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

(d) That no special forms of procedure are prescribed by Exhibit 18 for observance by Patriarch before he exercises his powers of excommunication. 11 c Thereupon defendants 1 to 3 applied for review of the said judgment. The review petition was admitted subject to the condition that the review petitioners shall not question the following three findings recorded in the judgment under review - the three findings being: D "(1) as to the authenticity of Ex.A.18, the version of Canon Law produced by defendants 5, 6 and 42.

(2) as to the power of Patriarch to ex-communicate without the intervention of the Synod; and E (3) as to the absence of an indirect motive on the part of the Patriarch which induced him to exercise his power of ex- com- munication. 11

Accordingly, the appeal was re-heard by another Full Bench which by its judgment pronounced on July 4, 1928 upheld the decision of the learned District Judge and confirmed his decree. Under this judgment, the Full Bench held:

"(i) The excommunication of Mar Geevarghese Dionysius (the first defendant) was invalid because of the breach of the rules of natural justice in that he was not apprised of the charges against him and had not been given a reasonable opportunity to defend himself. In other words, he remains the Malankara Metropolitan;

(ii) That defendants 1 to 3 had not become heretic or aliens or jH had not set up a new Church by accepting the establishment of the

P.MA METROPOLITAN,_ M.M MARTIJOMA (B.P.JEEVAN REDDY,J.J 655

Catholicate by Abdul Messiah with power to the Catholicos for A the time being to ordain Metropolitans and to consecrate Morone and thereby reducing the power of the Patriarch over the Malankara Church to a vanishing point;

(iii) That the defendants 4 to 6 had not been validly elected." B It is interesting to notice that in this suit while the Patriarch group was contending that members of the Catholicos group have become aliens to the faith by repudiating the supremacy of Patriarch (by recognising the authority and the power of the Catholicos), the Catholicate group con- tended that they have not repudiated the Patriarch and that by recognising the Catholicos, they have in no manner denied the ecclesiastical superiority of the Patriarch. It is equally_ relevant to note that the excommunication which was. in question there was the excommunication of the Malankara Metropolitan and not of the Catliolicos. The question whether the Patriarch has the power to excommunicate the Catholicos and if so in what manner and on what .grounds was not in question in that suit. Another feature to be noted is that it was the Patriarch group which was saying that by espousing the cause of and the revival of Catholicos, defendants 1 to 3 therein had in effect reduced the power of the Patriarch over the Malankara Church to vanishing point - which in their view amounted to repudiation of the power and authority of the Patriarch - while the E Catholicos group was denying that they have done any such thing or that they had any intention to do so. The excommunication of first defendant (Mar Geevarghese Dionysius, Malankara Metropolitan) was held invalid not on the ground of lack of power in the Patriarch but on the ground that he did not follow the principles of natural justice in excommunicating him. F One the excommunication of first defendant was held to be invalid, it followed logically that the appointment of defendant No. 4 as Malankara Metropolitan was invalid. Yet another noticeable feature of this judgment is the following finding recorded by the Court:

"The whole matter resolves itself into a personal dispute between G two claimants to the Patriarchate in which it is said, the first defendant deserted the Patriarch who had created him Metropolitan and supported his rival. Such conduct might amount ·to an ecclesiastical offence for which the offender could be deprived by his ecclesiastical superior but it could not be an H

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

A offence for which the civil courts could try him or express any opinion as to his guilt....ln the circumstances it cannot be said that the Church to which the defendants 1 to 3 belong is a different Church from that for which the endowment now in dispute was made.IT

B DEVELOPMENTS SUBSEQUENT TO THE FINAL DISPOSAL OF THE VATTIPANAM SUIT:

After the aforesaid judgment, it appears, both the parties tried to strengthen their respective positions. On Angust 16, 1928 the Managing C Committee of the Malankara Association was formed which was authorised to draw a constitution for the Church and the Association. On the very next day, i.e., August 17, 1928, Mar Julius Elias, the delegate of the Patriarch who was then in Malabar, issued an order calling upon Mar Geevarghese Dionysius to execute an Udampadi (submission deed) within two days accepting the authority of the Patriarch and also suspending him D for having committed several grave offences against the Holy Throme of Antioch and for having repudiated the authority of the ruling Patriarch. He addressed letters to the Governments of Travancore and Madras to with- hold payment of interest to Mar Geevarghese Dionysius in view of his suspension from the office of Malankara Metropolitan. E On August 21, 1928, O.S.2 of 1104 was filed in the District Court of Kottayam by eighteen persons belonging to Patriarch group against Mar Geevarghese Dionysius and two others including the then Catholicos Mar Geevarghese Philixinos. Mar Geevarghese Philixinos died in 1929. There- upon Moran Mar Basselios was irnpleaded as a defendant. On January 23, F 1931, O.S.2 of 1104 was dismissed for non-compliance with certain orders regarding payment of monies to the Commissioner appointed in the suit. The application for restoration of the suit was dismissed on September 29, 1931, against which order the plaintiffs therein filed Civil Misc. Appeal No. 74 of 1107 in the High Court. While the aforesaid C.M.A. was pending in G the High Court, certain developments took place which require to be noticed.

With a view to put an end to the disputes between the two rival groups in the Malankara Church, Patriarch Elias I visited Malabar in 1931 al the instance of Lord Irwin, the then Viceroy of India. Patriarch Elias l, H hnwever, died in Malabar before he could effect any settlement. In his

, P.M.A METROPOLITAN,. M.M. MARTHOMA(B.P..TEEVAN REDDY.J.] 657

place, one Ephraim was elected as the Patriarch of Antioch in the year A 1933, but, it is said, without notice to the Malabar Community. For this reason, Mar Geevarghese Dionysius and his supporters did not recognise Ephraim as the duly elected Patriarch.

Mar Geevarghese Dionysius died in February, 1934 with the result the trust properties passed into the possession of his co- trustees, Mani B Poulose Kathanar and E.J. Joseph. Shortly thereafter, Lhe draft constitution prepared by the Managing Committee of the Malankara Association was published in the shape of a pamphlet. On December 3, 1934 notices were issued convening a meeting of all the Churches to be held on December 26, 1934 at M.D. Seminary at Kottayam for, inter alia, electing the C Malankara metropolitan and adopting the draft constitution. Notices were also published in two leading Malayalam newspapers. The meeting was held on the appointed day (the proceedings whereof were exhibited as Ex.64 in Samudayam suit), at which, the third Catholicos, Mar Basselios Geevarghese II was elected as Malankara Metropolitan. The draft constitu- tion was also adopted at the said meeting. D

l THE CONSTITUTION ADOPTED BY THE MALANKARA ASSOCIA- TION HELD ON DECEMBER 26, 1934:

The Constitution which was adopted on December 26, 1934 provides for various aspects concerning the Malankara Church and the Malankara E Association. The relevant Articles, as originally approved in 1934, read thus:

"(1) Malankara Church is a division of 01thodox Syrian Church. P1imate of the Orthodox Sy1ia11 Church is Patriarch. F (2) Malankara Church was founded by St. Thomas, the apostle and supremacy in the Orthodox Syrian Church of the East and the P1imate of the 01thodox Syrian Church is with the Catholicos.

(5) The approved canon of this church is Hudaya Canon written G by Bar Hebreus (the same canon book as one printed in Paris in 1898).

(90) The throne of the Catlwlicos was re- established in the 01thodox Sy1ian Church of the East which includes Malankara church in 1088 M.E. (1913) and this institution has been functioning ever since H

658 SUPREME COURT REPORTS (1995] SUPP. I S.C.R.

A then in the Orthodox Syrian Church of the East.

(91) Catholicos shall the right to visit all churches in Malankara and that the expenses of such visits shall be borne by the respective Parish churches.

B (92) Malankara church shall recognise the Patriarch consecrated in co-operation with the episcopal Synod of which the Catholicos is the President and in acwrdance with the canons.

(93) Whenever Catholic is to be consecrated, if there be Patriarch recognised as stated above, the Patriarch should be invited for the c consecration and if the Patliarch anives, he shall as President of the Synod consecrate Catholicos with the co-operation of the Synod.

(101) No one shall have right to alter the faith of the Sabha. In case there is any dispute regarding matters of faith, episcopal synod D is vested with power to decide the dispute."

(Emphasis added)

The Constitution was amended in 1951 and again in 1967. When the 1951 amendments were made, the judgment of the Travancore High Court E dated August 8, 1946 was holding the field whereunder the Catholicos group were declared as strangers to the Malankara Church. For that reason, it appears, none of the members of the Patriarch group par- ticipated in effecting the said amendments.

