REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6263-6265 OF 2001
MATHEWS MAR KOORILOS (DEAD)
AND ANR. ETC. ….Appellants
Versus
M. PAPPY (DEAD) AND ANOTHER ETC. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
Suit O.S. No.187 of 1977 was filed by appellant
No.1/Metropolitan of Quilon Diocese of the Malankara Orthodox
Syrian Church and appellant No.2/Vicar appointed by him for St.
Mary’s Church, Kattachira. Defendants/respondents in the suit
represent the Parishioners of the Church. Plaintiffs/appellants inter
alia prayed for a declaration that the Quilon Metropolitan and the
Vicars appointed by him have exclusive right to conduct religious
services in the plaint church, Cemetery and Kiurisumthotty and
prayed for prohibitory injunction restraining the defendants and
1
others who do not obey the plaintiffs/appellants from entering the
plaint church and plaint schedule properties.
2. Case of the appellants is that as per Ext.-A3 (original of which
is Ext.-B19) assignment-cum-gift deed dated 29.06.1972, the first
defendant C.K. Koshy assigned the plaint properties along with the
church and cemetery etc. situated thereon, to the Metropolitan,
Quilon Diocese and that they are entitled to conduct religious
services and to manage the church and its properties. The
Parishioners who question such authority are not entitled to hold
any office as members of the Church Committee or to enter the
church.
3. Defendants/respondents who are said to be the
representatives of the Parishioners contended that the Church was
founded with the object of conducting religious services by religious
dignitaries who possess the spiritual grace transmitted from the
Patriarch of Antioch and all the East, for the benefit of the
Parishioners. The church and its properties constitute a trust and
can be used only for the purpose for which it was founded. The
respondents/defendants contended that the plaintiffs/appellants
have repudiated and defied the spiritual powers of the Patriarch and
the appellants/plaintiffs are not entitled to conduct any religious
services in the plaint church. According to them, the plaint church is
2
administered under the Constitution framed by the Parishioners
marked as Ext.-B9 dated 23.01.1959 and no priest can function in
the church without the consent of the Parishioners.
4. The Parishioners/respondents have filed a separate suit in
O.S. No.17 of 1976 challenging the validity of Ext.-A3-Sale-cum-Gift
Deed (dated 29.06.1972) in favour of Quilon Metropolitan. On the
same grounds taken by them in the other suit, they alleged that as
beneficiaries of the Church and as its Managing Committee
Members, they are entitled to see that its properties are not lost.
They prayed for a decree declaring that Ext.-A3-Sale-cum-Gift Deed
is ab initio void and for a perpetual injunction restraining the
Metropolitan from implementing any of the provisions in the said
document.
5. The trial court vide common judgment dated 06.03.1986
dismissed the suit O.S. No.17 of 1976 filed by the respondents and
decreed the appellant’s suit O.S. No.187 of 1977, declaring that the
appellants have the right to conduct religious services in the plaint
church and cemetery. The trial court granted permanent injunction
restraining the respondents/defendants and persons who do not
obey the plaintiffs/appellants from entering the church and the plaint
schedule properties and conducting religious services, and
obstructing others who obey the plaintiffs/appellants. The
3
respondents/defendants were also restrained from obstructing the
appellants in completing the construction of the Kattachira church
building or attending to its repairs.
6. Being aggrieved, the respondents/defendants filed appeals
A.S. Nos.140 and 142 of 1986 in O.S. No.187 of 1977 before the
High Court of Kerala challenging the common judgment dated
06.03.1986. The Single Judge dismissed both the appeals and held
as under:-
1. Various clauses of Ext. A3 gift deed dated 29.06.1972 make it
clear that the executant Koshy gave the assignment-cum-gift in
favour of the Quilon Metropolitan intending that it may be
treated as Bhadrasanam properties. Ext. A3 also provided that
the Metropolitan may directly administer the said properties or
through his representative and that the Parishioners and the
Managing Committee should abide by the dictates of the
Metropolitan from time to time. In view of the unambiguous
terms in Ext. A3, the parishioners are not entitled to question
the right of Metropolitan over the plaint church and its properties
and its right to conduct religious services.
2. Ext. A3 makes it clear that a particular individual has gifted the
properties in favour of the first appellant Metropolitan to be
treated as Bhadrasanam properties and subject to the control of
the first appellant Metropolitan. Once it is recognised that the
properties are Bhadrasanam properties over which the first
appellant Metropolitan can exercise absolute control and
management, appellants are entitled to these reliefs.
3. The 1934 constitution shall govern and regulate the affairs of
the Parish Churches too. The Parish Churches are not
exempted from the clauses of the 1934 Constitution and they
are equally constituent of the Malankara Association though it
enjoys some degree of autonomy.
4. The ex-communication of Catholicos by the Patriarch and/or by
the Universal Synod is invalid.
The Single Judge also held that it is Vicar who should conduct the
election as provided in Ext.-A1 Constitution. However, in order to
4
allay the apprehension of both parties and to ensure that the
election is free and fair and in accordance with Ext.-A1 Constitution,
the Single Judge appointed two observers to oversee the process of
election right from the beginning to ensure that the conditions in
Ext.-A1 1934 Constitution and the directions of the Supreme Court
are followed.
7. Being aggrieved, the defendants/respondents filed appeals
A.F.A. Nos.26-27 of 1997 before the Division Bench. The Division
Bench vide common judgment dated 04.04.2000 allowed CRP
No.1314 of 1998 and disposed of AFA Nos.26-27 of 1997 and set
aside the findings of Single Judge. The Division Bench recorded its
conclusions as under:-
That the civil courts have jurisdiction to entertain suits relating
to church and its properties and to mould reliefs in such a way
as to promote the paramount interest of the parishioners and
to reflect the will of the community.
That though the title of the properties vests with the Quilon
diocese, the properties including church, cemetery etc. under
Ext.-A3 are still under the control and management of the
parishioners of St. Marys Syrian Church, Kattachira.
That the first plaintiff-Metropolitan of Quilon Diocese had no
authority to appoint Vicar for the control and management of
the plaint church and its properties though Ext.-A3-Sale-cumGift
Deed executed by C.K. Koshy in favour of Quilon Diocese
and C.K. Koshy, executor of Ext.-A3-Sale-cum-Gift Deed
intended to transfer his right in the properties over for the
5
benefit of entire members of the Church and that the
Parishioners have the power to hold the movable and
immovable properties of St. Mary’s Church.
That the provisions of the 1934 Constitution sufficiently
establish that the Parishioners have power to hold movable
and immovable items of properties.
8. We have heard learned senior counsel for the parties at
length. We have considered the written submissions and perused
the impugned judgment and other materials on record.
9. The issue of spiritual and temporal authority between
Malankara Church and the Patriarch of Antioch has been the
subject matter of several rounds of litigations in various matters right
from the year 1879. It is not necessary for us to elaborately refer to
those litigations; suffice to refer the litigations which led to the
Constitution Bench judgment in Moram Mar Basselios Catholicos
v. Thukalan Paulo Avira and others AIR 1959 SC 31 and the
judgment of three-Judges Bench in Most Rev. P.M.A. Metropolitan
and others v. Moran Mar Marthoma and another 1995 Supp (4)
SCC 286 and the latest judgment in K.S. Varghese and others v.
Saint Peter’s and Saint Paul’s Syrian Orthodox Church and
others (2017) 15 SCC 333.
10. Samudayam Suit:- The Patriarch group in the year 1938 filed
Samudayam suit in the District Court, Kottayam for a declaration of
their title as trustees of Samudayam properties (common properties
6
of the Malankara Church) and for a further declaration that the
defendants to that suit belonging to Catholicos group, were not
lawful trustees. The suit was dismissed by the trial court on
18.01.1943 against which the plaintiff thereon filed an appeal which
was allowed on 08.08.1946 and the suit was decreed1
by majority of
Judges by 2:1. The matter was carried to this Court. This Court
directed2
the High Court to rehear the appeal on all the points.
