Holding

The ex‑communication of the Catholicos is invalid; the Patriarch is the supreme spiritual head without temporal authority, the Malankara Church is episcopal only as defined by the valid 1934 Constitution, and the suit is maintainable under CPC s.9.

Summary

The Supreme Court examined a long‑standing dispute between the Patriarch of Antioch’s group (the petitioner) and the Catholicos of the East’s group (the respondent) over the nature, governance and authority of the Malankara Jacobite Syrian Church. The Court held that the 1934 Constitution of the Malankara Association is valid and binding, that the Malankara Church is episcopal only to the extent declared in that Constitution, and that the Patriarch remains the spiritual head but has no temporal powers. The ex‑communication of the Catholicos by the Patriarch was declared invalid as it lacked proper canonical and procedural basis. The suit for declaration of the Church’s episcopal character and related injunctions was maintainable under CPC s.9 and not barred by the Places of Worship (Special Provisions) Act, 1991. Earlier judgments on the authenticity of the Hudaya canon and on res judicata were clarified, and the Court affirmed the findings of the Kerala High Court.

Issues considered

The suit is maintainable under Section 9 of the Code of Civil Procedure despite involving religious questions.
Whether the Places of Worship (Special Provisions) Act, 1991 bars the relief sought.
Whether the ex‑communication of the Catholicos by the Patriarch is valid under canon law and natural justice.
Whether the 1934 Constitution of the Malankara Association is valid and binding.
Whether the Hudaya canon version produced by the Patriarch group is the authentic and binding version.
The effect of earlier judgments (Vattipanam and Samudayam suits) as res judicata.
The nature of the Malankara Church – episcopal, congregational, or auto‑cephalous – and the status of parish churches.

Legislation cited

Code of Civil Procedure, 1908s. 9
Constitution of Indias. 25, s. 26
Indian Evidence Act, 1872s. 114, s. 42, s. 43
Places of Worship (Special Provisions) Act, 1991

Subjects

ex‑communicationMalankara ChurchCatholicosPatriarch of Antioch1934 ConstitutionHudaya canonres judicataCPC s.9Places of Worship Actepiscopal vs congregationalreligious rightsIndian Constitution articles 25 and 26

Judgment

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

JUNE 20, 1995

B [R.M. SAHAI, B.P. JEEVAN REDDY AND S.C. SEN, JJ.]

Ecclesiastical and Canonical Law-Dispute between the Catholicos
group and the Patriarch group in the Malankara Sy1ian Christian com-
munity-Constitution recognising spiritual but not temporal supremacy of the
C Patriarch of Antioch over the Ma/ankara Church-Excommunication of
Catholicos of the East by the Pabiarch-Wliether valid-Held, per curiam, the
excon1munication was invalid.

Ecclesiastical and Canonica/ Law-Dispute between the Catho/icos
group and the Pafliarch group in the Ma/ankara Sy1ian Christian com-
D munity-Revival of Catho/icate of the East in 1912 with temporal powers over
Malankara Church-Wlzether Patriarch's power over the Malankara Church
reduced to a vanishing point-Held, per curia111, the Patriarch continues as
supreme head of the Sy1ian 01thodox Church of which the Malankara Church
is a division; he is spi1itually supe1ior to the Catholicos although he has no
E temporal power over the Malankara Church or its properties.

Code of Civil Procedure, 1908, s.9-Ecclesiastica/ Law-Constitution
of the Malankara Christian Association of 1934 -Whether Malankara
Church is episcopal in nature-Held, per curiam, it is episcopal to the extent
declared in the 1934 Constitution the validity of which cannot be questioned
F now.

Code of Civil Procedure, 1908, s.9 r/w 0.1 Rule 3-Ecclesiastical
Law-Wlzether p01ish churches are congregational-Held, per majority, c011-
not be decided without impleading parish churches; per cwiam, all churches
G except those of Evangelistic Association, Simhasana or St. Mary are under
spiritual and temporal control of the Ma/ankara Association in accordance
with the 1934 Constitution-Words and Phrase;-'Episcopal',
'Congregational'.

Code of Civil Procedure, 1908, S.9-Ecc/esiastica/ and Canonica/
H Law-Dispute between the Catho/icos group and the Pamarch group in the
542
P.M.A. METROPOLITAN v. M.M. MARTIIOMA 543

Mala11kara Sy1ia11 Cluistian community-Patriarch group questioning the A
creation of the Catholicos of the East and the 1934 Constitution adopted by
-,.. the Catholicos group-Held, after issuing a Kalpana in 1958 accepting the
Catholicos and consecrating him in 1964 the Patliarch group deemed to have
abandoned all objectiom~Evidence Act, 1872 s.114-

Code of Civil Procedure, 1908, s.<)---Whether suit for declaration that B
Malankara Church is episcopal is of a civil naatre and is maintainable-Held,
per Sahai, 1., yes; civil cozats have jurisdiction to entertain suits for violation
of fundamental 1ights-Constiattion of India, A1ticles 25, 26.

Places of W01ship (Special Provisions) Act, 1991-Whether bws a suit C
for declaration that Malankara Church is episcopal-Held, per Sahai, I., No.

Code of Civil Procedure, 1908, s. Jl-Res Judicata-Royal Cowt of
Travancore and Supreme Cowt upholding validity of the Constitution and
creation of Catholicos-Held, operates as res judicata between pa11ies and
binds the patriarch group. D
Code of Civil Procedure, 1908, S.11, Jl4-Kerala High Cowt accepting
Hudaya canon produced by Patriarch group in the Vattipanam suit-Review
petition of Catholicos group enteJtained on condition that finding regarding
Patliarch 's power of exconununication under the canon will not be ques-
E
tionelf-High Cowt allowing review petition and invalidating excommunica-
tion of Malankara Metropolitan-Whether the acceptance of the canon still
operates as res judicata against the Catholicos group and negatives their claim
to validity of the 1934 Constitution-Held, per Sahai, !. No; with the review
being allowed, the decision on binding effect of canon does not operate as
res judicata between the pwties-Canonical law-Evidence Act, 1872-Ss.42, F
43.

' St. Thomas, one of the disciples of Jesus Christ came to India in 52
A.D. to spread his message. The first ecumenical council was convened in
325 A.D. at Nicea by the Roman emperor Constantine. Prelates from all
parts and representatives of all dioceses in the Christian world attended G
the synod. The ecclesiastical jurisdiction of the Christiandom 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 great Metropolitan of the East
was proclaimed as the Catholicos of the East. H
544 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A By the 16th century, Christianity had gained a substantial foothold
in Kerala and the dominant faith was of the Syrian Orthodox Church.
Rebelling against the pressure from the Portugese to embrace the Roman
Catholic faith, the Christians of Malabar met at Mattancherry in 1664 and
.--
affirmed their loyalty to the Syrian Orthodox Church headed by the
B Patriarch of Antioch by en masse taking the Koonan Cross Oath.

The advent of the British saw the Malankara Syrian Christian
Community dividing into two groups - one that embraced the Protestant
faith and the other that adhered to the Orthodox faith. Their dispute was
resolved by the Cochin Award rendered on April 4, 1840 whereby the
C Church properties were divided between the two groups and an amount of
3000 Star Pagodas was allotted to the Malankara Church.

1840 saw a tussle between Mathew Athanasius-(who claimed to have
been ordained as Malankara Metropolitan by the Patriarch of Antioch) '
and Chepat Dionysius ..Mar Yayakim Koorilos who was sent by the
D Patriarch as his delegate to resolve the dispute, excommunicated Mathew
and ordained himself as the Malankara Metropolitan. With Mathew
Athanasius persisting in his claim, the Travancore Government con-
stituted the Quilon Committee which decided in his favour. Thereafter, on
a request by the locals one Joseph Dionysius went to Syria and got himself
E ordained as the Malankara Metropolitan. However, Mathew refused to
hand over charge and instead ordained his brother Thomas Athanasins
as his successor.

The Patriarch of Antioch, Peter III, came to Malabar in 1976 and
convened the Mulunthuruthy Synod where the Malankara Syrian Chris-
p tian Association was formed to manage the affairs of the Church and the
Community. The Patriarch was its patron and the Malankara
Metropolitan its ex-officio President. Malabar was divided into seven ,
Dioceses each headed by a Metropolitan. One among them was to be
designated as Malankara Metropolitan exercising spiritnal and temporal
G powers over all Dioceses.

