Most.
Rev. P.M.A. Metropolitan & Ors Vs. Moran Mar Marthoma & Anr [1995] INSC
290 (20 June 1995)
Sahai,
R.M. (J) Sahai, R.M. (J) Jeevan Reddy, B.P. (J) Sen, S.C. (J) R.M. Sahai.J.
CITATION:
1995 AIR 2001 1995 SCC Supl. (4) 286 JT 1995 (5) 1 1995 SCALE (4)1
ACT:
HEAD NOTE:
J U D
G M E N T
When
Lord Jesus Christ was asked by a youngman who was possessed of property what
was the road to heaven, the Holy Bible records it in Chapter 19 of the New
Testament - the Gospel According to St. Mathew thus.
"16.
And, behold, one came and said unto him, Good Master, what good thing shall I
do, that I may have eternal life?
17.
And he said unto him, Why callest thou me good? there is none good but one,
that is, God: but if thou wilt enter into life, keep the commandments.
18. He
saith unto him, Which? Jesus said, Thou shalt do no murder, Thou shalt not
commit adultery, Thou shalt not steal, Thou shalt not bear false witness,
19.
Honour thy father and thy mother: and, Thou shalt love thy neighbour as
thyself.
20. The
young man saith unto him, All these things have I kept from my youth up: what
lack I yet?
21.
Jesus said unto him, if thou wilt be perfect, go and sell that thou hast, and
give to the poor, and thou shalt have treasure in heaven: and come and follow
me.
22.
But when the young man heard that saying, he went away sorrowful: for he had
great possessions".
Turning
'away sorrowful', is the long and short of this litigation between two rival
groups of Jacobite Christian Community of Malabar which has been going on for
more than hundred years apparently for religious and spiritual supremacy over
the Church but really for administrative control and temporal powers over vast
assets which have accumulated out of 3000 star pagodas created in Trust in 1808
for charitable purposes by one Moran Mar Marthoma VI popularly called
`Dionysius the Great'. This is the third round between the parties in this
court, the two earlier being in 1954 and 1959. While deciding the appeal in
1959 this Court had observed that the dispute had been going on for a
considerable length of time which has brought in its train protracted
litigation involving ruinous costs. The effect of the decision was that for
sometime both the parties resolved their differences by mutual adjustment, but
`those who hoped - fondly, as events have proved, that the decision of the
Supreme Court in Moran Mar Basselios Catholicos v. Thukalan Paulo Avira &
others (1958 K.L.T. 721) = AIR 1959 SC 31 and the reported reconciliation
following upon that decision would give the quietus to the litigation,
prolific, prolonged and ruinous, arising out of the faction in the Malankara
Jacobite Syrian Church between what is known as the Patriarch's Party on the
one hand and what is known as the Catholicos' Party on the other, counted
without the resourcefulness of those entrenched in and of those covetous of
positions of power, and we dare say, of profit, and of those who, for one
reason or another, have a vested interest in the continuance of the dispute,'
[Raman Nayar, J. in Appearl Suit No. 269 of 1960 decided on 3rd April 1964].
How
the much negotiated peace and quiet arrived at by written adjustments worked
out by issuing letters from both the groups was shaken even before expiry of 15
years since the judgement was delivered by this Court in September, 1958 and
what leld to filing of numerous suits eight of which were consolidated by the
Additional. District. Judge but were heard and decided by a learned Single
Judge of the High Court, as they were transferred under orders of this Court,
and were ultimately decided in appeal and cross objections by the Division
Bench giving rise to these appeals and various legal issues including whether
the suit under Section 9 of the Code of Civil Procedure was maintainable,
effect of Places of Worship (Special Provisions) Act, 1991 and whether the
decision in earlier suit filed by the appelants operated as res judicata can
be, better, appreciated if the history how the Malankara Church came to be
established, what is its nature and how the two groups Patriarch of Antioch and
Catholicos came to be formed leading to internecine struggle and litigation may
be noticed in brief. The adversorial duel between the two rival groups has
assumed so much of publicity that it has found place even in the Encyclopedia
of Religion. It may be prefaced with brief observations about the Christian
religion and the Church.
Religion
is founded on faith and belief. Faith emanates from conscience and belief is
result of teaching and learning. Christianity is `a religion that traces its
origins to Jesus of Nazareth, whom it affirms to be the chosen one (Christ) of
God' [Encyclopedia Britannica, Volume 5, Page 693]. `It is embodied both in its
principles and precepts in the Scriptures of the Old and New Testaments, which
all denominations of Christians believe to be a Divine revelation, and the only
rule of faith and obedience' [Faiths of the World by James Gardner, Volume 1,
P. 516]. It is `a historical religion. It locates within the events of human
history both the redemption it promises, and the revelation to which it lays
claim' [The Encyclopedia of Religion, Volume 3, p. 348]. `In its origin
Christianity is Eastern rather than Western. Jesus was a Palestinian Jew, and
during the early, formative centuries of the church's life the Greek and Syriac
East was both numerically stronger and intellectually more creative than the
Latin West.
Christianity
came to India many centuries before it reached Europe as it is believed that St. Thomas, one of the original apostles of
Jesus Christ, visited India in 56 A.D. and found the first
Christian settlement in the South' [Religion in India by Dr. Karan Singh]. In A.D. 37 Apostolic See at Antioch was established by St. Peter to
whom the stewardship of Church was entrusted by Lord Jesus Christ. It took root
in Kerala within 20 years of the epoch making events in Jerusalem, the crucifixion, resurrection and
ascension of the Lord Jesus Christ. St. Thomas, one of the 12 apostles of Jesus Christ visited India in A.D. 51/52 and established 7
Churches in the Malayalam speaking parts of South India. They are known as Malankara Jacobite (or orthodox) Syrian Church,
"Malankara" means "Malayalam speaking" `The two Syrian
Orthodox Churches in Syria and India, along with the Egyptian (Coptic), Ethiopian,
and Armenian Churches, belong to the group of Ancient, or Oriental Orthodox,
Churches, wrongly called "monophysite".
Their
Christology is essentially the same as that of the Eastern Orthodox related to
the patriarchate of Constantinople. They affirm the perfect humanity
as well as the perfect divinity of Christ, inseparably and unconfusedly united
in the divine-human nature of the person of Christ' [Encyclopedia of Religion,
Volume 14, page 227].
Jacobite Church is, `a name which the Syrian Church assumes to itself. When the Syrian
Churches are interrogated as to the reason of this name they usually allege
that they are the descendants of Jacob' [Faiths of the World by James Gardner,
Volume II). `Known to the West as Jacobites (after Jacob Baradeus, c. 500-578,
the reorganiser of the West Syrians and Egyptians in the sixth century), the
Syrian Orthodox Church is found mainly in Syria, Lebanon, Jordan, Turkey,
India, the United States, the Federal Republic of Germany, and Sweden. In 1985
the total number of Jacobites, including 1.8 million Indians, was about 2
million, in two separate jurisdictions -- one with Patriarch Ignatius Zakka as
head in Damascus, Syria and the other with Catholicos Mar Thoma Mathews I as
head, in Kottayam, Kerala, India' [Encyclopedia of Religion, Volume 14 p. 227].
The word `church' refers both to the Christian religious community and to the
building used for Christian worship' [Encyclopedia Britannica, Volume 5 page
739). The Christian religion is one, but, `Christians differ greatly in their
beliefs about the nature of the church' [Encyclopedia Britannica, Volume 5,
page 739] which was, `originally applied in the classical period to an official
assembly of citizens.... In the Septuagint translation of the Old Testament (3rd-2nd
centuries B.C.) the term ecclesia is used for the general assembly of the
Jewish people especially when gathered for a religious purpose such as hearing
the Law (Deut. ix, 10, xviii, 16; etc.) In the New Testament it is used of the
whole body of believing Christians throughout the world (e.g., Matt.xvi, 18),
of the believers in a particular area (e.g. Acts v, 11) and also of the
congregation meeting in a particular house - the "house- church")'
[Encyclopedia Britannica, Volume 5 page 739]. `The four marks or
characteristics by which the church is said to be distinguished are recited in
the creed - holy, catholic and apostolic'.
Coming
to the history of Jacobite Syrian Church it is, both, fascinating and
eventful. The long period stretching from A.D. 51-52 can be conveniently
divided in three one, the religious and the formative period which saw the
foundation of the church and the vicissitudes through which it passed. The
second can be said to be the golden period, a period of affluence and prosperity,
in which the church not only acquired assets and became financially rich but is
also marked for administrative efficiency imparted by different metropolitans
who were consecrated from time to time. But wealth breeds dissension,
disharmony and discontent. And that is the unfortunate story of the last period
beginning from 1879. More than 100 years have rolled by since then when the
storm of strife for supremacy over the Church was taken to courts but the dust
has not settled down till now.
The
first two periods have been described by the Royal Court of Appeal as, `Grand
Periods, the first commencing from the foundation of the church and ending with
the overthrow of the Portuguese power in India sometime in 1663, and the second
period commencing from that year or 1665 and extending to the period when the
famous Mulunthuruthy Synod was held in 1876 which was remarkable for more than
one reason, including the one which led to struggle for spiritual supremacy and
administrative control over temporal matters of the Church through the courts.
The events till 1876 have been discussed in great detail in the judgment of the
Royal Court of Appeal. The period thereafter commencing from the last quarter
of 19th century and beginning of 20th century is remarkable for creation of
Catholicate of East in this country and framing of Constitution by the
Malankara Association. All this is discussed in Moran Mar Basselios (supra).
Religious
spirit was dominant in the first period.
Every
move was religion oriented. The keen desire to delve more and more in spiritual
than temporal matters was exhibited from time to time. Three important events
took place during this long period. Although each was distance in time from the
other but everyone was significant in its own way in shaping the future of the
Church. The first, of course, was establishing of the Church by St. Thomas who exercised great influence and
ordained two men as Arch - Deacons, one from each of the two respectable
families, that is, Sankarapuri and Pakalomattiom. In A.D. 200 the devotees had
written to Demetrius the Bishop of Alexandria, requesting him to send a
teacher, to instruct them in the doctrines relating to the beliefs in Christ.
The second in the sequence was significant not for the Syrian Church only, but for the entire Christian community. It was an
epoch making event. The first eccuminical council was held in 325 A.D. at
Nicea. Priests and prelates from all parts of Christendom were invited.
Representatives of all dioceses in the Christian world attended the Synod.
Christians of India were represented by their bishop or metropolitan known as
Johannes, metropolitan of Persia and India. The council among other matters
was concerned with matters relating to the revival and establishment of
Christianity, revision of the scriptures and framing a Code of faith and
rituals. But the most important decision, of far reaching consequence was that
the ecclesiastical jurisdiction of the Christandom was settled under four
ecclesiastical heads and four Patriarchs were appointed over four sees - Rome,
Constantinople, Alexandria and Antioch. India was placed under the Patriarch of Antioch. The other decision taken was
that the great metropolitan of the East was proclaimed as the Catholicos of the
East. It was laid down that the Catholicos appointed at Tigris (Baghdad) shall manage the affairs of the Eastern churches subject
to that Patriarch of Antioch was common and could exercise all the functions of
Patriarchs. These decisions were enforced and the Patriarch of Antiouch started
taking action upon it. Till about A.D. 1599 Bishops (who were called
`episcopas' or Metropolitans) were deputed to Malabar from time to time by the
Catholicate of the East in Persia and by the Patriarchs of other Eastern
Churches for discharging spiritual functions like ordination of priests in the
Malankara Church. But all other functions were carried on by the Indian born
ecclesiastical dignitary known as the 'Arch-Deacon' who was not possessed of
the full spiritual grace of a Bishop.
The
next or the third important event during this period was the famous Koonan
Cross Oath at Muttancherry sometime in 1664. It was final break away from the
Roman Catholic influence which was being forcibly imposed on the followers of Syrian Church. Between 1599 to 1654 A.D. due to influence of the
Portuguese political power in the East Coast of India, the Malankara Church was compelled to accept Roman Catholic supremacy i.e., the
supremacy of the Pope of Rome. The tough resistance from the Syrian Christians
resulted in adopting repressive measures by the Portuguese. The climax was
reached in 1599 in the so-called Synod of Diamper. Books of the Syrians
Christians were burnt and destroyed. All traces of Apostolic succession in
their church were obliterated. The Portuguese arrested Mar Ignatius the
Patriarch, at Mylapore, brought him in fetters to Cochin on way to Rome and ultimately he mysteriously disappeared believed
to have been killed either by drowing or burning. This enraged the Syrians.
They met at Mattancherry, took the famous oath at Koonan Cross and resolved
that they shall never again unite themselves with the Portuguese who had
without any scruple or fear of God murdered their holy Patriarch. This was in
1664. This event marks an epoch in the history of the Syrian church. It split
the followers in two Punthenkoor and Palayakoor. The former became Jacobite
Syrians following the creed of Patriarch of Antioch and the latter Roman
Syrians following the Roman creed of the Pope of Rome. The Puthenkoor people
after meeting at Mattancherry came to Alengad Church and, in obedience to the
Station of Mar Ignatius consecrated Arch- Deacon Thoma with the title of Mar
Thoma Metran.
With
this commenced the second period. It, too, like the first was marked by few
important events, which again have played vital role in the destiny of the Syrian Church.
The
first was the ordination in 1654 of Mar Thoma Mitra as Marthoma I. Its
significance lay as he was ordained as Metropolitan of Malankara by the
Patriarch of Antioch through his delegate. From 1665 onwards, therefore, the
ordination of the Malankara Metropolitan was carried on by the delegate of
Patriarch of Antioch. The second important event took place in A.D. 1808 when a
trust for charitable purposes was created by the then Malankara Metropolitan
Mar Thoma VI (Dionysius the Great) by investing in perpetuity 3000 Star Pagodas
(equivalent to Rs.10,500/-) in the British Treasury on interest @ 8% per annum.
During this period the Church Mission Society, a missionary society of Protestant
with headquarters in London, had come to Malabar and
collaborated with the Malankara Church and had jointly acquired some properties. Disputes arose
between this Society and the Malankara Church with regard to those properties and
also to the beneficial interest arising out of the charitable deposit of 3000
Star Pagodas which were referred to arbitration and were settled by what is
known as the `Cochin Award of 1840', which was the third important event of
this period. This Award divided the properties between the two bodies allotting
among other items 3000 star Pagodas to the Malankara Church. The properties so allotted to the Malankara Church were as per the Award to be administered by the trustees
i.e.,
(1) the
Malankara Metropolitan,
(2) a
priest-trustee and
(3) a
lay-trustee.
The
effect of the Cochin Award was that the dispute between the Mission Society and
the Syrian Church came to an end.
But it
appears between 1808 and 1840 vast assets had been acquired with the trust
created by Dionysius VI. These were controlled and administered by the person
who was the head of the Church. Therefore, even though one Cheppat Dionysius, a
locally ordained Metropolitan was in office, one Mathew Athanasius went to Syria in 1840 and got himself ordained as
Metropolitan by the Patriarch of Antioch. Thus the seeds of strife were sown.
If
1654 is significant for commencement of local ordination by the delegate of
Patriarch of Antioch then 1840 marked the beginning of emergence of struggle
for supremacy over the Church between locally ordained Metropolitan and the one
ordained by the Patriarch of Antioch. Disputes arose between M. Athanasius and
C. Dionysius. To settle it the Patriarch of Antioch sent one Mar Yayakim
Koorilos as his delegate. But Koorilose adopted a novel way of settling the
dispute by excommunicating Mathew and appointing himself as the Malankara
Metropolitan. Cheppat Dionysius withdrew in favour of Mar Koorilos, but Mathew
Athanasius persisted in his claim. When these disputes came to the knowledge of
Travancore Government it appointed in 1848 a Tribunal known as the `Quilon
Committee' to settle the dispute. The Committee held in favour of M. Athanasius
and he took over charge as the Malankara Metropolitan. It appears the Committee
preferred Patriarch ordained Metropolitan over the local ordained as spiritual
spirit was flowing, still, from Antioch. Even though the Quilon Committee decided in favour of Athanasius and
he took over charge of the property but the local people were not satisfied,
therefore, they appear to have persuaded one Joseph Dionysius to go to Syria and get himself ordained as
Malankara Metropolitan. In 1865 Joseph Dionysius was ordained as the popular
feeling was that M. Athanasius was leaning towards protestainism. M. Athanasius
however refused to lay down the office. He continued as metropolitan and
towards the end of his life he ordained his nephew or brother one Thomas
Athanasius who on death of his brother assumed the office.
This
bitter strife between the two forced the Patriarch to come to Malabar, as the
conduct of Athanasius amounted to denial of his authority, and call a meeting
of accredited representatives of all the Churches at Mulunthuruthy in 1876. It
is popularly known as `Mulanthuruthy Synod'. This is the most important event
not only of this period, but in the entire history of Syrian Church. Many resolutions taking important decisions were adopted.
At the Synod the Syrian Christian Association popularly called the `Malankara
Association' was formed to manage the affairs of the Churches and the
community. It constituted the Malankara Metropolitan as the ex-officio
President and three representatives from each Church. A Managing Committee of
24 was to be Standing Working Committee of the said Association. The Synod affirmed
the orthodox faith. Joseph Dionysius who had earlier been ordained by the
Patriarch was accepted as the Malankara Metropolitan. Whether it was re-
assertion of supremacy of Patriarch or not cannot be said as the election of
Joseph Dionysius was preceded by two factors, one, that he had been persuaded
by the local people, earlier, and he got himself ordained by the Patriarch and
second that Thomas Athanasius was a nominee of his brother and he had not been
elected by the people. But it, undoubtedly, shows that the spiritual domination
was still predominant. However, Thomas Athanasius challenged the ordination by
Patriarch and claimed equal status. This could not have been agreed to by
anyone as the spiritual faith in the Patriarch prevented the people in Malabar
to acknowledge a person as Metropolitan who was not ordained either by the
Patriarch or his nominee. However, Thomas Athanasius refused to hand over the
property and Joseph Dionysius was left with no option except to approach the
court.
Thus commenced
the third period. If the first two periods were great for the growth and
development of the Church then the third described as the, `turbulent period'
is unique not for any development of religion, but for providing stability to
the Church by creating a Catholicate of the East for India, Burma and Ceylon at
Malankara and adopting a Constitution for the administration of the Church. The
period unfortunately witnessed division amongst followers of the Church who
came to be known as the `Patriarch' and the `Catholico', mainly because there
was disturbance in Antioch itself and two of the Patriarch claimed to exercise
the prerogative of being Patriarch of Antioch at the same time. Within a span
of fifty years, five suits were filed, the first known as, `Seminary Suit', in
1879, the second as `Arthat case' in 1899, the third in 1913 which became
famous as `Vattipanam case' the fourth in 1938 known as `Samudayam Suit' and
fifth and last in 1974 giving rise to these appeals. The first was filed by a
Patriarch ordained and duly elected Metropolitan at Mulanthuruthy Synod for
recovery of property against nominated Metropolitan, whereas the second was
filed for enforcement of the order passed in earlier suit as some of the
parishes were denying the authority of the Metropolitan to exercise spiritual
and temporal control over them. The third was an interpleader suit by Secretary
of State for India due to formation of two groups
laying rival claims against the assets. All the three suits were decided in
favour of Catholico group. Therefore, the fourth suit was filed by the
Patriarch group against Catholicos claiming that they had become heretics and
had separated from the Church. This too was decided in favour of Catholicos.
But the fifth and the last suits were filed by the Catholicos for reasons which
shall be explained later. In the Encyclopedia of Religion, Vol. 14, P. 226, the
history from creation of Patriarch of Antioch till 1970 is traced thus, The
church in Antioch became practically the mother church of Christendom......The
leadership of the Syrian church was decimated by the Diocletian persecution
that broke out around 304. The persecution also led to the development of
Syrian monasticism through the Christians who fled into the wilderness. The
spirit of Syrian Christianity was shaped more by worship, martyrdom, and
monasticism than by theology......In the twelfth century the Syrian church was
at the peak of its glory, with 20 metropolitan sees, 103 bishops, and millions
of believers in Syria and Mesopotamia......The turbulent thirteenth century,
wracked by invasions of Latin Crusaders from the West as well as of Mamluk
Turks and Mongols from the East, produced such great leaders as Gregory Bar
Hebraeus (1226-1286), a Jewish convert to Syrian Christianity, a chronicler and
philosopher, and primate of the East.....The nineteenth and twentieth centuries
have been turbulent times for the Syrian Orthodox in the Middle East.....The
Syrian church in India numbers 1.8 million and is divided into two
jurisdictions.
The
smaller of the two jurisdictional groups (with five hundred thousand members
and a dozen bishops) decided in the 1970s to revolt against the Indian
catholicos and his synod, forming a wing of the church directly administered by
the Syrian Patriarch in Damascus and with its own maphrian see.
The
larger group, numbering about 1.3 million is an autocephalous church in India under Moran Mar Baselius Mar Thoma
Mathews I, Catholicos of the East. This group has a flourishing theological
seminary and a number of ashrams and monasteries, as well as hospitals,
orphanages, schools, and other institutions. Its members have established a
diocese in North
America with about
thirty congregations and a bishop residing in Buffalo, New
York. The
Encyclopedia of Religion, Volume 14 p. 228].
The
`Seminary Suit' was filed in 1879 by Joseph Dionysius against Mar Thomas
Athanasius for recovery of the property over which he had obtained possession
in lieu of the Quilon Committee report. It was contested by Thomas Athanasius
who denied the supremacy of the Patriarch. He claimed that Patriarch could not
claim as a matter of right to have any control over the Jacobite Syrian Church
in Malabar either in temporal or spiritual matters although as a high dignitary
in the churches in the country where their saviour was born and crucified the
Malabar Syrian Christian community did venerate the Patriarch. The final
judgment in the suit was given on 20th July 1889 by the Royal Court of Final Appeal
(Travancore). The decision went in favour of Joseph Dionysius who was held
entitled to recover the properties of Malankara Church as he was the Malankara
Metropolitan accepted by the community. The judgment explained the extent of
the spiritual supremacy of the Patriarch over the Malankara Church. It was held that Patriarch right consisted in ordaining
either directly or by duly authorised delegates metropolitans from time to
time, to manage the spiritual matters of the local church, sending Morone (holy
oil) to be used in the churches for baptismal and other purposes and in general
supervision over the spiritual government of the Malankara Church. But he was
held to have no authority over temporal matters. It was held:
"the
Patriarch's supremacy over the Church in Malabar has extended only to spiritual
matters. The Patriarch or his Delegates when they sojourned in this country,
attended only to spiritual affairs of the Church leaving the management of the
temporal affairs to the local Metropolitan and the trustees. The former never
interfered with temporal affairs; and where in two or three instances they (the
Delegates) tried to have some control over, or interference with, the temporal
affairs, the Metropolitan and the community resisted them successfully.