Thereafter appeal was reheard and was allowed vide judgment
dated 13.12.1956. The suit was decreed. The defendants,
Catholicos group, filed an appeal in this Court which was allowed on
12.09.1958 as per Moram Mar Basselios Catholicos v. Thukalan
Paulo Avira and others AIR 1959 SC 31. Samudayam suit has
been elaborated and discussed in paras (17) to (21) in K.S.
Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333.
11. In the year 1979, Catholicos filed O.S. No. 4 of 1979 inter alia
praying that Malankara Church be declared Episcopal in character
and that it is governed in its administration by the Constitution of the
Malankara Church. The Catholicos sought for further declaration
1
Moram Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose
Athanasius & Ors. 1951 SCC OnLine Ker 7
2
Moram Mar Basselios Catholicos & Anr. v. Mar Poulose Athanasius
& Ors. AIR 1954 SC 526
7
that no metropolitan, priest or deacon can officiate in any of the
Malankara Churches unless appointed under 1934 Constitution.
After dismissal of the suit by the Single Judge of the High Court, the
Division Bench allowed the appeal thereby upholding the claim of
Catholicos group to larger extent. The matter finally reached to
Supreme Court. The Supreme Court in Most Rev. P.M.A.
Metropolitan and others v. Moran Mar Marthoma and another
1995 Supp (4) SCC 286 held that the power and authority of the
Catholicos was affirmed in Kalpana A-13 and A-14 and was
reinforced and enlarged in 1934 Constitution. It was held that 1934
Constitution is applicable to Malankara Church and its parish
Churches and organisations recognising that the Malankara has
control over both spiritual and communal affairs of the Malankara
Church. It was held that the Patriarch group cannot question the
legality and validity of the 1934 Constitution. The court issued
further directions for amendment of clause 68 of Constitution to
bring about proportional representation based on the size of
congregation of each Parish Church.
12. In P.M.A. Metropolitan3
, this Court has inter alia recorded the
conclusions in para (89) as under:-
3
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
8
“89. 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 cognizable, except in very rare cases where the
declaration sought may be what constitutes religious rite.
………
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 groups 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 excommunicate
Catholicos.
6. The excommunication of the Catholicos by the Patriarch was invalid.
7. All churches, except those which are of Evangelistic Association or
Simhasana or St. Mary are under spiritual and temporal control of
the Malankara Association in accordance with 1934 Constitution.”
The judgment in P.M.A. Metropolitan4 has been elaborately
referred to and discussed in paras (26) to (36) in K.S. Varghese
case5
.
4
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
5
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
9
13. Amendment of the Constitution as per P.M.A.
Metropolitan6
judgment:- Amendment proposals were considered
by this Court in P.M.A. Metropolitan7
. This Court permitted the
amendment and directed substitution of Section 68 corresponding
to Section 71 and also directed that the election shall take place
within three months on the basis of Articles 71 and 46 as amended.
This Court further directed status quo to be maintained until the new
Managing Committee was elected. Subsequently, the matter came
up again before this Court pursuant to the P.M.A. Metropolitan8
and revised decree was passed in Most Rev. P.M.A. Metropolitan
and others v. Moran Mar Marthoma Mathews and another (1996)
8 SCC 470. The court directed certain modifications in paras (2),
(3) and (4). This Court inter alia held thus:-
“5. The decree shall then say that the decree passed by the High
Court (decree under appeal) shall stand modified to the extent
indicated above.
PART II
6
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
7
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
8
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
10
6. In Part II of the order dated 25.03.19969
, the following sentence
shall be inserted before the last sentence: ‘The above direction is
subject to the condition that any and every person claiming to hold
any office or post in this Church shall be bound by and shall swear
allegiance to the 1934 Constitution.’” [Referred to and quoted in
para (39) of K.S. Varghese case10]
The judgment in P.M.A. Metropolitan11 was implemented in
execution proceedings before the Kerala High Court. The details of
the execution proceedings are discussed in paras (40) to (42) in
K.S. Varghese case12
.
14. Dispute arose relating to Kolenchery Church, Varikoli Church
and Mannathur Church regarding which civil suits were filed in a
representative capacity. The dispute arising from all these three
Churches travelled to this Court. This Court again considered the
earlier judgments in Moram Mar Basselios Catholicos v.
Thukalan Paulo Avira and others AIR 1959 SC 31 and Most Rev.
P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286. After considering the
9
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma
Mathews and another (1996) 8 SCC 470
10
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
11
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
12
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
11
submissions on both sides, in the light of Thukalan Paula Avira13
and P.M.A. Metropolitan14 judgments and after such elaborate
consideration, this Court in K.S. Varghese case15 summarised the
conclusions inter alia as under:-
“228. Resultantly, based on the aforesaid findings in the judgment,
our main conclusions, inter alia, are as follows:
228.1. Malankara Church is episcopal in character to the extent it is
so declared in the 1934 Constitution. The 1934 Constitution fully
governs the affairs of the parish churches and shall prevail.
228.2. The decree in the Most Rev. P.M.A. Metropolitan v. Moran
Mar Marthoma 1995 Supp (4) 286 is completely in tune with the
judgment. There is no conflict between the judgment and the
decree.
228.3. The Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma
1995 Supp (4) 286 arising out of the representative suit is binding
and operates as res judicata with respect to the matters it has
decided, in the wake of the provisions of Order 1 Rule 8 and
Explanation 6 to Section 11 CPC. The same binds not only the
parties named in the suit but all those who have interest in the
Malankara Church. Findings in earlier representative suit i.e.
Samudayam suit are also binding on parish churches/parishioners
to the extent issues have been decided.
228.4. As the 1934 Constitution is valid and binding upon the parish
churches, it is not open to any individual Church, to decide to have
their new Constitution like that of 2002 in the so-called exercise of
right under Articles 25 and 26 of the Constitution of India. It is also
not permissible to create a parallel system of management in the
Churches under the guise of spiritual supremacy of the Patriarch.
228.5. The Primate of Orthodox Syrian Church of the East is
Catholicos. He enjoys spiritual powers as well, as the Malankara
Metropolitan. Malankara Metropolitan has the prime jurisdiction
regarding temporal, ecclesiastical and spiritual administration of
Malankara Church subject to the riders provided in the 1934
Constitution.
13
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
14
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
15
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
12
228.6. Full effect has to be given to the finding that the spiritual
power of the Patriarch has reached to a vanishing point.
Consequently, he cannot interfere in the governance of parish
churches by appointing Vicar, priests, Deacons, Prelates (High
Priests), etc. and thereby cannot create a parallel system of
administration. The appointment has to be made as per the power
conferred under the 1934 Constitution on the Diocese,
Metropolitan, etc. concerned.
228.7. Though it is open to the individual member to leave a
Church in exercise of the right not to be a member of any
association and as per Article 20 of the Universal Declaration of
Human Rights, the Parish Assembly of the Church by majority or
otherwise cannot decide to move Church out of the Malankara
Church. Once a trust, is always a trust.
228.8. When the Church has been created and is for the benefit of
the beneficiaries, it is not open for the beneficiaries, even by a
majority, to usurp its property or management. The Malankara
Church is in the form of a trust in which, its properties have vested.
As per the 1934 Constitution, the parishioners though may
individually leave the Church, they are not permitted to take the
movable or immovable properties out of the ambit of the 1934
Constitution without the approval of the Church hierarchy.
228.9. The spiritual power of Patriarch has been set up by the
appellants clearly in order to violate the mandate of the Most Rev.
P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 of
this Court which is binding on the Patriarch, Catholicos and all
concerned.
228.10. As per the historical background and the practices which
have been noted, the Patriarch is not to exercise the power to
appoint Vicar, priests, Deacons, Prelates, etc. Such powers are
reserved to other authorities in the Church hierarchy. The Patriarch,
thus, cannot be permitted to exercise the power in violation of the
1934 Constitution to create a parallel system of administration of
Churches as done in 2002 and onwards.