Despite Joseph Dionysius being accepted as the Malankara
Metropolitan, Thomas Anthanasius refused to hand over charge and this
led to the filing of a suit (known as Seminary Suit) by Joseph Dionysius
which came to be disposed of in 1889 by a judgment of the Travancore
H Royal Court of Appeal. The Court found that the ecclesiastical supremacy
P.M.A. ME1ROPOLITAN v. M.M. MARTHOMA 545

of the Patriarch of Antioch over the Malankara Syrian Christian Church A
had all along been recognised and acknowledged by the Jacobite Syrian
Christian community and their MetropoHtans; that this supreme power
included ordaining metropolitans to manage spiritual matters of the local
church; in sending Morone (sanctified oil used for baptismal purposes),
in receiving Ressissa (tribute). from the community and general control B
over the spiritual government of the church. However, the Court rules that
the authority of the Patriarch never extended to temporal affairs of the
church. The Court further declared that the Malankara Metropolitan
should be native of Malabar consecrated by the Patriarch or by his duly
authorised delegate and accepted by the people as their Metropolitan.
Joseph Dionysius was accordingly found entitled to be declared as the C
Malankara Metropolitan and as the trustee of the church properties.

The Patriarch of Antioch again approached the court in an Arthat
Suit in 1877. This resulted in a judgment in 1905 of the Cochin Court of
Appeal re.affirming the judgment of the Royal Court and declaring that D
while the Patriarch was the spiritual head, the churches and their proper-
ties were subject to the spiritual, temporal and ecclesiastical control of the
Malankara Metropolitan.

The Sultan of Turkey withdrew the recognition given to Abdulla
Messiah and in his place recognised Abdulla II as the Patriarch. Mar E
Geevarghese Dionysius who was ordained by Abdulla II as Malankara
Metropolitan was excommunicated by the latter due to certain differences
and in his place Poulose Mar Kurilos was appointed. In 1912 Abdul
Messiah came to Malankara and declared the excommunication of Mar
Geevarghese Dionysius invalid and purported to revive and re-establish p
the Catholicate by consecrating one Mar Ivanios as Catholicos.

A dispute arose as to which of the groups - one owing allegiance to
the Catholicos and the other to the Patriarch - was entitled to receive the
amount of interest on the 3,000 Star Pagodas. In the ensuing interpleader G
suit, known as Vattipanam Suit, the District Judge, Trivandrum held that
the excommunication of Mar Geevarghese Dionysius, the validly appointed
Malankara Metropolitan, by Abdulla II was invalid and that the
Catholicos group ,,;as entitled to the interest amount. The appeal of the
Patriarch group was allowed by the Full Bench of the High Court (41 TLR
1). It held that the version of the canon law produced by the Patriarch H
546 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A group (Ex.18) was the one recognised and accepted by the Malankara
Church and binding on it and that under Ex.18 the Patriarch could in his
own right excommunicate the Metropolitans. However, a review petition
was admitted on condition that the Catholicos group would not l(Uestion
three findings - the binding nature of the Canon law as produced by the
B Patriarch grou1J; the power of the Patriarch to excommunicate without
intervention of the Synod; the absence of an indirect motive on the part of
the Patriarch which induced him to exercise his power of excommunica-
tion. The review petition was allowed (45 TLR 116) and the trial court
judgment was restored. The excommunication of Mar Geevarghese
Dionysius was held invalid not on account of lack of power in the Patriarch
C but because he had not observed the principles of natural justice.

On December 26, 1934 the Catholicos group adopted a draft con-
stitution which inter alia recognised that the Patriarch was the primate of
the Orthodox Syrian Church and the supremacy in the Orthodox Syrian
D Church of the East and the primate of the Orthodox Syrian Church is with
the Catholicos. In response the Patriarch group at a meeting in 1935
elected Mar Poulose Athanasius as the Malankara Metropolitan. They
then instituted in 1938 the Samudayam Suit for a declaration of their title
as trustees of the church properties and that the Catholicos group who
were heretics and had separated from the Syrian Christian Church were
E not lawful trustees. This suit was dismissed in 1943. The appeal of the
Patriarch group was allowed in 1946. The further appeal of the Catholicos
group was allowed by this court in Moran Mar Basselios Catho/icos v.
Thukalan Paulo Avira, AIR (1959) SC 31. This court held that the findings
in favour of the Catholicos group in the Vattipanam Suit constituted res
p judicata and they could not now be declared heretics. It invalidated the
meeting of the Patriarch group and the decisions taken then and upheld
the adoption of the draft constitution in 1934 by the Catholic<is group. The
Samudayam Suit of the Patriarch group was dismissed.

The Patriarch Yakub who was in India during the Samudayam Suit
G issued a Kalpana (Ex.Al9) on December 9, 1958 expressing the desire for
peace and unity and accepting Mar Basselius Geeverghese as Catholicos.
The Catholicos on December 16, 1958 responded with his Kalpana (Ex.A
20) conveying the acceptance of Moran Yakub as the Patriarch of Antioch
subject to the 1934 Constitution. The Patriarch in his letter of April 8, 1959
H took exception to the use by the Catholicos of the expression 'holiness' with
P.MA METROPOLITAN v. M.M. MARTIIOMA 547

his name, to the assertion by the Catholicos that he was sitting on. the A
'Throne of St. Thomas'; to the assumption by the Catholicos that his was
the Church of the East and that he was the Catholicos of the East; to the
new arrangement of dioceses and to his assumption or the n1anage1nent of
the Simhasana churches. The Catholicos replied to the objections but the
Patriarch was not satisfied. The exchange of correspondence grew increas- B
ingly accusatory.

The Malankara Association at a meeting in 1962 elected Ougen Mar
Timothious as Catholicos and this was approved by the Malankara Epis-
copal Synod. Upon invitation by the synod, the Patriarch came to India
and the new Catholicos was installed by him on May 22, 1964. It was C
decided that the jurisdiction of the Catholicos shall not be extended to
Arabian countries or Persia but include only countries situated to their
east.

In 1972 the Patriarch purported to nominate a delegate to the
Malankara Sabha and this was disliked by the Catholicos who conveyed D
'his displeasure in a letter to the Patriarch co-signed by nine
Metropolitans. Nevertheless the Patriarch's delegate Mar Timotheos came
to Malankara and started ordaining priests and deacons. When the
Catholicos protested, the Patriarch responded by sending him a list of
charges the principal one being that the Catholicos was repudiating the E
Patriarchal authority. While the Malankara Episcopal Synod stood by the
Catholicos, the Universal Synod at its deliberations at Damascus held him
guilty and an apostate to the Syrian Orthodox Church. Consequently the
Catholicos was excommunicated by the Patriarch.

Eight suits were filed in all by the Catholicos group. The main suit F
sought for a declaration that the Malankara Church is episcopal in
character and is not a union or federation of autonomous church units
and it is governed in its administration by the Constitution of the
Malankara Church. It sought to permanently injunct the Patriarch group
from ordaining priests or performing any other sacraments or service for G
the Malankara church. The suits which were consolidated were dismissed
by a Single Judge of the High Court. The Division Bench in appeal reversed
and upheld the claim of the Catholicos group. It held that :

(i) The Malankara Church is not an autocephalous church but is a
part of the World Orthodox Syrian Church of which the Patriarch of H
548 SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

A Antioch is the head.

(ii) The Catholicos of the East is the head of the Malankara Church
and the relationship between the Patriarchate and the Malankara Church
is governed by the 1934 Constitution which is valid and binding on the
Malankara Association, community, Dioceses as well as parish churches
B and parishioners.

(iii) The Catholicate established by Abdul Messiah was valid and
although the spiritual power of the Patriarch has not been reduced to a
vanishing point, he could not be regarded as having active spiritual
C supremacy.

(iv) The decision in 41 TLR 1 about the binding nature of the Hudaya
Canons was not final and did not operate as res judicata between the
parties.

D (v) The Malankara Church is not purely episcopal but has only some
episcipal characteristics.

(vi) Parish churches are not congregational or independent but are
constituent units of the Malankara Church; they have a fair degree of
autonomy subject to supervisory powers vesting in the Malankara Associa·
E lion, Catholicos and Malankara Metropolitan.

The Patriarch group appeals to this court.