On a
review of the whole History and evidence, we arrive at the conclusion that the
Patriarch of Antioch has been recognized by the Syrian Christian community all
through as the Ecclesiastical Head of their Church in Malabar; that
consecration by him or by his Delegates duly authorised in that behalf was and
has been felt absolutely necessary to entitle a man to become a Metropolitan of
the Church in this country in matters spiritual that the man so consecrated
should be a native Syrian Christian of Malabar acceptable to the community:
that the Patriarch's power in spiritual affairs of the Church has been supreme:
and that the Patriarch or his foreign Delegates have had no interference with
the internal administration of the temporalities of the Church in Travancore
which, in this respect has been an independent Church." [Emphasis
supplied] The concluion and finding of the court that the Patriarch had no
temporal and administrative control over the churches was not accepted either
by the Patriarch or the Parishes. Some of the Parishes, therefore, denied the
authority of Dionysius which led to filling of suit in 1899 by t he
Metropolitan against Parishes which, as stated, became famous as 'Arthat Case.
The suit was decreed in 1905 and the judgement of Rajah (Cochin) Court of
Appeal reiterated that the Patriarch of Antioch was the spiritual head of
Malankara See which included the church for which suit had been filed and the
churches and the properties were bound by a trust in favour of those who
worship God according to faith, doctrine, disciple of Jacobite Syrian Church in
the communion of His Holiness the Patriarch of Antioch. The Court held that the
churches and properties were, therefore, subject to spiritual, temporal and
ecclesiastical jurisdiction of the Dionysius the Malankara Metropolitan'.
The
effect of the two judgements of the Royal Court of Final Appeal and Rajah of
Cochin on one hand was to recognise Dionysius as the validly elected Malankara
Metropolitan, which of course was in keeping with what the Patriarch had
decided when the meeting was held at Mulunthuruthy and with this there was no
grievance, and on the other that Patriarch had no temporal power over the
Church which was not acceptable to him. He, therefore, decided to come down to
Malabar to influence the course of events and get an assurance from different
churches accepting his superiority in temporal matters as well.
However,
in 1905 dispute started between two persons one, Abdul Messiah and other
Abdulla-II over the right to be Patriarch. Both of them were appointed by Firman
of the Suitan of Turkey.But the one issued in fovour of Abdul Messiah had been
withdrawn. In 1909 Joseph Dionysius died.
In his
place one M.G. Dionysius was elected who had got himself ordained by the
Patriarch Abdulla-II in 1907. When Abdulla-II came to Malabar with the object
of claiming his temporal authority over the Malankara Jacobite Syrian Church
and he convened a meeting at the old Seminary of Kottayam and demanded
acknowledgement of his temporal authority the majority declined to do so. He,
therefore, approached the Parish Churches individually and succeeded in getting
submission deeds (Udampadis) from some including one Mar Paulose Athanasius. In
token of it, he ordained him as a Metropolitan. This led to dispute between
M.G. Dionysius and M.P. Athanasius the one ordained earlier at Syria and the
other ordained in Malabar over the administrative and temporal control of the
churches. In 1911 Abdulla-II the Patriarch ordained one Mar Coorilos as the
Malankara Metropolitan so as to make him automatically the ex-officio President
of the Malankara Association and one of the trustees of the trust property. The
two of the other trustees also acknowledged the new nominee as the Malankara
Metropolitan but Mar Gheevarghese Dionysius did not give up and in retaliation
convened a meeting of the Malankara Association which declared his
excommunication invalid and removed from trusteeship the two trustees who had
gone over to the side of the Patriarch. The Committee further decided to
suspend payment of Ressissa to the Patriarch so long it was not ascertained as
to who was the Patriarch, Abdul Messiah or Abdulla-II. Abdulla-II left Malabar
in October 1911 and in 1912 issued a Kalpana branding Abdul Messiah and M.G.
Dionysius as "wolves" from whom the faithful should entirely keep
aloof.
Little
did anyone, then, visualise that the very next year which was to synchronise
with visit of Abdul Messiah, yet another Patriarch who had been disentitled by
the Sultan of Turkey, would so significantly change the history of Malankara
Church. Whether he was justified and more than that entitled to declare the
ex-communication of Dionysius invalid and whether he could on his own issue a
Kalpana creating a Catholicate of East is now a matter of history as its
validity is beyond challenge since both the actions have been upheld judicially
and have achieved finality in Moran Mar Basselios (supra). Abdul Messiah issued
a Kalpana beseeching everyone, that it was their duty, to respect Mar
Gheevarghese, and love him properly and suitably because he was their head,
shepherd and spiritual father. It was stated that who respects him (respects
us), he who receives him, receives us. Those who do not accept his right words
and those who stand against his opinions which are in accordance with the canon
of the Church, defy him and quarrel with him will become guilty. Keep aloof
from quarrel and breach of law. Grace and blessings from the Lord will come and
abide on them who obey. Another Kalpana was issued bestowing his blessings
second time and expressing deep grief at the dissension shown by Effendi. It
further said we, by the grace of God, in response to your request, ordained a
Maphrian, that is, Catholicos by name; Poulose Basselios and three new
Metropolitans the first being Gheevarghese Gregorius, the second, Joachim
Evanios and the third, Gheevarghese Philexinos......... We commend you into the
hands of Jesus Christ, our Lord, the Great Shepherd of the flock. May He keep
you! We rest confident that the Catholicos and Metropolitans - your shepherds -
will fulfil all your wants. The Catholicos, aided by the Metropolitans, will
ordain melpattakkars, in accordance with the Canons of Our Holy Fathers and
consecrate Holy Morone. In your Metropolitans is vested the sanction and
authority to install a catholicos, when a catholicos dies. No one can resist
you in exercise of this right and, do all thngs properly, and in conformity
with Precedents with the advice of the committee, presided over by Dionysius,
Metropolitan of Malankara.
[Emphasis
supplied] The declaration of Abdul Messiah that ex-communication of Dionysius
was invalid led to serious dispute between rival groups claiming their
authority over the temporal affairs of the Church. Two rival groups were formed
one led by Mar Gheevarghese Dionysius and the other by Mar Coorilos.
Consequently,
the Secretary of State for India filed the interpleader suit in 1913, in the
District Court of Trivandrum, impleading both the sets of rival claimants as
defendants and seeking a declaration from the court as to which of the two
rival sets of trustees were entitled to draw the interest on the amount
standing in the credit of the Malankara Jacobite Syrian Christian community in
the British treasury. The suit was decided in favour of M.G. Dionysius. The decree
was reversed by a Full Banch of the Travancore High Court in 1923. The
judgement was reviewed at the instance of M.G. Dionysius and the net result was
that M.G. Dionysius and his two co-trustees became finally entitled to withdraw
the money deoosited in the Court as the lawful trustees of the Church
properties.
On 16th August 1928 the Managing Committee of the
Malankara Association was authorised to draw up a constitution of the Church.
There was sharp reaction to it.
The
delegate of Patriarch issued an order to the Catholic Metropolitan to execute
Udampad within two days. When nothing came out of it, 18 persons belonging to
patriarch group filed suit against Mar Philexinos. a person who later joined
the Patriarch after 1958 and was largely responsible for the disturbance of
peace in 1965. The suit was dismissed in default and the order remained
unchanged as the revision in the High Court was dismissed for non-prosecution.
The Catholico in the meantime went ahead and in a meeting held on 26th
December, 1934 at Kottayam adopted the draft Constitution unanimously and
elected the Malankara Metropolitan. The Constitution while recognising that
Malankara Church was a division of orthodox church and primacy of Patriarch of
Antioch provided that the primacy of the East was in Catholicos. Detailed
provisions dealing with powers of Metropolitan, Bishop, Parishes, etc. were
made.
Probably
as a counter to 1934 meeting of Catholico the Patriarch group held meeting in
August, 1935, elected one M. Paulose Althanasius as Malankara Metropolitan and
armed with this they filed Suit No.111 of 1139, that is 10th March, 1938 in the District Court of Kottayam
claiming that the Catholico had become heretics and separated from the Orthodox Syrian Church. The suit was dismissed in January,
1943. In 1946, appeal was allowed and the suit was decreed.
The
defendants again applied for review which was dismissed against which they
preferred appeal under Article 136 of the Constitution and in Moran Mar
Basselios Catholicos & Anr. vs. Most Rev. Mar Poulose Athanasius & Ors.
AIR 1954 SC 526 the appeal was allowed. The judgement of the High Court was set
aside and the High Court was directed to admit the review petition and re-heer
the same. In December 1956 the judges heard the appeal, delivered the unanimous
judgement allowing the appeal and decreeing the suit. Against the decree the
Catholico group preferred an appeal which was decided in 1959 by this Court.
Some of the Catholicos also filed a writ petition under Article 32 of the Constitution
which was also decided along with the appeal. The Court after elaborate
discussion and noticing the earlier course of litigation held that the claim of
the other group that the Catholicos had become heretics on aliens or had gone
out of the Church by establishing a new church because of the specific acts and
conduct was not correct.
The
Constitution framed in 1934 and the Kalpanas issued by Abdul Messiah were
considered by this Court in 1959. The claim of the Patriarch, that the
supremacy of the Patriarch had been taken away by the mere adoption of the new
Constitution was not permitted to be raised as it was not raised in the
pleadings. The Court further did not permit them to raise the question about
the privilege of the Patriarch, alone, to ordain metropolitans and to
consecrate Morone. It was also held that Ressissa which was a voluntary and not
a compulsory contribution made by the parishes collected by the committee of
the Malankara Association and sent to Patriarch was not forbidden and its non-payment
did not amount to neresy on the party of the Catholicos. The declaration sought
by the Patriarch that they were trustees of the property and the Catholicos
were neither trustees nor in possession of the trust property, based on their
election at a meeting held on August 22, 1935 was not accepted. The Court held
that the meeting was, admittedly, held without any notice to the members of the
Catholico party as they were erroneously regarded as having gone out of the
Church.
The
Court did not find any merit in the Kalpana which was Ex.Z in the suit
commanding the faithful not to have anything to do with the heretics. The court
held that the Catholicos and their partisans had not become, 'ipso facto'
heretics in the eye of the Civil Court or aliens and had not gone out of the
Church. The court held that the election of the plaintiffs was not valid and
their suit, in so far as it was in the nature of a suit for ejectment was
llable to fail for want of their title as trustees. The Court further held that
since the interpleader suit was converted into a representative suit on behalf
of Jacobite Syrian Christian population of Malabar, therefore, the decision in
that suit was binding on all members of the Malankara Syrian Christian
Community. Thereafter, it proceeded to examine as to what were the material
issues which were decided in that case and which operated as res judicata. The
four issues which were framed in that suit and which were considered by the
court for purposes of deciding the question on res judicata read as under:
14. Do
all or any of the following acts of the 1st defendant (catholico) and his partisans
amount to open defiance of the authority of the Patriarch? Are they against the
tenets of the Jacobite Syrian Church and do they amount to heresy and
render them ipso facto heretics and aliens to the faith?
(i)
Claim that the 1st defendant is a Catholicos?
(ii)
Claim that he is the Malankara Metropolitan?
(iii)
Claim that the 1st defendant has authority to consecrate Morone and the fact
that he is so consecrating?
(iv)
Collection of Ressissa by the 1st defendant?
15.(a)
Have the 1st defendant and his partisans voluntarily given up their allegiance
to and seceded from the Ancient Jacobite Syrian Church?
(b)
Have they established a new Church styled the Malankara Orthodox Syrian Church?
(c)
Have they framed a constitution for the new church conferring authority in the
Catholicos to consecrate Morone to ordain the higher orders of the
ecclesiastical hierarchy, to issue Staticons allocating Dioceses to the
Metropolitans and, to collect Ressissa?
(d) Do
these functions and rights appertain solely to the Patrirch and does the
assertion and claim of the 1st defendant to exercise these rights amount to a
rejection of the Patriarch?
(e)
Have they instituted the Catholicate for the first time in Malankara?
Do the
above acts, if proved, amount to heresy?31
16. (a)
Have the defendants ceased to be members of the Ancient Jacobite Syrian Church ?
(b)
Have they forfeited their right to be trustees or to hold any other office in
the Church ?
(c)
Have they forfeited their right to be beneficiaries in respect of the trust
properties belonging to the Malankara Jacobite Syrian community ?
19. (a)
Have the plaintiffs and their partisans formed themselves into a separate
Church in opposition to Mar Geevarghese Dionvsius and the Malankara Jacobite Syrian Church ?
(b)
Have they separated themselves from the main body of the beneficiaries of the
trust from 1085 ?
The
Court held that the same objection was raised by the Patriarch in the suit
filed in paragraphs 19 to 26 and, therefore, the finding recorded on the
aforesaid issues having been raised and decided in the interpleader suit and
having been decided by the Travancore High Court on review in favour of M.G.
Dionysius and his co-trustees (Catholico group) it operated as res judicata. It
was on this reasoning that the Court held :
"that
the contentions put forward in paragraphs 19 to 26 of the plaint in the present
suit on which issues Nos.14, 15, 16 and 19 have been raised were directly and
substantially in issue in the interpleader suit (O.S.94 of 1088) and had been
decided by the Travancore High Court on review in favour of Mar Geevarghese
Dionysius and his two cotrustees (defendants 1 to 3 ) and against defendants 4
to 6 . In short the question whether Mar Geevarghese Dionysius and his two
co-trustees (defendants 1 to 3) had become heretics or aliens or had gone out
of the Church and, therefore, were not qualified for acting trustees was in
issue in the interpleader suit (O.S.No.94 of 1088) and it was absolutely
necessary to decide such issue. That judgment decided that neither
(a) the
repudiation of Abdulla II, nor
(b) acceptance
of Abdul Messiah who had ceased to be a Patriarch, nor
(c) acceptance
of the Catholicate with powers as hereinbefore mentioned, nor
(d)
the reduction of the power of the Patriarch to a vanishing point, 'ipso facto'
constituted a heresy or amounted to voluntary separation by setting up a new
Church and that being the position those contentions cannot be re-agitated in
the present suit".
Thereafter
the Court after discussing the matter in great detail held as under :
"The
case with which the plaintiffs have come to court in the present suit is that
the defendants had become heretics or aliens or had gone out of the Church by
establishing a new church because of the specific acts and conduct imputed to
the defendants in the present suit and that the charges founded on those
specific acts and conduct are concluded by the final judgment (Ex.256) of the
High Court of Travancore in the inter pleader suit (O.S.No.94 of 1088) which
operates as 'res judicata'. The charge founded on the fact of non-payment of
Ressissa, if it is not concluded as constructive 'res judicata' by the previous
judgment must, on merits, and for reasons already stated, be found against the
plaintiff-respondent. We are definitely of the opinion that the charges now
sought to be relied upon as a fresh cause of action are not covered by the
pleadings or the issues on which the parties went to trial, that some of them
are pure after-thoughts and should not now be permitted to be raised and that
at any rate most of them could and should have been put forward in the earlier
suit (O.S. No.94 of 1088) and that not having been done the same are barred by
'res judicata' or principles analogous thereto. We accordingly hold, in
agreement with the trial court, that it is no longer open to the
plaintiff-respondent to re- agitate the question that the defendant-appellant
had 'ipso facto' become heretic or alien or had gone out of the church and has
in consecuence lost his status as a member of the Church or his office as a
trustee." [Emphesis supplied] The Court also examined whether the election
of the Catholico group in the meeting held on December 26, 1934 was in
accordance with rules or not and it answered the question in their favour. The
Court, therefore, set aside the judgment of the Kerala High Court and dismissed
the suit filed by the Patriarch group.
The
one good effect of judgment delivered by this Court in 1959 after nearly 50
years of litigation was that good sense appears to have dawned on both the
groups and on 9th December 1958 Patriarch Yakub-III issued a letter marked as
Ex.A-19 one relevant portions of which are extracted below :
"It
is not 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 love the
church and devout of God desired peace and unity putting an end to the
dissention, 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 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 slakened and the lord God has been pleased to end
the dissention through us. Glory be to Him. To bring forth peace in the
Malankara church we hereby accept with pleasure Mar Baselious Gheevarghese as
Catholicose. Therefore we send our hearty greetings intensified by the fervour
of deace in this month of rejoycing. We also beseech, let the lord shower on
you His abundant blessings. Let the lord make you a people beautified by
virtuous acts towards the right and delight you with the comfort and
plenteousness flowing from the care pleased to his Holy will to the envy of
others. Let it be with the grace and mercy of Him, His father and His Holy
spirit.
Our
father which art in the heaven etc. etc. On the 9th December 1958, the 2nd year
of our assension as patriarch.
From
the Aramana at Holms." [Emphasis supplied] The other letter was issued on
16th December 1958 marked as Ex.A-20 by the Catholico group to the following effect
:
"Glory
to God united in the Trinity, the self existing, perfect in essence and without
beginning or end. From the meek Baselious Catholicose named as Gheevarghese If
seated on the Throne of The East of Apostle St. Thomas.
Seal Let
divine grace and Apostolic Benediction be always in abundance with all the
Melpattakkars (High Priests). Priests, Deacons and all the faithful under our
jurisdicition.
We
have always been in grief on account of the failure of the efforts made by late
Mar Gheevarghese Dionisius and us to bring forth peace in our church and end
quarrels and discord which were existing in our church for long. We are now
very much delighted and do glorify God in that there is an end to the discord
showing the willingness to unite.
We,
for the sake of peace in the church, are pleased to accept Moran Mar Ignatius
Yakub III as patriarch of Antioch subject to the constitution passed by the
Malankara Syrian Christian Association and now in force.
We
have also pleasure to accept the Metropolitans under him (patriarch) in
Malankara subject to the provisions of the said constitution.
Let
the abundant grace and blessings of God Almighty be with you always.
Let it
be through the prayers of St. Mary the mother of God, Mar Thoma Sleeba, the
Patron saint of India and all the saints. Amen.
Our
father that art in the heavens etc. etc." After the exchange of these
letters, Ex.A-19 and Ex.A-20 dispute started between the Patriarch and the
Catholico over the use of the word 'Holiness', 'Throne of St. Thomas', and
'Church of the East' and 'Catholicos of the East' etc. as the expressions
according to the Patriarch could be used by the supreme head, that is,
Patriarch of Antioch and not by Catholico to which the reply was that this was
not new and it was provided for in the Constitution of 1934. It is not
necessary to extract the various points of differnce raised in the letters
issued by the two. In a letter sent in August 1960 marked as Ex.A-26 after
reiterating the stand which was taken in earlier letters it concluded with
these words :
"To
conclude, I wish to state that the prestige and influence of the throne of
Antioch here depend very largely upon the wise co-operation of Your Holiness.
The Malankara Church with its catholicate and synod of bishops and the
association has certainly to adhere to the provisions of the constitution and
has to abide by the Supreme Court decision. But that does not mean any kind of
disrespect or hostility towards Antioch. There are enough provisions in the
constitution to keep our connection Meeningful and alive".
The
relations thereafter appear to have become cordial so much so that in 1961 Ex.A-30
was written by Petriarch Yakub- III in which it was mentioned, "I am
placing your Beatitude's photo properly in our place so that all people who are
in and out should see itand understand the intimate unity and real
re-conciliation and the essential relationship between the Apostolic Throne and
our church in Malankara ............. we are eager tosee perfect peace in our
church in Malankara. We hope that all the disputes will be over and the church
go ahead powerfully in the path of light, prosperity and progress during your
Beatitude's old age itself.
Please
convey our Apostolic Blessings to all our spiritual children both priests and
faithfuls who are under your authority." But from letter dated 18th
January 1962 sent by Baselius Geevarghese II, Catholicos of the East, it
appears some local dispute had surfaced again. Allegations were made against
one Mar Philixenos and the same person about whom reference has been made
earlier and who in fact was responsible for dissension once again and it was stated,
they profess outwardly to be pro-Antioch, but really they are anti Patriarchal
as well as anti- Catholicate. Now since at this time I am in my declining age I
think it appropriate to invite your Holiness be pleased to visit us at your
earliest convenience and bless us by your presence as well as prayers'. It
appears Mar Baselius Geevarghese died in January 1964 and the members of the
Holy Episcopal Synod installed one Ougen Mar Themotheus, Metropolitan as his
successor as his election by the Malankara Association on 17th May 1962 was
approved by the Holy Synod on 21st March 1963. The letter was sent requesting
the patriarch Yakub-III for the installation ceremony. He did come in 1964 and
installed Mar Ougen I. Then there are letters and other memoranda Ex.A-36 and
A-37 submitted to the Catholicos regarding prevailing discontentment amongst
some sections.
The
exchange of these letters and their contents indicate a simmering discontent
which surfaced in June, 1970 when the Patriarch once again dug up the closed
issue of use of expression 'Holiness' and, 'Throne of St. Thomas' by the
Catholico. The initial anxiety of reconciliation and peace got set back with
vengeance as the Catholico openly challenged the authority of Patriarch. Events
moved swiftly, thereafter, when the Patriarch ordained Metropolitan who in his
turn ordained Bishops started interfering resulting in filing of suits by
Catholico against Patriarch ordained Bishop, obtaining of injunction sharply
reacted by the Patriarch by issuing show-cause notice, starting disciplinary
proceedings, summoning the Synod at Damascus and ex-communicating the
Catholico. The breakaway was complete. There was vertical split. The two groups
once again were up in arms. Two hundred suits were filed. Eight of which covering
entire issues were consolidated and tried together.
This
completes the factual narration and the background in which the suits out of
which these appeals have arisen came to be filed. Although both the parties
have furnished in great detail the events which took place after the judgment
was delivered in 1959, but it appears unnecessary to mention each of them,
except to observe that a mere look on these dated indicates that initially
there was an anxiety for peace and reconciliation by both groups which was
shaken by pinpricks here and there and was finally thrown to winds between
1970-75. Religious cover was again put forward to gain control over temporal
affairs resulting in setting in motion the same old tortuous process of
litigation. In the first part beginning from December, 1958 a meeting of the
Malankara Association was held in which almost all the Churches participated,
irrespective of the faction. The meeting was attended even by the elected
priest-trustee and the lay trustee and the delegate of the Patriarch as a
special invitee. In January, 1959 the Patriarch Group submitted a memorandum to
the Catholicos seeking among other things reconstitution of the Managing
Committee of the Malankara Association which was considered in a Synod held on
21st February, 1959 and pursuant to the decision taken therein, dioceses were
re-allotted. From the year 1959 to 1964 number of meetings were held in which
both the groups participated and attempted to function as one unit. From 1960
to 1962 there are various letters, for instance Exhts. A-28, A-29, A-30, A-31
and A-39 which indicate cordial relationship between the Patriarch and
Catholico. Even in 1964 when Mar Ougen I was installed by the Malankara
Episcopal Synod, the Patriarch himself presided in the ceremony. In a meeting
held in December, 1965 Malankara Association elected five candidates for
ordination as Bishops and elected members to the Managing Committee which
included members of the Patriarch group as well. In 1967 the Constitution was
amended in consequence of meeting in which both the groups deliberated.