228.11. This Court has held4 in 1995 that the unilateral exercise of
such power by the Patriarch was illegal. The said decision has also
been violated. It was only in the alternative this Court held in the
Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp
(4) 286 that even if he has such power, he could not have
exercised the same unilaterally which we have explained in this
judgment.
228.12. It is open to the parishioners to believe in the spiritual
supremacy of the Patriarch or apostolic succession but it cannot be
used to appoint Vicars, priests, Deacons, Prelates, etc. in
contravention of the 1934 Constitution.
228.13. Malankara Church is episcopal to the extent as provided in
the 1934 Constitution, and the right is possessed by the Diocese to
settle all internal matters and elect their own Bishops in terms of the
said Constitution.
13
228.14. Appointment of Vicar is a secular matter. There is no
violation of any of the rights encompassed under Articles 25 and 26
of the Constitution of India, if the appointment of Vicar, priests,
Deacons, Prelates (High priests), etc. is made as per the 1934
Constitution. The Patriarch has no power to interfere in such
matters under the guise of spiritual supremacy unless the 1934
Constitution is amended in accordance with law. The same is
binding on all concerned.
228.15. Udampadies do not provide for appointment of Vicar,
priests, Deacons, Prelates, etc. Even otherwise once the 1934
Constitution has been adopted, the appointment of Vicar, priests,
Deacons, Prelates (High priests), etc. is to be as per the 1934
Constitution. It is not within the domain of the spiritual right of the
Patriarch to appoint Vicar, priests, etc. The spiritual power also
vests in the other functionaries of the Malankara Church.
228.16. The functioning of the Church is based upon the division of
responsibilities at various levels and cannot be usurped by a single
individual howsoever high he may be. The division of powers under
the 1934 Constitution is for the purpose of effective management of
the Church and does not militate against the basic character of the
Church being episcopal in nature as mandated thereby. The 1934
Constitution cannot be construed to be opposed to the concept of
spiritual supremacy of the Patriarch of Antioch. It cannot as well, be
said to be an instrument of injustice or vehicle of oppression on the
parishioners who believe in the spiritual supremacy of the Patriarch.
228.17. The Church and the cemetery cannot be confiscated by
anybody. It has to remain with the parishioners as per the
customary rights and nobody can be deprived of the right to enjoy
the same as a Parishioner in the Church or to be buried honourably
in the cemetery, in case he continues to have faith in the Malankara
Church. The property of the Malankara Church in which is also
vested the property of the parish churches, would remain in trust as
it has for time immemorial for the sake of the beneficiaries and no
one can claim to be owners thereof even by majority and usurp the
Church and the properties.
228.18. The faith of Church is unnecessarily sought to be divided
vis-à-vis the office of Catholicos and the Patriarch as the common
faith of the Church is in Jesus Christ. In fact an effort is being made
to take over the management and other powers by raising such
disputes as to supremacy of Patriarch or Catholicos to gain control
of temporal matters under the garb of spirituality. There is no good
or genuine cause for disputes which have been raised.
228.19. The authority of Patriarch had never extended to the
government of temporalities of the Churches. By questioning the
action of the Patriarch and his undue interference in the
administration of Churches in violation of the Most Rev. P.M.A.
Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286, it cannot
be said that the Catholicos faction is guilty of repudiating the
spiritual supremacy of the Patriarch. The Patriarch faction is to be
14
blamed for the situation which has been created post 1995
judgment4. The property of the Church is to be managed as per the
1934 Constitution. The judgment of 19954 has not been respected
by the Patriarch faction which was binding on all concerned. Filing
of writ petitions in the High Court by the Catholicos faction was to
deter the Patriarch/his representatives to appoint the Vicar, etc. in
violation of the 1995 judgment4 of this Court.
228.20. The 1934 Constitution is enforceable at present and the
plea of its frustration or breach is not available to the Patriarch
faction. Once there is Malankara Church, it has to remain as such
including the property. No group or denomination by majority or
otherwise can take away the management or the property as that
would virtually tantamount to illegal interference in the management
and illegal usurpation of its properties. It is not open to the
beneficiaries even by majority to change the nature of the Church,
its property and management. The only method to change
management is to amend the Constitution of 1934 in accordance
with law. It is not open to the parish churches to even frame byelaws
in violation of the provisions of the 1934 Constitution.
228.21. The Udampadies of 1890 and 1913 are with respect to
administration of churches and are not documents of the creation of
the trust and are not of utility at present and even otherwise cannot
hold the field containing provisions inconsistent with the 1934
Constitution, as per Section 132 thereof. The Udampady also
cannot hold the field in view of the authoritative pronouncements
made by this Court in the earlier judgments as to the binding nature
of the 1934 Constitution.
228.22. The 1934 Constitution does not create, declare, assign,
limit or extinguish, whether in present or future any right, title or
interest, whether vested or contingent in the Malankara Church
properties and only provides a system of administration and as
such is not required to be registered. In any case, the Udampadies
for the reasons already cited, cannot supersede the 1934
Constitution only because these are claimed to be registered.
228.23. In otherwise episcopal Church, whatever autonomy is
provided in the Constitution for the Churches is for management
and necessary expenditure as provided in Section 22, etc.
228.24. The formation of the 2002 Constitution is the result of illegal
and void exercise. It cannot be recognised and the parallel system
created thereunder for administration of parish churches of
Malankara Church cannot hold the field. It has to be administered
under the 1934 Constitution.
228.25. It was not necessary, after amendment of the plaint in
Mannathoor Church matter, to adopt the procedure once again of
representative suit under Order 1 Rule 8 CPC. It remained a
representative suit and proper procedure has been followed. It was
not necessary to obtain fresh leave.
15
228.26. The 1934 Constitution is appropriate and adequate for
management of the parish churches, as such there is no necessity
of framing a scheme under Section 92 CPC.
228.27. The plea that in face of the prevailing dissension between
the two factions and the remote possibility of reconciliation, the
religious services may be permitted to be conducted by two Vicars
of each faith cannot be accepted as that would amount to
patronising parallel systems of administration.
228.28. Both the factions, for the sake of the sacred religion they
profess and to pre-empt further bickering and unpleasantness
precipitating avoidable institutional degeneration, ought to resolve
their differences if any, on a common platform if necessary by
amending the Constitution further in accordance with law, but by no
means, any attempt to create parallel systems of administration of
the same Churches resulting in law and order situations leading to
even closure of the Churches can be accepted.”
15. Though various arguments were advanced by learned senior
counsel Mr. Shyam Divan to urge that the conclusions arrived in
K.S. Varghese case16 is not in consonance with the judgment in
P.M.A. Metropolitan17
, the same do not merit acceptance. Having
carefully gone through the conclusions in para (228) of the K.S.
Varghese case18
, in our view, the conclusions are well in
consonance with the Thukalan Paula Avira19 and P.M.A.
Metropolitan20 judgments. The detailed discussions and
16
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
17
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
18
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
19
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira AIR 1959 SC
31
20
16
conclusions arrived at in K.S. Varghese case21 settles the disputes
between the appellant Patriarch and the respondents Malankara.
16. As per the consistent view taken in the above judgments,
1934 Constitution is valid and binding upon the Parishioners. The
Parish Church has to be managed as per the powers conferred
under the 1934 Constitution. It is not open to any individual church
to have a parallel system of management in the churches under the
guise of spiritual supremacy in the Patriarch. As per the consistent
findings in the above judgments, the prime jurisdiction with respect
to the temporal, ecclesiastical and spiritual administration of the
Malankara Church is vested with Malankara Metropolitan and other
authorities appointed by Malankara Metropolitan. Malankara
Metropolitan enjoys all the temporal, ecclesiastical and spiritual
administrative powers (Para (145) of K.S. Varghese case22). As
held in K.S. Varghese case23
, “Full effect has to be given to the
finding that the spiritual power of the Patriarch has reached to a
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
21
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
22
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
23
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
17
vanishing point. Consequently, he cannot interfere in the
governance of parish churches by appointing Vicar, priests,
Deacons, Prelates (High Priests), etc. and thereby cannot create a
parallel system of administration. …….”.
