II as the Malankara Metropolitan in the place of the first defen- dant. Defendants 4 to 6 further contended that by their conduct and declarations, defendants 1 to 3 have become schismatics and hence dis- qualified to act as the trustees of the Church properties. The fourth defendant died pending the suit and in his place defendant No. 42 was impleaded as the Malankara Metropolitan. The learned District Judge held inter alia that the first defendant is the validly appointed Malankara D

- Metropolitan, having been accepted by the community at the installation meeting held in the year 1084. He also held that the withdrawal of recog- nition by the Sultan of Turkey did not deprive Abdul Messiah of his purely spiritual functions and powers and that the ex-communication of the first defendant by Abdulla II was invalid. With these findings, the learned District Judge upheld the claim of defendants 1 to 3 to the interest amount. E

The Patriarch group filed an appeal before the High Court of Travancore (reported in 41 T.L.R.l). A Full Bench of the High Court allowed the appeal and reversed the judgment and decree of the Trial Court and upheld the claim of defendants 4 to 6 as the true and valid F trustees entitled to the said interest amount. The findings recorded by the High Court are :

"(a) That Exhibit 18, and not Exhibit A, is the version of the Canon Law that has been recognised and accepted by the Malankara Jacobite Syrian Christian Church as binding on it; G

(b) That under Ex.18, the Patriarch of Antioch possesses the. power of ordaining and excommunicating Episcopas and Metropolitans by himself, i.e., in his own right and that it is not necessary for him to convene a Synod of Bishops and proceed by way of Synodical H

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

A action) in order to enable him to exercise these powers; the person ordained should, of course, be a native of Malabar and be accepted by the people;

(c) That there is nothing in the Mulanthuruthy Resolutions, Exhibit EL, which limits the powers possessed by the Patriarch under the B Canon Law in matters of spiritual character, or which imposes restrictions on him in regard to the exercise of such powers; and