Disposing of the appeals, this Court

F HELD : Per Jeevan Reddy, J. (for himself and Sen, J. ):

1.1. The excommunication of Catbolicos was not valid and legal. The
charges on which the excommunication was based were not available as
grounds of excommunication and could not constitute valid grounds tbere-
G for. [679-FJ
1.2. Having revived the Catholicos and having accepted the Constitu·
lion of 1934 and having installed the Catholicos in 1964 notwithstanding
his objections raised in his letters written during the years 1959 to 1962,
it was not open to the Patriarch to seek to excommunicate the Catholicos
H on those very grounds. [678-E]
P.M.A. METROPOLITAN v. M.M. MARTHOMA 549

13. The use of the expression 'Holiness' or the assertion of being A
seated at the Throne of St. Thomas in the East or the claim that the
Malankara Church was an autocephalous Church could not be treated as
heresy when the very Constitution by which the Catholicos and his group
were swearing, affirmed in clear terms that the Patriarch was the supreme
head of the Malankara Church. [678-G]
B
2.1. The Patriarch remained the supreme head of the Syrian Church
of which theMalankara Church was a division. He was spiritually superior
to the Catbolicos though he did not, and indeed never did, enjoy and
temporal powers over the Malankara Church or its properties. [685-A)
c
2.2. Having conferred upon the Catholicos the powers of ordaining
the Metropolitans, the Patriarch could not exercise those powers
unilaterally, i.e., without reference to the Catholicos. He could exercise
those powers only in consultation with the Catholicos. Moreover, the
person to be appointed as Metropolitan or Malankara Metropolitan had D
to be accepted by the people as had been affirmed in the judgment in the
Seminary suit. The Patriarch's power to ordain the Metropolitans was
subject to the Constitution of 1934. [684-G]

3.1. The Malankara Church was episcopal to the extent it was so
declared in the 1934 Constitution. The said Constitution also governed the E
affairs of the Parish churches. [685-H, 686-AJ

3.2. 'J)ie common properties (Samudayam properties) held by the
Malankara church were vested in Malankara Metropolitan and others as
declared in the judgment of this Court in Moran Mar Basselios AIR (1959) F
SC 31. [686-D]

33. In this suit no declaration could be granted affecting the rights
of Parish Churches in their absence nor could it be declared that the
properties held by Malankara Parish Churches vested in the Catholicos G
or the Malankara Metropolitan or the Metropolitan of the concerned
diocese, as the case may be. Without impleading the affected parties, no
declaration could be claimed by the plaintiffs that their church was epis-
copal in nature, if that declaration meant that it gave the Catholicos/
Malankara Metropolitan/the Metropolitan of the Diocese any title to or
any control over the properties held by the Parish Churches. H
550 SUPREME CO!JRT REPORTS [1995] SUPP. 1 S.C.R.

A 3.4. The 1934 Constitution governed the affairs of the Parish Chur-
ches too insofar as it did. The power of the Malankara Metropolitan or
the Metropolitan in temporal affairs must be understood in these suits too
in the same manner as has been declared in the Samudayam judgment,
i.e., with respect to the common properties of the Malankara Church as
B such. (683-H, 684-A]

4.1. It was no longer open to the Patriarch or his followers to contend
that the revival of Catholicate was not in accordance with the religious
tenets and faith of the Syrian Jacobite Christian Church, that the Con-
stitution of 1934 was not duly and validly passed or that the power and
C authority of the Patriarch as obtaining prior to 1912 remains and con-
tinues unaffected and undiminished. (676-F]

4.2. The 1934 Constitution was approved at a validly convened
meeting of Malankara Association, which Association was created by the
Patriarch himself under the Resolutions of the Mulanthuruthy Synod. The
D Patriarch group could not question its legality and validity in view of the
acts and conduct of the Patriarch and the members of his group sub-
sequent to the judgment of this Court. (685-C]

4.3. The submissions of the Patriarch group that the 1934 Constitu-
E lion was not put forward by the Catholicos group as one of the bases of
their claim in Samudayam Suit or that no finding as such was recorded
by this Court in the said suit regarding the validity of the Constitution was
of little consequence. Having conceded, recognised and affirmed all the
above things, the Patriarch group could not make a legitimate grievance
of those very things. They must be deemed to have given up and abandoned
F all their objections to the aforesaid events and documents. [677-C-D]

S. It was unnecessary to go into the other questions viz., main-
tainability of the suit, the effect of the Places of Worship (Special
Provisions) Act, 1991, non-joinder of parties etc. The objection on the basis
of S.9 of the Civil Procedure Code was not urged by the defendants-appel-
G lants before the Division Bench and must be deemed to have been aban-
doned. The question whether the finding of the trial court in the
Vattipanam Suit regarding the authenticity of the canon produced by the
Patriarch Group had been restored by the judgment of this Court had lost
its significance on account of the subsequent developments and need not
H be gone into.
P.M.A. MElROPOLITANv. M.M. MARTHOMA 551

Per Sahai, J. (concuning) A
1.1. The ex-communication of the Catholicos by the Patriarch could
not be upheld canonically, traditionally or constitutionally. It was violative
of the norms which are mandatorily required to be observed convention-
ally. [617-A]
B
1.2. The 1934 Constitution upheld by this Court in Moran Mar
Basselious .was binding on the Syrian Christians. Any action taken against
the Catholicos contrary to it could not be upheld. The creation of the
Catholicos in 1912 was neither against the scriptures nor against faith.
Any person elected or nominated to such high spiritual office as Catholi- C
cate of East could not be subjected to ex-communication. That is why the
Canons did not contain any provision. Even the meeting of the Universal
Synod summoned in Damascus being in violation of the 1934 Constitution
was invalid. The entire proceedings of exM communication, therefore, were
unsustainable. [616-B-C]
D
2.1. The relationship between the Patriarch of Antioch and
Catholicos of the East at Malankara was neither of superior nor subor-
dinate but of two independent spiritual authorities with Patriarch at the
highest in the hierarchy. [645-D]
E
2.2. The effect of the two judgments rendered by the Royal Court of
Appeal and by this court in Moran Mar Basselios was that both the
Catholicos and Patriarch groups continued to be members of the Syrian
Orthodox Church. The Patriarch of Antioch had no temporal powers over
the churches. [643-D-E]
F
23. The effect of the creation of Catholicate at Malankara and the
1934 Constitution was that the Patriarch could exercise spiritual powers
subject to the Constitution. The spiritual powers of the Patriarch of
Antioch could be exercised by the Catholicos in accordance with the
Constitution. [643-F]
G
2.4. The personality of the Patriarch was not being split. His in-
tegrality was not being destroyed. He remained the spiritual head. The
dilTerence in degree of exercise of spirituality did not detract his status
from being a corporation sole. The fact that it had been reduced to a
'vanishing point' did not mean that he ceased to be so. [642-C] H
552 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A Gmeral Assembly of Free Church of Scotland v. Lord Ovenoun, (1904)
AC 515, referred to.

Halsbury's Laws of England, Vol.9 paras 1207-08, referred to.

3.1. The parish churches were episcopal in character when they were
B found, they continue to be so at present. The character of public charities
from episcopal to congregational cannot be changed as it would be against
the basic purpose for which these churches were established. [632-G-H]

Attorney General v. Pearson, [1814] 23 All ER 60, referred to.

c Halsbwy's Laws of England, Vol.14 paras 534, 562, relied to.

Encyclopedia Britannica, Voiume 5, Page 693;Faiths of the World by
James Garden, Vol. 1, p.516; The Encyclopaedia of Religion, Vol.3, p.348;
Religion in India by Dr. Karan Singh, referred to.
D 3.2. The claim that the parish churches were congregational could
not be, accepted. From the scheme unfolded by the Resolution passed in
the Mulunthuruthy Synod read with the Constitution it appears that every
Syrian Parish Church even thongh established independently had neces-
sarily to have a relation with the Malankara Association. The Parishes
E were bound by the Constitution framed in 1934. [626-E]
3.3. The property vested in the endowment. That was the fundamen-
tal difference between the congregational and the episcopal. In the former
it vested in the parishioner, but in the latter in the endowment. Once it
was conceded that the Syrian Churches were episcopal in character then
F the distinction between spiritual and temporal was of no consequence.
Therefore, the property of the Church vested in the endowment and not
the Parishioners. The right to manage snch property vested in the trustees
under the bye-laws subject to the control by the Catholicos and
Metropolitan in accordance with the Constitution. [637-C]
G
Hill: Law of Trnsts and Trnstees, relied on.