17. The present matter relates to the Parish Church-St. Mary’s
Church, Kattachira. The plaint Church was listed as Serial No.41-
among 1064 Parish Churches included in the plaint Schedule in the
representative suit in OS No.4 of 1979. Ext.-A3-Sale-cum-Gift Deed
was executed by C.K. Koshy in favour of Metropolitan of Quilon
Diocese. The recitals in Ext.-A3 make it clear that C.K. Koshy
executed the Sale-cum-Gift Deed in favour of Metropolitan of Quilon
Diocese intending that it may be treated as Bhadrasanam
properties. Ext.-A3 provided that the Metropolitan may directly
administer the said properties or through his representatives. Ext.-
A3 further provided that the Parishioners and the Managing
Committee should abide by the dictates of the Metropolitan from
time to time. The recitals in Ext.-A3 make it clear that St. Mary’s
Orthodox Syrian Church, Kattachira and the properties have been
gifted in favour of first plaintiff-Metropolitan Malankara to be treated
as Bhadrasanam properties subject to the control of the
Metropolitan in appointing Vicar, Priests etc. As per recitals in Ext.-
18
A3, the plaint church and the properties come under the spiritual
and the temporal control of the Malankara Metropolitan.
18. As per the decision of the Supreme Court in the Constitution
Bench in Thukalan Paula Avira24 and P.M.A. Metropolitan25, St.
Mary’s Church is bound by Ext.-A1 Constitution and the control of
the Metropolitan. Having held that the 1934 Constitution is binding
upon the Parish Church and its Parishioners, the Division Bench
was not right in holding that the Metropolitan had no power to
appoint Vicar, Priests etc. The conclusion of the Division Bench that
the Parishioners have the right to make all such appointments and
to manage the affairs of St. Mary’s Church is directly contrary to the
express provisions of the 1934 Constitution and the findings of the
Supreme Court in P.M.A. Metropolitan26. Considering the recitals
in Ext.-A3 and the judgments of the Supreme Court in Thukalan
Paula Avira27 and P.M.A. Metropolitan28, the trial court and the
24
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
25
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
26
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
27
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
28
19
Single Judge rightly held that the St. Mary’s Church is a constituent
of Malankara and the power to appoint Vicar, Priests etc. is vested
with the first plaintiff-Malankara Metropolitan or his representatives.
19. Metropolitan of Quilon Diocese was exercising control over St.
Mary’s Church is also evident from various document adduced in
evidence referred to in detail in the judgment of the trial court as
under:-
“18. …….Ever since the reproachment was made between the patriarch
group and the Catholicose group after the judgment of the Supreme
Court in the above case in 1958, the plaint church has paid dues both to
the Diocesan Metropolitan and the Catholicose in recognition of their
spiritual control over the church. Exts. A4 and A6 would show that the
plaint church was sending its delegates for representing it in the
Malankara Syrian Christian association. The priests are appointed in the
church by the first plaintiff and the church was sending to him the salary
due to the priests regularly. Exts. A14 to A17 and A23 to A32 will bear
this out. Several other dues payable to the Metropolitan and Catholicose
are also seen to have been sent by the plaint church accepting the
spiritual supremacy of the Catholicose and the Metropolitan under him.
Exts. A18 is the printed annual report of the Quilon Bhadrasanam for the
year 1974 showing the contributions made by the Bhadrasanam for the
building of the plaint church. Exts. A7 and A8 are Kalpanas issued by
the first plaintiff appointing priests to the plaint church…..”
20. The above exhibits referred to in the judgment of the trial court
namely appointment of the Priests to the plaint church by the
Metropolitan and the regular payment of salary to the Priests so
appointed and the church sending its delegates for representing it in
the Malankara Church Association and other documents would
amply show that the plaint church has been a constituent of
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
20
Metropolitan Malankara and the churches and its properties come
under the spiritual and temporal control of Catholicos.
21. DW-1 has spoken about the pothuyogam of the plaint church
which has taken the decision that Ext.-A1-1934 Constitution is not
suitable to the church and the sabha and that as per the said
Resolution, the pothuyogam had decided to request the authorities
of the Malankara Church or Sabha to repudiate the 1934
Constitution (Ext.-A1) which was then in force. As rightly observed
by the trial court, once 1934 Constitution (Ext.-A1) had been
adopted by the plaint church and was in force, there can be no
question of requesting the authorities to repudiate it. This is also an
indication to show that the plaint church has accepted the 1934
Constitution and the spiritual authority of the Catholicos. The finding
of the Division Bench that the Metropolitan had no authority to
appoint a Vicar is directly opposed to the provisions of the 1934
Constitution and also recitals in Ext.-A3-Sale-cum-Gift Deed and
number of other documents adduced by the appellants. The finding
of the Division Bench that the Metropolitan had no authority to
appoint Vicar and Priests is directly in contradiction to the
21
Constitution Bench judgment in Thukalan Paula Avira29 and P.M.A.
Metropolitan30
.
22. Contention of the respondent is that the issue regarding the
interpretation of Articles 25 and 26 of the Constitution of India ought
to be determined by a Bench comprising at least five Judges of the
Supreme Court under Article 145 (3) of the Constitution of India is
not tenable. The contention of Patriarch that the Parishioners have
a right of freedom of religion and the question of law regarding
fundamental rights under Articles 25 and 26 of the Constitution of
India had already been raised and elaborately argued by different
senior counsels in K.S. Varghese case31 (vide paras 57.2, 57.2.1,
57.2.2, 57.4, 59.2, 60, 62 etc.). Contention relating to violation of
Articles 25 and 26 of the Constitution of India has been elaborately
considered in K.S. Varghese case32 under sub-heading “In re:
parishioners have a right to follow their faith under Article 25 and
appointment of Vicar, priest and deacons, etc. and manage affairs
29
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
30
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
31
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
32
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
22
under Article 26 of the Constitution of India”. After referring to
various judgments rejecting the contention of the Patriarch of
Antioch as to the violation of the right under Articles 25 and 26 of
the Constitution of India. In para (146) of the judgment, it was held
as under:-
“146. …….. Spiritual power is also with various authorities like
Catholicos, Malankara Metropolitan, etc. Thus it is too far-fetched
an argument that the Patriarch of Antioch or his delegate should
appoint a Vicar or priest. There is no violation of any right of Articles
25 or 26 of the Constitution of India. Neither any of the provisions
relating to appointment of the Vicar can be said to be in violation of
any of the rights under Articles 25 and 26 of the Constitution of
India. The 1934 Constitution cannot be said to be in violation of
Articles 25 and 26 of the Constitution of India. It was suggested that
the faith involved in the present case refers to apostolic succession
from Jesus Christ viz. the blessings and grace of Christ descends
through an apostle i.e. St. Peter or St. Thomas as the case may be,
and from the said apostle to the Pope/Patriarch who appoints a
Vicar. The argument ignores and overlooks other offices that are inbetween
like Catholicos, Malankara Metropolitan, and Diocesan
Metropolitan, etc. It is not necessary for the Pope and the Patriarch
to appoint Vicar because management of a Church is not a
religious ritual.”
We endorse the above view taken in K.S. Varghese case33 that the
1934 Constitution cannot be said to be in violation of Articles 25 and
26 of the Constitution of India.
23. The impugned judgment of the Division Bench is in
contradiction to the judgments of the Supreme Court in Thukalan
33
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
23
Paula Avira34, P.M.A. Metropolitan35 and K.S. Varghese case36
and the same cannot be sustained. In the result, the impugned
judgment is set aside and these appeals are allowed.
.…….…………...………J.