From
June 1970 started the second part which was in contrast of the earlier. In June
1970 the dispute about use of expression `Holiness' and 'The Throne of St.
Thomas' was again questioned followed by sending a delegate in 1972 which was
objected to leading to ordination by the Patriarch of one of the appellants who
was impleaded as defendant no.1 in Suit No.4/79. Thereafter as stated there was
no end. When the Catholico succeeded in obtaining injunction from Civil Court in 1973 restraining the appellant
from interfering, the Patriarch issued charge sheet in June 1974 which was not
only objected but asserted to be without jurisdiction.
Various
ordinations followed. Each was challenged in courts.
And
when on 5th January 1975 the Catholico in their Synod declared that Malankara
Association was autocephalous then the Patriarch in a Synod held at Damascus
from 16th to 20th June 1975 decided that the only apostolic see of the Syrian
Orthodox Church in the world was the See of Antioch founded by St. Peter, that
the Malankara Church was an indivisible part of the Syrian Orthodox Church
dependent on the Patriarch in all spiritual matters, that acknowledgment of
Patriarch's and position by those ordained was essential, and the Catholicos
having repelled against the Patriarch stood disqualified from their
ecclesiastical grade and also guilty of violation of fundamental faith. It was
followed by letter dated 23rd
June 1975 asking the
Catholicos if he was willing to submit to the decision of the alleged universal
Synod. On 21st August
1975 the Patriarch by
Kalpana Ex.B-72 excommunicated Catholicos and on 7th September 1975 installed at Damascus Mar Paulose Philexinos (who had
earlier been deposed by the Malankara Episcopal synod for proved ecclesiastical
indiscipline) as a Catholicos in the name of Baselius Paulose II.
Out of
these suits eight covering all the issues were transferred to the High Court.
The Single Judge even while accepting the Constitution as valid held that it
was not binding on the Churches and Parishioners unless there was express
surrender. The Court held that they had no concern with those Churches which
continued with Patriarch of Antioch. The learned Single Judge held that the Malankara Church was Episcopal to a limit in spiritual affairs. In matters
of temporalities, the Church was congregational. It was further held that the
Parish Churches were independent autonomous units as far as governance and
administration of temporalities were concerned. The suits were dismissed. In
appeal, the Bench framed as many as 31 questions to cover the wide range of
controversy raised before it, reversed the decision of the learned Single Judge
and decreed the suit, except in relation to Churches known as 'Simhasna
Churches' and the Churches established by the Evangelistic Association.
Relevant findings on the questions framed by it are extracted below. The first
three questions related to the validity of the Cannon.
They
read as under:-
"(1)
Whether Ext. A90 or Ext. B161 is the correct version of Hudaya Canons accepted
by the Malankara Jacobite Syrian Community as valid and binding?
(2)
Are the plaintiffs barred by resjudicata from contending that the binding
version of Hudaya canons is Ext. A90 by reason of the judgment in XLI T.L.R. 1.
order in the Review Petition and the judgment in 45 T.L.R. 156?
(3)
Are the defendants barred by res judicata from contending that the binding
version of Hudaya Canons is not Ext. B161 by reason of the decision in the
Samudayam suit?"
The
answer given by it was that the decision in 41 TLR 1, Exhibit 18 therein, and
(Ext. 3p in the Samudayam suit and Exht. B-161 in these cases) is the version
of the Hudaya Canons accepted as binding on the Malankara Church has not become concluded and does
not operate as res judicata between the parties. The Bench further held that
there was no independent evidence on the basis of which it could be held that
either of the versions was binding on the Malankara Orthodox Syrian Christian Community
and since finding in the previous litigations were not res judicata neither
version of the Canon was proved to be binding on the community. In respect of
Question Nos. 4-6, which read as under.
"(4)
Whether the Catholicate established under Ext. A14 by Patriarch Abdul Messiah
with powers as provided for in Ext. A14 is valid and binding on the entire
Malankara church?
(5)
Whether by such establishment of the Catholicate the Patriarch was deprived of
his powers to ordain Metropolitans, consecrate/send morons or to exercise any
other spiritual power over the Malankara church thereby reducting his powers to
a vanishing point?
(6)
Whether contentions in points 4 and 5 are barred by res judicata against
parties in Patriarch's group by reason of the decision of the Travancore High
Court in Interpleader suit (45 TLR 116) and by reason of the decision of the
Supreme Court in Samudayam suit (AIR 1959 SC 31)? it was held that the
Catholicate established under Exht. A14 with powers as provided therein was valid
and binding on the Malankara Church, that by such establishment Patriarch has
not been deprived of his powers to ordain Metropolitans or consecrate Morone or
to exercise any other recognised spiritual power, though the power to ordain
Metropolitans is subject to acceptance of the Malankara community represented
by the Association and that by the establishment of the Catholicate spiritual
power of the Patriarch has not been reduced to a vanishing point, though the
Patriarch could not be regarded as having active spiritual supremacy.
The
Question Nos. 7 to 15 related to the Constitution of 1934 and status of Parish
Churches. They were answered as follows:- "(a) 1934 Constitution is valid
and binding on the Malankara Association, Community, Dioceses as well as parish
churches and parishioners.
(b)
Parish churches are not congregational or independent, but are constituent
units of Malankara church; they have fair degree of autonomy subject to the
supervisory powers vesting in the Managing Committee of the Malankara
Association, Catholicos and the Malankara Metropolitan as the case may be.
Administration of the day- to-day affairs of parish churches vests in parish
assembly and elected committees of the parishes.
(c)
Malankara church is not purely episcopal but has only some episcopal
characteristics.
(d)
Malankara Association is a representative body which has right to bind the
Malankara church, the community, parishes and parishioners by its deliberations
and actions.
The
most sensitive issue which has been subject of great debate in this Court was
posed as Question No.18, "Has the Malankara Church become an autocephalous church? and
it was answered against the respondent by recording the finding:- "We,
therefore, hold that the Malankara Church is not an autocephalous church but is
a part or division of the world Orthodox Syrian Church and set aside the
finding of learned single judge that the Catholicos group has now established
an autoceohalous church. We hold that while Patriarch of Antioch is the head of
the World Orthodox Syrian church Catholicos of the East who is subject to the
Constitution is head of the Malankara Church and the relationship between
Patriarchate and the Malankara Church is governed by the provisions of the Constitution."
This was the finding recorded in Moran Mar Basselios (supra) as well. It has
not been challenged, therefore, it has become final.
Some
of the churches claiming to be socially and culturally different, for instance,
Knanaya Church or the Kanandra Church established in pursuance of Royal Charter
issued by the Queen or registered under societies Registration Act or having
their own bye-laws claimed to be independent and autonomous. Their claim was
under Question Nos. 23, 24 and 25 and the answer given was that except Simhasana Churches and Evangelistic Association Churches the others were constituents of
Malankara Sabha. The appellants are the members of Patriarch Group. Separate
appeals have been filed by those churches which claim to be independent.
The
Catholic Group is aggrieved by the decision in respect of Churches of
Evangelistic Association and Simhasana Churches.
Factual
canvas having been spread out the stage is now set for grappling with intricate
issues of jurisdiction and law which have been canvassed neatly, by, both, the
learned senior counsel, Mr. K. Parasaran for the appellant and Mr. F. Nariman
for the respondents, without expression of any emotion, admirable understanding
and respect for each other, with utmost congenial coolness and exemplary
precision and clarity. To support their respective claims, the learned counsel
for both the parties advanced extensive arguments covering wide range of
various aspects ranging from maintainability of the suit, jurisdiction of the
civil courts to entertain religious disputes, misjoinder and non- joinder of
the parties, intricate questions of res judicata, religious nature of the Trust
and even religious matters, such as whether the Catholicate of the East is
entitled to be addressed as 'Holiness' sitting on the 'Throne of St.
Thomas'.
It is proposed to deal with the preliminary objections both to the
maintainability of the suit under Section 9 of the Civil Procedure Code and the
non- maintainability due to enactment of the Places of Worship (Special
Provisions) Act, 1991 as if any of these is accepted then no further
controversy would arise.
Thereafter,
what shall be examined is whether the claim of the appellant that they had
ex-communicated the respondent in accordance with Hudaya Canon governing the
Church is well founded as if even this plea is accepted, then no other issue
shall survive. If the answer is in favour of the respondents, then it shall
have to be decided, how far the dispute between parties has been settled by
earlier decisions and what was the scope of Samudayam Suit and the finality
arising out of it. Ancillary to this would be the question whether Catholicate
of the East was established in Malankara in the year 1912 and whether it has
been validly established, if so, what is its binding effect.
To begin
with the objection to the maintainability of the suit under Section 9 of the
Civil Procedure Code was probably not raised in 1954 and 1959 and if raised was
not pressed. But that by itself may not preclude defendant- appellant from
raising it, even in this Court as the bar or lack of jurisdiction can be
entertained, at any stage, since an order or decree passed without jurisdiction
is non est in law. What then is the scope of the Section? Does it comprehend
suits for declaration that the Syrian Churches are episcopal? Could the
respondent-plaintiff claim declaration that Malankara Association had become
autocephalous and no priest could refuse to recognise the authority of the
Catholico? Could the plaintiff seek injunction, restra in the priests or Deacon
from performing any other sacramental services and prohibit the defendants from
interfering with of the Malankara Church? How would the bar of jurisdiction operate if only part of
relief is cognisable? To appreciate these aspects it is necessary to set out
the Section itself and examine its scope and then advert to facts:
"9.
Courts to try all civil suits unless barred. The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or
impliedly barred.
Explanation
I-A suit in which the right to property or to an office is contested is a suit
of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
Explanation
II-For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such
office is attached to a particular place." One of the basic principles of
law is that every right has a remedy. Ubi jus ibi remediem is the well known
maxim. Every civil suit is cognisable unless it is barred, 'there is an
inherent right in every person to bring a suit of a civil nature and unless the
suit is barred by statute one may, at one's peril, bring a suit of one's
choice. It is no answer to a suit, howsoever frivolous the claim, that the law
confers no such right to sue' Smt. Ganga Bai vs. Vijay Kumar & Ors., AIR
1974 SC 1126. The expansive nature of the Section is demonstrated by use of
phraseology both positive and negative. The earlier part opens the door widely
and latter debars entry to only those which are expressly or impliedly barred.
The two explanations, one existing from inception and latter added in 1976
bring out clearly the legislative intention of extending operation of the
Section to such religious matters where right to property or office is involved
irrespective of whether any fee is attached to the office or not. The language
used is simple but explicit and clear. It is structured on the basic principle
of a civilised jurisprudence that absence of machinery for enforcement of right
renders it nugatory. The heading which is normally key to the Section brings
out unequivocally that all civil suits are cognizable unless barred. What is
meant by it is explained further by widening the ambit of the Section by use of
the word `shall' and the expression, `all suits of a civil nature' unless
`expressly of impliedly barred'.
Each
word and expression casts an obligation on the court to exercise jurisdiction
for enforcement of right. The word `shall' makes it mandatory. No court can
refuse to entertain a suit if it is of description mentioned in the Section.
That is amplified by use of `expression, `all suits of civil nature'. The word
`civil' according to dictionary means, `relating to the citizen as an
individual; civil rights'. In Black's Legal Dictionary it is defined as,
`relating to provide rights and remedies sought by civil actions as contrasted
with criminal proceedings'. In law it is understood as an antonym of criminal.
Historically the two broad classifications were civil and criminal. Revenue,
tax and company etc, were added to it later. But they too pertain to the larger
family of `civil'. There is thus no doubt about the width of the word `civil'.
Its width has been stretched further by using the word `nature' along with it.
That is even those suits are cognisable which are not only civil but are even
of civil nature. In Article 133 of the Constitution an appeal lies to this
Court against any judgment, decree or order in a `civil proceeding'. This
expression came up for construction in S.A.L. Narayan Row & Anr. etc. etc.
v. Ishwarlal Bhagwandas & Anr. etc. etc. AIR 1965 SC 1818. The Constitution
Bench held `a proceedings for relief against infringement of civil right of a
person is a civil proceedings'. In Arbind Kumar Singh v. Nand Kishore Prasad
& Anr. AIR 1968 SC 1227 it was held `to extend to all proceedings which
directly affect civil rights'. The dictionary meaning of the word `proceedings'
is `the institution of a legal action, `any step taken in a legal action.' In
Black's Law Dictionary it is explained as, `In a general sense, the form and
manner of conducting juridical business before a court or judicial officer. Regular
and orderly progress in form of law, including all possible steps in an action
from its commencement to the execution of judgment. Term also refers to
administrative proceedings before agencies, tribunals, bureaus, or the like'.
The word `nature' has been defined as, `the fundamental qualities of a person
or thing; identity or essential character; sort; kind; character'. It is thus
wider in content. The word `civil nature'is wider than the word `civil proceeding'.
The Section would, therefore, be available in every case where the dispute has
the characteristic of affecting one's rights which are not only civil but of
civil nature.
Are
religious rights, for instance right to worship in a religious place, entry in
a temple, administration of religious shrines for instance a temple, mosque or
a church are rights of civil nature? Is the suit filed by the respondent bad as
the declaration, injunction and prohibition sought are in respect of matters
which are not civil in nature? The answer is given by Explanation I. The Civil
Procedure Code was enacted during British period. The legislature enacting the
law was aware that there were no ecclesiastical courts either in ancient or
Medieval India as in England. `The term "ecclesiastical
law" may be used both in a general and in a technical sense. In its
general sense it means the law relating to any matter concerning the Church of
England administered and enforced in any court; in its technical sense it means
the law administered by ecclesiastical courts and persons' [Halsbury's Laws of
England Vol. 14 para 137]. `The ecclesiastical law of England is as much the law of the land as
any other part of the law' [Halsbury's Laws of England Vol.14 para 139]. There
was no such law in our country. The ecclesiastical courts are peculiar to England. The Parliament was aware of it.
That
is why it added Explanation I to Section 9 of the Civil Procedure Code. It
obviates any ambiguity by making it clear that where even right to an office is
contested then it would be a suit of a civil nature even though that right may
entirely depend on the decision of a question as to religious rites or
ceremonies. Explanation II widens it further to even those offices to which no
fees are attached.
Therefore,
it was visualised from the inception that a suit in which the right to property
or religious office was involved it would be a suit of civil nature. Reason for
this is both historical and legal. In England ecclesiastical law was accepted as a part of the common law binding on
all.
But,
`the introduction of English Law into a colony does not carry with it English
ecclesiastical law'. (Halsbury Laws of England Vol. 14 para 315). In ancient or medieval India the courts were established by King
which heard all disputes. No religious institution was so strong and powerful
as church in England. The Indian outlook was always
secular.
Therefore,
no parallel can be drawn between the administration of the churches by
ecclesiastical courts in England. Religion in India has always been ritualistic. The
Muslim rulers were by and large tolerant and understanding.
They
made India their home. They invaded, ruled and
became Indian. But Britishers made it a colony. However, that did not interfere
with religion. Disputes pertaining to religious office including performance of
rituals were always decided by the courts established by law. As far back as
1885 Justice Mehmood in Queen Empress vs. Ramzan & Qrs. 1885 (7 ILR)
Allahabad p. 461 repelled the argument that the courts were precluded from
considering Muslim Ecclesiastical Law and observed at page 468 as under:-
"I am unable to accept this view, because, if it is conceded that the
decision of this case depends (as I shall presently endeavour to show it does
depend) upon the interpretation of the Muhammadan Ecclesiastical Law, it is to
my mind the duty of this Court, and of all Courts subordinate to it, to take
judicial notice of such law".
There
are numerous authorities where dispute about entry in the temple, right to
worship, performing certain rituals have been taken cognizance of and decided
by civil courts.
In
Narasimma Chariar & Ors. vs. Sri Kristna Tata Chariar 6 Mad. H.C. Reports
449 it was claimed by the plaintiff that they had the exclusive rights to Adhyapaka
Mirass of reciting certain texts or chants in a temple. In that suit it was
held:
"The
claim is for a specific pecuniary benefit to which plaintiffs declare
themselves entitled on condition of reciting certain hymns.
There
can exist no doubt that the right to such benefits is a question which the
Courts are bound to entertain, and cannot cease to be such a question, because
claimed on account of some service connected with religion.
If, to
determine the right to such pecuniary benefit, it becomes necessary to
determine incidentally the right to perform certain religious services, we know
of no principle which would exonerate the Court from considering and deciding
the point".
It was
approved by the Privy Council in Krishname & Ors. vs. Krishnasamy &
Ors. 1879 ILR 2 Mad. 62 and the passage extracted above
was approved by observing that it was "perfectly correct". This was a
decision when Explanation II was not there. The dispute had two rounds of
litigation. In the second round after remand the High Court observed.
"It
is certainly not the duty of the Civil Court to pronounce on the truth of
religious tenets nor to regulate religious ceremony; but, in protecting persons
in the enjoyment of a certain status or property, it may incidentally become
the duty of the Civil Court to determine what are the accepted tenets of the
followers of a creed and what is the usage they have accepted as established
for the regulation of their rights interse." The Law Commission in its
27th Report in Civil Procedure Code, December 1964 at page 91 while considering
the addition of Explanation II to Section 9 observed as under:
"It
may be added, that the decision of the Privy Council to the effect that a suit
for pecuniary benefits is a civil suit, even if it becomes necessary to
determine a right to perform religious services, does not imply that other
suits relating to religious offices cannot be entertained." In Srinivasalu
Naidu v. Kavalmari Munnuswami Naidu AIR 1967 Madras 451 it was observed, "The explanation certainly does
not confine the limits of the nature of suits contemplated by the main section.
What the Explanation states is only that though religious rites and ceremonies
may form the basis of a right that is claimed, such right being a right to
property or to office, a suit to establish such right would be a suit of a
civil nature. The Section takes within its broad sweep all questions where one
person claims any privilege in himself as against others. There is no doubt
that such a question would be one of a civil nature." On the plain
phraseology of the Section, therefore, it is clear that a suit filed after
coming into force of the Constitution for vindication of rights related to
worship of status, office or property is maintainable in civil court and it would
be duty of the court to decide even purely religious questions if they have a
material bearing on the right alleged in the plaint regarding worship, status
or office or property. In Nagar Chandra Chatterjee & Anr. v. Kailash
Chandra Mondal & Ors. AIR 1921 Calcutta 328 it was held:
"Where
there were no Ecclesiastical Courts, there was nothing to prevent civil courts
from holding that Pujari has been removed from his office on valid
grounds." Sir Ashutosh Mookerjee quoted thus:
"There
is manifestly nothing wrong in principle that the holder of a spiritual office
should be subject to discipline and should be liable to deprivation for what
may be called misconduct from an ecclesiastical point of view or for flagrant
and continued neglect of duty..... It is plain that although so far as Hindus
are concerned, there is now no State Church and no ecclesiastical court, there
is nothing to prevent civil courts from determining questions such as those
raised in the present litigation and from holding that the Pujari has been
removed from his office on valid grounds." In U.W. Baya vs. U. Zaw Ta. AIR
1914 Lower Burma 178 (1) where a question arose as
to which was the forum where an action for violation of religious rights could
be brought, it was held, "there are, therefore, no ecclessiastical
authorities in Lower
Burma. Section 9,
Civil P.C. enacts that the courts shall subject to the provisions herein
contained, have jurisdiction to try all suits of a civil nature excepting suits
of which the cognizance is either expressly or impliedly barred. This is a suit
of a civil nature. It is a claim of certain lands and manuscripts.
The
civil courts, in our opinion, clearly have jurisdiction to decide the suit and
should do so".
In Sri
Sinha Ramanuja Jeer & Ors. v. Sri Ranga Ramanuja Jeer & Anr. (1962) 2
SCR 509 this Court observed:
"prima
facie suits raising questions of religious rites and ceremonies only are not
maintainable in a civil Court, for they do not deal with legal rights of
parties. But the explanation to the section accepting the said undoubted
position says that a suit in which the right to property or to an office is
contested is a suit of civil nature notwithstanding that such right may depend
entirely on the decision of a question as to religious rites or ceremonies. It
implies two things, namely, (i) a suit for an office is a suit of a civil
nature; and (ii) it does not cease to be one even if the said right depends
entirely upon a decision of a question as to the religious rites or
ceremonies." In Ugamsingh & Mishrimal vs. Kesrimal & Ors., 1971
(2) SCR 836, it was held that right to worship is a civil right which can be
subject matter of a civil suit. The Court observed :
"It
is clear therefore that a right to worship is a civil right, interference with
which raises a dispute of a civil nature." That the right to conduct
worship is also a civil right has been recognised by the courts in T.A.
Aiyangar Swamigal & Ors. v. L.S. Aiyangar & Ors. 31 Madras Law Journal 758. In Devendra Narain
Sarkar & Ors. v. Satya Charan Mukerji & Ors. AIR 1927 Calcutta 783 it was held that a suit by a
person claiming to be entitled to a religious office against an usurper, for a
declaration of his right to the office is a suit of a civil nature. Similarly
in S. Ramnuja Jeer (supra) this Court observed as under:
"From
the aforesaid passage it is clear that so long as the holder of a purely
religious office is under a legal obligation to discharge duties attached to
the said office for the non-observance of which he may be visited with
penalties, a civil court could grant a declaration as to who would be or could
be the holder of such office." It was vehemently urged that declaration of
the character of a church, viz., whether it was autocephalous was solely
dependent upon the canonical laws and it necessarily involved an adjudication
of what was the applicable canon, what was its interpretation and what are the
religious beliefs, practices, customs and usage in the church which pertained
to the ecclesiastical jurisdiction and the civil courts could not embark on
such an enquiry.