4. The following findings in Moran Mar Basselios became final and
operate as res judicata:-

H (a) The Catholicate of the East was created in Malankara in 1912.
P.M.A METROPOLITAN v. M.M. MARTHOMA 553

(b) The Constitution framed in 1934 by Malankara Association was A
valid.

(c) The Catholicos were not heretics nor they had established
separate church.

(d) The meeting held by Patriarch group in 1935 was invalid. B
[643·B·C]
The Most.Rev. Mar Poulose Athanasius v. Moran Mar Basse/ios
Catholicos, (1957) KLT 63; Benodeo Lal Chakravarthy v.Secretary of State for
India, AIR (1931) Ca1.239;Venkiteswantlu v. Venkitanarasimhem, AIR (1957)
AP 557; Narayanan Chetty v. Kannammai Achi, ILR (1905) 28 Mad. 338; C
Satyadhyan Ghosal v. Deorajin Debi, [1960] 3 SCR 590; Mysore State

-
Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd., [1963]
Supp. 2 SCR 127; Ampthil/ Peerage Case, [1976] 2 ALL E R 411; Bell v.
Monison, (1828) 1 Peters 351 and A'Court v. Cross, (1825) 3 Bing 329,
referred to. D
5.1. The suit was maintainable. The injunction and prohibition
sought from interfering in administration of Church were matters which
pertained to the religious office. Even the declaration that the Church was
episcopal was covered in the expansive expression of 'religion'. The word
'episcopal' meant 'of or pertaining to bishops, having a government vested E
in bishop'. A suit for declaration of such a right would be maintainable
under s.9. [590-E]

New English Dictionary of Historical Principles by Sir John Murray, Vol.
III, Part I, page 245; Chambers Encyclopaedia, Vol. IV. page 13 and Black's
Law Dictionary, referred to. F

5.2. Explanation I to s.9 was not restrictive of the right or matters
pertaining to religion. It only removed the doubt to enable the courts to
entertain suits where dispute about religious office was involved. The dis·
pute about the religious office was a civil dispute as it involves disputes G
relating to rights which may be religious in nature but were civil in conse-
. quence. [590-G]

Smt. Ganga Bai v. Vijay Kumar, AIR (1974) SC 1126; SA.L. Narayan
Row v. Ishwarlal Bhagwandas, AIR (1965) SC 1818; Arbind Kumar Singh v.
Nand Kishore Prasad, AIR (1968) SC 1227; Thintvenkata Ramanuja Pedda H
554 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Jiyyangarly Valu v. Prathivathi Bliayankaram Venkatachmiu, AIR (1947) PC
53; M. Appadorai Ayyangar v. P.B. A1111a11garaclzmi01; AIR (1939) Mad
102;Kattalai Michael Pillai v.J.M. Bwthe, AIR (1917) Mad 431; £.C. Kent v.
E.E.L. Kent, AIR (1926) Mad 59; Hasanali v. Mamporali, AIR (1948) PC 66,
referred to.
-
B Queen Empress v. Ramzan, !LR (1885) 7 All 461; Narasimma Chaliar
v. IVishna Tata Chazim; (1870-71) 6 Mad HCR 449;IVislmama v. IVish-
nasamy, ILR (1879) 2 Mad 62; S1inivasalu Naidu v. Kaval111a1i Munnuswami
Naidu, AIR (1967) Mad 451, approved.

Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR (1959)
C SC 31 and Moran Mar Basse/ios Catholicos v. Most Rev. Mar Poulose
Athanasius, AIR (1954) SC 526, referred to.

D
Law Commission 27th Rep01t on Civil Procedure Code, December
1954, p.91; Halsbury's Law of England, Vol. 14 paras 301, 304 and 315,
referred to.
-
5.3. The right to religion having become fundamental right, it would
include the right to seek declaration that the Church was episcopal. But the
court may refrain from adjudicating upon purely religious matters as it
may be handicapped to enter into the hazardous, hemisphere of religion.
E Maintainability of the suit should not be confused with exercise of jurisdic-
tion. (590-H]

His Holiness S1imad Pera1u/a/a Ethiraja Ramanuja Jeeyar Swami v.
17ie State of Tamil Nadu, AIR (1972) SC 1586; Rev. Stainislaus v. State of
Madhya Pradesh, AIR (1977) SC 908; S.P. Mittal v. Union of India, AIR
F (1983) SC 1; Ugamsingh v. Kes1imal, (1971] 2 SCR 836, relied on.
5.4. A suit filed after coming into force of the Constitution for vindica-
tion of rights related to worship of status, office or property was main-
tainable in a civil court and it would be duty of the court to decide even
G purely religious questions if they had a material bearing on the right alleged
in the plaint regarding worship, status or office or property. (588-B]

Nagar Chandra Chatte1jee v. Kai/ash Chandra Monda!, AIR (1921) Cal
328; U. W. Baya v. U. Zaw Ta, AIR (1914) LB 178 1; Sinna Ramanuja Jeer v.
Ranga Ramanuja Jeer, (1962] 2 SCR 509; Ugamsingh v. Kes1imal, [1971] 2
H SCR 836; TA. Aiyangar Swamigal v. L.S. Aiyangar, 31 MW 758 andDevendra
P.M.A. METROPOLITAN v. M.M. MAR THOMA 555

Narain Sarkar v. Satya Charan Mukerji, AIR (1927) Cal 783, approved. A
Long v. Bishop of Capetown, (1863) 1 Moore PCC NS 411; Dame
Hemiette Brown v.Les Cure Et Marguillien· De L 'Oeuvre Et Fab1igue De Notre
Dame De Motrea/, (1874-75) 6 PC 157; Anardrav Bhikaji Phadke v. Shankar
Daji Ch01ya, ILR 7 Born 323 and Sardar Syedna Toher Saifuddin Saheb v. The
State of Bombay, [1962] Supp. 2 SCR 496, referred to. B

American Jwisp111dence Vol. 66, para 45, referred to.

6. Places of Worship (Special Provisions) Act, 1991 did not debar
those cases where declaration was sought for a period or for enforcement of
a right recognised prior to the Act coming into force. The respondents did C
a
not seek declaration for conversion of the church or place ofworsh_ip.

7.1. The decision in the Vattipanam Suit that Ex.18 therein was the
version of Hudaya canon accepted as binding on the Church had not
become concluded and did not operate as res judicata between the parties. D
[610-G]
Abdullah Ashgar Ali Khan v. Ganesh Dass, AIR (1917) PC 201;
Sheosagar Singh v. Sitaram Singh, !LR (1897) 24 Cal 616, followed.

Midnapur ·zamindmi Company Ltd. v. Naresh Narayan Roy, AIR
(1922) PC 241; Mt. Mwmi Bibi v: Tirloki Nath, AIR (1931) PC 114; V.P.R V. E
Chockalingam Chetty v. SeethaiAchi, AIR (1927) P.e 202; Sham Nath Madan
v. Mohammad Abdullah, AIR (1967) J&K 85 andArjun Singh v. Tara Das
Ghosh, AIR (1974) Patna 1, distinguished.

7.2. When a review petition was entertained and notice issued by a
F
court it was open to it to restrict the scope of hearing but once the petition
was heard and the court was satisfied that the order under review was
erroneous on the face of it then it was not precluded from allowing the
petition and setting aside the findings which were earlier not permitted to
be re-opened. [607-E]
G
7.3. The appellate judgment of this Court precluded the Patriarch
from claiming that the Hudaya Canon filed by them was authentic. [614-B]

7.4. For the finding on the authenticity of the canon to be relied on as
a precedent, it had to fall either under s.42 or 2.43 of the Indian Evidence
Act. [610-HJ H
556 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Ninan Daniel v. Most Rev. Uhanon Manhoma Metropolitan, Civil
Appeal No. 947 of 1964 decided on 7th January, 1965, relied on.

Kumar Gopika Raman Roy v. Atal Singh, AIR (1929) PC 99 and
Benode Lal v. Secretary of State, AIR (1931) Cal. 239, referred to.

B Encyclopaedia of Religion, Vol. 3, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4958-60
of 1990 Etc. Etc.