SAMUDAYAM SUIT: F On July 5, 1935 the Metropolitans of the Patriarchal party issued notice summoning a meeting of the Church representatives for August 22, 1935 at Karingasserai to elect the Malankara Metropolitan. The notice stated that none of the persons belonging to Catholicos party should be G elected. The meeting was accordingly h<ild on August 22, 1935 whereat Mar Poulose Athanasius was elected as the Malankara Metropolitan. The meet- ing purported to remove the trustees elected at the Meeting held on December 26, 1934 (i.e., Mani Poulose Kathanar and E.J. Joseph, belong- ing to Catholicos group) and appointed two other persons in their place. Having done this, the Patriarch group (plaintiffs- appellants in C.M.A. 74 H of 1107 pending in the High Court) allowed the appeal to be dismissed for

PM.A. METROPOLITAN'· M.M. MARTHOMA (B.P. JEEVAN REDDY,J.( 659 ' non-prosecution. A

The Patriarch group then instituted, on March 10, 1938, O.S. 111 of 1113 in the District Court of Kottayam (hereinafter referred to as 'the Samudayam Suit') for a declaration of their title as trustees of the Samudam properties ( commo~roperties) of the Malankara Church and B for a further declaration that the defendants to that suit (belonging lo Catholicos group) were not lawful trustees and for possession of the trust properties. Certain ancillary reliefs were also asked for. The plaintiffs in the said suit based their title on the proceedings of the Karingasserai meeting aforesaid, whereat the plaintiffs therein were elected as Malankara Metropolitan and co-trustees and the trustees belonging to Catholicos C group (defendants to the suit) were removed. The suit was dismissed by the Trial Court on January 18, 1943, against which the plaintiffs therein preferred an appeal to the Travancore High Court being A.S.1of1119. On August 8, 1946 the appeal was allowed and. the suit decreed by a majority of Judges (2:1). The defendants (Catholicos group) thereupon applied for D review which was rejected. The matter was carried to this Court in Civil Appeal No. 193 of 1952 which was allowed on May 21, 1954. This Court directed the High Court to re-hear A.S.1to1119 on all the points. Accord- ingly, the High Court took up the appeal for hearing and allowed the same by its judgment dated December 13, 1956. The suit was decreed accord- ingly. On a certificate being granted by the High Court, the defendants E (Catholicos group) filed an appeal in this Court which was allowed on September 12, 1958 (reported in A.LR. 1959 S.C. 31). It is necessary to notice the relevant findings recorded by this Court:

"(l) The main plea of the plaintiffs that the defendants had become heretics or aliens or had gone out of Church by establishing a new Church because of the specific acts and conduct imputed to them is unacceptable for the reason that the said issue is concluded by the judgment of the High Court of Travancor~ in 0.S. 94 of 1088 (Vattipanam suit). The charges which were sought to be relied upon as fresh cause of action in the suit (Samudayam suit) are not covered by the pleadings or the issues on which the parties went .to trial. Some of them are pure after-thoughts and cannot therefore be permitted to be raised. The said charges, or at any rate most of them, ought to have been and should have been put forward in the vattipanam suit and and the plaintiffs having not .done that, H

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

A cannot now put them forward. They are barred by the rul~ of res judicata from doing so. It must therefore be held that it is not longer open to the plaintiffs to re-agitate the contention that the first defendant in the said suit had ipso facto become heretic or alien or had gone out of Church and in consequence has lost his status as a member of the Church or his office as a trustee. B (2) The M.D. Seminary meeting held on 26.12.1934 at Kottayam was a properly held meeting and the first defendant in the said suit was validly appointed as the Malankara Metropolitan and as such became the ex-officio trustee of the Church properties. c (3) The Karingasserai meeting cannot be held to be a properly held meeting of the Malankara Association and therefore the proceedings of the said meeting and the decisions taken therein are not valid.

D (4) Since the plaintiffs have failed to prove that they are validly elected trustees, their suit for ejectment must fail for want of title as trustees. 11 ~

DEVELOPMENTS SUBSEQUENT TO THE JUDGMENT OF THIS E COURT IN MORAN MAR BASSELIOS CATHOLICOS & ORS. V. THUKALAN PAULO AVIRA & ORS., AIR (1959) S.C. 31:

Even while the aforesaid appeal was pending in this Court, the then Patriarch expressed a desire through his Kalpana dated November 30, 1957 (Ex.B.197) to settle outstanding disputes in the Malankara Church. He F stated in the Kalpan.a that he was deeply interested in joining those who were divided and in strengthening the spiritual bond between Malankara and Antioch and that he was opening his heart for peace and unity. It appears that this desire of the Patriarch was reciprocated by the Catholicos group. The judgment of this Court delivered on 12th September, 1958 G affirming that the Malankara Church remained a single unified Church and rejecting the contention that the defendants in the said suit (Samudayam suit) had become heretics and had established a separate Church away from the Jacobite Syrian Church appears to have given an impetus to the drive towards unOity between the two groups.

H On December 9, 1958, the Patriarch issued a Kalpana dated Decem-

P.M.A. METROPOLITAN'· M.M. MARTIIOMA (B.P. JEEVAN REDDY. J.) 661

ber 9, 1958 (Ex.A.19} stating inter alia: A

"It is no secret that the disputes and dissensions that arose in the Malankara Church prevailing for a period of 50 years have in several ways weakened and deteriorated it. Although right from the beginning several persons who loved the Church and devout of God desired peace and unity putting an end to the dissension, B they departed in sorrow without seeing the fulfilment of their' desire. We also were longing for peace in the Malankara Church and the unity of the organs of the one body of the Church. We have expressed this desire of ours very clearly in the apostolic proclamation (reference is to the proclamation dated November C 11, 1957) we issued to you soon after our ascension on the Throne. This desire of ours gained strength with all vigour day by day without in any way slackened and the Lord God has been pleased to end the dissension through us. Glory be to him. To bring forth the peace in the Malankara Church we hereby accept with pleasure D Mar Baselious Gheevarghese as Catholicose. Therefore we send our hearty greetings ...... 11 •

(Emphasis added)

It is significant to mention here that this Kalpana Ex.A.19 was issued E by Patriarch Yakub, who was in India during the conduct of Samudayam suit appeal, attending to the said litigation on behalf of the Patriarch party. He became the Patriarch sometime earlier to his Kalpana dated November 30, 1957. F On December 16, 1958 the Catholicos responded by issuing his Kalpana (Ex.A.20) wherein he described himself as "meek Baselious Catholicos named as Geevarghese II seated 011 the Throne of the East of Apostle St. Thomas". Having expressed his grief at the dissensions in the Malankara Church and his happiness at the end of discord, the Catholicos G stated "we, for the sake of peace, in the Church, are pleased to accept Moran Mar Ignatius Yakub Ill as Patriarch of Antioch subject to the constitution ·passed by the Malankara Syrian C/uistian Association and now in force". (Emphasis added). The Catholicos further stated in the said Kalpana, "we have also pleasure to accept the Metropolitans under him (Patriarch) in Malankara subject to the provisions of the said constitution ..... ". H

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

A On December 22, 1958 the three Metropolitans appointed by Patriarch during the pendency of the Samudayam suit/appeal sent submis- sion deeds Ex.A.37 and Ex.A.154 to the Catholicos. Under these letters of submission, the Metropolitans expressed their joy at the restoration of peace and unity in the Malankara Church and promised to perform their functions under the Catholicos and to follow the canons, the constitution in force and the orders to be issued by the Catholicos. We may quote the last sentence in Ex.A.37 written by Poulose Philixinos, Metropolitan of Kandanad Diocese, (who has indeed been appointed later as Catholicos by the Patriarch). It reads : "I hereby inform that I shall act always in accordance with the directions issued by you from time to time and also in accordance with the canons of the Church and the constitution now in force."

On December 26, 1958 a meeting of the Malankara Association was held. Ex.A.43( a) is the copy of the minutes of the said meeting. It shows that the meeting was attended by Bishops, Clergy and laity of both the groups and was presided over by the Catholicos. This meeting was held after due notice intimating all concerned that new trustees of the Malankara Association would be elected at the said meeting. The Patriarch's delegate, who was then in India, also attended the meeting by special invitation. At this meeting, new trustees were elected. Ex. A.44, the newspaper report, contains a group photograph of the Metropolitans of both the groups and the delegate of Patriarch. A meeting of the Bishops of both the groups was held on January 12, 1959. Ex.A.153 is a copy of the minutes of the meeting. It was attended by six Metropolitans of Catholicos group and three Metropolitans of Patriarch group. The meeting resolved to unite various rival organisations, youth leagues, students' organisations and womens' organisations under one Association. Committees were formed to devise ways and means of unification. It was decided to imple- ment the Constitution of Malankara Association wherever it was not im~ plemented and to appoint a committee to study the particulars and report at the next meeting. It was also decided to re-allot the dioceses since the total number of Metropolitans of both the groups put together exceeded the number of dioceses. Accordingly, at the Synod meeting held on February 21, 1959 (Ex.A.153(a) J attended by all the Metropolitans, re-al- lotment of dioceses was made. It was decided to send the copies of the Constitution to all the Parishioners with a direction to obey the same. H Under the re-allotment of the dioceses, three dioceses were allotted to

P.M.A. METROPOLITAN v. M.M. MARTHOMA (B.P. JEEVAN REDDY, J.J 663

Metropolitans belonging to Patriarch group. The Catholico.s issued the A Kalpana dated February 25, 1959 {Ex.A.38) affirming the allotment of Dioceses as per Ex.A.153(a). Ex.A.36 is a memorandum submitted by thirty person of Patriarch group (including D.W. 2 in the present suit) on January 12, 1959 to the Catholicos requesting him to inform the community about the Constitution of Malankara. In this memorandum, they requested that B fresh elections should be held to the Managing Committee and that the Managing Committee should have members representing both the groups. This document inter a/ia refers to the peace and unity brought about in Malankara Church on December 16, 1958, complaining al the same time that complete unity has not been achieved as yet. c While the above developments were taking place here, the Patriarch addressed a letter dated April 8, 1959 (Ex.A.23) to the Catholicos, the purport of which is: I have received your two letters. I could not reply soon on account of some inevitable reasons. In your letter you have stated that you accepted me in accordance with the terms of Constitution. But you D have not made it clear what is the substance of the terms. The develop- ments in Malankara are contrary to my expectations. Your use of the 1 expression holiness' with your name is not right. This expression can be used only by the Patriarchs. Your assertion that you are sitting at the Throne of St. Thomas is unacceptable. No one has ever heard of St. Thomas establishing a Throne. Similarly your assumption that yours is the E Church of the East and that you are Catholicos of the East is equally untrue and unwarranted. I have learnt from the newspapers that a new arrange- ment has been made in respect of dioceses in Malankara. Before effecting the said arrangement, it was necessary to decide the limits of the relation- ship between Malankara Church and Patriarchate. The new arrangement F of dioceses could have been made only thereafter and that too with my knowledge. You also seem to have assumed the management of Simhasna Churches which are directly under my rule. Without my authority you could not have assnmed the administration of the said churches.