[RANJAN GOGOI]
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[NAVIN SINHA]
New Delhi;
August 28, 2018
34
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
35
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
36
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
24
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6263-6265 OF 2001
MATHEWS MAR KOORILOS (DEAD)
AND ANR. ETC. ….Appellants
Versus
M. PAPPY (DEAD) AND ANOTHER ETC. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
Suit O.S. No.187 of 1977 was filed by appellant
No.1/Metropolitan of Quilon Diocese of the Malankara Orthodox
Syrian Church and appellant No.2/Vicar appointed by him for St.
Mary’s Church, Kattachira. Defendants/respondents in the suit
represent the Parishioners of the Church. Plaintiffs/appellants inter
alia prayed for a declaration that the Quilon Metropolitan and the
Vicars appointed by him have exclusive right to conduct religious
services in the plaint church, Cemetery and Kiurisumthotty and
prayed for prohibitory injunction restraining the defendants and
1
others who do not obey the plaintiffs/appellants from entering the
plaint church and plaint schedule properties.
2. Case of the appellants is that as per Ext.-A3 (original of which
is Ext.-B19) assignment-cum-gift deed dated 29.06.1972, the first
defendant C.K. Koshy assigned the plaint properties along with the
church and cemetery etc. situated thereon, to the Metropolitan,
Quilon Diocese and that they are entitled to conduct religious
services and to manage the church and its properties. The
Parishioners who question such authority are not entitled to hold
any office as members of the Church Committee or to enter the
church.
3. Defendants/respondents who are said to be the
representatives of the Parishioners contended that the Church was
founded with the object of conducting religious services by religious
dignitaries who possess the spiritual grace transmitted from the
Patriarch of Antioch and all the East, for the benefit of the
Parishioners. The church and its properties constitute a trust and
can be used only for the purpose for which it was founded. The
respondents/defendants contended that the plaintiffs/appellants
have repudiated and defied the spiritual powers of the Patriarch and
the appellants/plaintiffs are not entitled to conduct any religious
services in the plaint church. According to them, the plaint church is
2
administered under the Constitution framed by the Parishioners
marked as Ext.-B9 dated 23.01.1959 and no priest can function in
the church without the consent of the Parishioners.
4. The Parishioners/respondents have filed a separate suit in
O.S. No.17 of 1976 challenging the validity of Ext.-A3-Sale-cum-Gift
Deed (dated 29.06.1972) in favour of Quilon Metropolitan. On the
same grounds taken by them in the other suit, they alleged that as
beneficiaries of the Church and as its Managing Committee
Members, they are entitled to see that its properties are not lost.
They prayed for a decree declaring that Ext.-A3-Sale-cum-Gift Deed
is ab initio void and for a perpetual injunction restraining the
Metropolitan from implementing any of the provisions in the said
document.
5. The trial court vide common judgment dated 06.03.1986
dismissed the suit O.S. No.17 of 1976 filed by the respondents and
decreed the appellant’s suit O.S. No.187 of 1977, declaring that the
appellants have the right to conduct religious services in the plaint
church and cemetery. The trial court granted permanent injunction
restraining the respondents/defendants and persons who do not
obey the plaintiffs/appellants from entering the church and the plaint
schedule properties and conducting religious services, and
obstructing others who obey the plaintiffs/appellants. The
3
respondents/defendants were also restrained from obstructing the
appellants in completing the construction of the Kattachira church
building or attending to its repairs.
6. Being aggrieved, the respondents/defendants filed appeals
A.S. Nos.140 and 142 of 1986 in O.S. No.187 of 1977 before the
High Court of Kerala challenging the common judgment dated
06.03.1986. The Single Judge dismissed both the appeals and held
as under:-
1. Various clauses of Ext. A3 gift deed dated 29.06.1972 make it
clear that the executant Koshy gave the assignment-cum-gift in
favour of the Quilon Metropolitan intending that it may be
treated as Bhadrasanam properties. Ext. A3 also provided that
the Metropolitan may directly administer the said properties or
through his representative and that the Parishioners and the
Managing Committee should abide by the dictates of the
Metropolitan from time to time. In view of the unambiguous
terms in Ext. A3, the parishioners are not entitled to question
the right of Metropolitan over the plaint church and its properties
and its right to conduct religious services.
2. Ext. A3 makes it clear that a particular individual has gifted the
properties in favour of the first appellant Metropolitan to be
treated as Bhadrasanam properties and subject to the control of
the first appellant Metropolitan. Once it is recognised that the
properties are Bhadrasanam properties over which the first
appellant Metropolitan can exercise absolute control and
management, appellants are entitled to these reliefs.
3. The 1934 constitution shall govern and regulate the affairs of
the Parish Churches too. The Parish Churches are not
exempted from the clauses of the 1934 Constitution and they
are equally constituent of the Malankara Association though it
enjoys some degree of autonomy.
4. The ex-communication of Catholicos by the Patriarch and/or by
the Universal Synod is invalid.
The Single Judge also held that it is Vicar who should conduct the
election as provided in Ext.-A1 Constitution. However, in order to
4
allay the apprehension of both parties and to ensure that the
election is free and fair and in accordance with Ext.-A1 Constitution,
the Single Judge appointed two observers to oversee the process of
election right from the beginning to ensure that the conditions in
Ext.-A1 1934 Constitution and the directions of the Supreme Court
are followed.
7. Being aggrieved, the defendants/respondents filed appeals
A.F.A. Nos.26-27 of 1997 before the Division Bench. The Division
Bench vide common judgment dated 04.04.2000 allowed CRP
No.1314 of 1998 and disposed of AFA Nos.26-27 of 1997 and set
aside the findings of Single Judge. The Division Bench recorded its
conclusions as under:-
That the civil courts have jurisdiction to entertain suits relating
to church and its properties and to mould reliefs in such a way
as to promote the paramount interest of the parishioners and
to reflect the will of the community.
That though the title of the properties vests with the Quilon
diocese, the properties including church, cemetery etc. under
Ext.-A3 are still under the control and management of the
parishioners of St. Marys Syrian Church, Kattachira.
That the first plaintiff-Metropolitan of Quilon Diocese had no
authority to appoint Vicar for the control and management of
the plaint church and its properties though Ext.-A3-Sale-cumGift
Deed executed by C.K. Koshy in favour of Quilon Diocese
and C.K. Koshy, executor of Ext.-A3-Sale-cum-Gift Deed
intended to transfer his right in the properties over for the
5
benefit of entire members of the Church and that the
Parishioners have the power to hold the movable and
immovable properties of St. Mary’s Church.
That the provisions of the 1934 Constitution sufficiently
establish that the Parishioners have power to hold movable
and immovable items of properties.
8. We have heard learned senior counsel for the parties at
length. We have considered the written submissions and perused
the impugned judgment and other materials on record.
9. The issue of spiritual and temporal authority between
Malankara Church and the Patriarch of Antioch has been the
subject matter of several rounds of litigations in various matters right
from the year 1879. It is not necessary for us to elaborately refer to
those litigations; suffice to refer the litigations which led to the
Constitution Bench judgment in Moram Mar Basselios Catholicos
v. Thukalan Paulo Avira and others AIR 1959 SC 31 and the
judgment of three-Judges Bench in Most Rev. P.M.A. Metropolitan
and others v. Moran Mar Marthoma and another 1995 Supp (4)
SCC 286 and the latest judgment in K.S. Varghese and others v.
Saint Peter’s and Saint Paul’s Syrian Orthodox Church and
others (2017) 15 SCC 333.
10. Samudayam Suit:- The Patriarch group in the year 1938 filed
Samudayam suit in the District Court, Kottayam for a declaration of
their title as trustees of Samudayam properties (common properties
6
of the Malankara Church) and for a further declaration that the
defendants to that suit belonging to Catholicos group, were not
lawful trustees. The suit was dismissed by the trial court on
18.01.1943 against which the plaintiff thereon filed an appeal which
was allowed on 08.08.1946 and the suit was decreed1
by majority of
Judges by 2:1. The matter was carried to this Court. This Court
directed2
the High Court to rehear the appeal on all the points.