This
is the farthest or the highest stand that could be taken by the appellant. The
answer is twofold, one section 9 of the Civil Procedure Code and other Article
25 of the Constitution. The latter guarntees constitutionally freedom of
conscience and the right freely to profess, practice and propagate religion to
every person. Its reach has been explained in various decisions. In His
Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. vs. The State of
Tamil Nadu. AIR 1972 SC 1586 it was held
that this Article guarantees freedom to practice rituals and ceremonies which
are integral parts of a religion by the followers of a doctrine. In S.P. Mittal
vs. Union of India & Ors. AIR 1983 SC 1,
it was held that freedom or right involving the conscience must naturally
receive a wide interpretation. The suit filed was thus maintainable. The
injunction and prohibition sought from interfering in administration of Church
are certainly matters which pertain to the religious office. Even the
declaration that the Church is episcopal is covered in the expansive expression
of religion as explained in Mittal's case (supra). The word 'episcopal, means'
of or pertaining to bishops, Having a govt. vested in bishop'. A suit for
declaration of such a right would be maintainable under section 9. Not only
because it is claim to an office but also because there is no other forum where
such dispute can be resolved. If a dispute arises whether a particular
religious shrine has ceased to be so due to its anti-religion activities then
the followers of that religion or belief and faith cannot be denied the right
to approach the court. Explanation I is not restrictive of the right or matters
pertaining to religion.
It
only removes the doubt to enable the courts to entertain suits where dispute
about religious office is incolved. The right to religion having become
fundamental right, it would include the right to seek declaration that the
Church was Episcopal. But the court may refrain from adjudicating upon purely
religious matters as it may be handicapped to enter into the hazardous,
hemisphere of religion. Maintainability of the suit should not be confused with
exercise of jurisdiction. Nor is there any merit in the submission that Explanation
I could not save suits where the right to property or to an office was not
contested or where the said right depended on decisions of questions as to
religious faith, belief, doctrine or creed. The emphasis on the expression 'is
contested' used in Explanation I is not of any consequence. It widens the ambit
of the Explanation and include in its fold any right which is contested to be a
right of civil nature even though such right may depend on decisions of
questions relating to religious rights or ceremonies. But from that it cannot
be inferred that where the right to office or property is not contested it
would cease to be a suit cognisable under Section 9. The argument is not
available on facts but that shall be adverted later.
Suffice
it to mention that in Ugamsingh (supra) the plaintiff's claim was that they
were entitled to worship without interference of the idol of Adeshwarji in the
temple named after him at Paroli according to tenets observed by the Digambri
Sect of the Jain religion. It was held that from the pleadings and the
controversy between the parties it was clear that the issue was not one which
was confined merely to rites and rituals but one which effected the rights of
worship. If the Digambaries have a right to worship at the temple, the attempt
of the Swetamberies to put Chakshus or to place Dhawandand or Kalash in
accordance with their things and to claim that the idol is a Swetamberi idol
was to preclude the Digambaeries from exercising their right to worship at the
temple, with respect to which a civil suit is maintainable under Section 9 of
the Civil Procedure Code. The scope of the Section was thus expanded to include
even right to worship.
'Religion
is the belief which binds spiritual nature of men to super-natural being'. It
includes worship, belief, faith, devotion etc. and extends to rituals.
Religious right is the right of a person believing in a particular faith to
practice it, preach it and profess it. It is civil in nature. The dispute about
the religious office is a civil dispute as it involves disputes relating to
rights which may be religious in nature but are civil in consequence. Civil
wrong is explained by Salmond as a private wrong. He has extracted Blackstone
who has described private wrongs as, 'infringement or privation of the private
or civil rights belonging to individuals, considered as individuals, and are
thereupon frequently termed civil injuries'. Any infringement with a right as a
member of any religious order is violative of civil wrong. This is the letter
and spirit of Explanation I to Section 9. In American Jurisprudence volume 66,
paragraph 45, the law is explained thus.
'The
(the) civil courts have steadily asserted their want of jurisdiction to hear
and determine any controversy relating thereto. On the other hand, the civil
courts have without hesitation exercised their jurisdiction to protect the
temporalities of such bodies, for whenever rights of property are invaded, the
law must interpose equally in those instances where the dispute is as to church
property and in those where it is not'.
In
Long vs.Bishop of Capetown, 1863 (1) Moore PCC NS 411, where the Bishop held an
ecclesiastical court for proceeding against the appellant who was authorised to
perform ecclesiastical duties in a Parish was held as coram non judice as he
had no authority to hold an ecclesiastical court. The court held that where no
Church was established by law it was in the same situation as any religious
body, therefore, if any tribunal was constituted by such body which was not
court then its decision would be binding only if it was exercised within the
scope of the authority. In Dame Henriette Brown vs. Les Cure Et Marguilliers De
L'Oeuvre Et Fabrique De Notre Dame De Motreal, 1874-75 (6) PC 157, the Privy
Council while following the decision in Long (supra) held that where a Church
was merely a private and voluntary religious society resting only upon a
consensual basis courts of justice were still bound when due complaint was made
that a member of the society was injured in any manner of a mixed spiritual and
temporal character to inquire into the laws and rules of the tribunal or
authority which inflicted the alleged injury and ascertain whether the act
complained of was law and discipline of the Church and whether the sentence was
justifiably pronounced by a competent authority. The decision in Long (supra)
has been followed in this country in Anadrav Bhikaji Phadke & Ors. v.
Shankar Daji Charya & Ors. ILR 7 Bombay 323 where certain persons brought a
suit that their right of worship in the sanctuary for a temple was being
infringed, it was held that the right of exclusive worship of an idol at
particular place set up by a caste was civil right.
The
law being such it may be seen whether the suit filed by the respondent is
covered within the forecorners of Section 9. Whether the relief sought by the
respondent was regarding the status or office of the Metropolitan? In Original
Suit No.4 of 1979 it is claimed that various persons said to be ordained as
metropolitans have no right to act as such and priest ordained in turn by them
would equally have no right to act as such, all these being usurpers. Further
the office of metropolitan in the Malankara Church has, with it, attached legal
obligations for the non-performance of which sanctions or penalties are
provided is clear both from the canonical law as well as the Constitution.
Apart from this four suits, namely, Original Suit Nos.2/79, 5/79, 6/79 and 8/79
concern themselves solely with the interference in the administration of Church
properties being scheduled specifically in the respective plaints. Similarly
the claim founded on allegations against wrong persons exercising the functions
by those who have been wrongly designated as metropolitans and are interfering
with the right to worship in Churches appears to be squarely covered in Section
9. The prayers in Original Suit No.4/79 were 'A' to 'H'. Even if the prayer 'A'
which seeks a declaration that Malankara Church is episcopal in character
ignored the suit for reliefs 'E','F', 'G' and 'H' which read as under cannot be
held to be touching only religious rites and therefore, are not cognisable by
Civil Court:
"E.To
declare that any Priest who refuses to recognize the authority of the
Catholicos and Malankara Metropolitan, the 2nd plaintiff and other
Metropolitans under him is not 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, services etc. for the
Malankara church or its institutions.
G. To
prohibit defendants 4 onwards from performing any religious services a
sacraments whatsoever in or about any of the church of Malankara and for the
Malankara church or its constituent churches or institutions.
H. To
prohibit the defendants from interfering in any manner with the administration
of the Malankara church."
The
appellant placed reliance on various averments in different I.As, written
arguments and affidavits to demonstrate that the nature of relief sought was
beyond the pale of Section 9. In fact this dispute was not seriously raised
before the courts below. The dispute is going on since long and this is as
stated the third round in this Court. But it appears that in earlier
litigations in the Royal Court of Final Appeal and the Supreme Court no such
objection was taken that the suit was not maintainable. The submission that the
locus standi of the respondent was suspect as they having been ex-communicated
by the Synod of the orthodox church with Patriarch as its head, did not have
any substance as in Sardar Syendna Taher Saifuddin Saheb v.
The
State of Bombay (1962) Supp. 2 SCR 496 a Constitution Bench of this Court held
that the exercise of the power of ex-communication by the religious head on
religious ground form part of the management of its affairs in matters of
religion and since Articles 25 and 26 of the Constitution protect not merely
religious, doctrine and beliefs but also acts done in pursuance of religion and
themselves carrying the rituals and observations, ceremonies and right of
worship which are integral part of religion it is difficult to agree that there
was no forum for vindication of such right.
Even
the argument that the declaration that the Church was autocephalous or
Episcopal is cognisable only in the ecclesiastical jurisdiction and the civil
courts could not embark on such an enquiry does not appear to be well founded.
A civil court may be precluded from deciding what rites are necessary to impart
religious character. For instance, whether kaivapu, that is placing of the hand
by the spiritual head for ordination is necessary or Morone, that is, oil of
see must be there may be a matter for the Synod. But who has a right to perform
it or whether it has been performed as provided in the religious book and
whether a Church has become autocephalous due to adoption of Constitution by a
Synod are matters which can surely and certainly be decided by the courts. The
learned counsel submitted that question whether the Malankara Church was governed in its administration by the Constitution of
Malankara Church with reference to the Constitution passed in M.D. Seminary
meeting in 1934, which dealt with religious and ecclesiastical aspects of the
Church, could not be adjudicated upon by the civil courts. According to learned
counsel the Constitution expressly adopted the Catholico version of the canon
and made provisions in regard to ordination of priecs, bishops, Catholicos
andthe discipline to which they were subjected, these were mere matters of
religious rites and ceremonies and involved an adjudiction of the question of
religious faith, creed and doctrine which would be wholly outside the scope of
the civil courts. The learned counsel submitted that the single most important
question on which the fate of these appeals and suits would turn was as to
which was the correct version of the canon applicable to Malankara Church and
this was a matter which entirely depended on questions relating to the religious
faith, doctrine and belief. It was also emphasised that the various decisions
given by this Court, namely, Sardar Syedna Tahar Saifuddin Saheb vs. The State
of Bombay, 1962 Supp. 2 SCR 496; Uqamsingh & Mishramal vs. Kesrimal &
Qrs., 1971(2) SCR 836; Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu vs.
Prathivathi Bhayankaram Venkatacharlu & Ors. AIR 1947 PC 53; M. Appadorai
Ayyangar & Ors. vs. P.B. Annanqarachariar & Ors. AIR 1939 Mad. 102; Kattalai Michael Pillai & Ors. vs. J.M.
Barthe & Ors., AIR 1917 Mad. 431; E.C.
Kent vs. E.E.L. Kent. AIR 1926 Madras 59 and
Sri Sinna Ramanuja Jeer & Ors. vs. Sri Ranga Ramanuja Jeer & Anr., 1962
(2) SCR 509 would indicate that Explanation 1 to Section 9 saved only those
suits where the right to property or to an office was contested. But where no
contest was raised the suit would not be covered within the forecorners of the
Section.
Reference
was made to paragraphs 301 to 304, 313 to 315, 318, 321, 332 to 339, 343 to
346, 352, 354, and 356 of Vol. 14 of Halsbury's Laws of England and it was
urged that these paragraphs would show that the position of the crown in England in respect of Church was entirely
different. The learned counsel submitted that passages which have been relied
to deal with the Anglican Church relate to colonies where the supremacy of the
Crown in ecclesiastical affairs still exists. He urged that those passages have
no relevance to a sovereign secular country like India. The learned counsel pointed out that the decisions in Long
(supra) and Dame (supra) arose in different colonies which accepted the
supremacy of the Crown in ecclesiastical matters and apart from the regular
hierarchical set up in the Anglican Churches or the Churches in the colonies the
civil courts also exercised jurisdiction. These decisions arising from
jurisdictions where Church was part of the State could not apply in a country
like India where religious neutrality was
mandated by the secular constitution. In the end the learned counsel promitted
that the judiciary should keep its hands off in respect of such religious
matters.
The
submissions do not appear to stand the test in light of what has been stated
earlier. The relevant passage from Halsbury's Laws of England have already been
extracted to demonstrate that the ecclesiastical law of England does not apply to colonies. There
is no statute framed even during British regime which had adopted the statutory
or common law to the Churches in India. The mere fact that the Churches in England are governed by ecclesiastical law could by no stretch of imagination
furnish foundation for the submission that the Churches in India would also be governed by
ecclesiastical law. The jurisdiction of courts depends either on statute or on
common law. The jurisdiction is always local and in absence of any statutory
provision the cognizance of such dispute has to be taken either by a hierarchy
of ecclesiastical courts established in the country where the religious
institutions are situated or by a statutory law framed by the Parliament.
Admittedly no law in respect of Christain Churches has been framed, therefore,
there is no statutory law. Consequently any dispute in respect of religious
office in respect of Christians is also cognisable by the civil court. The
submission that the Christians stand on a different footing than Hindus and
Budhists, need not be discussed or elaborated. Suffice it to say that religion
of Christians, Hindus, Muslims, Sikhs, Budhs, Jains or Parsee may be different
but they are all citizens of one country which provides one and only one forum
that is the civil court for adjudication of their rights, civil or of civil
nature.
In
reading Section 9 widely and construing it expansively the jurisdiction to
entertain a suit for declaration whether the Church was episcopal or congregational
and whether the appellants could have been ordained by the Patriarch when it
was contrary to the earlier decision given by this Court that the ordination
was required to be approved by Synod, the court is not being asked to
adjudicate on faith but whether the exercise of right in respect of faith was
valid. The Grace no doubt comes from Patriarch and on that there is no dispute
but whether the Grace came in accordance with the Canon or the Constitution is
certainly a matter which would fall within Section 9 C.P.C. Status and office
are no doubt different but what was challenged is not the status or faith in
Patriarch but the exercise of right by Patriarch which interfered with the
Office of Cathelico held validly. Apart from it, as stated earlier, after
coming into force of the Constitution Article 25 guarantees a fundamental right
to every citizen of his conscience, faith and belief, irrespective of cast,
creed and sex, the infringement of which is enforceable in a court of law and
such court can be none else except the civil courts. It would be travesty of
justice to say that the fundamental right guaranteed by the constitution is
incapable of enforcement as there is no court which can take cognisance of it.
There is yet another aspect of the matters that Section 9 debars only those
suits which are expressly or impliedly barred. No such statutory bar could be
pointed out. Therefore, the objection that the suit under Section 9 C.P.C. was
not maintainable cannot be accepted.
The
other objection to the maintainability of the suit was based on the Places of
Worship (Special Provisions) Act, 1991 (`Act' for short). This Act was enacted
to prohibit conversion of any place of worship and to provide for the
maintenance of its religious character as it existed on the 15th day of August,
1947 and for matters connected therewith or incidental thereto. Section 2(c)
defines `worship' to mean `a temple, mosque, gurudwara, church, monastery or
any other place of public religious worship of any religious denomination or
any section thereof, by whatever name called'. Section 3 bars any person from
converting any place of worship or any religious denomination into a place of
worship of a different section of the same religious denomination or of a
different religious denomination or any section thereof. Section 4 declares
that the religious character of a place of worship existing on 15th day of
August, 1947 shall continue to be same as it existed on that date. Therefore,
it was urged that the suit having been filed for declaration that the Syrian
Churches were apostolic and autocephalous, it amounted to seeking a declaration
as to religious character of the places of worship and consequently it was
barred and the court cannot assume jurisdiction to grant such declaration. The
learned counsel urged that each Parish Church is a place of worship within the
meaning of Section 2(c) of the Act and the religious denomination is the
Jacobite Syrian Orthodox Church in Malabar. According to learned counsel, it
having been held in successive decisions that there were two sections of the
said religious denomination, one, the Patriarch Group and the other, Catholicos
and these two denominations existed on 15th day of August, 1947, factually and
legally, the suit filed by the respondents for a declaration that the Jacobite
Church was autocephalous was not maintainable and liable to be dismissed on
this ground alone. The learned counsel submitted that the Parish Churches
believed in uniterrupted apostolic succession of St. Peter through the
Patriarch and that the spiritual grace emanates through such Patriarchs and,
therefore, the declaration sought by the respondents could result in destroying
the basic character of the religious denomination. It is not necessary to deal
with these submissions at length as sub-section (3) of Section 4 is a complete
answer to it. It reads as under:- "Nothing contained in sub-section (1)
and sub-section (2) shall apply to,-
(a)
any place of worship referred to in the said sub-sections which is an ancient and
historical monument or an archeological site or remains covered by the Ancient
Monuments and Archeological Sites and Remains Act, 1958 (24 of 1958) or any
other law for the time being in force;
(b)
any suit, appeal or other proceeding, with respect to any matter referred to in
sub-section (2), finally decided, settled or disposed of by a court, tribunal
or other authority before the commencement of this Act;
(c) any
dispute with regard to any such matter settled by the parties amongst
themselves before such commencement;
(d) any
conversion of any such place effected before such commencement by acquiescence;
(e) any
conversion of any such place effected before such commencement which is not
liable to be challenged in any court, tribunal or other authority being barred
by limitation under any law for the time being in force".
The Syrian Jacobite Church is an ancient and historical
monument which was established sometime in 51-52 century A.D. The respondents
did not seek a declaration for conversion of the church or place of worship.
The matter of the religious denomination was settled as far back as 1876 in the
Mulunthuruthy Synod. Even the declaration sought that the Church is
autocephalous is founded on the Kalpana issued in 1912 and the Constitution framed
in 1934. No declaration is sought for change of the place as it existed in
1947.
Further,
whether the declaration sought for can be granted or not is a different matter
than claiming that the declaration if granted would result in converting the
place of worship or the religious denomination. This objection, too, therefore,
is not available on facts of this case.
Reverting
to merits the principal issue that calls for adjudication is about the scope of
excommunication in ecclesiastical matters and the extent to which the Court can
examine it and lastly whether the ex-communication of the Catholico by the
Synod held at Damascus under the Presidentship of the
Patriarch of Antioch was valid either canonically or conventionally? The
principal defence in the suit from which these appeals have arisen, was that
the Catholico-plaintiffs were ex-communicated, therefore, the suits were liable
to be dismissed. Two questions arise, one, the jurisdiction of the civil court
to examine ex- communication and second, whether the ex-communication was in
accordance with law. Taking up the first question as to whether the civil
courts are competent to decide on the validity of the ex-communication, the
answer, in this connection, has been given while deciding the objection of
maintainability of the suit under Section 9 CPC. Yet it would not be
inappropriate to mention how far the protection of a civil court extends
regarding the ecclesiastical matters. The law has been explained in paragraphs
315, 332 and 337 of Halsbury's Laws of England, Vol. 14. A church is formed by
the voluntary association of individuals. And the churches in the commonwealth
are voluntary body organised on a consensual basis - their rights apart from
statutes will be protected by the courts and their discipline enforced exactly
as in the case of any other voluntary body whose existence is legally
recognised. Therefore, all religious bodies are regarded by courts of law in
the same position in respect of the protection of their rights and the sanction
given to their respective organisations. It is further settled that discipline
of a church cannot affect any person except by express sanction of the civil
power or by the voluntary submission of the particular person. But for purposes
of enforcing discipline within a church religious body may constitute a
tribunal to determine whether its rules have been violated by any other members
or not and what will be the consequence of that violation. In such case the
tribunals so constituted are not in any sense courts, they derive no authority
from the statutes and they have no power of their own to enforce their
sentence. Their decisions are given effect to by the courts as decision of the
arbitrators whose jurisdiction rests entirely on the agreement of the parties.
Consequently if any member of such body has been injured as to his rights in
any matter of mixed spiritual and temporal character the courts of law will, on
due complaint being made, inquire into the laws and rules of the tribunal or
authority which has inflicted the injury and will ascertain whether any
sentence pronounced was regularly pronounced by competent authority, and will
give such redress as justice demands. See Long (supra), Dame (supra) and
Anadrav (supra). In Hasanali & Ors. vs.
Mansoorali
& Ors., AIR (35) 1948 PC 66, it was held that a court of law cannot
recognise a purported ex-communication as valid if principles of substantial
justice have not been complied with.
Ex-communication
in religious order and that tco of a spiritual head entails serious
consequences both religious and civil.'Ex-communication' is defined in Black's
Law Dictionary as 'a sentence of censure pronounced by one of the spiritual
courts for offences falling under the ecclesiastical cognizance. It is
described as two-fold:
(1)
The lesser excommunication, which is an ecclesiastical censure, excluding the
party from the sacraments;
(2) the
greater, which excludes him from the company of all Christians.
Formerly,
too, an excommunicated man was under various civil disabilities. He could not
serve upon juries, or be a witness in any court; neither could he bring an
action to recover lands or money due to him. These penalties were abolished in England by St. 53 Geo. III, c. 127.
Excommunication
is still a censure under Canon Law". In Faiths of the World by James
Gardner, it is discussed under 'Anathema' and 'Censure'. The Anathema was
usually administered to offenders. 'It is well known that a solemn Curse or
anathema "with bell, book, and candle" against all heretics, is annually
pronounced by the pope at Rome, and by
other ecclesiastics in other places on the Thursday of Passion week, the day
before Good Friday, the anniversary of the Saviour's crucifixion". The
substance of the "Anathema"is in these words:
"Excommunicated
and accursed may they be, and given body and soul to the devil. Cursed be they
in cities, in towns, in fields, in ways, in paths, in houses, out of houses,
and all other Places, standing, lying, or rising, walking running, waking,
sleeping, eating, drinking, and whatsoever things they do besides. We separate
them from the threshold, and from all prayers of the church." 'Censures
(Ecclesiastical)" is 'the various punishments inflicted by the Christian
church upon delinquent members of her communion, in virtue of that authority
which has been committed to her by Christ, the great King and Head of the
church'.
One of
the effects of such action is that the person concerned is deprived of the
risnt of worship. Under our Constitution it is a fundamental right. Any
intemenace with it or its deprivation can be challenged in a court of law.
Even
in England the Courts extend protection
regarding ecclesiastical matters if they affect the right as is clear from
paragraph 337 of Halsbury's Laws of England, Fourth Edition, Volume 14.
In the
light of the law thus stated it may be examined if the ex-communication of
Catholico by the Patriarch was valid as if the power of ex-communication was
validly exercised then the suit filed by them was not maintainable.
The
specific case in this regard of the appellants was that, 'canonically' and,
'traditionally' the Patriarch of Antioch is the supreme head of the Holy
Universal Syrian Orthodox Church and the Catholicos, is subordinate to the
Patriarch of Antioch'. Therefore, the Catholico was validly ex- communicated in
accordance with the canon filed as Ex. 18, which is the foundation of the power
and jurisdiction of the Patriarch. How far is correct? In Moran Mar Basselios
(supra) it was held that the Catholicos had not committed any act of heresy.