On June 8, 1959, the Catholicos replied to the Patriarch (Ex.A.24). G In this letter, the Catholicos stated that the letters Ex.A.19 and A.20 were exchanged by him and the representative of the Patriarch, Mar Julius Elias, Metropolitan, on 16th December at the old Seminary before an august gathering consisting of Bishops, Priests and laymen of both the parties. Before the said exchange, there were negotiations between the two parties H

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

A in which it was made clear that the acceptance of Patriarch shall be subject to the Constitution. It was only after the acceptance of the same by the Patriarch's representative, Mar Julius Elias, that the letters, A.19 and A.20 were exchanged. Protesting against the same after four or five months is not justified. With respect to the use of the expression 'holiness', the B Catholicos justified the same saying that it can be used by the Catholicos also and is nol confined to Patriarchs only. Regarding the claim of the Throne of St. Thomas, the Catholicos stated in t~is letter that this expres- sion is used not only by Patriarchs but also by Metropolitans and Bishops alike, as is evident from the Hudaya Canon and other books. As a matter of fact, no apostle had ever established a Throne anywhere. It is only a C honorific. Indeed, Ex.A.13 and A.14 reviving the Catholicate refer to the Throne of St. Thomas in India. Therefore, the Throne of St. Thomas is not a new thing. Similarly the Church of the East and Catholicos of East are well established entities. The judgment of the Supreme Court affirms the Constitution and it is binding upon every one. For these reasons, there can be no ground or reason for entertaining any apprehensions by the Patriarch.

On July 16, 1960, the Patriarch again wrote to the Catholicos reiterat- ing his objections. In this letter, the Patriarch asserted that the provisions of the said Constitution ''seem to be destructive of every principle of apostolic and episcopal Churches. So we could not approve your constitu- tion". The letter concluded by saying, ''it is reported to us that our people there and the churches remained divided mainly on the scope of your acceptance and the validity of the constitution which you hold more sacred than the holy scriptures, the canons of the church and its traditions. In the circumstances we have no alternative but to recognise those people and churches who hold fast to the original principles of the foundation of their church." The letter called upon the Catholicos to clarify his position immediately within a month failing which it would be taken that the Catholicos has nothing to reply and he could take such further steps as are deemed necessary for the peace of the church and preservation of its faith, order and discipline as a holy and apostolic church.

On August 13, 1960, the Catholicos replied to patriarch in which he reiterated that when the Samudayam suit was pending in the Courts, the Patriarch himself was in India (at that time, he was not the Patriarch) as the representative of the Patriarch and prosecuting the said suit. He

P.M.A. ME1ROPOLITAN "· M.M. MARTHOMA (B.P. JEEVAN REDDY, J.} 665

appeared as a witness, produced several documents and was aware of all the developments including the enactment of the Constitution and its acceptance by the Supreme Court. With reference to the Patriarch's • proposal to accept only his followers as members of the true faith, the Catholicos expressed a doubt whether a Patriarch can continue as such once he recognises schismatics into the fold. He closed the letter by saying that he expected full cooperation from and recognition of the Constitution by the Patriarch.

The correspondence went on lie this with the language and accusa- tions in each letter becoming more and more shrill with each exchange. c With the above correspondence was going on, following develop- ments took place in Malankara: On September 16, 1959 a meeting of the Malankara Association was held wherein members of both the groups participated [Ex.A43(a) is the minutes of the meeting]. The strength of the Managing Committee was fixed at ninety, of which seventy four were to be D elected and sixteen to be nominated by Malankara Metropolitan. Several • other decisions were taken. Ex.A.98 shows that the elected members of the Managing Committee took oath to abide by the Constitution. Pursuant to the decision of the Managing Committee of the Malankara Association, Catholicos invited the Patriarch to come to Malankara. The Patriarch, however, replied on October 27, 1961 [Ex.A.31(a)] that a canonical invita- E tion should be issued which will be placed before the Patriarchal Synod. Accordingly, a canonical invitation Ex.A.32 was sent on January 18, 1962. Since the then Catholicos had become very old, a meeting of the Malankara Association was held on May 12, 1962 for electing his successor. It elected Ougen Mar Timothious, which was approved by the Synod on June 21, F

1963. This was conveyed to Patriarch. On January 13, 1964, a letter of invitation was sent by Malankara Episcopal Synod inviting Patriarch to come to India for the installation of the new Catholicos. This letter Ex.A.35 was signed by nine Metropolitans belonging to both the groups. The plaintiffs-respondents say that this invitation was sent as contemplated by G Article 114 of their Constitution. Ex.A.41 is the Kalpana dated April 29, 1964 issued by three Metropolitans (including one of the Patriarch group) regarding the proposed installation of Catholicos. The Patriarch arrived in India and the new Catholicos was installed by him on May 22, 1964. A day before the installation of new Catholicos, it may be mentioned, there was a discussion with respect to the demarcation of jurisdiction of Catholicos H

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

A pursuant to which the Malankara Synod resolved that "hereafter the juris- diction of the said see shall not be extended to the Arabian countries or Persia and that the see includes only eastern countries situated on the east of them. But H.H., the Patriarch shall agree to continue the present system of sending priests to the Arabian gulf countries from Malankara for mini· B stering to the spiritual needs of the Malayali Parishioners as long as Malayalis stay there".

The address presented to the Patriarch by the Catholicos, Metropolitans, Clergy and the people of Malankara Orthodox Syrian Church on May 22, 1964 affirmed that the Patriarch's 'monumental act of C December, 1958' has infused new hopes for a bright future and that the Malankara Church is thankful to the Patriarch for acting with imagination, courage and persistence in handling a difficult situation in the Church. The address further affirmed:

"we beg to assure your holiness that though we have had differences D in the past, there was a deep-seated sense of attachment among our people irrespective of party opinions about our connection with the apostolic see of Antioch. Even in our worst period of controversy, that sense of attachment was not lost to us. The Catholicate was never visualised as a rival to the exalted Throne E of Antioch. On the other hand it is the symbol of real cooperation with that Throne while it signifies the Church's right and freedom to carry out God's purposes in the land in the footsteps of the saints and the faith of the Fathers".

F Ex.A.48, A.49, A.52, A.178, A.179 and A.189 series show that a new Managing Committee was elected for the Malankara Association and that the Committee was composed of representatives of both the groups and that the newly elected members took oath affirming the 1934 Constitution. More significantly in the year 1970, a meeting of the Malankara Association was held (on December 31, 1970) participated by representatives of both the groups, whereat one Mathew Athanasius was elected as the successor Catholicos to Mar Ougen I. [It may be recalled that Mathew Athanasius was ordained as Metropolitan in 1951 by Basselios Geevarghese II, (first defendant in the Samudayam suit); Mathew Athanasius is the second plaintiff in D.S. 4 of 1979, the main suit before us.] It appears that this election was challenged by certain members owing allegiance to Patriarch

P.M.A MEfROPOLITAN,.. M.M. MARTHOMA (B.P. JEEVAN REDDY, J. J 667

by way of O.S. 3 of 1979 which was dismissed oy the Trial Judge. The A judgment became final since no appeal was preferred against it. Ex.A.5 shows that the Managing Committee of the Association appointed a Rules Committee in accordance with the Constitution to suggest amendments to the Constitution. The Rules Committee included the representatives of both the groups including D.W.2 in the present suit. The draft amendments B suggested by the Rules Committee were approved by the Managing Com- mittee and by the Synod meeting, as would be evident from the documents Ex.All series and Ex.A.162(f}.

At this stage, what appears to have triggered the dispute again is the nomination of a delegate to Malankara Sabha by the Patriarch in the year C

1972. This nomination implied the exercise of active spiritual supremacy by the Patriarch over Malankara Church which was evidently not relished by the Catholicos and other members. Under a letter dated February 16, 1972 (Ex.A.76) the Catholicos and nine Metropolitans including the members ot the erstwhile Patriarch group requested the Patriarch not to send the delegate. They pointed out that sending such delegate will lead to distur- D bance of peace and to dissensions among the Malankara Church. The Patriarch did not pay heed to this request. On the contrary, he wrote back to the Secretary to the Malankara Association (Ex.A.192 dated July 9, 1973) that he is not aware of any such Sabha or of the Malankara Associa- tion. His delegate arrived in Malankara and started ordaining priests and deacons. The Catholicos objected to this activity of the delegate by his letter Ex.A.79 dated August 7, 1973 addressed to the Patriarch. Nothing happened. On September 1, 1973, the Patriarch himself ordained the first defendant in O.S.4 of 1979 (the main suit now before us) as Metropolitan of the Evangelistic Association of the East. Then started a series of correspondence between the Patriarch and the Catholicos each accusing the other of several ecclesiastical violations. .

EXCOMMUNICATION OF CATHOLICOS BY PATRIARCH:

On August 7, 1973 the Catholicos sent a telegram to Patriarch to the following effect:

"Local newspapers report your holiness intention to consecrate one of our priests as Bishop. We unequivocally object to· such action if contemplated by your Holiness as uncanonical and as a clear violation of 1958 peace agreement. (Letter follows)." H

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

A In the confirmatory letter, the Catholicos stated that there was no necessity for the Patriarch to send a delegate to Malankara and added further:

"The Catho/icate of the East is an autoceplw/ous which co11secrates its ow11 Bishops a11d its own, Marone. This autocepha/y is a fact quite i11depende11t of the name of our Throne. 17ie auto110111y exercised by B the Catholicate over Mala11kara has bee11 well established. It was for 110 other reaso11 that your Holi11ess in May, 1964 expressed a desire to delimit the geographical jurisdictio11 of this hierarchy"

(Emphasis added) c The Catholicos then referred to the re-definition of the geographical jurisdictions of both the Patriarch and the Catholicos prior to installation and to the installation of the new Catholicos by the Patriarch on May 22, . 1964. He also referred to the activities of Mar Thimotheos, the delegate of Patriarch whom the Catholicos described as a troublemaker. The D Catholicos stated that the activities of the delegate would have constituted a sufficient ground, normally speaking, for him to protest against his actions with the Patriarch but that he has not taken such action only because he considers his link with Patriarchate as valuable. Finally, he protested against any proposal to consecrate Metropolitans for India by Patriarch E and stated that any such action would be treated as an uncanonical action.