From the Judgment and Order dated 1.6.90 of the Kerala High Court
C in AS.Nos. 331/80, 362/90 and 358 of 1980.

K. Parasaran, C.S. Vaidyanathan, T.L. Vishwanatha Iyer, F.S.
Nariman, R.F. Nariman, P.V. Thomas, Ranji Thomas, K.V. Mohan,
Abraham, Pratap, P.J. Philip, Jose Kuriakose, S. Prasad, M.KD. Nam-
boodari, S. Balakrishnan, M.S.R. Shoba, V.P. Yohanuman, Sudesh Menon,
D C.T. Joseph, K. George, E.M.S. Anam, M.T. George, T.G.N. Nair and Ms.
Lilly Thomas for the appearing parties.

The Judgments of the Court were delivered by

R.M. SARAI, J. When Lord Jesus Christ was asked by a youngman
E who was possessed of property what was the road to heaven, the Holy Bible
records it in Chapter 19 of the New Testament - the Gospel According to
St. Mathew thus,

"16. And, behold, one came and said unto him, Good Master, what
good thing shall I do, that I may have eternal life?
F
17. And he said unto him, Why callest thou me good? there is
none good but one, that is, God: but if thou wilt enter into life,
keep the commandments.

18. He saith unto him, Which? Jesus said, Thou shalt do no murder,
G Thou shalt not commit adultery, Thou shalt not steel, Thou shalt
not bear false witness,

19. Honour the father and thy mother: and, Thou shalt love thy
neighbour as thyself.

H 20. The young man saith unto him. All these things have I kept
P.M.A. METROPOLITAN v. M.M. MARTHOMA [RM. SARAI. J.] 557

from my youth up: what lack I yet? A
21. Jesus. said unto him, if thou wilt be perfect, go and sell that
thou hast, and give to the poor, and thou shalt have treasure in
heaven; and come and follow me.

22. But when the young man heard that saying, he went away B
sorrowful: for he had great possessions".

Turning 'away sorrowful', is the long and short of this litigation between
two rival groups of Jacobite Christian Community of Malabar which has
been going on for more than hundred years apparently for religious and C
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 D
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 adjustmen~ but 'those who hoped - fondly, as events
have proved, that the decision of the Supreme Court in Moran Mar Bas- E
selios Catholicos v. Thukalan Paulo Avira & Others, (1958) KLT 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 F
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 Appeal Suit No. 269 of 1960 decided on 3rd April 1964]

I
How the much negotiated peace and quiet arrived at by written G
adjustments worked out by issuing letters from both the groups was shaken
even before expiry of 15 years since the judgment was delivered by this
Court in September, 1958 and what led 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 H
558 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A 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
B suit filed by the appellants operated as res judicata can be, better, ap-
preciated 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 adversarial duel between the two rival groups
has assumed so much of publicity that it has found place even in the
C 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 con-
science and belief is result of teaching and learning. Christianity is 'a
D religion that traces its origins to Jesus of Nazareth, whom it affirms to be
the chosen one (Christ) of God' Encyclopedia Blitannica, 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.
E 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 numeri-
F cally stronger and intellectually more creative than the Latin West. Chris-
tianity 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.O. and found the first Christian settlement in the
South' [Religion in India by Dr. Karan Singh]. Jn A.O. 37 Apostolic See at
Antioch was established by St. Peter to whom the stewardship of Church
G 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 [ndia in A.O. 51/52 and established 7 Churches in the
Malayalam speaking parts of South India. They are known as Malankara
H Jacobite (or orthodox) Syrian Church, "Malankara" means "Malayalam
P.M.A. METROPOLITAN v~M.M. MAR1HOMA (R.M. SAHA!. J.I 559

speaking" 'The two Syrian Orthodox Churches in Syria and India, along A
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, B
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 C
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 sixty 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, D
including 1.8 million Indians, was abut 2 million, in two separate jurisdic-
tion-one with Patriarch Ignatius Zakka as head in Damascns, Syria and
the other with Catholicos Mar Thoma Mathews I as head, in Kottayarn,
Kerala, India' [Encyclopedia of Religion. Volume 14 p.227]. The word
'church' refers both to the Christian religious community and to the build-
ing used for Christian worship' [Encyclopedia B1itan11ica, Volume 5 page E
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 F
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 B1itan11ica, Volume 5 page 739]. G
'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, fascinat-
mg and eventful. The long period stretching from A.O. 51-52 can be H
560 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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
B 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 form 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
C 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
D 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
E 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
F 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,
G Sankarapuri and Pakalomattiom. In A.O. 200 the devotees had written to
Demetrius the Bishop of Alexandria, requesting him to send a teacher, to
instruct them in the doctrines elating 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
-
H eccuminical council was held in 325 A.O. at Nicea. Priests and prelates
P.M.A. METROPO UTAN v. M.M. MARTIIOMA [R.M. SAHA!, J.] 561

from all parts of Christendom were invited. Representatives of all dioceses A
in the Christian world attended the Synod. Christians of India were repre-
sented 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 establi>hment of Christianity, revision of
the scriptures and framing a Code of faith and rituals. But the most B
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 C
Catholics 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 en-
forced and the Patriarch of Antiouch started taking action upon it. Till
about A.O. 1599 Bishops (who were called 'episcopas' or Metropolitans) D
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 dig-
nitary known as the 'Arch-Deacon' who was not possessed of the full
spiritual grace of a Bishop. E

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.O. F
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 G
Diamper. Books of the Syrians Christians were burnt and destroyed. All
traces of Apostolic succession in their church were obliterated. The Por- ·
tuguese arrested Mar Ignatius the Patriarch, at Mylapore, brought him in
fetters to Cochin on way to Rome and ultimately he mysteriously disap-
peared believed to have been killed either by drowning or burning. This
enraged the Syrians. They met at Muttancherry, took the famous oath at H
562 SUPREME COURT REPORTS [1995] SUPP. lS.C.R.

A 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
B Patriarch of Antioch and the latter Roman Syrians following the Roman
creed of the Pope of Rome. The Puthenkoor people after meeting at
Muttancherry came to Alengad Church and, in obedience to the Staticon
of Mar Ignatius consecrated Arch-Deacon Thoma with the title of Mar
Thoma Metran.

C 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 Malankarn by the Patriarch of Antioch through his
D 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.O. 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
E 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
p 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 ad-
G ministered 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 bet)Veen 1808 and 1840 vast assets had been acquired
with the trust created by Dionysius VI. These were controlled and ad-
H ministered by the person who was the head of the Church. Therefore, even
P.M.A. METROPOLITAN"· M.M. MARTH OMA [R.M. SARAI. J.J 563

though one Cheppat Dionysius, a locally ordained Metropolitan was in A
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 B
delegate of Patriarch of Antioch ihen 1840 marked the beginning of
emergence of struggle for supremacy over the Church betwe.en localJy
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 . C
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 the
·. Travancore Government it appointed in 1848 a Tribunal known as the
'\'Q_uilon Committee' to settle the dispute. The committee held in favour of D .
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, form 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, there-
fore, they appear to have persuaded one Joseph Dionysius to go to Syria E
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 p
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 alJ the Churches at G
Mulunthuruthy in 1876. It is popularly known as 'Mulunthuruthy 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 H
564 SUPREME COURT REPORTS (1995) SUPP.1 S.C.R.

A 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
B 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 domina-
tion was still predominant. However, Thomas Athanasius challenged the
C 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
D 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
E for India, Burma and Ceylon at Malaukara 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 (!rerogative
F of being Patriarch of Antioch at the same time. Within a span of fifty years,
five suits were filed, the first knows 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 Mulunthuruthy Synod
G 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
H rival claims against the assets. All the three suits were decided in favqur
P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.J 565

of Catholico group. Therefore, the fourth suit was filed by the Patriarch A
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 la't 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 B
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 then by theology ... .In the twelfth C
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 D
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 E
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 Basselius Mar Thoma
Mathews I, Catholicos of the East. This group has a flourishing theological F
seminary and a number of ashrams and mona&teries, 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].
G
The 'Seminary Suit' was filed in 1879 by Joseph Dionysius against
Mar Thomas Athanasius for recove~y of the property over which he had
obtained possession in lieu of the Quilon Committee report. It was con-
tested 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 H
566 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A 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).
B 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 tome,
C 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 govermnent of the Malankara
Church. But he was held to have uo authority over temporal matters. It was
held:
D
''the Patriarch's suprema.:y over the Church in Malabar has ex-
tended 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
E interfered with temporal affairs; and where in two or three instan-
ces they (the Delegates) tried to have some control over, or
interference with, the temporal affairs, the Metropolitan and the
community resisted them successfully.