Could they be held to have committed act of heresy when, then used the world
'Holiness' and on the 'Throne of St. Thomas'. From the New Testament - The
Gospel according to St. Mathew. Chapter 19 it appears there was throne for each
apostle:- "Then answered Peter and said unto him, Behold, we have
foresaken all, and followed thee; what shall we have therefore?" "And
Jesus said unto them, verily I say unto you, That ye which have followed me, in
the regeneration when the son of, man shall sit in the throne of his glory, ye
also shall sit upon twelve thrones, judging the twelve tribes of Israel".
St.
Thomas was, 'one of
the original apostles of Jesus Christ' [Religions of India by Dr. Karan Singh,
P. 15]. In a book written by E.M. Philip, one of the authors on Syrian Church, the effect of the judgment by Royal Court of Appeal is
described thus, 'of course. the majority judgment prevailed and Mar Dionysius
was established on the throne of St. Thomas'. The expression 'Melapattakaran of the throne in Malayalam' has been
used by Royal Court of Cochin in its judgment thus, "He upheld the
contention of Mar Thomas Athanasius, and found that the Syrian Church was independent of the Patriarch of Antioch. Of course, the
majority judgment prevailed, and Mar Dionysius V. was established on the throne
of St. Thomas".
In
Exht. A-4 (Notice for M.D. Seminary Meeting of 1934) issued to Vicars, Priests,
Kykars and Parishioners, it was mentioned:- In the letter dated 8th June, 1959, Ex. A-24, the Catholic in his
reply to the Patriarch wrote as under:- "3. His Holiness: The propriety of
using the title 'His Holiness' along with my name is questioned. Now I must
bring to your notice that fact that customarily the same ephithets have been
attached to the Patriarch and the Catholicos in our church as evinced by our
Holy writs and other books. For example, in the diptych (first intercession of
the Church, during the Holy Qurbana, the people are asked to pray for our
Patriarchs Aboon Mar Ignatius and Aboon Mar Baselios. The very same titles are
here seen applied to the Patriarch and the Catholicos, alike, the later himself
being called a Patriarch. The inference is that the titles proper to the
Patriarch of Antioch are proper also to be Catholicos of the East. We also see
that such epithets as Moran, Aboon, etc. are applied to both the prelates in
common. Further this title has been in use here for long time.
4. The
Throne of St. Thomas:
Your
Holiness says 'It is never heard that St. Thomas established a throne of the Catholicos or the Mapriano, either in India or in my other place'. I must,
without presumption, ask your Holiness, whether for that matter, any apostle
has established a throne anywhere. Is it not that such honours have been
connected, with them in latter times. There is also no special thronal
ascension for any dignitary of our church except the installation
ceremony(......) done at the time of the consecration of Bishops and other
prelates and at their acceptance by their respective dioceses. Besides, we see
that this term 'throne' is added to the Patriarchs, Metropolitans and Bishops
alike in the Hudaya Canon and other books (Canon Chap. VII, Section I) and the
ceremony of enthronment is done over for Bishops.
Your
Holiness knows that the very eminent Syrian Historical writer Gregories Bar
Heoraous regards St.
Thomas, the apostle,
as the first bishop of the East. Let me also bring to your notice that the
Malankara Church Historian, E.M. Philip who had been a staunch partisan of the
Patriarch, refers to the throne of St. Thomas, in his history of the Malankara
Syrian Church (2nd Edition page 253). That being the case, can we say that St. Thomas, one among the twelve eminent
apostles, had no throne at all.
Your
Holiness says 'Also we could not find such a throne in the document given by
Abdul Messiah II'. I am indeed happy that your Holiness respects and depends
upon the Kalpana given by Abdul Messiah II. But it must caution your Holiness
that the Kalpana you refer to may be the General Kalpana that he issued just
before he left Malankara (1913). The earlier Kalpana issued by him from Niranam Church on the day he installed Mar Ivanios of Murimattom as
Catholicos, had to be necessarily referred to. To make things clear, I shall
quote a sentence from it. "According as you requested we have consecrated
our spiritual and beloved Ivanious as Mapriano under the name Baselios of the
East, on the throne of the Diocese of St. Thomas in India and other places".
(1912).
This is very definite and no one could say that a throne like this was a now
find or one found without the knowledge of the throne of Antioch".
This
letter explained the justification for use of the expression, 'Throne of St.
Thomas' and 'Holiness'. Whatever may be its religious significance but in view
of what has been stated above coupled with the conduct of the Patrirch in not
only condoning and accepting its use but even presiding in the installation
ceremony, it is difficult to treat it as an act of heresy deserving
ex-communication.
Apart
from it, the four charges levied in the show- cause notice were as under:- (1)
That the Catholicos claimed to be seated on the Throne of St. Thomas.
(ii)
That he declared that he was equal in status to the Patriarch which was
uncanonical as he was a subordinate.
(iii)
That he did not accept the Patriarch delegate in India (sent in 1972) and resorted by all means "to send him
off".
(iv)
That at the time of ordination of three Metropolitans in 1966 by the
Catholicos, the Catholicos did not take an oath of subordination to the
Patriarch.
None
of them individually or collectively could attract the punishment of
excommunication even if found to be true. The nature and the power to be
exercised for excommunication have been indicated earlier. They are not lightly
exercised as they deprive a person of his right of worship. The accusation that
the Catholico was subordinate to Patriarch was not an accurate description. The
Patriarch of Antioch was and is undoubtedly the highest ecclesiastical
functionary. But the second highest dignitary was and is the Catholicate of the
East. The concept of subordinate amongst such spiritual heads is out of place.
They function in their own sphere according to religious canon. When Patriarch
of Antioch was established in Synod of Nicea the Catholico of the East was
established at Tigris. The two authorities in the
hierarchy existed from 4th century. Therefore, the creation of Catholico in
1912 in Malankara conferring jurisdiction over India, Ceylon and Burma was neither against scriptures nor against faith. The
exercise of power by the Catholico in pursuance of such creation and under the
Constitution which was framed in 1934 could not entail ex- communication. The
action of Patriarch in ex-communicating the Catholico deprived him of the religious
right guaranteed to him under the Constitution, therefore, it had to be in
accordance with law. Even the meeting summoned at Damascus being in violation of the
Constitution of 1934 was invalid.
Therefore,
the ex-communication of Catholicos was not in accordance with law.
Was
the ex-communication canonical? If the religion is a bond uniting man to God
then canon is a rule or decree, a body of principles and standards the practice
and observance of which identifies the man with the religion. 'The identity of
the religious community described as church consist in the identity of its
doctrine, creeds, formularies, rituals etc.' [Hidayatullah, J. in Ninal Daniel
v. Most Rev. Ubanon Marthoma, Metropolitan of Mar Thoma Church, and others,
Civil Appeal no.947 of 1964 decided on 7th January, 1965].
Canon
is explained in Black's Law Dictionary as under:
"A
law, rule or ordinance in general, and of the church in particular. An
ecclesiastical law or statute. A rule of doctrine or discipline. A criterion or
standard of judgment. A body of principles, standards, rules, or norms."
Canon means both a norm and attribute of the scripture. The erm 'canon law' is
explained in The Encyclopedia of Religion Vol. 3 as under:
"The
term canon is based on the Greek word Kanon. Originally signifying a straight
rod or bar, especially one used to keep something else straight, canon came to
mean something that is fixed, a rule or norm. The term has several applications
in church usage: the canon of scripture, or that fixed list of books that are
determined to belong to sacred scripture; the canon of the Mass, the fixed
portion of the eucharistic prayer; the process of declaring a deceased person
to be among the fixed list of saints in heaven, or canonization. From the third
century, directives for church living and norms for church structures and
procedures have been issued as canons.
Canon
law refers to the law internal to the church. In the early centuries of
Christianity, canon was used for internal church norms, to distinguish them
from the imperial nomos (leges in Latin) or laws. Church norms have also been
known as sacred or divine, to distinguish them from civil or human laws. At
times they are referred to as the "sacred canons" or the
"canonical order". The term ecclesiastical law refers to the civil
law adopted in various nations to regulate church affairs. The term canon law
is used in the Roman Catholic, Anglican, and Orthodox communions.
Canon
law is drawn from sources in scripture, custom, and various decisions of church
bodies and individual church authorities. Over the centuries these have been
gathered in a variety of collections that serve as the law books for various
churches".
Canons
are thus the principal scriptural bases for the religious practices observed in
a Church. Syrian Orthodox Church is very old. But its canon appears to have
come in existence sometime in 13th Century collected and written by Bar Hebrew
who was the Catholico of Tigris. In the appeal arising out of interpleader. suit
this Court after examining the evidence in detail particularly of C. Philip,
P.W.5, who was the Professor of the Sriram College, Calcutta and was examined, as expert on canon law held that there
was no authorised edition of these canons even though one of the resolutions at
the Mulunthuruthy Synod ran thus :
"It
will be very good if a book containing the Canons and procedure necessary for
the firmness in the Orthodox faith is printed in Syriac or Malayalam as per
orders (of the Holy father) and a copy with his seal given to each church and
decided that future conduct shall not be except in accordance with that."
The absence of any canon in such an old Church existing since 51-52 Century
A.D. with such extensive and widespread following not only in this country but
even others is a tribute to the honest, firm and sincere belief in the Syrian Church. Even without any written Code or rule their never was any
controversy over faith, practice, belief, rituals etc. But what is surprising
is that till the advent of late 19th and the beginning of 20th Century there
was no authentic publication of it. Consequently when the battle in courts of
law started between the two groups there appeared two divergent versions
differing on vital aspects. To add to this the courts have not been consistent
in accepting one or the other version. More so because of the accusation of
interpolation and tampering. Even though the first occasion to examine the
canons arose in the appellate judgment of the Royal Court, the scope was
limited as to whether the Patriarch alone had the power to consecrate Morone.
The authority to ex-communicate etc. in which the interpolation is alleged was
never examined. The decision, therefore, cannot be taken to be as putting its
seal of approval on the authority of the canon produced on behalf of Patriarch
of Antioch. And when the power and jurisdiction to ex- communicate in
accordance with canon law was raised in the interpleader suit (Vattipanam suit)
both the sides came with different versions, the one filed by Catholico was accepted
by the trial court whereas the High Court found the version placed by the
Patriarch as authentic. Both the judgments abound in thorough and careful
analysis of difficult subject. The discussion is extensive and learned. But all
this labour was lost when the appeal in the High Court was dismissed in
consequence of the review judgment. It is true that the Bench while admitting
the review petition had confined its scope but once it found that the
excommunication was invalid for violation of principles of natural justice and
question having been raised that the ordination of defendant no.1 (that is
catholico) as Malankara Metropolitan was invalid he was the Malankara trustee. Justice
Chatfield with whom Justice Pillay agreed that, 'he (that is catholicos) did
not forfeit these positions afterwards by any heresy or schism. The meeting of
the Malankara Association which removed the 5th & 6th defendants (that is
Patriarch) was presided over bythe Malankara Metropolitan and the reason given
in the original judgment of this court for holding that their removal was
illegal cannot therefore stand'. On these findings it was held :
"In
the result therefore by reason of the decision on the contentions as to natural
justice and apostacy the appeal must fail quite apart from the decision of the
other questions in dispute in this suit. It would not be necessary to consider
these other questions even if it were open to this court to do so in view of
the orders already referred to." The effect in law of this order, on review,
was that the finding recorded by the High Court on the authenticity of the
canon etc. in its original order ceased to be operative. But the learned
counsel for the appellant vehemently urged that since the Bench which admitted
the review petition had restricted its scope and made it subject to the
findings recorded on the authenticity of the canon and the power of the
Patriarch to ex-communicate without any intervention by the Synod, the findings
recorded on these aspects were not destroyed in consequence of the order passed
on the review petition. The submission does not appear to be correct either
legally or factually. When a reivew petition is entertained and notice is
issued by a court it is open to it to restrict the scope of hearing but once the
petition is heard and the court is satisfied that the order under review was
erroneous at the fact of it then it is not precluded from allowing the petition
was admitted and the Catholicos were restricted from re-opening other points,
an application was filed on their behalf which was rejected but while rejecting
the application it was observed, `if it is found that any of these questions is
so legally connected with the questions relating to natural justice that the
latter questions cannot be properly dealt with without considering such
excluded questions then for this purpose and for this purpose alone the
excluded questions may be considered'. This observation of Chatfield, J. was concurred
by other judges also. And when the review petition was heard on merits the
court was of the opinion, `these (These) orders did not prevent the defendants
(that is Patriarch) from relying on contentions not expressly found in their
favour in the original judgment and they have in fact relied on the contentions
previously set up by them that the defendants 1 to 3 have become aliens to the
faith of Syrian Jacobite Church and for this reason alone are capable of acting
as trustees. The plaintiffs on the other hand have failed to show that any of
the questions which have been declared to be excluded from consideration at the
re-hearing are inseparably connected with these questions and thereupon in
disposing of this appeal the excluded questions will not be referred to'. It is
thus clear that the Bench heard the appeal not only on the questions on which
the review was entertained but even on other questions as the questions of
natural justice and apostacy were closely connected with and could not be
separated from the issues which had earlier been closed. It was after these observations
that Justice Chatfield made the observations which have been extracted earlier.
To argue, therefore, that the finding recorded in the earlier judgment by the
High Court that Ex. 18 filed by the Patriarch group and relied as authentic
canon survived, does not appear to be correct.
Even
assuming, although there appears no doubt, that the finding recorded by the
High Court in its earlier judgment on the authenticity of the canon survived,
there is yet another reason to disregard it. If the ex-communication of
Dionysius was invalid for violation of principles of natural justice, as was
found by the Bench reviewing the order, then the findings on earlier issues
were rendered unnecessary and it is fairly settled that the finding on an issue
in the earlier suit to operate as res judicate should not have been only
directly and substantially in issue but it should have been necessary to be
decided as well. For instance, when a decision is taken in appeal the rule is
that it is the appellate decision and not the decision of the Trial Court that
operates as res judicata. Consequently where a suit is decided both on merits
and on technical grounds by the Trial Court, and the appellate court maintains
it on technical ground of limitation or suit being not properly constituted
then the decision rendered on merits by the Trial Court ceases to have
finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court
while considering the expression, `heard and finally decided' in Section 10 of
the British Baluchistan Regulation IX of 1896 held that where the suit was
dismissed by two courts on merits but the decree was maintained in second
appeal because the suit was not properly constituted then the finality on
merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897
Cal. Vol.XXIV where parentage of defendant was decided in his favour by the
Trial Court but the High Court maintained the order as the suit was defective
the claim of the defendant in the latter suit that the finding on parentage
operated as res judicata was repelled and it was held, that the question of
parentage had not been heard and finally decided in the suit of 1885. The
appeal in that suit had put an end to any finality in the decision of the first
Court, and had not led to a decision on the merits.
The
rationale of these decisions is founded on the principle that if the suit was
disposed of in appeal not on merits but for want of jurisdiction or for being
barred by time or for being defectively constituted then the finality of the
findings recorded by the Trial Court on merits stands destroyed as the suit
having been found to be bad for technical reasons it becomes operative from the
date the decision was given by the trial court thus rendering any adjudication
on merits impliedly unnecessary. On the same rationale, once the Royal Court of
Appeal allowed the Review Petition and dismissed the appeal as the
ex-communication of Dionysius was contrary to principles of natural justice and
he had not become heretic then the finding on authenticity of the canon etc.
rendered in the original order was rendered unnecessary. Therefore, the finding
recorded on the authenticity of the canon and power of the Patriarch etc.
recorded in the earlier order could not operate as res judicate in subsequent
proceedings.
Last
but not the least reason to hold that the finding in the Vattipanam Suit
recorded by the High Court in its original judgment on canon etc. could not
operate as res judicata is where a decree is one of dismissal in favour of the
defendants, but there is an adverse finding against him, a plea of res judicata
cannot be founded upon that decision because the defendant having succeeded on
the other plea had no occasion to go further in appeal against the adverse
finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh
Narayan Roy, AIR 1922 PC 241 ]. Mr. Parasaran, the learned senior counsel for
the appellant, urged that this is not an absolute rule as there is mutuality in
res judicata and even the succeeding party is bound by the question decided
against him. Reliance was placed on Mt. Munni Bibi & Anr. vs. Tirloki Nath
& Ors., AIR 1931 PC 114, V.P.R.V.Chockelingam Chetty vs. Seethai Ache &
Ors., AIR 1927 PC 286, Sham Nath Madan vs. Mohammad Abdullah & Ors., AIR
1967 J&K 85 and Arjun Singh & Ors. vs. Tara Das Ghosh & Ors., AIR
1974 Patna 1. The two Privy Council decisions do not appear to be of any
assistance as the first one, Mt. Munni Bibi (supra) , is the leading decision
on the principle of res judicata amongst co-defendants. True the Patriarch and
Catholico were co-defendants and there was lis too but in view of the finding
on natural justice and apostacy the finding on other issues was rendered
unnecessary. The rule of res judicata amongst co-defendants is also govened by
those rules which apply to normal rule of res judicata. The decision in
Chockalingam Chetty (supra) is an authority for the principle that where an
appeal is filed without impleading a defendant through whom other defendants
derived title then the decision in his favour operates as res judicata between
plaintiff and other defendants as well.
Similarly,
in the decision of the Patna High Court in Arjun Singh (supra) the primary
question was whether a party against whom a finding is recorded has got a right
of appeal even though the ultimate decision was in his favour and it was held
that there was no bar, but what was necessary was that the finding so recorded
should operate as res judicata.
On
facts it was found that the Appellate Court while maintaining the order of
dismissal of the suit on preliminary issue recorded findings on other issues
which were against the plaintiff, yet the plaintiff was not entitled to file an
appeal as the findings on merits which were adverse to him could not operate as
res judicata. In Sham Nath's case (supra) the learned Single Judge rejected the
plea of res judicata raised on behalf of the plaintiff, but while considering
the alternative argument, observed that an adverse finding recorded against a
defendant in a suit dismissed could not operate as res judicata unless the
adverse finding formed a fundamental part of the decree itself. None of the
decisions, therefore, are of any help to the appellant. In any case the
findings on cannon or power of Patriarch which were the findings adverse to the
Catholico could not form fundamental part of the decree itself, therefore, it
could not operate as resjudicata.
Truly
speaking, the findings on the authenticity of the canon and the power of
Patriarch etc. recorded in the earlier judgment and the finding on apostacy and
breach of natural justice recorded in the review judgment could not go
together. Otherwise in Moran Mar Bessilios (supra) it would not have been
possible for this Court to come to a finding that the findings recorded on
Issue Nos. 14, 15, 16 and 19 in the Vettipanam Suit operated as res judicata in
the Samudayam Suit. The finding recorded by the learned Single Judge and the
Division Bench, therefore, that, `the decision in XLI T.L.R. that Ext.18 there in
(Ext.BP in the Samudayam case and Ext.B161 in these cases) is the version of
Hudaya canons accepted as binding on the Malankara Church has not become
concluded and does not operate as res judicata between the parties, is well
founded.
Could
the finding on the authenticity of the canon be relied as a precedent? For that
it must fall either under Section 42 or Section 43 of the Indian Evidence Act.
Section 42 which makes any judgment relating to public nature admissible itself
provides but `such judgments are not conclusive proof of that which they
state'. Section 43 makes a judgment admissible if existence of such a judgment
is in issue. In Kumar Gopika Raman Roy vs. Atal Singh & Ors. AIR 1929 PC
99, it was held that `the Indian Evidence Act does not make finding of fact
arrived at on the evidence before the court in one case evidence of that fact
in another case'. In Benode Lal vs. Secretary of State, AIR 1931 Calcutta 239
where the law was clearly explained, it was observed, `when an appeal is taken
against a decree, the decree of the lower gets merged in the decree of the
Appellate Court and so the judgment of the trial court is not final
adjudication on the point in issue between the parties in the suit'. The Court
further observed that even assuming that, `the existing judgment may be
relevant, but the truth of it, by which it is understood, the decision of the
Judge and the opinion expressed by him, is not relevant'. Applying these
principles once the appellate judgment was set aside, the appeal was dismissed
and the order of the trial court was maintained, the findings recorded on canon
etc. in the appeal could not be relied.
That
is why when the suit was filed in 1938, that is the Samudayam Suit, the parties
joined issue, once again, on the authenticity of the canon and the Court framed
the issue as to which was the correct and genuine version. No issue about res
judicata was raised by the Patriarch.
Coincidentally
same story was repeated, the Trial Court accepting the version filed by the
Patriarch. But when the matter came to this Court in 1959 it while considering
the objection of Patriarch that by inserting Clause 5 in the Constitution the
Catholicos were guilty of heresy as it was contrary to the authentic version
produced by them did observe that for deciding this aspect it was necessary to
decide the issue which related to authenticity of the version. Since this Court
had not recorded any finding itself on the authenticity of the canon the
dispute again arose, when these suits were filed, about the authenticity of the
canon and the findings and conclusions recorded in earlier suits that is the
Vattipanam Suit and the Samudayam Suit and whether any one of them operated as
res judicata.
It has
already been explained why the findings recorded in Vattipanam Suit could not
operate as res judicata. Nor the finding could be treated as binding precedent.
Can
the same be said about the finding in the Samudayam Suit? It is not disputed
that the Trial Court not only framed Issue No.13 but even recorded specific
finding that the canon produced by the Patriarch group was not the authentic
version. But its binding effect was rendered nugatory both according to the
Division Bench and the learned counsel for the appellant because when this
Court restored only the decree of the Trial Court and not the judgment then the
findings recorded by the Trial Court could not be taken to be binding or final.
Two legal questions, therefore, arise one, whether the authenticity of the
canon was directly and substantially in issue and second the effect of
restoration of the decree of the Trial Court. The first was answered by this
Court itself while adjudicating upon the plea advanced on behalf of the
Patriarch group to support the judgment of the High Court. To appreciate it, it
is appropriate to extract Issue No. 13 which reads as under:
"13.
Which is the correct and genuine version of the Hoodaya Canons compiled by Mar
Hebraeus? Whether it is the book marked as Ext. A or the book Marked as Ext.
XVIII in O.S.91 of 1088." Issues Nos.19 and 20 related to as to whether
the defendants, that is, the Catholicos formed themselves into a separate
Church and whether the acts mentioned under the Issues constituted separation.
