Law Web: Whether Civil court has jurisdiction in every case where the dispute is of civil nature?

Supreme Court of India

Most. Rev. P.M.A. Metropolitan & ... vs Moran Mar Marthoma & Anr on 20 June, 1995

BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
JEEVAN REDDY, B.P. (J)
SEN, S.C. (J)

Equivalent citations: 1995 AIR 2001, 1995 SCC Supl. (4) 286

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?

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 ?

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 interpleader 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 chargesheet 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.

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 c

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Friday, 26 October 2012

Whether Civil court has jurisdiction in every case where the dispute is of civil nature?

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