After receiving the above letter of the Catholicos, the Patriarch communicated a list of charges to the Catholics on January 30, 1974 (Ex.A.80). This letter is in the nature of a show-cause notice calling upon F the Catholicos to answer the charges levelled against him within one month. It is unnecessary to detail the charges herein. The main grievance of the Patriarch was the attempt of Catholicos to style himself as the head of an independent Church of Malankara and repudiation of the Patriarchal authority. The letter also complained of the "most discourteous and impu- G dent manner which is unbecoming from the Catholicos" in which the letter dated August 7, 1973 was addressed to him.

On March 9, 1974 the Catholicos replied to the Patriarch stating that the Patriarch has no jurisdiction to level any charges against him or to ask for his explanation. He stated that the only authority to do so is the H Malankara Episcopal Synod. He stated that the charges communicated by

P.M.A ME1ROPOLITAN '· M.M. MARTIIOMA (B.P. JEEVAN REDDY, J.] 669

the Patriarch have been forwarded to the said Synod for consideration and appropriate action and that the Synod has assumed jurisdiction in the matter. A similar letter was addressed by the Secretary of the Malankara Synod on March 5, 1974 to the Patriarch. This letter also asked the Patriarch to prove his charges against Catholicos before the Malankara synod. This exchange went on with the language and tone of each letter becoming more and more discourteous towards each other. Suffice it to mention that on July 5, 1974 the Malankara Synod met and not only justified the actions of the Catholicos but found the Patriarch guilty of several ecclesiastical violations. A copy of the proceedings was forwarded to the Patriarch. c On January 10, 1975 the Patriarch suspended the Catholicos from his office until further orders. On January 11, 1975 the Patriarch wrote to all the Metropolitans in Malankara inviting them to the Universal Synod convened by him for June 6, 1975 to consider the charges against the Catholicos. The Patriarch also addressed letters on the same day to several D Bishops in Malankara condemning the several actions of the Catholicos which according to him were contrary to the faith.

On May 22, 1975, another meeting of Malankara Episcopal Synod was held reiterating the independent nature of Malankara Church and disputing the authority of the Patriarch. All these minutes were duly E communicated to the Patriarch including the minutes of the meeting held 00~~~ .

On June 16, 1975 the Universal Synod met at Damuscus to consider the charges against the Catholicos. The Synod met on several subsequent p dates upto December 20, 1975, the proceedings whereof are enclosed to the letter Ex.A.22 dated June 22, 1975 addressed by the Patriarch to f Catholicos. The Universal Synod concluded that the Catholicos Ougen I is guilty against the faith and the laws of the Church and has violated the oath taken by him at his consecration as the Catholicos of the East and as the Metropolitan of Malankara and must be considered to have become an G apostate to the Syrian Orthodox Church. Accordingly, he was stripped off all the offices, authority and privileges of the said office. The Synod authorised the Patriarch to announce the said decision to whole :Church and to all concerned. The Patriarch issued a notice to the Catholiccls calling upon him to intimate whether he accepts and submits to the resolutions of J;J. ,

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

A the Universal Synod within ten days. He was intimated that if he does not so submit, he will be declared as apostate. A Bull of excommunication was issued by the Patriarch excommunicating the Catholicos from the Syrian Orthodox Church.

THE INSTITUTION OF THE PRESENT SUITS: B Eight suits in all were instituted which were later transferred to th<: High Court for disposal. Of these eight suits, two are no longer before us, viz., O.S. 347/73 (numbered as O.S. 3/79 in the High Court of Kerala) and O.S. 35/76 (numbered as O.S.7/79 No. the High Court). The other six suits which are now before us are the following. (For the sake of convenience, we shall mention their High Court numbers only):

(1). O.S. 2179, a suit filed by the Catholicos and his group chal- lenging the authority of the Patriarch to ordain Bishops and Metropolitans on the ground that Bishops and Metropolitans so appointed were interfering with the worship and other functions of the Malankara Church in Kottayam.

(2) O.S. 6179 - also filed by the Catholicos and his group. This suit - pertains to the ordaining of priests by Patriarch in certain dioceses.

E (3) 0.S. 4/79 - this is treated as the main suit by the parties (It was actually instituted in the District Court on 27.6.1974). We shall presently mention the frame of the suit since that would constitute the main-frame of the dispute before us.

(4) O.S. 8/79 - that was instituted by Catholicos Ougen. On his p death his successor Catholicos was impleaded as the plaintiff.

(5) O.S. 1/79, instituted by Parishnes of Kothamangalam belonging to the Catholicos group against the members of the Patriarch group.

G (6) O.S. 5179, instituted by Metropolitan of the Diocese of Kot- tayam and certain other members belonging to Catholicos group against the Managing Committee of Simhasana Church at Pom- pady, Kottayam.

The plaintiff-respondent's case, as put forward in D.S. 4/79, is to be H following effect:

P.MA MEIROPOLITAN'· M.M. MARTIIOMA [B.P. JEE VAN REDDY. J.j 671

Until 1912 the Malankara Metropolitan, necessarily a native of . A Malankara, was invariably exercising administrative powers over temporal and ecclesiastical matters which authority was derived because of his election/approval by the members of the community. The persistent inter- ference by the Patriarch in the affairs of the Church compelled the com- munity to feel the need for re-establishment of Catholicate. Accordingly, it B was revived and re- established in 1912. The seat of Catholicate wa' transferred from Tigris in Persia to Malankara. After the establishment of Catholicate, "practically no residuary power (was) left with the Patriarch of Antioch over this Episcopal Church". There are about 1,000 Parish Churches comprised in the Malankara Church. They are under the authority of Malankara Metropolitan. The Malankara Church is neither a C union nor a federation of congregational autonomous units, but a Church

- with a unique solidarity derived from apostolic succession. The 1934 Con- stitution governs and regulates all the affairs of this Church. The Constitu- tion enables the Malankara Metropolitan to hold the office of Catholicos as well. ''Thus in the Malankara Metropolitan-cnm-Catholicos converge all D temporal, spiritnal and ecclesiastical powers without mitigating the exalted position and status of the Patriarch, the Primate of the Orthodox Syrian Church". After the judgment of the Supreme Court the Patriarch and his group accepted the Catholicos and the 1934 Constitution. But later they have been acting against the interests of the Church at the instance of Patriarch and others. They also denied the authority of the first plaintiff E (Catholicos-Malankara Metropolitan). The defendants are impleaded in their individual capacity and as representing the Patriarchal group. "No person irrespective of his position has any locus standi in the Malankara Church without believing in the holy church, headed by the Catholicos of the East-cum-Malankara Metropolitan aµd without affmning and accept- F ing the ecclesiastical authority of the first plaintiff and the administrative set up and hierarchy, the principle being that the lawful Metropolitan is necessary to the very being of the Church". In Para 24 a reference is made to Church properties. The paragraph reads thus: "Defendants and their partisans are trying to intermeddle in the affairs of individual churches and create dissensions and discord therein. they are attempting to make use of G the properties of the church in this illegal and unlawful attempt."

It is relevant to notice the reliefs sought for in the suit. They are :

"A To declare that the Malankara Church is episcoal in character H

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

A and is not a union or federation of autonomous church units and is governed in its administration by the constitution of the Malankara Church;

B. To declare that defendants 1 to 3 are not competent to ordain priests and deacons for Malankara church; B C. To declare that defendants 1 to 3 are not legally consecrated Metropolitans of the Malankara Church and defendants 4 to 8 are not legally ordained priests or deacons of the Malankara Church.

D. To declare that no Metropolitan, priest or deacon unless validly c ordained and appointed under the provisions of the Constitution of the Malankara Church can officiate in any of the churches or its institutions in Malankara Church.

E. To declare that any priest who refuses to recognise the authority of the first plaintiff and other Metropolitans under him is to entitled to minister in any of the churches or its institutions in Malankara.

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

G. To prohibit defendants 4 onwards from performing any religious service or sacraments whatsoever in ·or about any of the church of Malankara and for the Malankara church or its con- stituent churches or institutions.

H. To prohibit the defendants from interfering in any manner with the administration of the Malankara Church."

G The defendants in their written statements denied and disputed the several averments, assertions and claims made in the plaint and reiterated the supremacy of the Patriarch in the affairs of the Malankara Church. According to them, the Catholicos and the members of his group have become apostates to the faith on account of their acts and declarations and H are not entitled to any of the reliefs prayed for.

P.M.A. METROPOLITAN v. M.M. MARTI!OMA [B.P. JEEVAN REDDY, J. [ 673

A number of issues were framed on the basis of the pleadings. The A learned Single Judge dismissed the suits. On appeal, the Division Bench of the Kerala High Court reversed. The Division Bench re-formulated the issues in controversy into 31 issues. Of them Issues 1 to 22 and 27 to 31 pertain to the main dispute now under discussion, whereas Issues 23 to 26 pertain to certain individual churches to which we shall advert later. The B Division Bench has upheld the claim of the Catholicos Division Bench has upheld the claim of the Catholicos group to a large extent. O.S. 4179, the main suit, has been decreed as prayed for against defendants 1 to 17 without costs. It has been dismissed against defendant No. 18 (Evangelical Association of the East). So far as D.19 (Knanaya Samudayam) is con- cerned, the suit has been decreed but with certain qualifications which we C shall mention while dealing with the appeal preferred by D.19. The result of the other suits is consistent with the decree in O.S. 4179 and need not be mentioned separately.