This Court did not permit the appellants, that is, Patriarchs to support the
order of the High Court on the ground that insertion of Clause 5 in the
Constitution of 1934 was contrary to canons, as it was not raised in the
pleadings. Nor did the Court find any merit in the submission that Issues
Nos.13 and 16 which related to loss of status as members of the Church was wide
enough to include it. But it held that reference to pleadings would indicate
why Issue No. 13 was raised. It further found that to decide Issue Nos. 16, 17,
19 and 20 it was, `absolutely necessary to determine which is the correct book
of canons, for the plaintiff (that is the Patriarch Group) founded their
charges on Ex.B.P. - Ex. 18 in O.S. No.94 of 1088 and the defendants took their
stand on Ex.26 - Ex.A in O.S. No.94 of 1088. Issue No.13 was directed to
determine that question'. The issue whether the Hudaya canon filed by the
Patriarch Group as Ex.18 in the earlier suit and as Ex.BP in the present was
authentic was not only directly and substantially in issue but as held by this
Court was necessary to be decided for the principal and the main dispute which
arose in that case. In the circumstances it is difficult to agree with the
Division Bench, that, `this does not mean that findings were really relevant or
necessary for the ultimate decision in the litigation by the Supreme Court.
Issue Nos. 14 to 17 and 19 and 20 were raised by the plaintiffs and had to be
decided'. The Trial Court no doubt observed that it was not necessary to decide
the issue in the broad and general sense but it held that the discussion and
conclusions in the earlier suit that is Vattipanam Suit on the question of
canon did not operate as res judicata. It did make some observations which
furnished occasion to the appellants to urge that once the Court found that it
was not necessary to decide the larger issue it should not have discussed the
smaller one only because additional evidence had been led and the counsel had
argued the matter. But this submission cannot be accepted as in view of the
observation made by this Court that the finding on Issue No.13 was necessary
the observations lose importance. And the finding if recorded by the Trial
Court would have to be accepted and any observation to the contrary ignored.
The finding of the Trial Court on Issue No. 13 was that no Hudaya canon book
approved as authentic and genuine by the Patriarch was ever supplied to the
Malankara Sabha and the manuscript were of questionable origin and it could not
be shown that, "either in Malankara or in Syria or Turkey or other places
under the Patriarch or any where in the Jacobite church outside Malankara,
there is or has been in existence and in use any version of the Hudaya canon
corresponding to Ext. BP or that such a version has been approved and accepted
by the Jacobite church as a correct version".
[Emphasis
supplied] In appeal (The Most. Rev. Mar Poulose Athanasius & Ors. vs. Moran
Mar Bassaelios Catholicos & Ors., 1957 KLT 63) the findings recorded by the
Trial Court were not set aside, on merits but the canon filed by Patriarch was
accepted as authentic since, `in the final judgment after review the question
of natural justice alone was considered and decided and this means that the
earlier finding on the question of canons, which was a matter directly and
substantially in issue in the suit, was accepted as correct even for the
purpose of the final decision on the question of natural justice. Thus by
implication the finding on the question of the canons forms an integral part of
the final decision in 45 T.L.R. 116 because, without maintaining that finding,
the question of natural justice could not have arisen at all'.
But
that judgment did not and could not operate as res judicata for reasons
explained earlier. The judgment of the High Court in The Most. Rev. Mar Poulose
Athanasius & Ors. vs. Moran Mar Bassaelios Catholicos & Ors., 1957 KLT
63. was reversed by this Court. It was held that Catholico had not become
heretic or separated from the Church. But for recording this finding the
decision on Issue No. 13 was as observed by this Court necessary. Therefore,
the appellate judgment of this Court precluded the Patriarch from claiming that
the Hudaya Canon filed by them was authentic as the earlier judgment operated
as bar to this plea as once this Court recorded the finding that the Catholico
had not separated the finding on Issue No. 13 stood affirmed even though it was
not referred since the finding on the Catholic having become heretic or
separated from the Church depended as observed by this court itself, on finding
on Issue No.13.
If the
finding of the trial court on Issue No.13 was necessary for deciding whether
the Catholico had become heretic and that finding was affirmed in the review
judgment then the finding of the High Court in its earlier judgment on the
authenticity of the canon cannot stand. It could neither be res judicata nor a
precedent.
The
next aspect is the legal effect of restoration of decree of the Trial Court.
Did it result in revival of the findings on authenticity of the canons as well.
The Division Bench held that, `once an appeal is disposed of it is the
appellate judgment which should be considered for the purpose of deciding the
question of res judicata. Appellate judgment supersedes the judgment of the
trial court, and it is no longer open to look into the judgment of the trial
court except to the extent it might have been specifically confirmed by the
appellate court. See Benodial Chakravarthy V. Secretary of State for India (A.I.R. 1931 Cal. 239) and
Venkiteswarulu v. Venkitanarasimham and others (AIR 1957 A.P. 557)'. The
reasoning that once an appeal is taken to higher court then it is the appellate
decree which is final and binding cannot be faulted with. But the other
observation that the findings of the Trial Court cannot be looked into except
to the extent it might have been specifically confirmed is not wholly correct.
None of the decisions referred in the order support it. The Calcutta decision has already been referred
to.
In
Venkateswarlu v. Venkata Narasimham & Ors., AIR 1957 Andh. Pradesh 557, the
High Court observed, `Now the appellate court rested its conclusion not on the
ground that Ex.A-1 was unsupported by consideration but on the ground that the
transaction was such as not to bind the joint family. Though the trial court
found that the consideration for the sale Ex.A-1 was wholly fictitious, the
appellate court did not give a finding upon that question but confirmed the
decree of the trial court on the ground that the sale was for a consideration
not binding on the joint family. But what the Division Bench ignored was that
the High Court did not look into the earlier judgment as the order was upheld
on a different ground, therefore, it could not be held that it was express or
implied approval of the decision of the Trial Court. In Narayanan Chetty v.
Kannammai Achi & Ors. ILR Madras 1905 Vol. XXVIII which is more in point it
was held:
"An
appellate judgment operates by way of estoppel as regards all findings of the
lower Court, which though not referred to in it, are necessary to make the
appellate decree possible only on such findings." This Court having held
that Issue Nos. 14 to 20 could not have been decided without a decision on
Issue No. 13 and set aside the order of the High Court and restored the decree
of the Trial Court the finding recorded by the Trial Court on Issue No. 13 has
to be read as part of appellate judgment rendered by this Court.
Even
otherwise there is no power in canon produced by the Patriarch for
excommunicating a Catholico. In fact it could not be. All this controversy was raised,
with respect, without having regard to it that the canon framed in 13th Century
could not have provided for excommunication of Catholico of East who was
himself visualised as high spiritual authority no doubt lower in hierarchy to
Patriarch of Antioch but otherwise not subordinate to him. In absence of any
such express provision in the canon, the Patriarch of Antioch could not
exercise this power as even if it was there it did not mention Catholicos. Who
could exercise this power is not necessary to be gone into. Suffice it to say
that where scriptures are silent the courts cannot substitute their own opinion
but when the excommunication of high spiritual authority is involved which, as
seen earlier, has serious repercussion not only on the individual status of the
man but also of religious society, then such an action by a general body of
ecclesiastics like a properly requisitioned Synod of all the groups may have
that sanctity which may compel the courts to stay its hands. But the Synod
summoned at Damascus was certainly not empowered to
excommunicate.
There
is one additional feature in this case that Clause 5 of the Constitution framed
in 1934 read as under:
5.
"The Canon accepted by this church is the Hudaya canon of Bar- Hebreaus
(This is the Canon that has been printed in Paris in 1890)." This
Constitution has been upheld by this Court in Moran Mar Basselious (supra). It
is now binding on the Syrian Christians. Any action taken against the
respondent contrary to it could not have been upheld. Religious persons in all
religions have been men of great learning and character.
Spiritual
superiority emanates from purity of character. Any person elected or nominated
to such high spiritual office as Catholicate of East could not be subjected to
ex- communication. That is why the Canons did not contain any provision. The
entire proceedings of ex-communication, therefore, were unsustainable. If the
spiritual heads of such high stature start ex-communicating each other, it may
not be conducive for the religious order. That is why even though the Sultan of
Turkey withdrew the Firman issued in favour of Abdul Messiah, the court in
absence of any material to show that such withdrawal resulted in deprivation of
his spiritual superiority refused to act upon it. Apart from it, once a
Constitution for Malankara Association was framed, accepted and upheld by the
Court, the ex-communication, if any, could be in exercise of that power only.
The power to ex-communicate can be exercised by a spiritual head either when the
scriptures specifically permit it or it is in respect of the authorities which
function under him and are subordinate to it. Normally in religious matters
such decisions depend either on the text and if there is no text on the
Constitution of the trust or on convention developed in course of time. From
the history of Orthodox Syrian Church, it appears such important decisions are
taken by the Synod that is a general body of bishops, vicars, clergies etc.
and, therefore, before ex- communication can be held to be valid two things
were required to be proved, one, that such power existed either in the
spiritual head or in the general body and the power was exercised in respect of
a person or holder of an office for whom it could be exercised. It has already been
indicated that in consequence of Ex.A-14 the Kalpana issued by Abdul Messiah
the entire power, spiritual or temporal, which was exercised by the Patriarch
of Antioch was conferred on the Catholico of the East. The only relation which
was to be observed in future was the communion of the two. In fact if the
history is traced from the Mulunthuruthy Synod held in 1876 to 1912 then it is
apparent that Catholicate of the East was not treated as subordinate to the
Patriarch of Antioch. He exercised same spiritual and temporal powers as
Patriarch but with respectful communion.
The
ex-communication thus cannot be upheld canonically, traditionally or
constitutionally. It was violative of the norms which are mandatorily required
to be observed conventionally.
Having
dealt with ex-communication, the controversy about spiritual and temporal
powers of the Patriarch and Catholicos, their inter-relationship and the extent
to which they have become final by earlier decisions, particularly Moran Mar
Basselios (supra) and operate as res judicata, may be examined. The pleadings
of the parties giving rise to various issues and the questions framed by the
Division Bench and answered by it have been extracted in extenso. The crucial
issue that had been argued was whether the direction of this Court in Moran Mar
Basselios (supra) 'that the judgment of the Kerala High Court is set aside, the
decree of the trial court dismissing the suit must be restored', resulted in
restoring the decree and not the judgment, therefore, any finding recorded in
that suit could not operate as res judicata. In Satyadhyan Ghosal & Ors. v.
Sm. Deorajin Debi & Anr. (1960) 3 SCR 590 this court insisted on finality
in the strict sense of the term and observed as under :
"The
very fact that in future litigation it will not be open to either of the
parties to challenge the correctness of the decision on matter finally decided
in a past litigation makes it important that in the earlier litigation the
decision must be final in the strict sense of the term".
This
was affirmed by a Constitution Bench in The Mysore State Electricity Board vs.
Bangalore Woollen, Cotton and Silk Mills Ltd. & Ors. 1963 supp. (2) SCR 127
and it was observed :
"It
is well settled that in order to decide whether a decision in an earlier
litigation operates as res judicata, the court must look at the nature of the
litigation, what were the issues raised therein and what was actually decided
in it.......it is indeed true that what becomes res judicata is the
"matter" which is actually decided and not the reason which leads the
court to decide the 'matter'".
These
observations are well settled and reiterate established principle laid down by
the courts for the same, sound and general purpose for which the rule of res
judicata has been accepted, acted, adhered and applied, dictated by wisdom of
giving finality even at the cost of absolute justice. In a recent English
decision - Ampthill Peerage Case, [1976] 2 All England Law Reports p. 411,
finality at cost of fallibility has been graphically described at pages 423 and
424 thus :- "Our forensic system, with its machinery of cross- examination
of witnesses and forced disclosure of documents, is characterised by a ruthless
investigation of truth.
Nevertheless,
the law recognises that the process cannot go on indefinitely.
There
is a fundamental principle of English law (going back to Coke's Commentary on Littleton) generally expressed by a Latin
maxim which can be translated: 'It is in the interest of society that there
should be some end to litigation'. This fundamental principle finds expression
in many forms. Parliament has passed Acts (the latest only last year) limiting
the same within which actions at law must be brought. Truth may be thus shut
out, but society considers that truth may be bought at too high a price, that
truth bought at such expense is the negation of justice. The great American
Judge, Story, J. delivering the judgment of the Supreme Court of the United
States in Ball v. Morrison called the first of there Acts of limitation a
statute of repose : and in England Best CJ called it 'an act of peace'(A'Court
v. Cross). The courts of equity, originally set up to make good deficiencies in
the common law, worked out for themselves a parallel doctrine. It went by the
technical name of laches. Courts of equity would only give relief to those who
pursued their remedies with promptitude. Then, people who have long enjoyed
possession, even if they cannot demonstrate a legal title, can rarely be
dispossessed. Scottish law goes even further than English : delay in
vindicating a claim will not only bar the remedy but actually extinguish the
right. But the fundamental principle that it is in society's interest that
there should be some end to litigation is seen most characteristically in the
recognition by our law--by every system of law--of the finality of a judgment.
If the judgment has been obtained by fraud or collusion it is considered a
nullity and the law provides machinery whereby its nullity can be so
established. If the judgment has been obtained in consequence of some
procedural irregularity, it may sometimes be set aside. But such exceptional
cases conclude the matter.
That,
indeed, is one of society's purposes in substituting the law suit for the
vendetta....And once the final appellate court has pronounced its judgment, the
parties and those who claim through them are concluded, and if the judgment is
as to the status of a person, it is called a judgment in rem and everone must
accept it. A line can thus be drawn closing the account between the
contestants. Important though the issues may be, how extensive so ever the
evidence, whatever the eagerness for further fray, society says; 'We have
provided courts in which your rival contentions have been heard. We have
provided a code of law by which they have been adjudged. Since judges and
juries are fallible human beings, we have provided appellate courts which do
their own fallible best, to correct error. But in the end you must accept what
has been decided. Enough is enough, And the law echoes : res judicata, the
matter is adjudged'. The judgment creates an estopel - which merely means that
what has been decided must be taken to be established as a fact, that the
decided issue cannot be reopened by those who are bound by the judgment, that
the clamouring voices must be stilled, that the bitter waters of civil
contention (even though channeled into litigation must be allowed to
subside".
[emphasis
supplied] Such is the principle of finality. True that the question must have
been adjudicated stricto senso as observed by this Court. Conclusiveness
according to the learned counsel applied to decree and not the judgment. For
reasons given while discussing the authenticity of canons, it is difficult to
agree that once decree of the trial court was resiwred it did not result in
making the findings an effective which were basis of the decree, except to the
extent it was expressly or impliedly set abld by this Court.
Therefore,
the judgment of this Court in Moran Mar Basselios (supra) would preclude the
parties from agitating those issues which have been concluded. Effect of the
judgment delivered by this Court in 1958 on the rights of Catholicos was
twofold, one their status was defined and two, their relationship with
Patriarch of Antioch was explained. What stands out clearly from the decision
after decision rendered right from 1899 to 1959 is that the Patriarch of
Antioch is the spiritual head of the Syrian Orthodox Church. It was held so
clearly in the appellate judgment of the Royal Court of Appeal. It was
reiterated in Court of Appeal judgment delivered in 1905. In the Interpleader
Suit filed by the Secretary of State the claim of Catholicos was upheld. The
findings recorded therein were held to operate as res judicata in Moran Mar Basselios
(supra) which arose out of a suit filed by the Patriarch Group as far back as
1938. The claim of the Patriarch that the Catholicos had become heretics and
ceased to be members of the Syrian Orthodox Church, was repelled. The Court
held that the reduction of power of the Patriarch of Antioch to 'vanishing
point', ipsofacto did not constitute heresy nor it amounted to voluntary
separation of setting up a new Church. But the most vital finding was that the
creation of Catholicate of the East by Abdul Messiah, the disentitled Patriarch
of Antioch, by Kalpana, Exhibit A-14 (latter order) issued in 1912 was not
invalid. The result of creation of Catholicate of East with power to ordain
metropolitan and perform all those functions which could be performed by Patriarch
Antioch was that even the spiritual power which was held to be vesting in him
in earlier judgments stood reduced to 'vanishing point'. What is meant by this
expression shall be explained later. The verdict was accepted by the Patriarch
himself when he issued Kalpana- Exhibit A-19 after the Supreme Court decision
to bring peace. The specific objection on behalf of the Patriarch that
"the re-establishment of the Institution of the Catholicos in the East in
Malabar having jurisdiction over India, Burma and Ceylon" was
"different from the Catholicate that was the subject-matter of
Interpleader Suit" was repelled by this Court in Moran Mar Basselics
(supra) and it was observed at page 48 as under :- "We do not think there
is any substance whatever in this contention.
A
reference to paragraphs 30 and 31 of the written statement clearly indicate
that the institution of Catholicate, which is relied upon by the defendants, is
no other than the Catholicate established in Malabar in 1088 by Patriarch Abdul
Messiah".
Relevant
clauses of 1934 Constitution declaring the status of Patriarch and Catholicate
in the Malankara Church are extracted below :- "1.The Malankara Church is a division of the Orthodox Syrian Church and the Primate of the Orthodox Syrian Church is the Patriarch.
2. The
Malankara Church was founded by St.
Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Orthodox Syrian Church of the East is the
Catholicos".
The
basis for it was the Kalpana issued in 1913 , the relevant portion of which is
reproduced:
"We
commend you into the hands of Jesus Christ, our Lord, the Great Shepherd of the
flock. May He keep you ! We rest confident that the Catholicos and
Metropolitans -Your shepherds - will fulfil all your wants. The Catholicos,aided
by the Metropolitans, will ordain melpattakkars, in accordance with the Canons
of Our Holy Fathers and consecrate Holy Morone. In your Metropolitans is vested
the sanction and authority to install a catholicos, when a catholicos dies.
No one
can resist you in exercise of this right and, do all things properly, and in
conformity with precedents with the advice of the committee, presided over by dionysius,
Metropolitan of Malankara. We beseech our Lord Jesus that Ye faint not in your
true faith of Saint Peter, on which is built, the Holy Catholic and Apostolic Church. What we enjoin your true love is that the unlawful conduct
of a usurper, may not induce you to sever that communion which is the bond of
love connecting you with the Apostolic Throne of Antioch".
Relevant
portion of Exhibit A-19 issued by Patriarch after the decision of the Court
read as under :- "To bring forth peace in the Malankara church we hereby
accept with pleasure Mar Baselious Gheevarghese as Catholicose".
The
combined reading of these documents along with the findings recorded by this
Court in Moran Mar Basselios (supra), thus, leaves no doubt that Catholicate of
East whether due to disuse of the Catholicate which, undisputedly, existed at
Tigris or because of creation of a new one by the Kalpana of 1912 or for any
other reason did come into existences. The power and jurisdiction to be
exercised by such Catholicate is spelt out from the Kalpana A-12 and A-13 and
the Constitution of 1934. In fact, going by the history it was nothing new or
unusual as it has already been narrated that even in the first Eccuminical
Councial When Patriarch of Antioch was created, the Catholicate of the East was
also created and he was entrusted with the power and prerogative to manage the
affairs of Eastern Churches subject to that Patriarch of Antioch was common and
could exercise all the functions.
Then
from 1654 to 1800 the ordination of Bishops in Malabar used to take place by
the delegates of the Patriarch. Even though after 1840, i.e., the Cochin Award,
the individual persons went to Antioch and got themselves ordained which was
accepted as well, but due to its disuse and in any case after issuance of
Kalpana in 1912 and framing of the Constitution the controversy arose whether
the supremacy in spiritual matters also was not reduced to 'vanishing point'.
It was
negatived by the Court as it was held that it was not so and nor any separate
Church came into existence. The documents which have been referred earlier if
properly construed and the course of activity, thereafter, is studied in
correct perspective, then the Syrian Church in Malabar and the Patriarch of
Antioch, the two authorities with nearly same spiritual powers, one local and
the other at Syria entered into relationship of happy communion between the
two. This communion meant that each was supreme, but if both of them were
present then it was the Patriarch of Antioch who was higher in the hierarchy.
In religious orders the two supreme authorities one highest and the other
higher without the latter being subordinate is not unknown.
This
was the change in the power and prerogative of Patriarch as compared from 325
A.D. where he had the supreme power. But this change has been recognised,
accepted and acted upon. Further, now the relationship is governed by a
Constitution which has been held to be valid.
This
was fairly observed. Between 1912 to 1970 four Catholicos were appointed, the
first B. Paulose I by Abdul Messiah in 1912, second Basselius Gheevarghese I in
1924, third in 1929 after the Vattipanam Suit, fourth Mar Ougen I in 1964. What
is significant is that second and third were not installed by or with the
consent of Patriarch. And the fourth was installed after the judgment of this
Court in Moran Mar Basselios (supra) by the Malankara Synod presided over by
the Patriarch Yakub III. But what led to filing of suits by members of the
Catholico group and the Catholico himself and successors-elect was the wrongful
consecration by the Patriarch of Paulose Athanasius on 3.9.1973 (the first
ordination by the Patriarch after 15 years). Original Suit No.274 of 1973 filed
in the District court was numbered as O.S. No. 2/79 in the High Court. The suit
was filed as Paulose Athanasius had never been elected by the Malankara
Association and, therefore, was not entitled to function as Metropolitan in the
Malankara Church. In view of the findings recorded by the Travancore Royal
Court of Final Appeal pronounced on July 12, 1889 that a Metropolitan of the
Jacobite Syrian Church could be a native of Malabar consecrated by the
Patriarch or the delegates and accepted by the people to be entitled to be
spiritual and temporal head of the local Church, which finding was endorsed by
this Court in 1958, the suit was filed to prevent Athanasius from interfering
with administration of the Malankara Church and any of its constituent diocese
including the Kottayam Diocese, as he was neither qualified nor entitled to be
appointed. Since the Patriarch ordination created the apprehension and the
defendants threatened to act on strength of his ordination from the Patriarch
of Antioch the Court granted an injunction in October 1973 restraining him from
interfering in the administration of the Malankara Church. As a sequel to this injunction a
show cause notice was issued on 30th January, 1974 by the Patriarch against the first plaintiff levelling
various charges and describing the action of the plaintiff as uncanonical and a
challenge to the authority of the Patriarch. The matters thereafter grew worse
and when the Patriarch ordained two more bishops the Catholico Mar Ougen I and
Catholico-elect Mathew Athanasius filed Suit No. 142/74 which was re-numbered
in the High Court as O.S. No. 4/79 once again protesting against the direct
ordination by the Patriarch of bishops not accepted by the Malankara
Association. In this manner nearly 8 suits came to be filed by the Catholico
Mar Ougen I along with his successor-elect Mathew Athanasius. The main defence
in the suits apart from others was that the plaintiff had been ex-communicated.