Thereafter appeal was reheard and was allowed vide judgment
dated 13.12.1956. The suit was decreed. The defendants,
Catholicos group, filed an appeal in this Court which was allowed on
12.09.1958 as per Moram Mar Basselios Catholicos v. Thukalan
Paulo Avira and others AIR 1959 SC 31. Samudayam suit has
been elaborated and discussed in paras (17) to (21) in K.S.
Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333.
11. In the year 1979, Catholicos filed O.S. No. 4 of 1979 inter alia
praying that Malankara Church be declared Episcopal in character
and that it is governed in its administration by the Constitution of the
Malankara Church. The Catholicos sought for further declaration
1
Moram Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose
Athanasius & Ors. 1951 SCC OnLine Ker 7
2
Moram Mar Basselios Catholicos & Anr. v. Mar Poulose Athanasius
& Ors. AIR 1954 SC 526
7
that no metropolitan, priest or deacon can officiate in any of the
Malankara Churches unless appointed under 1934 Constitution.
After dismissal of the suit by the Single Judge of the High Court, the
Division Bench allowed the appeal thereby upholding the claim of
Catholicos group to larger extent. The matter finally reached to
Supreme Court. The Supreme Court in Most Rev. P.M.A.
Metropolitan and others v. Moran Mar Marthoma and another
1995 Supp (4) SCC 286 held that the power and authority of the
Catholicos was affirmed in Kalpana A-13 and A-14 and was
reinforced and enlarged in 1934 Constitution. It was held that 1934
Constitution is applicable to Malankara Church and its parish
Churches and organisations recognising that the Malankara has
control over both spiritual and communal affairs of the Malankara
Church. It was held that the Patriarch group cannot question the
legality and validity of the 1934 Constitution. The court issued
further directions for amendment of clause 68 of Constitution to
bring about proportional representation based on the size of
congregation of each Parish Church.
12. In P.M.A. Metropolitan3
, this Court has inter alia recorded the
conclusions in para (89) as under:-
3
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
8
“89. 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 cognizable, except in very rare cases where the
declaration sought may be what constitutes religious rite.
………
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 groups 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 excommunicate
Catholicos.
6. The excommunication of the Catholicos by the Patriarch was invalid.
7. All churches, except those which are of Evangelistic Association or
Simhasana or St. Mary are under spiritual and temporal control of
the Malankara Association in accordance with 1934 Constitution.”
The judgment in P.M.A. Metropolitan4 has been elaborately
referred to and discussed in paras (26) to (36) in K.S. Varghese
case5
.
4
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
5
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
9
13. Amendment of the Constitution as per P.M.A.
Metropolitan6
judgment:- Amendment proposals were considered
by this Court in P.M.A. Metropolitan7
. This Court permitted the
amendment and directed substitution of Section 68 corresponding
to Section 71 and also directed that the election shall take place
within three months on the basis of Articles 71 and 46 as amended.
This Court further directed status quo to be maintained until the new
Managing Committee was elected. Subsequently, the matter came
up again before this Court pursuant to the P.M.A. Metropolitan8
and revised decree was passed in Most Rev. P.M.A. Metropolitan
and others v. Moran Mar Marthoma Mathews and another (1996)
8 SCC 470. The court directed certain modifications in paras (2),
(3) and (4). This Court inter alia held thus:-
“5. The decree shall then say that the decree passed by the High
Court (decree under appeal) shall stand modified to the extent
indicated above.
PART II
6
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
7
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
8
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
10
6. In Part II of the order dated 25.03.19969
, the following sentence
shall be inserted before the last sentence: ‘The above direction is
subject to the condition that any and every person claiming to hold
any office or post in this Church shall be bound by and shall swear
allegiance to the 1934 Constitution.’” [Referred to and quoted in
para (39) of K.S. Varghese case10]
The judgment in P.M.A. Metropolitan11 was implemented in
execution proceedings before the Kerala High Court. The details of
the execution proceedings are discussed in paras (40) to (42) in
K.S. Varghese case12
.
14. Dispute arose relating to Kolenchery Church, Varikoli Church
and Mannathur Church regarding which civil suits were filed in a
representative capacity. The dispute arising from all these three
Churches travelled to this Court. This Court again considered the
earlier judgments in Moram Mar Basselios Catholicos v.
Thukalan Paulo Avira and others AIR 1959 SC 31 and Most Rev.
P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286. After considering the
9
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma
Mathews and another (1996) 8 SCC 470
10
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
11
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
12
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
11
submissions on both sides, in the light of Thukalan Paula Avira13
and P.M.A. Metropolitan14 judgments and after such elaborate
consideration, this Court in K.S. Varghese case15 summarised the
conclusions inter alia as under:-
“228. Resultantly, based on the aforesaid findings in the judgment,
our main conclusions, inter alia, are as follows:
228.1. Malankara Church is episcopal in character to the extent it is
so declared in the 1934 Constitution. The 1934 Constitution fully
governs the affairs of the parish churches and shall prevail.
228.2. The decree in the Most Rev. P.M.A. Metropolitan v. Moran
Mar Marthoma 1995 Supp (4) 286 is completely in tune with the
judgment. There is no conflict between the judgment and the
decree.
228.3. The Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma
1995 Supp (4) 286 arising out of the representative suit is binding
and operates as res judicata with respect to the matters it has
decided, in the wake of the provisions of Order 1 Rule 8 and
Explanation 6 to Section 11 CPC. The same binds not only the
parties named in the suit but all those who have interest in the
Malankara Church. Findings in earlier representative suit i.e.
Samudayam suit are also binding on parish churches/parishioners
to the extent issues have been decided.
228.4. As the 1934 Constitution is valid and binding upon the parish
churches, it is not open to any individual Church, to decide to have
their new Constitution like that of 2002 in the so-called exercise of
right under Articles 25 and 26 of the Constitution of India. It is also
not permissible to create a parallel system of management in the
Churches under the guise of spiritual supremacy of the Patriarch.
228.5. The Primate of Orthodox Syrian Church of the East is
Catholicos. He enjoys spiritual powers as well, as the Malankara
Metropolitan. Malankara Metropolitan has the prime jurisdiction
regarding temporal, ecclesiastical and spiritual administration of
Malankara Church subject to the riders provided in the 1934
Constitution.
13
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
14
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
15
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
12
228.6. Full effect has to be given to the finding that the spiritual
power of the Patriarch has reached to a vanishing point.
Consequently, he cannot interfere in the governance of parish
churches by appointing Vicar, priests, Deacons, Prelates (High
Priests), etc. and thereby cannot create a parallel system of
administration. The appointment has to be made as per the power
conferred under the 1934 Constitution on the Diocese,
Metropolitan, etc. concerned.
228.7. Though it is open to the individual member to leave a
Church in exercise of the right not to be a member of any
association and as per Article 20 of the Universal Declaration of
Human Rights, the Parish Assembly of the Church by majority or
otherwise cannot decide to move Church out of the Malankara
Church. Once a trust, is always a trust.
228.8. When the Church has been created and is for the benefit of
the beneficiaries, it is not open for the beneficiaries, even by a
majority, to usurp its property or management. The Malankara
Church is in the form of a trust in which, its properties have vested.
As per the 1934 Constitution, the parishioners though may
individually leave the Church, they are not permitted to take the
movable or immovable properties out of the ambit of the 1934
Constitution without the approval of the Church hierarchy.
228.9. The spiritual power of Patriarch has been set up by the
appellants clearly in order to violate the mandate of the Most Rev.
P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 of
this Court which is binding on the Patriarch, Catholicos and all
concerned.
228.10. As per the historical background and the practices which
have been noted, the Patriarch is not to exercise the power to
appoint Vicar, priests, Deacons, Prelates, etc. Such powers are
reserved to other authorities in the Church hierarchy. The Patriarch,
thus, cannot be permitted to exercise the power in violation of the
1934 Constitution to create a parallel system of administration of
Churches as done in 2002 and onwards.