OUR FINDINGS: D The following facts, in our considered view, are of fundamental significance. Once they are kept in view, it would be un.11ecessary to go into many of the issues agitated before the learned single Judge and the Division Bench of the High Court. The fundamental facts which decide the fate of the main dispute are: E

(a) The Patriarch of Antioch was undoubtedly acknowledged and recog- nised by all the members of the Malankara Church as the supreme head of their Church. In the year 1654, they took the oath known as the 'Koonan Cross Oath' re-affirming their loyalty to the Syrian Orthodox Christian F Church headed by the Patriarch. It was the Patriarch who convened the Mulanthuruthy Synod at which the Malankara Syrian Christian Association was formed. However, the authority of the Patriarch extended only to spiritual affairs - the Syrian Christians in Malankara believed in the efficacy of 'Kaivappu' (laying of hands by Patriarch on the head) while consecrating G the Metropolitan and considered it essential to a proper ordaining - but not to the temporal affairs of the Malankara Church as declared fmally by the Travancore Royal Court of Final Appeal in the year 1889 in the Seminary suit. The Royal Court declared that the authority of the Patriarch never extended to temporal affairs of the Church which in that behalf was an independent Church, The Royal Court further declared that the H

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

A Metropolitan of the Church in Travancore should be native of Malabar consecrated by the people as their Metropolitan, as decided by the Mulan- thuruthy Synod. This declaration was affirmed by the Cochin Court of Appeal in the Arthat suit in 1905.

B (b) The revival of Catholicate in 1912 by Patriarch Abdul Messiah made a qualitative change in the situation. Under Ex.A.14, the Kalpana issued by the ·Patriarch Abdul Messiah,* (which document was produced in several earlier suits and whose authenticity is not disputed by the Patriarch group before us) and A.13 which precedes A.14, empower the Catholicos to ordain metropolitans and other officials of the Church in accordance with the canons of the Church and also to consecrate holy Morone. A.14 states expressly that the power to instal a Catholicos on the death of the incum- bent is vested in the Metropolitans. It is in this manner that the power of ordaining Metropolitans and melpattakkars and consecrating holy Morone, which hitherto vested in Patriarch, came to be vested in the Catholicos by the Patriarch himself. Further, the power to instal a Catholicos on the death or disability of the incumbent was also vested in the Metropolitans of Malankara Church and it is in exercise of this power that on the death of the first Catholicos installed by Patriarch Abdul Messiah in 1913, the second Catholicos Basselios Geevarghe;;e I (Mar Geevarghese Philixinos) was installed in the year 1924 by the Malankara Synod without reference to the Patriarch. Again in 1929, Basselios Geevarghese II was elected as the third Catholicos by the Association and was installed as such. In the M.D. Seminary meeting held on December 26, 1634 the third Catholicos was elected as the Malankara Metropolitan, thus combining both the posts in one person. In other words, the spiritual and temporal powers over the F Malankara Church came to be concentrated in one person. It may be that by this act of revival of Catholicate and the Kalpanas A.13 and A.14, the Patriarch is not denuded of the powers delegated by him to the Catholicos - assuming that these powers were not already possessed by the Catholicos "It was conceded on both sides (in vattipanam suit) namely that the Firman issued to Abdul Messiah was withdrawn and that such withdrawal in itself has no effect on the exercise by a Patriarch of purely spiritual functions~. (Judgment of Chatfield CJ.). Another learned judge Paran1eshwaran Pillai.J., held in the same suit: "The fact that ten1poral govt. withdrew his (Abdul Messiah's) recognition cannot affect the spiritual standing and position of Abdul Messiah~. It is also pointed out in Para 42 of the judgment under appeal that no plea has been raised in any of the pleading alleging the invalidity of, or the grounds of invalidity of, Abdul Messiah continuing to perform his spiritual functions as the Patriarch. The judgn1ent under appeal also refers to the canonical position when there are two Patriarchs. We agree with their views."

P.MA METROPOLITAN'· M.M. MARTllOMA [B.P. JEEVAN REDDY. J.J 675

and that they came to be conferred upon him only under A.13 and A.14 - A yet, reasonably speaking, the Patriarch was, and is, expected to exercise those powers thereafter in consultation with .the Catholicos and the Malankara Sabha (Association) - and, of course, in accordance with the 1934 Constitution. This was necessary for the ·reason (i) to avoid creating parallel authorities leading to conflict and confusion and (ii) the accep- B lance by the local people-was a sine qua non for any Metropolitan or melpattakar in Malankara Church as provided in the Mulanthuruthy Synod (convened and presided over by the then Patriarch himself) and given a judicial sanction by the judgment of the Travancore Royal Court of Appeal aforementioned. Without removing the Catholicos in accordance with the canon law and the principles of natural justice, the Patriarch could not have purported to exercise unilaterally the powers delegated by him to the Catholicos under A.14.

(c) It is significant to notice that the Catholicos-cum-Malankara Metropolitan, Basselios Geevarghese II, was accepted and recognised as the Catholicos by the Patriarch Yakub under his Kalpana Ex.A.19 dated December 9, 1958. Basselios Geevarghese II was elected as Catholicos by the local Metropolitans and installed as such by the local melpattakkars without reference to the Patriarch and which Catholicos was all through fighting against the Patriarch group in the Samudayam suit. It is no less significant that Patriarch Yakub, who issued the Kalpana A.19, was, before his installation as the Patriarch, the delegate of the Patriarch in India and was prosecuting the Samudayam suit for a number of years. If so, it is reasonable to infer that when he accepted and recognised the Catholicos as such under Ex.A.19, he did so with the full knowledge that he was thereby recognising the Catholicos as revived by Abdul Messiah in 1912 F under A.14 and as described and affirmed in the 1934 Constitution. Moreover, the Kalpanas A.19 and A.20 were not issued in an abrupt fashion - they could not have been - but were preceded by a good amount of discussion and negotiations between members of both the groups. Under his Kalpana Ex.A.20 dated December 16, 1958, from the Catholicos to the Patriarch, the Catholicos accepted the Patriarch subject to the Constitution G passed by the Malankara Association and as then in force. The Metropolitans ordained by Patriarch duly accepted the authority of Catholicos and participated in several proceedings. There was re-allotment or dioceses among the Metropolitans of both the groups. The members of the erstwhile Patriarch group swore loyalty to the 1934 Constitution. (These H

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

A events have been detailed hereinabove). After all these developments, and after a lapse of four months after A.20, the Patriarch raised an objection to the use of certain expression employed in Ex.A.20, viz., the Catholicos claiming to be seated on the Throne of St. Thomas and also to the qualification added by he Catholicos to his acceptance to the Patriarch, B viz., "subject to the constitution....". But even this objection which is reflected in the correspondence which passed between them during the years 1959 to 1962 (referred to supra) must be deemed to have been given up and abandoned by the Patriarch by his acts and declarations in the year

1964. As stated supra, the Patriarch came to India pursuant to a canonical invitation from the Malankara Synod and consecrated and duly installed the new Catholicos (Mar Ougen), who was elected by the Malankara Association in accordance with the 1934 Constitution. Before he did so, the Patriarch took care to see that the respective territorial jurisdictions of the Patriarchate and the Catholicate are duly defined and demarcated. The Middle East which was supposed to be hitherto under the jurisdiction of the Catholicos was excluded from his jurisdiction confining his authority to India and East alone.

Now what do the above facts signify? Do they not show that Patriarch had, by 1964, recognised and accepted the revival of the Catholicate A.13, E A.14 and the 1934 Constitution? Do they not show that the Patriarch had also given up his objections to the use of the words "seated on the throne of St. Thomas in the East" and to the "qualification" added by Catholicos in A.20? We think, they do. Once this is so, it is no longer open to the Patriarch or his followers to contend that the revival of Catholicate was not in accordance with the religious tenets and faith of the Syrian Jacobite F Christian Church, that the Constitution of 1934 was not duly and validly passed or that the power and authority of the Patriarch as obtaining prior to 1912 remains and continues unaffected and undiminished. In this con- nection, it is relevant to remind ourselves that it was the contention of the Patriarch group in Vattipanam suit that the Catholicos group had, by G espousing the cause of and the revival of Catholicate, reduced the power of the Patriarch to a vanishing point and have thereby become aliens to the faith. The power and authority of the Catholicos under A.13 and A.14 was affirmed, re-enforced and enlarged in the 1934 Constitution (as amended in 1951) and yet under Ex.A.19 the Patriarch accepted with pleasure Mar H Basselios Geevarghese as the Catholicos. At the sa!"e t\me, it is equally

P.M.A METROPOLITAN'· M.M. MARTIIOMA (B.P. JEEVAN REDDY, J. ( 677

significant to note that the 1934 Constitution does not repudiate the A Patriarch. On the contrary, it re-affirms that he is the primate of the Orthodox Syrian Church ~f which the Malankara Church is said to be a part - though it is true, all the effective powers exercised by the Patriarch prior to 1912 were vested in the Catholicos under Ex.A.13 and Ex.A.14. B In this view of the matter, the submissions of the Patriarch group that the 1934 Constitution was not put forward by the Catholicos group as one of the bases of their claim in Samudayam suit or that no finding as such was recorded by this Court in the said suit regarding the validity of the Constitution are of little consequence. We are not relying upon the rule of estoppel in this behalf but are only pointing out that having conceded, recognized and affirmed all the above things, the Patriarch group cannot make a legitimate grievance of these very things. They cannot be heard to say so. Nor have they made any effort to explain the said acts and conduct of the Patriarch and of the persons owing allegiance to him. They must be deemed to have given up and abandoned all their objections to the aforesaid events and documents.