Both the learned Single Judge and the Division Bench did not find any merit in
the claim that after the death of first plaintiff the third plaintiff who was
successor-elect was not entitled to continue the suit. It was held that they
were not apostate and aliens to the Jacobite faith and the decision of the
Universal Episcopal Synod and the Syrian Orthodox Church held from 16.6.1975
was not in accordance with the rule of the Church. The judgment thus in Moran
Mar Bassilios (supra) and the findings recorded by the trial court to the
extent it was not set aside by this Court, operates as res judicata.
Two
more issues remain, one the nature of Parish Churches whether they are
congregational, episcopal, voluntary association or autonomous bodies, public
charities or private charities and their relation with the Malankara
Association; second, legal status of the Patriarch of Antioch whether he is a
corporation sole as argued by Ms.Lily Thomas, the learned counsel for the
intervener, and if so, his rights, privileges and prerogative. Taking up the
issues of Parish Churches and whether they are autonomous units, the constitution and
the status of the Parishes may be discussed first.
A Parish Church is a, 'district committed to the charge of one incumbent
having the cure of souls in it'.
[Halsbury's
Laws of England, Vol.14 para 534]. 'The ancient parishes appear to have been
gradually formed between the 7th and 12th or 13th Centuries. Their boundaries
seem to have been originally identical with or determined by those of manors,
as a manor very serfdom extends over more than one of these parishes, although
in many cases one parish contains two or more manors. Besides being
ecclesiastical units, ancient parishes have been at different perious, and in
many cases still are, administrative areas for various civil purposes, although
the boundaries for parishes for civil purposes have in many cases been altered
under statutory authority'. [Halsbury's Laws of England Vol.14 para 535]. 'The
word 'Parish' was in use as early as the third century, but it was at that time
equivalent to the term Diocese (which see). In primitive time the diocese of a
bishop was neither more nor less than what is now called a parish; and even
when the jurisdiction of bishops had become extensive, the diocese long
continued to be called the parish. Afterwards the word was limited to the
district attached to a single church over which a presbyter presided, who was
hence called parochus. ..............During this formation of the parochial
system, the ........... measures were adopted to retain these churches in a
state of dependence on the mother or cathedral church. The diocesans, however,
were often obliged to allow the parish churches a greater degree of
independence than they were of their own accord willing to concece to
them............for sometime after the first introduction of the parochial
system, the revenues of a diocese continued to be regarded as a whole the
distribution of which was subjected to the bishop; that is to say, whatever
obalations or the like were made in parish churches were paid into the treasury
of the cathedral church as the one heart of the body and thence distriouted
among the cleray after the claims of the parish had been satisfied [emphasis
supplied]. This arrangement remained generally in force until the end of 5th
century, many parish Churches having in the meantime greatly increased in
wealth by means of bequests and donations and having come into the receipt of
considerable obalations. ..............But in the course of the sixth century
the revenues of the pareshial clarc came to be considered simply as cheir own,
the bishops being obliged to rele cheir hold of them Faiths of the World, by
thems Gardner p.617 Parish Church, thus, is an ecclesiestical authority operating in a
specific area. But they are of a religious order. Their autonomy, their
financial powers, their administrative control have been thus different in
different ages depending on the terms of creation of the trust, the purpose and
objective of its establishment, the personality of the person occupying it, the
financial strength of it etc. The Syrian Churches, as the history narrated
earlier indicates, were established for religious worship and public charity
and every church, small or big, claimed that its spiritual head was the
Patriarch of Antioch. DW-28- Gheevarghese Moran Mar Basselios II who was
ordained as Metropolitan by Abdul Messiah and examined in O.S. No. 111/1113 and
on whose testimony reliance was placed by the appellant, stated that the
Churches are established after obtaining sanction of the Metropolitan and the
Government.
When
the Malankara Association was formed in the Mulunthuruthy Synod a resolution
was passed constituting 8 of the priests assemshed there and 16 of the laymen
of the first class with the ruling Metropolitan as President entrusted with the
complete responsibility of management for every matter connected with the
common religious and communal affairs of the entire Syrian community. The other
resolution passed was that the 'committee shall have liberty to collect other
amounts as well in addition to the amounts above mentioned to cause its
increase, to make sub- committees and to do everything beneficial'. In respect
of administration of property it was resolved that 'for altering the existing
rules relating to the administration of the property belonging to, the church
and to the Syrian community, and for enacting new laws for the same, for
examining and approving the accounts of the various churches, for confirming
the epithopas (stuarts of the Church) of the respective churches decided by the
Yogam, for printing the books useful and necessary for the community, for
repairing the churches which have fallen into disrepair, for building new churches
and for erecting schools, the above said committee shall have full
responsibility'. The Committee was further entrusted with responsibility to
collect and send the "Ressissa" due to His Holiness the Patriarch, to
collect the 'kaimuthu' and other income due to the metropolitans from the
churches and in case it was not sufficient to find other ways for the same and
also for maintenance of the Dayaras (Monasteries), to effect payment of
salaries to the vicars according to the capacity of the parish and pay the
salary of the Secretary and others.
Thereafter
when the Constitution of 1934 was made a full chapter was devoted to the Parish
church. The detailed procedure was given about the membership, maintenance of
register, the payment of subscription, the convening of the Parish Assembly
meeting, the duration at which the Assembly should meet in a year and the
manner in which the fund was to be spent. It was also provided that the Vicar
shall report to the diocesan Metropolitan about the election of the Parish
Committee which shall not have any authority to take any decision in matters
relating to religion which shall be referred to the Diocesan Metropolitan.
Right of appeal was also provided to Metropolitan. Clause 37 provided that when
the Diocesan Metropolitan came to the Church on his Parish visit he shall sign
the register maintained in every Parish of moveable and immoveable properties.
All this indicates that the Parish Churches were under the control and
supervision of the Metropolitan. This Constitution was amended in 1967 with
participation of Patriarch group and apart from reiterating what was said in
1934 it was provided in Clasue 120 that Vicar of every Parish Church shall
collect Ressissa' at the rate of 2 annas every year from every male member who
has passed the age of 21 years and shall send the same to the Catholico. The
Constitution further contemplates entire hierarchy in which the Catholico and
Metropolitan were placed at the highest. From the scheme unfolded by the
Resolution passed in the Mulunthuruthy Synod read with the Constitution it
appears every Syrian Parish Church even though established
independently has necessarily to have relation with the Malankara Association.
The relationship between the two that is, the Parishes and the Malankara
Association has been subject matter of consideration in every decision which
came up before the courts. Even in the suit out of which this appeal has arisen
the issues framed were whether Parish Churches were independent and autonomous
units and whether the administration and conduct of their affairs and their
assets were to be under the immediate control, direction and supervision of the
Diocesan Metropolitan as provided for in the Constitution and whether vicars,
priests and office bearers in Parish Churches had to be approved and appointed
by him or the Metropolitan had only spiritual supervision and no temporal
control. Both these issues were decided by the learned Single Judge in favour
of the Parish Churches.
But
the Division Bench after elaborate discussion of law and fact held, 'Parish
Churches' were' not congregational or independent' and the Constitution is
valid and binding on the Malankara Association, community diocese as well as Parish Churches and Parishes.
Whether
the finding is well founded or not and whether the Division Bench was justified
in further recording the finding that the Malankara Church was episcopal to a
limited extent, only, shall be adverted presently, but before doing so it is
necessary to deal with one submission of Mr. Parasaran on this aspect at the
outset, which was more preliminary in nature, as to whether the relief sought
by the plaintiffs that the Malankara Church was episcopal in character was not
a Union or Federation of Autonomous Church Units and was governed in its
administration by the Constitution of the Malankara Church could not be granted
in absence of impleadment of each Parish Church. Prima facie the submission
appeared attractive but a closer scrutiny of the pleading demonstrates that the
nature of Parish Churches was very much in issue of which parties were aware
and the suits were tried on the footing whether Parish Churches were autonomous
or not. In any event, it is worthwhile referring to the pleading.
In
paragraph 11 onwards of the Plaint (in Original Suit No.142/74 re-numbered as
Original Suit No.4/79 in the High Court) it was averred that the Malankara Church consisted of an aggregate of about 15 lakhs of worshippers
worshiping in more than 1000 Parish Churches. A list of churches was appended
to the Plaint. It was claimed that each Church founded became a constituent of
the Malankara Church a well established religious community administered under
the authority of the Malankara Metropolitan. It was claimed that the
Parishioners of each Church were entitled to the benefits from the Church and
its properties. The Malankara Church was neither a Union
with a Federation of Congregational Units but a Church with a unique solidarity
derived from apostolic succession and authority of Malankara Metropolitan and
the doctrines and creed followed by the Church. It was alleged that the
Constitution of 1934 was binding on every Church and the temporal,
ecclesiastical and spiritual powers of the administration vested in the
Malankara Metropolitan who invariably is a native of Malankara or elected by a
group by the community. In paragraph 19 it was averred that defendants were
impleaded in their individual capacity and as representatives of Malankara
Jacobite Syrian Christian Association. Permission to sue in representative
capacity under Order 1 Rule 8 was also sought.
In the
written statement filed by different defendants the entire claim of the
Catholicos was denied. The averments went to the extent of denying
establishment or revival of Catholicate in Malabar. The basic claim was that
the Catholicate of East was deputy to the Patriarch of Antioch.
It was
alleged that Syrian Christian Association formed at the Mulunthuruthy Synod was
given the power to take decisions on common matters of the community but it was
not vested with any power over the individual Parish Churches or their administration. It was
alleged that no Parish Church has surrendered their powers of administration to the said
Association. It was claimed that Parish Churches and their properties belonged to
the respective Parishioners and the plaintiffs or the hierarchy in the Malankara Church had no manner of right, title, possession or management
over these Churches. It was denied that the Parish Churches and other Churches mentioned in the
list were constitutents of the Malankara Church and that the Malankara Metropolitan
had the authority to administer all those Churches. Written statements were
filed. The defendants raised all possible defence even contrary to earlier
decision. Different written statements were filed by different defendants
including the two, that is, Knanaya Association and Evangelistic Association
which were impleaded on their own instance.
These
averments would indicate that the parties were very much at issue on the question
whether Parish Churches were constituents of Malankara Church or not. That is
why when applications were filed on behalf of the Parish Churches for being
impleaded as party it was rejected and the dispute became final after the High
Court held that it was not necessary to implead every Parish Church individually.
It is
too late, therefore, to urge that no declaration on the status of Parish
Churches be granted. No such objection was taken either before the learned
Single Judge or the Division Bench. May be that the 1000 Parish Churches were
not impleaded. But it was a representative suit. Then the suit was for a
declaration that the Malankara Church was episcopal in character and not a Union of Federation of
Autonomous Churches. It was not necessary to impleed every Parish Church as a
party. The question whether Malankara Church is episcopal or not had to be
decided on the pleading of the plaintiff. The defence raised by the defendants,
who were ordained by the Patriarch of Antioch, was that they were the
metropolitans and, therefore, entitled to protect the interest of Parish
Churches. Moreover the declaration sought is as a matter of law. No factual
dispute arises. The suit was filed for enforcement of this right. Once it was
found by this Court in 1958 that the Constitution was validly framed the
Catholicos could not be denied this declaration. In paragraph 94 of the 1934
Constitution it was provided that, 'the (The) Prime jurisdiction regarding the
temporal ecclesiastical and spiritual administration of the Malankara Church is vested in the Malankara Metropolitan subject to the
provisions of this constitution'. Whether a particular Parish Church is a member of the Malankara Association is not relevant.
Therefore, the submission that the non-impleadment of individual Parishes
precluded the court from granting any declaration about the nature and status
of Parish Churches, does not appear to be correct.
'Congregationalism'
is defined in New English Dictionary of Historical Principles (By Sir John
Murray, Vol.III, Part I, page 245) as under:
"A
system of ecclesiastical polity which regards all legislative disciplinary and
judicial functions as vested in the individual church or local congregation of
believers." 'Congregationalism' is defined in Chambers Encyclopedia,
Vol.IV, page 12 as under:
"Congregationalism
is the doctrine held by churches which put emphasis on the autonomy of the
individual congregations.
Congregationalism
has for its sign manual the words of Jesus:
'Where
2 or 3 are gathered together in my name, there am I in the midst of
them'." In Black's Law Dictionary 'Congregation' is explained thus:
"An
assembly or gathering;
specifically,
an assembly or society of persons who together constitute the principal
supporters of a particular Parish, or habitually meet at the same church for
religious exercises." The word is explained in the Faiths of the World
Vol.1 at page 589 thus:
"This
word, like the term Church (which see) is sometimes used in a more extended and
at other times in a more restricted sense. In its widest acceptation, it
includes the whole body of the Christian people. It is thus employed by the
Psalmist when he says, "Let the congregation of saints praise Him."
But the word more frequently implies an association of professing Christians,
who regularly assemble for divine worship in one place under a stated pastor.
In order to constitute a congregation in this latter sense of the term, among
the Jews at least ten men are required, who have passed the thirteenth year of
their age. In every place in which this number of Jews can be statedly
assembled, they procure a synagogue.
Among
Christians, on the other hand, no such precise regulation is found, our Lord
himself having declared, "Wherever two or three are met together in my name,
there am I in the midst of them." Guided by such intimations of the will
of Christ, Christian sects of all kinds are in the habit of organising
congregations though the number composing them may be much smaller than that
fixed by the Jewish Rabbies." 'Episcopal' is defined in Webster
Comprehensive Dictionary to mean, 'of or pertaining to bishops. Having a
government vested in bishops; characterised by episcopacy', whereas
'Episcopacy' is defined as under:- "Government of a church by
bishops".
New
English Dictionary of Historical Principles by Sir John Murray, Volume III,
explains it to mean:
"Theory
of Church Polity which places the supreme authority in the hands of episcopal
or pasteral orders".
'Episcopacy'
is explained in the Faiths of the World by James Gardner, Volume I, at page 836
as under:- "that form of church government which recognises a distinction
of ranks among the ministers of religion, having as its fundamental article
that a bishop is superior to a presbyter".
'Bishop'
in the same book is defined as under:- "one who in episcopalian churches
has the oversight of the clergy of a diocese or district".
'Metropolitan'
is defined in the same book at page 445 as under:- "the bishop who
presides over the other bishops of a province. In the Latin church, it is used
as synonymous with an archbishop. In England, the archbishops of Canterbury and
York are both Matropolitans......The title was not in use before the council of
Nice in the fourth century......The rise of the authority of Metropolitans
seems to have taken place without any distinct interference on the part of the
church.
The
council of Nice was the first to give an express deliverance on the subject,
particular with reference to the Alexandrian Church. The sixth canon of that
Council ran in these terms:
'Let
the ancient custom which has prevailed in Egypt, Libya, and Pentapolis, that the bishop of
Alexandria should have authority over all
these places, be still maintained, since this is the custom also with the Roman
bishop. In like manner, at Antioch, and
in the other provinces, the churches shall retain their ancient
prerogatives'." These definitions of 'congregationalism' and 'episcopal'
have been extracted to give an idea how the expressions are understood as the
entire submission of autonomy of the Churches is based on whether the Parishes
are congregational or episcopal. The basic or essential characteristic as
appears from the above definitions and explanation of 'congregationalism' and
'episcopal' is that in the former the authority vests in the congregation
whereas in the latter it is controlled by the bishop as he is deemed to be
successor of the apostle. That the Syrian Orthodox Church of Malankara accept
and acknowledge the theory of apostle succession is beyond doubt. In Faiths of
the World, the word 'Episcopalians' is explained and it is stated that it is a
name given to those who hold that peculiar form of Church government which is
called 'Episcopacy'. The Church of Rome is Episcopalian in its constitution,
and acknowledges the Pope as Universal Bishop, to whom all the various orders
of clergy, cardinals, primates, and patriarchs, archbishops and bishops are
subordinate...The Armenian church is similar in govenment to the Greek church,
their Catholicos being equivalent in rank and authority to the Greek
patriarch... All the ancient Eastern churches, including the Copts,
Abyssinians, and others, are Episcopalian. The church of England is strictly
Episcopalian in its ecclesiastical constitution.' The claim, therefore, that they
are congregational cannot be accepted.
Even
factually it was not open to the Patriarch to take up this defence. The Canon
on which reliance was placed by them and filed as Ex. B-161 dealing with
properties and income of the Churches provided, 'If the valuable souls of the
beliain can be entrusted to the (Episcops Bishop) it is quite apt that he bears
authority over the property of the church. Everything should be administered by
his order and be given to the Priests, Decons and those who are in needs'.
The
resolution in the Mulunthuruthy Synod also accepted this. In the Vattipanam
Suit Justice Chatfield in paragraph 15 of the judgment has noticed, it may be
stated that both sides admit that the administration of the temporalities of
the Syrian Jacobite Church in Malankara is with the local
Metropolitan and the other Metropolitans'. That is why in the Arthat case it
was held that the plaintiff churches, that is the Parish Churches of Arthat
were subject to spiritual, temporal and ecclesistical jurisdiction of the
Metropolitan of Malankara. Paragraph 95 of 1934 Constitution itself provides
that, 'there will be an Episcopal Synod in Malankara'.
Whether
a public institution or a public Church unlike private religious places is
autonomous or not depends on its trust deed, the intention of the members who
found it, the purpose for which it was established. The establishment of a
Church is normally understood as an institution established for public
charities. Its objective is religious and spiritual. Whenever a charity is
created it is either public or private. The latter is for individual, may be
for fixed period or for determinate person. But public charities are of
permanent character, the membership of which keeps on fluctuating. Lewin on
Trust explained a 'charitable trust' thus, 'a public or charitable trust, on
the other hand, has for its object the members of an uncertain and fluctuating
body and the trust itself is of a permanent and indefinite character and is not
confined within the limits prescribed to a settlement upon a private trust.
These trusts may be said to have as their object some Purpose recognised by the
law rather than human beneficiaries. Tudor on Charities at page 131 of 6th Edn.
has stated thus, `when a charity has been founded and trusts have been
declared, the founder has no power to revoke, vary or add to the trusts. This
is so irrespective of whether the trusts have been declared by an individual,
or by a body of subscribers or by trustees'.
That
the Parish Churches were established for promoting ideals of Syrian Orthodox or
Jacobite Church has been the consistent claim of both the Patriarch and the
Catholicos.
Its
nature cannot be changed by the persons who are entrusted to manage it. They
were episcopal in character when they were found, they continue to be so at
present and shall remain so in future. The character of public charities from
episcopal to congregational cannot be changed as it would be against basic
purpose for which these Churches were established. In Attorney General v.
Pearson & Ors. 1814-23 All England Law Reports p.60 at 63 it was observed
as under:
"But
if, on the other hand, it turns out that the institution was established for
the express purpose of such form of religious worship, or the teaching of such
particular doctrines, as the founder has thought most conformable to the
principles of the Christian religion, I do not apprehend that it is in the
power of individuals, having the management of that institution, at any time to
alter the purpose for which it was founded, or to say to the remaining members:
`We have changed our opinions, and you, who assemble in this place for the
purpose of hearing the doctrines and joining in the worship prescribed by the
founder, shall no longer enjoy the benefit he intended for you unless you
confirm to the alteration which has taken place in our opinions'."
Therefore, once these public charities were found whether before the
establishment of catholicate or after it their nature could not change. On the
material on record the courts have found them to be so. Therefore, the
submission that they are autonomous does not appear to be well founded.
Autonomy
for what, religious worship or temporal matters.
Former
cannot be pleaded as once a Church was found for religious worship it continued
to be so. The autonomy in temporal matters as claimed appears to be two-fold,
one, freedom to disassociate from Malankara Association and second to control
and supervise its internal affairs. The first cannot arise. In law it is not
open to members of public or public trust to appropriate trust properly for
themselves. Under Hill on the Law of Trusts and Trustees has explained it thus,
`However, the crucial difference surely is that no absolutely entitled members
exist if the gift is on trust for future and existing members, always being for
the members of the association for the time being. The members for the time
being cannot under the association rules appropriate trust property for
themselves for there would then be no property held on trust as intended by the
testator for those persons who some years later happened to be the members of
the association for the time being'. None of the Parish Churches claim autonomy
in the sense that they have changed their faith and belief. Each of them claims
that their spiritual head is Patriarch of Antioch. That is they are the
believers and followers of Syrian Church. So are the members of Malankara
Association and Catholicate of East. Therefore, the existence or exercise of
autonomy for Parishes has no meaning. Similarly the independence or autonomy in
temporal matters is not of any consequence. The Parishes are bound by the
Constitution framed in 1934.
Mr.
Parasaran submitted that the Malankara Church was from very ancient times
episcopal to a limited extent in spiritual and ecclesiastical matters but has
been congregational/autonomous in temporal matters. It was urged that if
Jacobite Syrian Orthodox Church has been or was episcopal as claimed by the
respondents then the Patriarch would have had control over temporal matters
also. The learned counsel submitted that Malankara Church being essentially congregational it
was to be presumed that every Parish Church was an independent Church. The
learned counsel criticised the Constitution of 1934 as the deliberate departure
from the established norms and practice of the Church and the attempt by it to
invest it with episcopal character in temporal matters. The learned counsel
submitted that the custom which was prevalent in the Malankara Church throughout has been that the Parish Churches and its properties were
administered by the congregation that is Parishioners and in that sense the Malankara Church has been congregational in temporal matters and this well
established custom must prevail even over the provisions of the canon.