228.11. This Court has held4 in 1995 that the unilateral exercise of
such power by the Patriarch was illegal. The said decision has also
been violated. It was only in the alternative this Court held in the
Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp
(4) 286 that even if he has such power, he could not have
exercised the same unilaterally which we have explained in this
judgment.
228.12. It is open to the parishioners to believe in the spiritual
supremacy of the Patriarch or apostolic succession but it cannot be
used to appoint Vicars, priests, Deacons, Prelates, etc. in
contravention of the 1934 Constitution.
228.13. Malankara Church is episcopal to the extent as provided in
the 1934 Constitution, and the right is possessed by the Diocese to
settle all internal matters and elect their own Bishops in terms of the
said Constitution.
13
228.14. Appointment of Vicar is a secular matter. There is no
violation of any of the rights encompassed under Articles 25 and 26
of the Constitution of India, if the appointment of Vicar, priests,
Deacons, Prelates (High priests), etc. is made as per the 1934
Constitution. The Patriarch has no power to interfere in such
matters under the guise of spiritual supremacy unless the 1934
Constitution is amended in accordance with law. The same is
binding on all concerned.
228.15. Udampadies do not provide for appointment of Vicar,
priests, Deacons, Prelates, etc. Even otherwise once the 1934
Constitution has been adopted, the appointment of Vicar, priests,
Deacons, Prelates (High priests), etc. is to be as per the 1934
Constitution. It is not within the domain of the spiritual right of the
Patriarch to appoint Vicar, priests, etc. The spiritual power also
vests in the other functionaries of the Malankara Church.
228.16. The functioning of the Church is based upon the division of
responsibilities at various levels and cannot be usurped by a single
individual howsoever high he may be. The division of powers under
the 1934 Constitution is for the purpose of effective management of
the Church and does not militate against the basic character of the
Church being episcopal in nature as mandated thereby. The 1934
Constitution cannot be construed to be opposed to the concept of
spiritual supremacy of the Patriarch of Antioch. It cannot as well, be
said to be an instrument of injustice or vehicle of oppression on the
parishioners who believe in the spiritual supremacy of the Patriarch.
228.17. The Church and the cemetery cannot be confiscated by
anybody. It has to remain with the parishioners as per the
customary rights and nobody can be deprived of the right to enjoy
the same as a Parishioner in the Church or to be buried honourably
in the cemetery, in case he continues to have faith in the Malankara
Church. The property of the Malankara Church in which is also
vested the property of the parish churches, would remain in trust as
it has for time immemorial for the sake of the beneficiaries and no
one can claim to be owners thereof even by majority and usurp the
Church and the properties.
228.18. The faith of Church is unnecessarily sought to be divided
vis-à-vis the office of Catholicos and the Patriarch as the common
faith of the Church is in Jesus Christ. In fact an effort is being made
to take over the management and other powers by raising such
disputes as to supremacy of Patriarch or Catholicos to gain control
of temporal matters under the garb of spirituality. There is no good
or genuine cause for disputes which have been raised.
228.19. The authority of Patriarch had never extended to the
government of temporalities of the Churches. By questioning the
action of the Patriarch and his undue interference in the
administration of Churches in violation of the Most Rev. P.M.A.
Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286, it cannot
be said that the Catholicos faction is guilty of repudiating the
spiritual supremacy of the Patriarch. The Patriarch faction is to be
14
blamed for the situation which has been created post 1995
judgment4. The property of the Church is to be managed as per the
1934 Constitution. The judgment of 19954 has not been respected
by the Patriarch faction which was binding on all concerned. Filing
of writ petitions in the High Court by the Catholicos faction was to
deter the Patriarch/his representatives to appoint the Vicar, etc. in
violation of the 1995 judgment4 of this Court.
228.20. The 1934 Constitution is enforceable at present and the
plea of its frustration or breach is not available to the Patriarch
faction. Once there is Malankara Church, it has to remain as such
including the property. No group or denomination by majority or
otherwise can take away the management or the property as that
would virtually tantamount to illegal interference in the management
and illegal usurpation of its properties. It is not open to the
beneficiaries even by majority to change the nature of the Church,
its property and management. The only method to change
management is to amend the Constitution of 1934 in accordance
with law. It is not open to the parish churches to even frame byelaws
in violation of the provisions of the 1934 Constitution.
228.21. The Udampadies of 1890 and 1913 are with respect to
administration of churches and are not documents of the creation of
the trust and are not of utility at present and even otherwise cannot
hold the field containing provisions inconsistent with the 1934
Constitution, as per Section 132 thereof. The Udampady also
cannot hold the field in view of the authoritative pronouncements
made by this Court in the earlier judgments as to the binding nature
of the 1934 Constitution.
228.22. The 1934 Constitution does not create, declare, assign,
limit or extinguish, whether in present or future any right, title or
interest, whether vested or contingent in the Malankara Church
properties and only provides a system of administration and as
such is not required to be registered. In any case, the Udampadies
for the reasons already cited, cannot supersede the 1934
Constitution only because these are claimed to be registered.
228.23. In otherwise episcopal Church, whatever autonomy is
provided in the Constitution for the Churches is for management
and necessary expenditure as provided in Section 22, etc.
228.24. The formation of the 2002 Constitution is the result of illegal
and void exercise. It cannot be recognised and the parallel system
created thereunder for administration of parish churches of
Malankara Church cannot hold the field. It has to be administered
under the 1934 Constitution.
228.25. It was not necessary, after amendment of the plaint in
Mannathoor Church matter, to adopt the procedure once again of
representative suit under Order 1 Rule 8 CPC. It remained a
representative suit and proper procedure has been followed. It was
not necessary to obtain fresh leave.
15
228.26. The 1934 Constitution is appropriate and adequate for
management of the parish churches, as such there is no necessity
of framing a scheme under Section 92 CPC.
228.27. The plea that in face of the prevailing dissension between
the two factions and the remote possibility of reconciliation, the
religious services may be permitted to be conducted by two Vicars
of each faith cannot be accepted as that would amount to
patronising parallel systems of administration.
228.28. Both the factions, for the sake of the sacred religion they
profess and to pre-empt further bickering and unpleasantness
precipitating avoidable institutional degeneration, ought to resolve
their differences if any, on a common platform if necessary by
amending the Constitution further in accordance with law, but by no
means, any attempt to create parallel systems of administration of
the same Churches resulting in law and order situations leading to
even closure of the Churches can be accepted.”
15. Though various arguments were advanced by learned senior
counsel Mr. Shyam Divan to urge that the conclusions arrived in
K.S. Varghese case16 is not in consonance with the judgment in
P.M.A. Metropolitan17
, the same do not merit acceptance. Having
carefully gone through the conclusions in para (228) of the K.S.
Varghese case18
, in our view, the conclusions are well in
consonance with the Thukalan Paula Avira19 and P.M.A.
Metropolitan20 judgments. The detailed discussions and
16
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
17
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
18
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
19
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira AIR 1959 SC
31
20
16
conclusions arrived at in K.S. Varghese case21 settles the disputes
between the appellant Patriarch and the respondents Malankara.
16. As per the consistent view taken in the above judgments,
1934 Constitution is valid and binding upon the Parishioners. The
Parish Church has to be managed as per the powers conferred
under the 1934 Constitution. It is not open to any individual church
to have a parallel system of management in the churches under the
guise of spiritual supremacy in the Patriarch. As per the consistent
findings in the above judgments, the prime jurisdiction with respect
to the temporal, ecclesiastical and spiritual administration of the
Malankara Church is vested with Malankara Metropolitan and other
authorities appointed by Malankara Metropolitan. Malankara
Metropolitan enjoys all the temporal, ecclesiastical and spiritual
administrative powers (Para (145) of K.S. Varghese case22). As
held in K.S. Varghese case23
, “Full effect has to be given to the
finding that the spiritual power of the Patriarch has reached to a
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
21
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
22
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
23
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
17
vanishing point. Consequently, he cannot interfere in the
governance of parish churches by appointing Vicar, priests,
Deacons, Prelates (High Priests), etc. and thereby cannot create a
parallel system of administration. …….”.