THE VALIDITY OF THE EXCOMMUNICATION OF THE CATHOLICOS:

In the Vattipanam suit, the High Court found that of the two versions of Hudaya Canon put forward by the Patriarch group and Patriarch group (Ex.18 in that suit) is the correct one. The very same version was put forward by the Patriarch group as the true version in the Seminary suit. Of course, at that time, both the groups concerned herein were comprised in Patriarch group and were fighting against the renegade group of Mar F Athanasius. It is really pointless to go. into the question whether the judgment in Vattipanarn suit operates as res judicata. Even if it is assumed that it does not, yet its value as a precedent - a finding arrived at by the High Court after a full enquiry - cannot be denied. According to the first judgment of the High Court, the Patriarch has the power to excommunicate G the Metropolitans. It does not say anything about the power of the Patriarch to excommunicate Catholicos and if so according to what proce- dure. We have seen supra that while granting the review of the said judgment, the High Court specified that three findings recorded by it in the judgment under review should not be reopened. The three findings inter alia included the finding relating to the authenticity of Ex.18. Accord- H

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

A ing to the said version of the Hudaya Canon, the Catholicos "shall act according to the orders of (be subject to) the Patriarch of Antioch. He shall not defy (act against) his superiors". It repeatedly says that the Catholicos is subject to the authority of Patriarch and that the Patriarch is the "head or superior" of the Catholicos. Though the canon does not say B so, we shall proceed on the assumption for the purpose of this case - without recording any finding to that effect - that the Patriarch has the power to excommunicate the Catholicos. Yet the question remains whether the grounds on which the excommunication of the Catholicos has been effected are valid and permissible grounds. A perusal of the charges communicated to the Catholicos by the Patriarch in his letter dated January C 30, 1974 makes it clear that charges related to the use of the word "Holiness" along with his name by the Catholicos, his assertion of being "seated on the Throme of St. Thomas in the East" and his assertion of "cordial relationship" with the Patriarch instead of admitting his subor- dinate all objections which were raised by Patriarch during the years 1959 D to 1961 but given up and abandoned in May, 1964, as explained supra. It is also alleged that the Catholicos did not accept the delegate sent by Patriarch to Malankara and has also changed the oath administered to the members of the Church wherein he substituted himself for the Patriarch. The proceedings of the Malankara Association were also cited as one of the charges. Having revived the Catholicos with the powers under Ex.A.13 and 14 and having accepted (by necessary implication) the Constitution of 1934 under his Kalpana Ex.A.19 and having installed the Catholicos in 1964 notwithstanding his objections raised in his letters written during the years 1959 to 1962, it was not open to the Patriarch to seek to excommunicate the Catholicos on those very grounds. Ex.A.13 speaks of Throne of St. Thomas. Ex.A.13 and Ex.A.14 specifically vest the Catholicos with the power lo consecrate Metropolitans and other officials of the Church and to consecrate Morone. A.14 empowers the Metropolitans to elect their own Catholicos. In these circumstances, it is difficult to understand how could the use of the expression "Holiness" or the assertion of being seated at the G Throne of St. Thomas in the East or the claim that the Malankara Church is an autocephalous Church can be treated as heresy when the very <:;onstitulion by which the Catholicos and his group were swearing affirmed jli clear terms that the Patriarch is the supreme head of the Malankara IChurch. As a matter of fact, some of the charges in the letter dated January H 30, 1974 can also be termed as vogue. For example, Charge No. 9 reads

P.M.A METROPOLITAN v. M.M. MARTHOMA !RP. JEEVAN REDDY, l.! 679

thus: A

"The books taught in the Sunday Schools there contain uncanonical and wrong teachings and fallacious historical facts especially with a view to inject wrong ideas into the tender minds regarding the fundamentals and history of the Church." B The letter does not set out or refer to the alleged uncanonical or wrong teac):iings and fallacious historical facts taught in the books in the Sunday Schools. Similarly, Charge no. 8 says that in the ordinations administered by the Catholicos, the heretical two-nature theory propounded by Pope Leo is not repudiated. It is not stated under what Canonical Law such an C assertion is obligatory. So far as the non-acceptance of the delegate sent by Patriarch is concerned, it can hardly be considered to be a ground for excommunication. After all that has happened between 1912 and 1964, the sending of a delegate over the protestations of all the Metropolitans of Malankara including those belonging to Patriarch group was totally un- D called for. The delegate started ordaining priests here and the Patriarch himself ordained the first defendant in O.S. 4/79. All this certainly could not have been done unilaterally. It is one thing to say that the Patriarch could do these things in cooperation with the Catholicos but the ordaining of the priests and metropolitans by him and his delegate without reference to - indeed over the protestations of the Catholico - was certainly not the right thing to do since it purported to create a parallel administrative mechanism for the Church in spiritual/temporal matters. We are, therefore, of the opinion that the charges, at any rate the main charges, on which the excomivunication is based were not available as grounds of excommunica- tion and could not constitute valid grounds therefor. Accordingly, it is held that the excommunication of Catholicos is not valid and legal.

PLAINTIFFS CLAIM THAT MALANKARA CHURCH IS EPISCOPAL IN CHARACTER AND NOT A UNION OR FEDERATION OF AUTONOMOUS UNITS: G Though in Para (1) of the Plaint in 0.S. 4/79 an assertion is made that "the Malankara Orthodox Syrian Church...... is an autocephalous division of the Orthodox Syrian Church which traces its origin to Jesus , Christ and his apostles", the relief asked for in the plaint is for a declaration "that the Malankara Church is Episcopal in character and is not a union H

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

A or federation of autonomous church unit... .. ".* The expression "Episcopal" appears to have been used in contrast to the expression "congregational". In the absence of any material brought to our notice with respect to the meaning of these expressions, we may refer to Para 66 of the judgment under appeal where the meaning of these expressions has been explained. B It reads thus:

"Episcopalism is defined in the New English Dictionary of Histori- cal Principles - By Sir John Murray Vol.III as 'Theory of Church Polity which place the supreme authority in the hands of spiscopal or pasteral orders'. The same dictionary defines the word con- c gregationalism as 'A system of ecclesiastical polity which regards all legislative disciplinary and judicial functions as vested in the individual church or local congregation of believers'. Chambers Dictionary Vol. 4 defines congregationalism as 'the doctrine held by churches which put emphasis on the autonomy of the individual D congregations'. Congregationalims has for its sign-manual the words of Jesus 'Where two or three are gathered together in my name, there am I in the midst of them'.

(Emphasis in original).

E The Division Bench also referred to the judgment of the Kerala High Court in John v. Rev. 1homas Williams, (1953) K.L.T. 605 on the meaning and content of the expression "congregationalism. The judgment describes "congregationalism" as one of the non-conformist Protestant denomina- tions. Relying upon the Encyclopedia of Britanica, it says that the con- F gregationalism is the name given to that type of church organisation in which the autonomy of the local church or body of persons assembling in It is therefore unnecessaty for us to record a finding on the question whether the Malankara Church is an autocephalous church as claimed by the plaintiffs. If it is found necessary to do so, we n1ay indicate that we agree with the finding of the Division Bench recorded in Para 99 of the judgment under appeal. For this reason, it is equally G unnecessary to consider the effect and relevance of the resolutions passed by the !\falankara Synod in its nleeting held on February, 1975 and May 22, 1975 affirming the autocephalous and independent nature of the Malankara Church. It is significant to notice that even after the 1967 an1endments to the 1934 Constitution, clause (1) still declares that "(T)he Malankara Church is a division of the Orthodox Syrian Church. The Primate of the Orthodox Syrian Church is the Patriarch of Antioch". It is not brought to our notice _that this clause has been amended later so as to repudiate the H affim1ations contained in it.

P.M.A. MEJROPOLITAN v. M.M. MARTI!OMA [B.P. JEEVAN REDDY. J. J 681

Christian fellowship is fundamental. It constitutes one of the three main A types of ecclesiastical polity, the others being Episcopacy and Pres-

- byterianism. It regards church authority as inherent in each local body of believers, as a miniature realisation of the whole church which can itself have only an ideal corporate being on earth. While in practice it is religious democracy, in theory it claims to be a theocracy since it assumes that God B himself rules directly through Christ. It springs from the religious principle that each body of believers in ac.tual Church Fellowship must be free of all external human control, in order the more fully to obey the Will of God as conveyed to conscience by His Spirit. The essential features of con- gregationalism are stated to be the autonomy or independence of the individual Churches or organisations, though in matters in which the in- C dividual charges are interested as a whole and in order to enable the churches to effectively fulfil their responsibilities, they may enter into unions. Congregationalims is stated to be the opposite of Episcopacy which means Government of the Church by the Bishops on the theory of apostolic succession. In other words, the Bishops are supposed to be the successors D of the apostles of the Christ. The congregationalism believe that every Christian has the right to perform all functions pertaining to the priestly office and permits the laymen to celebrate sacraments whereas in Epis- copal Churches only the ordained priests can celebrate sacraments.

On a consideration of the relevant material placed before it, the E Division Bench has held that while the Orthodox Syrian Church including the Malankara Church is Episcopal in spiritual matters, in temporal mat- ters it is not Episcopal. It referred, in our opinion rightly, to the judgment of the Royal Court of Final Appeal of Travancore in Seminary Suit where it is observed: "parties agree that head of Syrian Church in this country or F its Metropolitan should be a properly ordained Bishop and that regarding temporal affairs acceptance of Malankara Metropolitan as such by the community is necessary". It was further held in the said judgment that 1 "while the ecclesiastrical supremacy of the Patriarch has all along been recognised, authority of Patriarch never extended to Government of tem- poralities of the Church. The Division Bench at the same time clarified that G . it does not mean to hold that the Metropolitan has the jurisdiction over the day-to-day management of temporal affairs of Parish Churches. The Division Bench has also referred to the Mulanthuruthy Synod resolutions which say that the Parish Churches have a degree of autonomy with certain supervisory powers along being vested in the Managing Committee of the H

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

A Association or Catholicos or the Malankara Metropolitan, as the case may be. The Division Bench has held that "Malankara Church though it has some episcopal characteristics is not a purely episcopal church. But we are not able to agree that the individual Parish Churches are independent churches or churches with independent status ..... The Parish Churches are constituent parts of the Malankara Church and enjoy a degree of autonomy - and he administration of the day-to-day affairs vests in the Parish Assembly and committee elected by the Parish Assembly subject to supervisory powers of the Metropolitan - and the provisions of the constitution of the Malankara Sabha do not affect this position"* We are, however, of the opinion that in this suit no declaration can be granted affecting the rights of Parish Churches in their absence not can it be declared that the properties held by Malankara Parish Churches vest in the Catholicos or the Malankara Metropolitan or the Metropolitan of the concerned diocese, as the case may be. Indeed, no such specific relief has been asked for in the suit and without impleading the affected parties, no declaration can be claimed by the plaintiffs that their church is episcopal in nature, if that declaration means that it gives the Catholicos/Malankara Metropolitan/the Metropolitan of the Diocese any title to or any control over the properties held by the Parish Churches. We have pointed out hereinbefore that the only place in the plaint where a reference is made to the properties of the Parish Churches is in Para 24 where all that it is alleged is that the defendants and their partisans are trying to intermeddle in the affairs of individual churches and are attempting to make use of the properties of the church to further their illegal and unlawful objects. No list of Parish properties is enclosed nor are the particulars of the alleged intermedclling mentioned in the plaint. In the state of such a pleading, the only observa- F tion that can be made herein is that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches too, insofar as the said Con- stitution provides for the same. In this connection, the learned counsel for appellants has brought to our notice the following facts: Inasmuch as the ( plaintiffs asked for a declaration that Malankara Church is an Episcopal Church and appended a list of more than one thousand Churches to their plaint, several Parish Churches came forward with applications under Order I Rule 10{2) of the Civil Procedure Code to implead themselves as defendants to the suit. All the applications were dismissed by the Trial .. The words underlined by us in the above quote introduce certain amount of ambiguity in the finding recorded. May be this is the result of granting a declaration without hearing the affected parties.