It was
urged that this was already recognised in the Samudayam suit by the Trigal
Judge and the admission of the Catholicos before the District Judge. The
learned counsel submitted that the status of the Parish Churches even before
Malankara Synod was independent and if indeed the Church was episcopal in
temporal matters there was no necessity for the creation of an Association in
the meeting of 1876 for the purpose of raising funds since the Patriarch
directly or through the Malankara Metropolitan could have raised the necessary
finance from the Parish Churches and above all if the Parish Churches were
episcopal then where was the question of entering into an Udampadi with every
individual Parish Church. The learned counsel submitted that the entire claim
of the respondents that the entire body of Churches, institutions and common
properties formed one organic unit to be administered by the provisions of the
impugned Constitution was based on a misrepresentation of the words `Church'
and `Sabha' and is contrary to the history, customs and proceedings and the
Malankara Church. Reliance was placed on the evidence of P.W.4 and P.W.8 and it
was urged that if they were read along with Ex.A-19 and A-20 then they would
indicate that it did not result into bringing into effect any voluntary
association. The learned counsel submitted that if the exchange of Kalpanas are
sought to be treated as legally binding on individual Parish Churches amounting
to unification and acceptance of the Constitution on the basis that the
Patriarch will bind the Parish Churches then necessarily Patriarch will have to
be accepted as the supreme ecclesiastical and temporal superior. It was urged
that it was so because the Constitution framed in 1934 deals with all the three
aspects and can be imposed on the Parish Churches only on the basis that they
did not have autonomy in respect of any one of the three and the Patriarch will
have the power to impose such a constitution on the individual Parish Churches
without obtaining their individual consent. According to learned counsel if
Patriarch had such a spiritual, ecclesiastical and temporal supremacy such
supremacy could not only be in regard to Parish Churches in the Patriarch
section but also in regard to the Churches of the Catholico section. And
otherwise the religious beliefs, practice etc. would be different in Parish
Churches in the two sections and there cannot be any unification. It was urged
that Ex.A-19 could not be construed as a surrender of the authority which existed
in the Patriarch in favour of the Catholico as if the Kalpana is construed as
such then it would amount to a change of faith so far the Parish Churches in
the Patriarch section were concerned and on the principle of religious trust
the properties and the Churches could not go to Catholicos section. Minutes of
the meetings held by the Association in 1959, 1962, 1965 and 1970 including the
presence of the Patriarch in the installation ceremony of Mar Ougen as
Catholico was placed. It was urged that if these are construed as claimed by
the respondents then it would inevitably result in applying the law relating to
religious trusts. But that would not be in consonance with law.
According
to learned counsel on the principle of voluntary association even if it is
assumed that they decided to be under Catholico there was nothing to prevent
them in law from opting out of it. Attention was drawn to various suits filed
during this period and the failure of the Catholico to impose their
constitution. In respect of presence of the Patriarch at the installation
ceremony of the Catholico the learned counsel urged that it only strengthened
their claim that Patriarch was the supreme head as a person as delegation of
power can be made only by a person who is superior than the person whom he
ordains. In any case if the Patriarch was authorised to delegate and
participate in the installation ceremony as the head of the Syrian Orthodox
Church then there was nothing in law to prevent him from withdrawing it. The
submission was placed on yet another aspect that the Catholicos had never
claimed supremacy to the exclusion of the Patriarch. But on the other hand by
their conduct and action they accepted the spiritual and ecclesiastical
supremacy as was clear from various documents where the Catholico requested the
consent of Patriarch for relaxing the rigour of canonical penances. The learned
counsel submitted that the respondents were claiming that the Malankara
Association had become autoceohalous.
Therefore,
applying the principle of religious trusts if the Parish Churches and
properties which were originally founded for the benefit of the parishioners
who believed in uninterrupted apostolic succession from St. Peter through the
Patriarch then the use of such Parish Churches and their properties by those
who claimed to be Malankara Church would be contrary to original faith and
character of the Sabha (Sabha means the Church as a whole) attached to the
Parish which are established for worship according to the faith, custom and practice
of the Sabha. Attention was drawn to Ex.B-269 and Ex.A-120 and it was claimed
that the Constitution of these Parishes would indicate that they were part of
the Malankara Church subject to superior authority of the Diocesan Metropolitan
of the Malankara Metropolitan.
The
learned counsel submitted that according to the Orthodox teachings the Church
or Sabha is a body with Christ as its head and together they form an integral
whole and by consecration a Parish Church becomes the abode of God and becomes a
part of the Sabha. Reliance was placed on the evidence of P.W.8 and admissions
of D.W.2. It was urged that Church being a public trust of a religious nature
the beneficiaries of which at a time have no right to deal with it as is clear
from what has been stated by Lewin on Trusts.
The
nature of public charities has already been explained. None of the submissions
appear to have substance.
A
Church is either episcopal or congregational. It cannot be episcopal in
spiritual matters and congregational in temporal matters. That would be against
the basic characteristic of such a Church. It would be against specific
provisions in the Constitution. The temporal matters or administration of
Churches flows from its establishment for religious purposes, namely, `the cure
of souls'. Where a building is consecrated as a Church, `it continues to exist
in the eye of law as a church and the body corporate which had been endowed in
respect of it remains in possession of the endowment even though the material
building is destroyed'. Every Parish Church of Malankara acknowledges the
Patriarch of Antioch as the spiritual head. They have been playing ressissa to
Patriarch. The ordination, consecration and every spiritual or temporal power
has always been exercised by the Patriarch of Antioch so long it was not
decided on basis of the Synod held at Mulanthuruthy that the Patriarch was only
the spiritual head and the temporal powers vested in the Metropolitan. This
division of power could not destroy the basic characteristic of episcopacy. The
Church in England is also an episcopal Church. In Halsbury's Laws of England
Vol.14 para 562 the right of Parishioners has been described, `to enter the
church remain there for purpose of participating in divine worship to have a
seat and to obey the reasonable directions of the church to ordain'. The
property vests in the endowment. That is the fundamental difference in
congretational and episcopal. In the former it vests in the Parishioner. But in
the latter in endowment.
Once
it is conceded that the Syrian Churches are episcopal in character then the
distinction between spiritual and temporal is of no consequence. Therefore, the
property of the Church vests in the endowment and not the Parishioners.
The
right to manage such property vests in the trustees under the bye-law subject
to the control by the Catholicos and Metropolitan in accordance with the
Constitution. The fact that every Church has its own bye law does not militate
against its nature of being episcopal as Clause 122 of the Constitution of 1934
itself provides that, `byelaws which are not inconsistent with the principles
contained in this constitution may be passed from time to time by the Parish
Assembly, the Diocesan Assembly or the Diocesan Council and may be brought into
force with the approval of the Rule Committee'. The Parish Churches are thus
governed in their administration by the Constitution of the Malankara Church.
The
nature of relationship between the two bodies can be gathered either from the
circumstances or from the documents if they are on record. The Resolution of
the Mulanthuruthy Synod, the Constitution of 1934 and its amendment in 1967
unmistakenly demonstrate a close link between the Malankara Association and
each Parish Church. A Church is established by followers of a religious faith.
The mere establishment is not sufficient unless it assures the realisation of
the ultimate goal that is salvation and that could come only when such a body
has a link with the higher spiritual body which religiously is considered to be
the one which could help in permitting a man to achieve the end. It is not the
case of the appellants that the Parish Churches are independent in the sense
that they have no link with any higher spiritual power. It is their specific
case that they claim their spiritual link from the Patriarch of Antioch.
The
ordination of the Metropolitan-consecrate of Bishop even according to them has
to be from Antioch. When D.W. 28 was asked whether after creation of
Catholicate the Patriarch ceased to have any power, he stated 'ordaining a
Metropolitan is not a power. It is a bond and duty'. The witness denied that
Patriarch of Antioch was only the head of the Jacobite Church and he had no
power over or concerning the Malankara Church. Therefore, they are not
independent and autonomous in the sense in which it was claimed by the learned
counsel. If it be so and if what has been stated earlier that the Patriarch of
Antioch himself created a Catholico of the East in 1912 with all the spiritual
powers then it is difficult to visualise that how the Parish Churches can claim
that they are independent and separate from the Malankara Association. In Moran
Mar Basselios (supra) it has been decided that the Constitution was framed
after notices were sent to every Parish Church.
Therefore,
whether they attended or not is not material and in any case once the
Constitution was framed and its validity has been upheld then under the
provisions of the Constitution the Metropolitan appointed by the Malankara
Association has control over the Parish Churches. It is not necessary to refer
to various observations made in the earlier judgments by the courts which
undoubtedly indicate that the Malankara Association which was a creation of
Malankara Synod and is the representative body that has the right to bind the
holy community and all the Churches by its deliberations and actions. The Full
Bench of the Royal Court of Cochin in 1905 held that the Churches and its
properties were subject to spiritual, temporal and ecclesiastical jurisdiction
of the Metropolitan of Malankara. Even in the very first judgment of 1889 it
was held that, `once Metropolitan of the Syrian Jacobite Church was accepted by
the people it would, `entitle him to spiritual and temporal governance of the
local churches'. In the Samudayam suit this Court had observed that the whole
of the Malankara Church was represented by the Malankara Association. The
District Judge whose decree had been restored by this Court, and in appeal this
Court had not said anything contrary to what was observed by him, observed, `It
cannot therefore be denied that this Jacobite `Syrian Association' which was a
creation of the Mulunthurn Synod was and is the representative body that has
the right to bind the whole community and all the churches by its deliberations
and actions.' The claim, therefore, that the Patriarch Churches are autonomous
and independent in temporal matters cannot be accepted. That would be contrary
to the Mulunthuruthy Synod, the decision in the Royal Court of Appeal, the
Arthat Case and the Constitution of 1934. A power which vested in Malankara
Association could not be denuded merely because the spiritual power of the
Patriarch descended on the Catholico, who could be Metropolitan as well, on the
analogy that if Patriarch did not have temporal power then it could not be
deemed to vest in Catholico. Temporal power always vested in Metropolitan. It
could not be divested because even the spiritual power came to be vested in
him. The extent of power also remains the same, namely, not to interfere in day
to day administration of a member which is governed by its own bye-laws.
Apart
from the Syrian Orthodox Church there are various other churches such as the
Evangelistic Association, the Simhasana churches the five churches established
between 1951 to 1956 and Malankara Suriyani Knanaya Samudayan who claimed that
though they are followers of Orthodox Syrian Christian tenets and beliefs but
they have been established separately either under the Societies Registration
Act or by their own rules and their churches were established with explicit
declaration that they were under the spiritual supremacy of Patriarch of
Antioch from whom the grace emanates. It was claimed by them that the suits
against them were misconceived and in any case some of them, for instance, the
churches established between 1951 and 1956 having come into existence after the
Constitution of 1934 was framed by the Malankara Association they could not be
held to be under the spiritual or administrative control of the Catholicate of
the East. Each of them were subject matter of separate suit. The issues were
framed separately and the evidence was also led. Both the learned Single Judge
and the Division Bench after consideration of the material on record and
examining the finding recorded in the earlier decisions rendered by the
Travancore Cochin High Court and this Court in Moran Mar Basselios (supra) had
held that except churches of the Evangelistic Association and the Simhasana
churches and St. Anthony church the others were under the Catholico of the
East. The findings recorded in the case of Knanya Samudayam is subject-matter
of Appeal No. 4953 whereas Appeal No.4954 to 4956 has been filed by Kundara Church and Appeal No. 4989 has been filed by five churches established
during 1951-56. The Catholicos have challenged the findings of the Division
Bench in respect of Evangelistic Association and Simhasana Churches which is
the subject-matter of SLP No. 14783-86 of 1991.
The
Malankara Suriyani Knanya Samudayam referred to as `Knanaya Samudayam' traces
its origin from one Mar Thomas of Cona and one Bishop Joseph who migrated along
with 400 persons comprising of 72 families from a place called Cona in 345 A.D.
They claim that they are different racially, culturally and socially from the
Syrian Christians and the membership in the community is only by virtue of
birth. It is claimed that the community all along kept its status separate and
functioned under the guidance and supervision of spiritual leadership of the
Patriarch of Antioch. It claimed that Patriarch ordained Mar Sevoten as the
Metropolitan in 1910 and Mar Clemis in 1951 who is still continuing. Attention
was also drawn to the Constitution framed in 1912 and amended in 1918, 1932,
1939, 1951 and 1959 wherein the superemacy of Patriarch of Antioch was always
offered. Various other provisions were pointed out and it was urged that it was
clear that it was an autonomous church. The followers of Kundara Church claimed
that it was established by followers of Mar Cyrial who had come to India as
prelate, of the Patriarch of Antioch who resolved the differences between Mar
Athanasius and M. Dionysius, but failed in his attempt due to the Royal
Proclamation which was in operation. It is claimed that it was at the instance
of the Patriarch that the Queen of England issued a second proclamation
permitting the followers to establish a new church. Therefore, their
fore-fathers were associated with Kundara Old Church now called `Valiapaly'.
According to them, this church was established as Athanasius denied spiritual
supremacy of Antioch. However, it is not denied that once ex-communication of
Gheevarghese was cancelled in 1912 and when I. Ibrahim Kathanan, the priest of
the Church died his son Fr. J. Abrahim was ordained as priest by Gheevarghese
Dionysius, the Metropolitan of Malankara. The claim of Kothamangalam Church was
that it was only an Archdiocese of the Syrian Orthodox Church under the
Patriarch of Antioch which is administered by its Parishioners according to
congregational principles of governance and its administration is carried on in
accordance with its Constitution which provided for Edavaka Yogam, a managing
committee, a working committee and Thonnanda Kaikors. In the appeal filed by
the five churches established during 1951-56 it was claimed that when
Catholicos were declared as aliens to the church by the Travancore High Court,
they established the church under the Patriarch of Antioch. They claimed that
they have their own Constitution and mode of administration. They are
registered under the Societies Registration Act to whom the Constitution of
Sabha was never made applicable. According to them, they having been
established exclusively by the Patriarch Group, there can presumably be no
doubt as to the object of its foundation and its basic faith. In the SLP filed
by the Catholicos against the Evangelistic Association referred as `Samajam'
and `Simhasana Churches', it is claimed that the object of the Evangelistic
Association indicates that it is composed of the members of the Malankara
Church and it provided that any person holding the faith of the Jacobite Syrian
Church and acknowledging the authority of that church can be a member of that
Association. It was claimed that even though Samajam is registered under the
Societies Registration Act, but it being established in the territorial
jurisdiction of the Catholicos and having acknowledged the spiritual headship
of the Patriarch of Antioch as a supreme patron of the Samajam, they too should
be treated as a part of the Malankara Church. It was pointed out that in 1966
the Samajam amended Clauses 7 and 9 of its Regulations and Rules and
incorporated in Clause 7 (a) and (b), but their claim was rejected by the
Division Bench as this amendment was subsequently withdrawn. In respect of the
Simhasana Churches, it was claimed that they were established with the object
of seeking grace from Patriarch of Antioch and, therefore, they too should be
deemed to be part of Malankara Church.
Since
the basic controversy is the same and both the learned Single Judge and the
Division Bench have recorded the finding for or against the catholicos in
respect of different churches after considering the material on record in each
case and with full understanding and correct appreciation of law it is not
necessary to deal with them in any detail except to hold that they do not call
for any interference. Suffice it to say that the parishes are the churches
which cannot claim to be separate or autonomous bodies only because their
racial and cultural origin was different. Once they were established whether
they came from outside or they were local persons it did not make any
difference as after the establishment of the church with the permission of the
Government and the Metropolitan and acknowledging the spiritual headship of
Patriarch of Antioch which follows the apostolic succession, the nature of
these churches was episcopal and, therefore, it was not open to them to claim
that they should be treated as autonomous bodies merely because they have their
separate bye-laws. As stated earlier, the framing of the bye-laws in each
church is necessary for purposes of governance and administration.
But
once a church is established then the property vests in the endowment and it
becomes a public charity, the administration and control of which has to be
governed in accordance with the objective of the endowment. Since the objective
is to follow Syrian Orthodox Church of which Patriarch of Antioch is the head,
they cannot claim to be independent, especially after the Constitution of 1934
was framed.
What
remains to be dealt with is the argument advanced by Ms. Lily Thomas, the
learned counsel for intervener that the Patriarch of Antioch being corporation
sole his powers, spiritual or temporal were not partible nor the integrality
can be split up. Reliance was placed on paragraph 1206 of Halsbury's Laws of
England Vol. 9 and General Assembly of Free Church of Scotland & others
etc. V. Lord Overtoun and others etc. 1904 Appeal Cases 515. The characteristics
of a corporation sole which was, `originally ecclesiastical for the most part'
is, `that its identity is continuous, that is that the original member or
members and his or their successors are one' [Halsbury's Laws of England Vol. 9
paras 1207-1208]. But does it help? The personality of the Patriarch is not
being split. His integrality is not being destroyed. He remains the spiritual
head. The difference in degree of exercise of spirituality does not detract his
status from being corporation sole. The mere fact that it has been reduced to
`vanishing point' does not mean that he has ceased to be so. In fact much
sensitivity has been generated for nothing. The Patriarch of Antioch and
Catholicate always existed in the hierarchy as the two dignitaries. `This dignitary
(Patriarch) usually resides in a monastery near Mardin. The second dignitary,
the primate of Tagrit, resides near Mosul, and is termed Maphrida or fruit-bearer' [Faiths of the World Vol.II p.
195]. In General Assembly of Free Church (supra) what was held that nature of
public trust cannot be changed. Has it been changed by the Catholicate? The
answer has to be in the negative. Even the first clause of the Constitution
framed in 1934 acknowledge the supremacy of the patriarch.
The
conclusions thus reached are, 1 (a) The civil courts have jurisdiction to
entertain the suits for violation of fundamental rights guaranteed under
Articles 25 and 26 of the Constitution of India and suits.
(b)
The expression 'civil nature' used in Section 9 of the Civil Procedure Code is
wider than even civil proceedings, and thus extends to such religious matters
which have civil consequence.
(c)
Section 9 is very wide. In absence of any ecclesiastical courts any religious
dispute is congnizable, except in very rare cases where the declaration sought
may be what constitutes religious rite. 2.
Places
of Worship (Special Provisions) Act, 1991 does not debar those cases where
declaration is sought for a period prior to the Act came into force or for
enforcement of right which was recognised before coming into force of the Act.
3. The
following findings in Moran Mar Basselious (supra) have become final and
operate as resjudicata:- (a). The Catholicate of the East was created in
Malankara in 1912.
(b).
The Constitution framed in 1934 by Malankara Association is valid.
(c).
The Catholicos were not heretics nor they had established separate church.
(d). The
meeting held by Patriarch Group in 1935 was invalid.
4 (a).
The effect of the two judgments rendered by the Appellate Court of the Royal Court and in Moran Mar Basselios (supra)
by this Court is that both Catholicos and Patriarch Group continue to be
members of the Syrian Orthodox church.
(b)
The Patriarch of Antioch has no temporal powers over the
churches.
(c)
Effect of the creation of Catholicate at Malankara and 1934 Constitution is
that the patriarch can exercise spiritual powers subject to the Constitution.
(d)
The spiritual powers of the patriarch of Antioch can be exercised by the Catholico in accordance with the Constitution.
5. (a)
The Hudaya Canon produced by the Patriarch is not the authentic version.
(b)
There is no power in the Hudaya Canon to ex- communicate Catholicos.
6. The
ex-communication of the Catholicos by the Patriarch was invalid.
7. All
churches, except those which are of Evangelistic Association or Simhasna or St.
Mary are under spiritual and temporal control of the Malankara Association in
accordance with 1934 Constitution..
Legal
issues of jurisdiction, maintainability of the suits, ex-communication of the
Catholico, authenticity of the canon, res judicata of the findings recorded in
the Samudayam Suit, relationship of Malankara Association with Parish Churches
having been resolved not much difficulty remains in the manner in which these appeals
should be decided. But before doing so the stage is also ripe for recording the
deep anguish on baffling tenacity, to fight till finish, between two groups,
rather, members of the same family of a community which is, a living tradition
of faith and culture' which teaches honesty, simplicity and above all
sacrifice. What is astonishing is that the two groups have had several rounds
of bouts in the courts, where mass evidence both oral and documentary was led
not on ideological clash, religious difference, theological conflict or any
scriptural dispute or controversy about the right of worship, rituals and
ceremonies or belief and faith surfaced but on matters which appear to be
extraneous to establishment of the Syrian church a religious institution which
has a glorious history and proud record of service. Mr. Parasaran was justified
in submitting that Syrian churches could not be thought of without Patriarch of
Antioch. But where is the dispute about it. Even the Catholicos acknowledge
that he is the highest spiritual head. Extent of his powers and prerogative and
not the existence or his being highest spiritual authority was disputed.
Therefore, in nutshell the entire exercise was much ado about nothing. If the
Catholicos went to one extreme and claimed that a declaration be granted that
the Church had become autocephalous then the Patriarch went to other extreme by
raising all possible defence denying even the most basic and fundamental
concepts which had been settled either by judicial decision or the Constitution
and Kalpanas issued from time to time. Even when Patriarch of Antioch was
constituted in the meeting of Nicea held in 325 A.D. the other higher spiritual
authority was the Catholico of the East. It was agreed even at that time that
the Catholico could perform every spiritual function but the Patriarch had the
overall superiority.
There
is no deviation from that, except to the extent it is provided in the
Constitution with consent of all and in accordance with the convention and
custom which has developed for all these long years. Therefore, in order to
bring down the curtain and avoid any future digging of the grave activated by
personal prejudices and rivalry, it is necessary to hold that the Constitution
of 1934 as amended from time to time accepted and acted upon till the spurt of
activities in 1970 shall be taken as final, governing the right and
relationship of all the parties.
When
hearing of these appeals commenced it was felt both at the outset and in the
midst that if both parties agreed, the dispute could be referred to some
high-powered committee of religious authorities. But probably the issue being
less religious and more legalistic and technical, both the parties through
their counsel reposed confidence in this Court and entreated the Bench to bring
an end to this litigation. Therefore, now after dealing with various legal
matters which could not have probably been satisfactorily resolved it is
appropriate to declare that,
(1)
Relationship between the two spiritual superiors, that is, the patriarch of Antioch and Catholico of the East at
Malankara is neither of superior nor subordiante but of two independent
spiritual authorities with Patriarch at the highest in the hierarchy
(2)
The Catholicos and the Patriarch are declared as followers of one creed,namely
, Syrian Orthodox Church.
(3)
The Constitution framed by the Malankara Association as amended from time to
time shall govern the Churches attached to the Malankara Association.
Before
concluding it may be observed that while highlighting the relationship between
Malankara Association and the Parish Churches, it was submitted by Mr.
Parasaran that the provisions in the Constitution permitting every church to
send same number of representatives irrespective of the strength of churches
was not very fair. May be. But this is a provision governing matters not only
of administration of churches but of faith and religion. The Malankara
Association is like the executive of the Malankara Church to exercise control
over religion and temporal matters. The Courts' function is restricted to
ensure its proper implementation and not to determine whether the provisions in
the Constitution framed by the religious body was fair or unfair. Religion is
not governed, necessarily, by logic. In any case, it is not in the domain of
secular courts to substitute its own opinion of fairness. Further, no
foundation was laid for it either in the pleading in the trial court or in the
SLPs filed in this Court nor any argument appears to have been advanced either
before the Single Judge or the Division Bench. In fact, if the figures given in
the Encyclopedia of Religion is any guide then the numerical strength of
Catholicos in 1970 was more than the Patriarch. However paragraphs 120 and 121
of the Constitution of 1934 provide for a Rule Commitee which is empowered to
amend the Constitution from time to time. The grievance, therefore of fair
representation, if it has any substance, can be raised before the Committee.
Back