F On a review of the whole History and evidence, we arrive at the
conclusion that the Patriarch of Antioch has been recognized by the
Sy1ian 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
G the Church in this country in matters spiritual, that the man so
consecrated should be a native Syrian Christian of Malabar accept-
able 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 inteiference with the internal administration
H of the temporalities of the Church in Travancore which, in this respect
P.M.A. METROPOLITANv. M.M. MARTHOMA (R.M. SAHA!, J.] 567

has been an independent Church." A

[Emphasis supplied]

The conclusion and finding of the court that the Patriarch had no
temporal and administrative control over the churches was not accepted B
either by the Patriarch or the Parishes. Some of the Parishes; therefore,
denied the authority of Dionysius which led to filing of suit in 1899 by the
Metropolitan against Parishes which, as stated, became famous as 'Arthat
Case. The suit was decreed in 1905 and the judgment of Ra_jah (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 C
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 D
Malankara Metropolitan'.

The effect of the two judgments 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 v•hat
the Patriarch had decided when the meeting was held at Mulunthuruthy E
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 aown to Malabar to influence the course of
events and get an assurance from different churches accepting hi' supe-
riority in temporal matters as well. However, in 1905 dispute started F
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 Sultan
of Turkey. But the one issued in favour 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 G
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
acknowledgment of his temporal authority the majority declined to dci so.
He, therefore, approached the Parish Churches individually and succeeded
in getting submission deeds (Udampadis) from some including one Mar H
568 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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
B 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 us and in
retaliation convened a meeting of the Malankara Association which
declared his ex-communication invalid and removed from trusteeship the
C two trustees who had gone over to the side of the Patriarch. The Commit-
tee 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
D 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 wjio 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
E 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,
F 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 cannon of the
Church, defy him and quarrel with him will become guilty. Keep aloof from
G quarrel and breach of law. Grace and blessing 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 Bas-
H selios and three new Metropolitans the first being Gheevarghese
P.M.A. METROPOLITAN v. M.M. MARTH OMA [RM. SAHA!, J.] 569

Gregorius, the second, Joachim Evanios and the third, Gheevarghese A
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 fulfill all your
wants. T7ie Catlwlicos, aided by the Metropolitans, will ordain melpattakkars,
in accordance with the Canons of Our Holy Fathers and consecrate Holy B
Marone. 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
1ight and, do all things properly, and in confom1ity with precedents with the
advice of the committee, presided over by Dionysius, Metropolitan of
Malankara'. ·
c
(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 D
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 E
Jacobite Syrian Christian commnnity in the British treasury. The suit was
decided in favour of M.G. Dionysins. The decree was reversed by a Full
Bench of the Travancore High Court in 1923. The judgment 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 F
money deposited in the Court as. the lawful trustees of the Church proper-
ties.

On 16th August 1928 the Managing Committee of the Malankara
Association was authorised to draw up a constitution of the Church. There G
was sharp reaction to it. The delegate of Patriarch issued an order to the
Catholic Metropolitan to execute Udampad within tow 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 H
570 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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 or orthodox church and primacy of
B 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
C as Malankara Metropolitan and armed with this they filed Suit No. 111 of
1139, that is lOth 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
D Article 136 of the Constitution and in Moran Mar Basse/ios Catlwlicos &
Anr. v. Most Rev. Mar Poulose Athana.<ius & On., AIR (1954) SC 526 the
appeal was allowed. The judgment of the High Court was set aside and the
High Court was directed to admit the review petition and re-hear the same.
In December 1956 the judges heard the appeal, delivered the unanimous
E judgment 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
F held that the claim of the other group that the Catholicos had become
heretics or 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,
G 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
H which was a voluntary and not a compulsory contribution made by the
P.M.A. METROPOLITAN"· M.M. MARTI!OMA [R.M. SAHAL.l.J 571

parishes collected by the committee of the Malankara Association and sent A
to Patriarch was not forbidden and its non-payment did not amount to
heresy on the party of the Catholicos. The declaration sought by the
Patriarch that they were trustees of the properly 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 B
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 C
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 liable to fail for want of their title
as trustees. 17ie Court further held that since the intelpleader suit was
conve1ted into ·a represemative suit on behalf of Jacobite Syrian Christian D
population of Malaba1; therefore, the decision in that suit was binding on all
,., ' members of the Ma/ankara 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 : E
11
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 tenants of the
Jacobite Syrian Church and do they amount to heresy and
render them ipso facto heretics and aliens to the faith?
F

(i) Claim that the 1st defendant is a Catholicos?

(ii) Claim that he is the Malankara Metropolitan?
G
(iii) Claim that the 1st defendant has authority to consecrate
Marone 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 H
572 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A 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?

B (c) Have they framed a constitution for the new church
conferring authority in the Catholicos to consecrate Morone
to ordain the higher orders of the ecclesiastical hierarchy, to
issue Stations allocating Dioceses to the Metropolitans and,
to collect Ressissa?
c (d) Do these functions and rights appertain solely to the
Patriarch and does the assertion and claim of the 1st defen-
dant to exercise these rights amount to a rejection of the
Patriarch?

D (e) Have they instituted the Catholicate for the first time in
Malankara? Do the above acts, if proved, amount to heresy?

16. (a) Have the defendants ceased to be members of the Ancient
Jacobite Syrian Church'/

E (b) Have they forfeited their right to be trustees or to hold
any other office in the Church?

(c) Have they forfeited their right to be beneficiaries in
respect of the trust properties belonging to the Malankara
Jacobite Syrian community?
F
19. (a) Have the plaintiffs and their partisans formed themselves
into a separate Church in opposition to Mar Geevarghese
Dionysius and the Malankara Jacobite Syrian Church?

(b) Have they separated themselves from the main body of
G
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
H and having been decided by the Travancore High Court on review in favour
P.M.A METROPOLITAN v. M.M. MARTH OMA [RM. SAHA!, J.J 573

of M.G. Dionysius and his co-trustees (Catholico group) it operated as res A

- 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 B
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 co-trustees (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, C
were not qualified for acting trustees wa' in issue in the inter-
pleader 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 D
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 conten-
tions cannot be re-agitated in the present suit".
E
Thereafter the Court after discussing the matter in great details 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 F
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 (0.S.No. 94 of
1088) which operates as 'res judicata'. The charge founded on the G
fact of non-payment of Ressissa, if it is not concluded as construc-
tive 'res judicata' by the previous judgment must, on merits, and
for reasons· already stated, be found against the plaintiff-respon-
dent. 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 H
574 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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
B with the llial court, that it is no longer open to the plaintiff-respondmt
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
consequence lost his status as a member of the Church or his office
as a t1ustee."
c [Emphasis 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
D 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
E on both the groups and on 9th December 1958 Patriach Yakub-III issued
a letter marked as Ex.A-19 the 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
F 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 fulfillment 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
G expressed this desire of our very clearly in the apostolic proclama-
tion 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 b1ing f01th peace in the
H Ma/ankara church we hereby accept with pleasure Mar Baselious
P.M.A. METROPOLITAN v. M.M: MARTH OMA [R.M. SAHA!, J.] 575

Gheevarghese as Catholicose. Therefore we send our hearty greet- A
ings intensified by the fervour of peace in this month of rejoycing.
We also beseech, let the lord shower on you His abundant bless-
ings. Let the lord make you a people beautified by virtuous acts
towards the right and delight you with the comfort and plenteous-
ness flowing from the care pleased to his Holy will to the envy of B
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 Decem-
ber 1958, the 2nd year of our assension as patriarch.