17. The present matter relates to the Parish Church-St. Mary’s
Church, Kattachira. The plaint Church was listed as Serial No.41-
among 1064 Parish Churches included in the plaint Schedule in the
representative suit in OS No.4 of 1979. Ext.-A3-Sale-cum-Gift Deed
was executed by C.K. Koshy in favour of Metropolitan of Quilon
Diocese. The recitals in Ext.-A3 make it clear that C.K. Koshy
executed the Sale-cum-Gift Deed in favour of Metropolitan of Quilon
Diocese intending that it may be treated as Bhadrasanam
properties. Ext.-A3 provided that the Metropolitan may directly
administer the said properties or through his representatives. Ext.-
A3 further provided that the Parishioners and the Managing
Committee should abide by the dictates of the Metropolitan from
time to time. The recitals in Ext.-A3 make it clear that St. Mary’s
Orthodox Syrian Church, Kattachira and the properties have been
gifted in favour of first plaintiff-Metropolitan Malankara to be treated
as Bhadrasanam properties subject to the control of the
Metropolitan in appointing Vicar, Priests etc. As per recitals in Ext.-
18
A3, the plaint church and the properties come under the spiritual
and the temporal control of the Malankara Metropolitan.
18. As per the decision of the Supreme Court in the Constitution
Bench in Thukalan Paula Avira24 and P.M.A. Metropolitan25, St.
Mary’s Church is bound by Ext.-A1 Constitution and the control of
the Metropolitan. Having held that the 1934 Constitution is binding
upon the Parish Church and its Parishioners, the Division Bench
was not right in holding that the Metropolitan had no power to
appoint Vicar, Priests etc. The conclusion of the Division Bench that
the Parishioners have the right to make all such appointments and
to manage the affairs of St. Mary’s Church is directly contrary to the
express provisions of the 1934 Constitution and the findings of the
Supreme Court in P.M.A. Metropolitan26. Considering the recitals
in Ext.-A3 and the judgments of the Supreme Court in Thukalan
Paula Avira27 and P.M.A. Metropolitan28, the trial court and the
24
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
25
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
26
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
27
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
28
19
Single Judge rightly held that the St. Mary’s Church is a constituent
of Malankara and the power to appoint Vicar, Priests etc. is vested
with the first plaintiff-Malankara Metropolitan or his representatives.
19. Metropolitan of Quilon Diocese was exercising control over St.
Mary’s Church is also evident from various document adduced in
evidence referred to in detail in the judgment of the trial court as
under:-
“18. …….Ever since the reproachment was made between the patriarch
group and the Catholicose group after the judgment of the Supreme
Court in the above case in 1958, the plaint church has paid dues both to
the Diocesan Metropolitan and the Catholicose in recognition of their
spiritual control over the church. Exts. A4 and A6 would show that the
plaint church was sending its delegates for representing it in the
Malankara Syrian Christian association. The priests are appointed in the
church by the first plaintiff and the church was sending to him the salary
due to the priests regularly. Exts. A14 to A17 and A23 to A32 will bear
this out. Several other dues payable to the Metropolitan and Catholicose
are also seen to have been sent by the plaint church accepting the
spiritual supremacy of the Catholicose and the Metropolitan under him.
Exts. A18 is the printed annual report of the Quilon Bhadrasanam for the
year 1974 showing the contributions made by the Bhadrasanam for the
building of the plaint church. Exts. A7 and A8 are Kalpanas issued by
the first plaintiff appointing priests to the plaint church…..”
20. The above exhibits referred to in the judgment of the trial court
namely appointment of the Priests to the plaint church by the
Metropolitan and the regular payment of salary to the Priests so
appointed and the church sending its delegates for representing it in
the Malankara Church Association and other documents would
amply show that the plaint church has been a constituent of
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
20
Metropolitan Malankara and the churches and its properties come
under the spiritual and temporal control of Catholicos.
21. DW-1 has spoken about the pothuyogam of the plaint church
which has taken the decision that Ext.-A1-1934 Constitution is not
suitable to the church and the sabha and that as per the said
Resolution, the pothuyogam had decided to request the authorities
of the Malankara Church or Sabha to repudiate the 1934
Constitution (Ext.-A1) which was then in force. As rightly observed
by the trial court, once 1934 Constitution (Ext.-A1) had been
adopted by the plaint church and was in force, there can be no
question of requesting the authorities to repudiate it. This is also an
indication to show that the plaint church has accepted the 1934
Constitution and the spiritual authority of the Catholicos. The finding
of the Division Bench that the Metropolitan had no authority to
appoint a Vicar is directly opposed to the provisions of the 1934
Constitution and also recitals in Ext.-A3-Sale-cum-Gift Deed and
number of other documents adduced by the appellants. The finding
of the Division Bench that the Metropolitan had no authority to
appoint Vicar and Priests is directly in contradiction to the
21
Constitution Bench judgment in Thukalan Paula Avira29 and P.M.A.
Metropolitan30
.
22. Contention of the respondent is that the issue regarding the
interpretation of Articles 25 and 26 of the Constitution of India ought
to be determined by a Bench comprising at least five Judges of the
Supreme Court under Article 145 (3) of the Constitution of India is
not tenable. The contention of Patriarch that the Parishioners have
a right of freedom of religion and the question of law regarding
fundamental rights under Articles 25 and 26 of the Constitution of
India had already been raised and elaborately argued by different
senior counsels in K.S. Varghese case31 (vide paras 57.2, 57.2.1,
57.2.2, 57.4, 59.2, 60, 62 etc.). Contention relating to violation of
Articles 25 and 26 of the Constitution of India has been elaborately
considered in K.S. Varghese case32 under sub-heading “In re:
parishioners have a right to follow their faith under Article 25 and
appointment of Vicar, priest and deacons, etc. and manage affairs
29
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
30
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
31
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
32
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
22
under Article 26 of the Constitution of India”. After referring to
various judgments rejecting the contention of the Patriarch of
Antioch as to the violation of the right under Articles 25 and 26 of
the Constitution of India. In para (146) of the judgment, it was held
as under:-
“146. …….. Spiritual power is also with various authorities like
Catholicos, Malankara Metropolitan, etc. Thus it is too far-fetched
an argument that the Patriarch of Antioch or his delegate should
appoint a Vicar or priest. There is no violation of any right of Articles
25 or 26 of the Constitution of India. Neither any of the provisions
relating to appointment of the Vicar can be said to be in violation of
any of the rights under Articles 25 and 26 of the Constitution of
India. The 1934 Constitution cannot be said to be in violation of
Articles 25 and 26 of the Constitution of India. It was suggested that
the faith involved in the present case refers to apostolic succession
from Jesus Christ viz. the blessings and grace of Christ descends
through an apostle i.e. St. Peter or St. Thomas as the case may be,
and from the said apostle to the Pope/Patriarch who appoints a
Vicar. The argument ignores and overlooks other offices that are inbetween
like Catholicos, Malankara Metropolitan, and Diocesan
Metropolitan, etc. It is not necessary for the Pope and the Patriarch
to appoint Vicar because management of a Church is not a
religious ritual.”
We endorse the above view taken in K.S. Varghese case33 that the
1934 Constitution cannot be said to be in violation of Articles 25 and
26 of the Constitution of India.
23. The impugned judgment of the Division Bench is in
contradiction to the judgments of the Supreme Court in Thukalan
33
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
23
Paula Avira34, P.M.A. Metropolitan35 and K.S. Varghese case36
and the same cannot be sustained. In the result, the impugned
judgment is set aside and these appeals are allowed.
.…….…………...………J.
[RANJAN GOGOI]
…………….……………J.
[R. BANUMATHI]
…………….……………J.
[NAVIN SINHA]
New Delhi;
August 28, 2018
34
Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR
1959 SC 31
35
Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and
another 1995 Supp (4) SCC 286
36
K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian
Orthodox Church and others (2017) 15 SCC 333
24