P.M.A METROPOLITAN "· M.M. MARTI!OMA [B.P. lEEVAN REDDY, J.] 683

Judge against which a batch of Civil Revision Petitions was filed before the. A Kerala High Court being C.R.P. Nos. 1029/75 and batch. It was contended by the revision petitioners (Parish Churches who were seeking to be · impleaded in the suit) that if the first relief prayed for in O.S. 142/74 (O.S. 4/79) is granted, it will affect the autonomy and individuality of the in- dividual Parish Churches and, therefore, they should be impleaded as defendants to the suit. This argument was repelled by Khalid, J. (as he then was) in the following words :

"! do not think that this apprehension is well founded. Even under Ordefl Rule 10 a party does not have any inherent right to get himself impleaded; that lies in the discretion of the Court on being satisfied that the petition is well founded on merits. The counsel for the contesting respondents (plaintiffs) would contend that all that the plaintiffs want is for a declaration of the supervisory and spiritual control over the Church." D · (Emphasis supplied)

Accordingly, the revision petitions were dismissed. If the plaintiffs mean merely spiritual control by saying episcopal, probably there may be no difficulty in holding that Catholicos and the Malankara Metropolitan have spiritual control over. the Parish Churches, but if it means control over temporal affairs of, or title to or control over the properties of, the Parish Churches beyond what is provided for in the Constitution, a declaration to that effect can be obtained only after hearing and in the presence of the concerned Parish Churches. It also appears that each of these Parish Churches/Associations has its own constitution, whereunder the general body of the Parishes is declared. to be the final authority in temporal matters. All this is mentioned only to emphasis that in the absence of the Parish Churches and proper pleadings and proof, no declaration touching the Parish Churches can be granted in these suits. In Para 103 of its judgment, the Division Bench has held that while the Malankara Metropolitan has supervisory jurisdiction over the Parish properties as provided in the 1934 Constitution, it cannot be said that the administration of the Parish properties vests in him. It held that the administration vests in Parish Assemblies or Parish Churches, subject again to the provisions of the Constitution. In sum, we observe that the 1934 Constitution governs the affairs of the Parish Churches too insofar as it does. The power of the H

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

A Malankara Metropolitan or the Metropolitan in temporal affairs must be understood in these suitS too in the same manner as has been declared in Samudayam judgment, i.e., with respect to the common properties of the Malankara Church as such.

The result of the above discussion may be summarised thus: B (1). The Vattipanam judgment has held that the version of Hudaya Canon put forward by Patriarch group as Ex.18 in the suit is the correct version and not the version put forward by the Catholicos group. However, in Samudayam suit, the District Judge (Trial Court) accepted the version of C Canon put forward by the Catholicos group as against the version put forward by Patriarch group. It is suggested by the learned counsel for the respondent that this finding of the District Judge must be deemed to have been restored by this Court in A.I.R. 1959 S.C. 31. It is really unnecessary for use to go into this question since it has lost all significance in view of the subsequent developments and their effect, as accepted by us. D (2). The Catholicate was revived and re-established by Patriarch Abdul Messiah in the year 1912. The powers and functions of the Catholicos are set out in ExA.14. Moreover by virtue of their acts and conduct subsequent to the judgment of this Court (in A.I.R. 1959 S.C. ·31), the defendants in the present suit (i.e., the members of the Patriarch group) cannot now dispute the validity of the revival of the Catholicate or of ExA.14. '

(3). It may be that by conferring upon the Catholicos the powers of ordaining Metropolitans, consecrating Morone and to exercise other spiritual powers over Malankara Church, the Patriarch may not have denuded himself completely of the said powers which he enjoyed until then. But in view of the fact that he had himself created another centre of power in India with the aforesaid powers, it would be reasonable to hold that thereafter the Patriarch cannOt exercise those powers unilaterally, i.e., without reference to the Catholicos. He can exercise those powers only in consultation with the Catholicos. Moreover, the person to be appointed as Metropolitan or Malankara Metropolitan has to be accepted by the people as has been affirmed in the judgment in Seminary suit. The Patriarch's power to ordain the Metropolitans now is subject to the Constitution of 1934.

H (4). It may be that be virtue of the revival of Catholicate and by iSsuing the

P.M.A MElROPOLITAN'· M.M. MARIBOMA (B.P. JEEVAN REDDY, J.) . 685

Kalpana Ex.a.14 - and also by accepting the 1934 Constitution (as to be A mentioned presently) - the power of the Patriarch may have been reduced to a vanishing point, but all the same he remains 'the supreme head of the Syrian Church of which the Malankara Church is a division. He is spiritual- ly superior to the Catholicos though he does not, and indeed never did, enjoy any temporal powers over the Malankara Church or its properties. B (5). The 1934 Constitution was approved at a validly convened meeting of Malankara Association, which Association was created by the Patriarch himself under the Resolutions of Mulanthuruthy Synod. The defendants in the present suits (Patriarch group) cannot question its legality and validity in view of the acts and conduct of the Patriarch and the members of his C group subsequent to the judgment of this Court in A.LR. 1959 S.C. 31.

(6). Ex.A.19, Kalpana, was issued by Patriarch Yakub with the full ~. knowledge of revival of Catholicate, Ex.A.14 and the 1934 Constitution and the various claims and contentions of both the parties put forward in Samudayam suit and the decision of this Court in A.I.R. 1959 S.C. 31. It D must, therefore, be held that the Patriarch has thereby accepted the validity of the revival of Catholicate Ex.A.14 and the 1934 Constitution, and abandoned and gave up all or any objections they had in that behalf. Several members of his group including some of the defendants also accepted the Constitution and took oath to abide by it. They cannot now E turn ronnd and question the same.

(7). Though the Patriarch raised objections to the honorifics (e.g., use of "Holiness" with the name of the Catholicos and his assertion that he was seated "on the Throne of St. Thomas in the East") and to the qualification added by the Catholicos in his Kalpana Ex.A.20 (i.e., accepting the F Patriarch subject to the Constitution), the Patriarch must be deemed to have given up and abandoned all those objections when he came to India, •.. , pursuant to a canonical invitation from the Malankara Synod and installed and consecrated the new Catholicos on May 22, 1964. It is also worth noticiog that a day before such installation/consecration, the Patriarch took G care to have the territorial jurisdiction of Catholicate duly defined and de- limited by excluding certain areas in the Middle East from the jurisdiction of the Catholicos.

(8). So far as the declaration of the the Malankara Church being Episcopal in character is concerned, all we need hold is that it is episcopal to the H

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

A extent it is so declared in the 1934 Constitution. The said Constitution also governs the affairs of the Parish Churches and shall prevail.

(9). The excommunication of Catholicos by the Patriarch and/or by the Universal Synod is invalid for the reason that the grounds/charges on which the excommunication has been effected are not permissible or relevant B grounds. The denial of Patriarch's spiritual authority by the Catholicos and his group and similarly the Patriarch's refusal to recognise the Catholicos or the 1934 Constitution in the correspondence that passed during the years 1972 to 1975 are attributable to the personal differences and the mutual bickering between the two dignitaries and their respective groups. C On that basis, it can neither be said that the Catholicos or his followers have become apostates or that they have deviated from the tenets of the faith. Similarly, Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church (on account of his accusations and declara- .~

tions) which he enjoyed prior to the commencement of the said correspon- dence, i.e., according to the 1934 Constitution. D (10). The common properties (Samudam properties) held by che Malankara Church are vested in Malankara Metropolitan and others as declared in the judgment of this Court in A.LR. 1959 S.C. 31.

E In view of the above findings, it is unnecessary to go into the other questions urged before us, viz., maintainability of the suit (in view of Section 9 of the Civil Procedure Code), effect of the Places of Worship (Special Provisions) Act, 1991, non- joinder of parties and so on. Indeed, so far as the objection on the basis of Section 9 of the Civil Procedure Code is concerned, it was not urged by the defendants-appellants before the F Division Bench and must be deemed to have been abandoned.

The situation resulting from the above summary of the findings is that the situation obtaining on January 1, 1971 (i.e., the day after the election of Mathew Atanasius at the meeting of the Malankara Association held on December 31, 1970, in accordance with the 1934 Constitution) shall be G deemed to be the position even today in all respects. It is after January 1, 1971 that there was fresh spurt of quarrel between two groups and between the Patriarch and the Catholicos. Any attempt to bring peace, reconcilia- tion and rapprochment between the two groups must take the said date as the starting point - [This does not, however, mean that installation of H Mathew Athanasius, elected as the Catholicos on December 31, 1970, in

P.M.A. METROPOLITAN v. M.M. MARTIIOMA{B.P.JEEVAN REDDY, J.] 687

October, 1975 is to be ignored. Similarly, the election and installation of sixth Catholicos. Mathew II (third respondent in the present appeals) cannot also be ignored. They are accomplished facts and shall remain unquestioned]. It is with reference to the said date that the directions to be mentioned hereinafter are made with the hope that the said measures will succeed in bringing about a reconciliation between the two warring groups and establish peace in Malankara Church which should be the desire of every well meaning member of that Church. Before, however, we set out the bases of reconciliation between the two groups, we may indicate the approach we are adopting in this case.