From the Aramana at Holms."
c
[Emphasis supplied]

The other letter was issued on 16th December 1958 marked as Ex.A-20 by
the Catholico group to the following effect : D
"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 II seated OD· the Throne of
The East of Abostle St. Thomas.
E
Seal

Let divine grace and Apostolic Benediction be always in abun-
dance with all the Melpattakkars (High Priests). Priests, Deacons
and all the faithful under our jurisdiction.
F
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 how very much delighted
and do glorify God in that there is an end to the discord showing G
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 Associa-
tion and now in force. H
576 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A 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.
B
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."
c
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
D 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 difference 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:
E
"To conclude, I wish to state that the prestige and influence of the
throne of Antioch here depend very largely upon the wish 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
F 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 meaningful
and alive 11 •

G The relations thereafter appear to have become cordial so much so that in
1961 Ex.A-30 was written by Patriarch yakub-Ill in which it was mentioned.

"I am placing your Beatitude's photo properly in our palace so that
all people who are in and out should see it and understand the
intimate unity and real re-conciliation and the essential relation-
H ship between the Apostolic Throne and our church in
P.M.A. METROPOLITAN,-. M.M. MARTH OMA [R.M. SAHAI •.T.] 577

Malankara ............ We are eager to see perfect peace in our church A
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
B
children both priests and faithfuls who are under your authority.''

But from letter dated 18th January 1962 sent by Baselius Gecvarghese 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 respon- c
sible 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
con 1ience and bless us by your presence as well as prayers'. It appears D
Mar Baselius Geevarghese died in January 1964 and he members of the
Holy Episcopal Synod installed one Ougen Mar Themotheus, Metropolitan
as his successo~ 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 E
memoranda Ex.A-3G 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 F
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 sharp- G
ly reacted by the Patriarch by issuing show-cause notice, starting discipli-
nary 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. H
578 SUPREME COURT REPORTS (1995[ SUPP. 1 S.C.R.

A 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 dates
B 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 Decem-
ber, 1958 a meeting of the Malankara Association was held in which almost
C 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 As-
D sociation which was considered in a Synod held on 21st February, 1959 and
pursuant to the decision taken theiein, dioceses were re-allocated. From
the year 1959 to 1964 number of meetings were held in which both the
groups participated and attempted to function as one unit. Form 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
E 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 can-
didates for ordination as Bishops and elected members to the Managing
Committee which included members of the Patriarch group as well. In 1967
F 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
G 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. 4179. 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
H which was not only objected but asserted to be without jurisdiction. Various
P.M.A. METROPOLITAN v. M.M. MARTI10MA [RM. SARAI. .I.] 579

ordinations followed. Each was challenged in courts. And when on 5th A
January 1975 the Catholico in their Synod declared that Malankara As-
sociation was autocephelous then the Patriarch in a Synod held at Damas-
cus 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 B
Orthodox Church dependent on the Patriarch in all spiritual matters, that
acknowledgment of Patriarch's and position by those ordained was essen-
tial, and the Catholicos having rebelled against the Patriarch stood dis-
qualified 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 C
universal Synod. On 21st August 1975 the Patriarch by Kalpana Ex.B-72
excommunicated Catholicos and on 7th September 1979 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.
D

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 Amioch. The learned E
Single Judge held that the Malankara Church was Episcopal to a limit in
spiritual affairs. In matters of temporalities, the Church was congregation-
al. It was further held that the Parish Churches were independent
automonous units as far as governance and administration of temporalities
were concerned. The suits were dismissed. In appeal, the Bench framed as F
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 'Simhasana Churches' and the
Churches establishes by the Evangelistic Association. Relevant findings on
the questions framed by it are extracted below. The first three questions G
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 Com-
munity as valid and binding? H
580 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A (2) Are the plaintiffs barred by res judicata from contending that
the binding version of Hudaya canons is Ext. A90 by reason of
the judgment in XLT T.L.R. 1, order in the Review Petition and
the judgment in 45 T.L.R. 116?

(3) Are the defendants barred by res judicata from contending that
B 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. BP in the Samudayam suit and Exht. B-161 in these
C 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
Con1munity and since findings in the previous litigations were not res
D 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
E 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 morone or to exercise any other spiritual power
over the Malankara church thereby reducing his powers to a
F 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 in reason of the decision of the Supreme Court
G
in Samudayam suit AIR (1959) SC 3.1?

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
H ordain Metropolitans or consecrate Marone or to exercise any other
P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!, J.l 581

recognised spiritual power, though the power to ordain Metropolitans is A
subject to acceptance of t]je 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 B
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.
c
(b) Parish churches are not congregational or independent, but
are constituent units of Malankara church; they have fair degree
of autonomy subject to the supi;rvisory powers vesting in the
Managing Committee of the Malankara Association, Catholicos
and the Malankara Metropolitan as the case may be. Administra- D
tion of the day-lo-day affairs of parish churches vests in parish
assembly and elected committees of the parishes.

(c) Malankara church is not purely episcopal but has only some
episcopal charcteistics.
E
(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,
F

'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 G
autoccphalous church but is a part or division of the world Or-
thodox Syrian Church and set aside the finding of learned single
judge that the Catholicos group has now established an
autocephalous church. We hold that while Patriarch of Antioch is
the head of the W.orlil Orthodox Syrian church Catholicos of the H
582 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A 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 Constitu-
tion.11

This was the finding recorded in Moran Mar Basselios (supra) as well. It
B 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
C 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.
D 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
E 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 emotio~, 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
F 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
G to deal with the preliminary objections both to the maintainability of the
suit under Section 9 of the Civil Procedure Code and the non-main-
tainability 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
H appellant that they had ex-communicated the respondent in accordance
P.M.A METROPOLITAN v. MM. MARTH OMA [RM SAHA!. J.) 583

wi_th Hudaya Canon governing the Church is wall founded as if even this A
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 B
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 C
defendant-appellant from raising i~ 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 11on 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 declarati_on that D
Malankara Association had become autocephalous and no priest could
refuse to recognise the authority of the Catholico? Could the plaintiff seek
injunction, restricting the priests or Deacon from performing any other
sacramental services and prohibit the defendants from interfering with the
Malankara Church? How would the bar of jurisdicate operate if only part
of relief is cognisable? To appreciate these aspects it is necessary to set E
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 F
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 G
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 nol such office is attached to a
particular place. 11 H
584 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

A One nf 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, ho\vsoever frivolous
B the claim, that the law confers no such right to sue' Smt. Ganga Bai v. Vijay
Kumar & O""• 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 (ntry to only those
which are expressly or impliedly barred. The two explanations, one existing
from inception and latter added I 1976 bring out clearly the legislative
C intention of extending operation of the Section to such religious matters
where right to property or office is involved irrespective of whether any
foes 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.
D The headinb which is normally key to the Section brings out unequivocally
that all civil suits arc 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 or
impliedly barred'.

E Each \Vord 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
F an individual; civil rights'. In Black's Legal Dictionary it is defined as,
'relating to provide rights ·aiJ,d remedies sought by civil actions as con-
trasted 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
top pertain to the larger family of 'civil'. There is thus no doubt_ about the
G width of the word 'civil'. Its width has been stretched further by uslhg 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
H SA.L. Narayan Row & Anr. Etc. Etc. v. Ishwar/a/ Bhagwandas & Anr. Etc.
P.M.A. METROPOLITAN v. M.M. MARTIJOMA [RM. SA.HAL J.] 585

Etc., AIR (1965) SC 1818. The Constitution Bench held 'a proceedings for A
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 icgal action, 'any step taken in a legal action.' In Black's Law Diction-
B
ary it is explained as, 'In a general sense, the form and manner of conduct-
ing 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 ad-
ministrative proceedings before agencies, tribunals, bureaus, or the like'.
The word 'nature' has been defined as, 'the fundamental qualities of a C
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. D

Are rnligious 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 E
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 concern- F
ing 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 Parlia- G
ment 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 religiolis rites or ceremonies. Explanation 11 \\•idens it further H
586 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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
B English Law into a colory 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.
C 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. How-
ever they did not interfere With religion. Disputes pertaining to religious
office including performance of rituals were always decided by the courts
D established by law. As far back as 1885 Justice Mehmood in Queen Empress
v. Ramzan & Ors. (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
E 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,
F right to worship, performing certain rituals have been taken cognizance of
and decided by civil courts. In Narasimma Chariar & Ors. v. Sri Krishna
Tata Chariar, 6 Mad. H.C. Report 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 :
G
"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 pound to entertain, and cannot
H. cease to be such a question, because claimed on account of some
P.M.A. METROPOLITAN v. M.M. MARTIIOMA [R.M. SAHA!, J.] 587

service connected with religion. A
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."
B
It was approved by the Privy Council in Krish11ama & Ors. v. Kiish11asamy
& 01'., [1879) !LR 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 litiga-
tion. In the second round after remand the High Court observed,
c
"It is certainly not the duty of the Civil Court to pronounce on the
truth of religious tenents 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 tenants of the followers of a creed D
and what is the usage they have accepted as established for the
11
regulation of their rights inter se.