The resolutions passed by the Mulanthuruthy Synod establish that to prevent mismanagement of the Church affairs and to check the autocracy

- of the Metropolitans, it was thought necessary that there should be an organisation for the entire community called "Syrian Christian Association", of which Patriarch should be the Patron and the ruling Metropolitan its President. For transacting the business of the Association, a Chief Com- D mittee consisting of eight priests and sixteen laymen with the ruling Metropolitan as the President was formed. This Committee was "entrnsted with complete responsibility and management of every matter connected with religious and communal affairs of the entire Syrian Community". Neither party before us disputes the validity of these resolutions. In Seminary suit, it was held by the Royal Court of Final Appeal on the basis of the said resolutions and other material placed before it that the Metropolitan of the Syrian Christian Church in Travancore should be a native of Malabar consecrated by Patriarch or his delegate and accepted by the people as their Metropolitan. Indeed, this aspect has been repeatedly stressed before us by the learned counsel for the Catholicos group. We too find this to be a very desirable feature - an instance of infusion of democratic spirit in religious affairs. It may be mentioned that in the appeal preferred in this Court against the rejection of their review petition in Samudayam suit (judgment reported in A.l.R. 1954 S.C. 526), the stand of the Catholicos group was that the said judgment of the Royal Court represents the constitution of the Malankara Church. The subsequent jndgments too re-affirms the said position. It is thus clear that the Malankara Association was formed not only to manage the temporal affairs of the Church but also its religious affairs and that the appointment of Metropolitans was subject to accep- tance by the people of Malankara. The emphasis is upon the people of Malankara and not upon the individual Churches/Parish Churches. It is H

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

A true that the 1934 Constitntion of the Malankara Association provides that the members of the said Association shall be one priest and two laymen elected by each Parish Yogam (Assembly) (clause 68), yet Clause 4 of the very Constitution declares that "all those men and women who accepted the Holy Bapitms and who believe in the Godhead of the Trinity, in the B incarnation of the Son and the procession of the Holy Ghost, in the Holy Church, in the performance of the seven sacraments, in the observance of the precepts, in the use of the nicean creed and who have undertaken the responsibility of performing them are members of this Church". It thus appears that while the membership of the .Malankara Association is limited to one priest and two laymen elected by each Parish Assembly, the mem- C bership of the Malankara Church as such consists of al men and women, who accept the tenets and the faith mentioned in Clause (4) aforesaid. The

- learned counsel for the appellants contended that with a view to retain control over the Malankara Association, the Catholicos group have created a large number of Parish Churches though among the individual members of the Church, the majority swears allegiance to Patriarch. His contention is that because in the Malankara Association each Parish Church, whether big or small, is entitled to have three delegates, the Association is not a true representation of the will of the members of the Church as such. He suggests that while some Churches have a large body of believers running into several thousands, there are Churches having as little as fifty members and yet each of them has equal representative in the Malan~raAssocia- tion. On this account, the learned counsel says, the procee · gs of the Malankara Association cannot be said to be reflecting the l of the majority of the Malankara Christians truly. It cannot be said that there is no substance in this submission. If the Malankara Association is to be vested with the control over the religious and communal affairs of the entire Malankara Christian community, it must truly and genuinely reflect the will of the said community. For ensuring it, its composition must be so structured as to represent the entire spectrum of the community. A power- ' ful body having control over both spiritual and communal affairs of the· G Malankara Church should be composed in a reasonable and fair manner. Judged from this angle, clause (68) of the 1934 Constitution cannot be said to be a fair one. [After 1967 amendment, the corresponding clause is Clause (71) which reads, "a priest and two payment elected by each Parish Assembly (and the members of he existing Managing Committee?) shall be H members of the Association"]. It may, therefore, be necessary to substitute

P.M.A. METROPOLITAN'· M.M. MARTIIOMA [B.P. JEEVAN REDDY. J.l 689

Clause (68) (now Clause (71) and other relevant clauses of the.Constitution A to achieve the aforesaid objective which would also affinn the democratic p1inciple, which appears to be one of the basic tenets of this Church. Accord- i11gly, we direct both the parties as well as the Rule Committee (mentioned in clause (120) of the Constitution) to place before this Cowt withi11 three mo11ths from today draft amendments to the Constitution. After perusing the B same, we shall give appropriate directions. Thereafter, elections to the Malankara Association shall be held on the basis of the amended Constitu- tion. The Association so elected shall be the Association for all purposes within the meaning of and for the purposes of the 1934 Constitution (as amended from time to time). c We hope that the unity and integrity of the Malankara Church will be maintained and continued by the above arrangement which is wholly consistent with and indeed in furtherance of the objectives underlying the Mulanthuruthy Synod resolutions. Elections to the Malankara Association shall have to be held periodically so as to keep its representative character D alive and effective.

THE POSITION OF SIMHASANAM CHURCHES, KNANAYA CHUR- CHES, EVANGELICAL ASSOCIATION OF THE EAST AND ST. ANTHONY'S CHURCH, MANGALORE: E Before we conclude, it is necessary to deal with the position of the above Churches. The Division Bench of the High Court has dealt with them under Points 23, 24, 25 and 26 formulated by it. So far as Simhasanam Churches, Evangelical Association of the East and St. Anthony's Church, Mangalore are concerned, the Division Bench has dismissed the suits, viz., F O.S. 5/79, O.S. 6/79 and O.S. 4/79, insofar as they related to the above Churches agreeing with the findings and the decree of the learned Single Judge in that behalf. We see·no grounds to depart from the concurrent findings recorded by the learned Single judge and the Division Bench. We affirm their judgment and decree in this behalf. so far as Knanaya Samudayam is concerned, while the learned Single Judge had dismissed G O.S. 4179 with respect to this defendant (D.19) subject to the declaration that Knanaya Sabha is part of Malankara Church, the Division Bench has modified the decree in the following terms: "decree is granted declaring that Catholicos is the spiritual superior of Knanaya community and Knanaya Metropolitan and in regard to temporal matters as long, as the H

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

A parties do not harmonise the provisions of the Knanaya Constitution and the Constitution of the Malankara Sabha, the latter can be implemented with reference to Knanaya diocese and parishes only subject to the terms of the Knanaya Constitution".

The Division Bench has arrived at its finding regarding the Knanaya B Church being a part of Malankara Church and the Knanaya Metropolitan being subject to the spiritual superior of the Catholicos on the basis of the following facts mainly, apart from other material, viz., (a) in the Manarcadu meeting of the Malankara Association (after the judgment of the High Court in Samudayam suit declaring. Catholicos group as heretics) convened pursuant to the directions of the High Court, not only the Knanaya Chur- ches participated therein but the Knanaya Metropolitan, Mar Clemis, was elected as the Malankara Metropolitan; and (b) after the judgment of this Court in A.LR. 1959 S.C. 31, Knanaya Churches participated in the meet- ings of the Malankara Association held in 1959, 1962, 1965 and 1970 as would be evident from Ex.A.47(h), A.50(h) and A.53(h). Leading members of the Knanaya Community were elected as members of the Managing Committee of the Malankara Association.

The above facts were placed against the following facts appearing in favour of the Knanaya Church, viz., E (i) in the plaint, there was no specific prayer with respect to the Knanaya Church. Because Knanaya Churches were also listed in the list of Parish Churches appended to the plaint, the Knanaya Sarnudayam applied for impleading itself as a defendant to the suit and was impleaded as D.19. only in response to the averments made in written statement of D. 19, did F the plaintiffs aver facts on the basis of which they claimed that Knanaya Churches are part of Malankara Association and subject to the 1934 Constitution;

(ii). the material established that Knanaya Churches had adopted their own G Constitution in 1912 (which was brought into force in 1918), that they had indeed constituted a Committee known as "Knanaya Committee" even in 1882, which was later designated as "Knanaya Association" and that throughout these Churches stood by the Patriarch and its Metropolitans were always ordained by Patriarch alone ..

H (iii). the proceedings of the Malankara episocopal Synod meetings held

P.MA METROPOLITAN'· M.M. MARTHOMA (B.P. JEEVAN REDDY,J.] 691

during the period January 12, 1959 to June 7, 1960, which indicate certain discussions between the Malankara Church and Knanaya Church with respect, to relationship between them. A Committee was appointed to submit a report in that behalf to the Synod.

(iv). the tradition relating to the origin of Knanaya Committee in India and their zealous concern throughout to maintain and retain their separate ethnic identity and beliefs.

After hearing the learned counsel for the appellant (D.19) and the respondents and perusing their written submissions, we are of the opinion that the decree of the Division Bench .has to be affirmed but with certain modification. The modification is called for the reason that when a par- ticular people say that they believe in the spiritual superiority of the Patriarch and that it is an article of faith with them, the Court cannot say 'no; your spiritual superior is the Catholicos'. The guarantee of Article 25 of the Constitution has also got to be kept in view. The decree of the Division Bench makes no difference to the Patriarch. It only says that D Catholicos is declared to be the spiritual superior of the Knanaya Com- munity. Then it says that in temporal matters, the 1934 Constitution of Malankara Association can be implemented subject to the Knanaya Con- stitution only until both the Constitutions are reconciled. In all the facts and circumstances of the case, it would be enough to declare that by their E acts and conduct, D.19 has accepted that they are an integral unit within the Malankara Church and that, therefore, the 1934 Constitution of the Malankara Church shall govern them but subject to their own Knanaya Constitution until such time the Knanaya Church Sarnudayam decides otherwise. F The appeals cross-objections and applications are disposed of in the above terms.

List the matters for further orders after three months along with the draft amendments (suggestions), if any, submitted by the parties pursuant G to the directions given hereinbefore.

S.M. Appeals disposed of,