The Law Commission in its 27th Report in Civil Procedure Code, Decem-
ber 1964 at page 91 while considering the addition of Explanation II to
Section 9 observed as under: E
"It may be added, that ihe 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 ser-
vices, does not imply that other suits relating to religious offices
cannot be entertained.n F

In Sri11ivasalu Naidu v. Kavalmari Mwmuswami Naidu, AIR (1967) Madras
.., 451 is was observed,

"The explanation certainly does not confine the limits of the nature G
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 H
588 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A against others. There is no doubt that such a question would be
one of a civil nature. 11

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
B 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. Kai/ash Chandra Monda/ & Ors., AIR (1921) Calcutta 328 it was held :

c "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:

D "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
E
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 v. U. Zaw Ta., AIR (1914) Lower Burma 178(1) where a
F 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 ecclesiastical 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
G civil nature excepting suits of which the cognizance is either ex-
pressly 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
H decide the suit and should do so''.
P.MA METROPOLITAN v. M.M. MARTIIOMA [RM. SAIW, J.] 589

In Sri Sinna Ramanuja Jeer & Ors. v. S1i Ranga Ramanuja Jeer & Anr., A
(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 B
property or to an office is contested is a suit of civil nature
notwithstanding that such right may ~epend 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 ce~se to be· one even if the said right depends C
entirely upon a decision of a question as to the religious rites or
ceremonies'.

In Ugamsingh & Mishrimal v. Kesrimal & Ors., (1971] 2 SCR 836, it was
held that right to worship is a civil right which can be subject matter of a
~dTu~~~~: D
"It is clear therefore that a right to worship is a civil right, int_er-
ference with which raises a dispute of a civil nature."

• That the right to conduct worship is also a civil right has been recognised E
by the courts in TA. Aiyangar Swamigal & Ors. v. L.S. Aiyangar & Ors., 31
Madras Law Journal 758. InDevendra Narain Sarkar& Ors. v. Satya Charan
Mukelji & 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 : F
·., ''.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 G
·' declaration as to who would be or could be the holder or such
office."

It was vehemently urged that declaration of the character of a church,
viz., whether it was autocephalous was solely dependent upon the canonical
laws and it necessarily involved an adjudication of what was the application H
590 SUPREME COURT REPORTS (1995] SUPP. lS.C.R.

A canon, what was its interpretation and what are the religious beliefs,
practices, customs and usage in the church which pertained to the ec-
clesiastical jurisdiction and the civil courts could not embark on such an
enquiry. This is the farthest or the highest stand that could be taken by the
appellant. The answer is two fold, one section 9 of the Civil Procedure
B Code and other Article 25 of the Constitution. The latter guarantees
constitutionally freedom of conscience and the right freely to profess,
practice and propagate religion to every person. lts reach has been ex-
plained in various decisions. In His Holiness Srimad Perarulala Ethiraja
Ramanuja Jeeyar Swami Etc. v. The State of Tamil Nadu, AIR (1972) SC
1586 it was held that this Article guarantees freedom to practice rituals and
C ceremonies which are integral parts of a religion. In Rev. Stainislaus v. State
of Madhya Pradesh & Ors., AIR (1977) SC 908 it was held that right to
practice and propagate not only matters of faith or belief but all those
rituals and practices which are regarded as integral parts of a religion by
the followers of a doctrine. In S.P. Mittal v. Union of India & Ors., AIR
D (1983) SC 1, it was held that freedom or right involving the conscience must
naturally receive a wide interpretation. The suit filed was thus main-
.....
tainable. The injunction and prohibition sought from interfering in ad-
ministration of Church are certainly matters which pertain to the religious
office. Even the declaration that the Church is episcopal is covered in the
E expansive expression of religion as explained in Mittal's case (supra). The
word 'episcopal, means 'of or pertaining to bishops, Having a govt. vested
in bishop'. A suit for declaration of such a right would be maintainable
under section 9. Not only because it is claim to an office but also because
there is no other forum where such dispute can be resolved. If a dispute
F arises whether a particular religious shrine bas ceased to be so due to its
anti-religion activities then the followers of that religion or belief and faith
cannot be denied the right to approach the court. Explanation I is not
restrictive of the right or matters pertaining to religion. It only removes the
doubt to enable the courts to entertain suits where dispute about religious
office in involved. The right to religion having become fundamental right,
G it would include the right to seek declaration that the Church was Epis-
copal. But the court may refrain from adjudicating upon purely religious
matters as it may be handicapped to enter into the hazardous, hemisphere
of religion. Maintainability of the suit should not be confused with exercise
of jurisdiction. Nor is there any merit in the submission that Explanation I
H could not have suits where the right to property or to an office was not
P.M.A. METROPOLITAN v. M.M. MARIBOMA [RM. SAHA!, J.] 591

contested or where the said right depended on decisions of questions as A
to religious faith, belief, doctrine or creed. The emphasis on the expression
'is contested' used in Explanation I is not of any consequence. It widens
the ambit of the Explanation and include in its fold any right which is
contested to be a right of civil nature even though such right may depend
on decisions of questions relating to religious rights or ceremonies. But B
from that it cannot be inferred that where the right to office or property
is not contested it would cease to be a suit cognisable under Section 9. The
argument is not available on facts but that shall be adverted later. Suffice
it to mention that in Ugamsingh (supra) the plaintiffs claim was that they
were entitled to worship without interference of the idol of Adeshwarji in
the temple named after him at Paroli according to tenants observed by the C
._Digambri Sect on the Jain religion. It was held that from the pleadings and
the controversy between the parties it was clear that the issue was not one
which was confined merely to rites and rituals but one which effected the
rights of worship. If the Digambaries have a right to worship at the temple,
the attempt of the Swetamberies to put Chakshus or to place Dhwandand D
or Kalash in accordance with their tenets and to claim that the idol is a
Swatamberi idol was to preclude the Digambaries from exercising their
right to worship at the temple, with respect to which a civil suit is main-
tainable under Section 9 of the Civil Procedure Code. The scope of the
Section was thus expanded to include even right to worship.
E
'Religion is the belief which binds spiritual nature of men to
super-natural being'. It includes worship, belief, faith, devotion etc. and
extends to rituals. Religious right is the right of a person believing in a
particular faith to practice it, preach it and profess it. It is civil in nature.
The dispute about the religious office is a civil dispute as it involves F
disputes relating to rights which may be religious in nature but are civil
in consequence. Civil wrong is explained by Salmond as a private wrong.
He has extracted Blackstone who has described private wrongs as,

-
'infringement or privation of the private or civil rights belonging to
individuals, considered as individuals, and are thereupon frequently G
termed civil injuries'. Any infringement with a right as a member of any
religious order is violative of civil wrong. This is the letter and spirit of
Explanation I to Section 9. In American Jurisprudence volume 66,
paragraph 45, the law is explained thus:
H
592 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 'The (the) civil courts have steadily asserted their want of jurisdic-
tion to hear and determine any controversy relating thereto. On
the other hand, the civil courts have without hesitation exercised
..
their jurisdiction to protect the temporalities of such bodies, for
whenever rights of property are invaded, the law must interpose
equally in those instances where the dispute is as to church proper-
B
ty and in those where it is not'.

In Long v. Bishop of Capetown, (1863) l Moore PCC NS 411, where the
Bishop held an ecclesiastical court for proceeding against the appellant
who was authorised to perform ecclesiastical duties in a Parish was held
C as coram non judice as he had no authority to hold an ecclesiastical court.
The court held that where no Church was established by law it was in the
same situation as any religious body, therefore, if any tribunal was con-
stituted by such body which was not court then its decision would be
binding only if it was exercised within the scope of the authority. In Dame
D Henriette Brown v. Les Cure Et Marguilliers De L'Oeuvre Et Fabrique De
Notre Dame De Motreal, (1874-75) 6 PC 157, the Privy Council while
following the decision in Long (supra) held that where a Church was
merely a private and voluntary religious society resting only upon a con-
sensual basis courts of justice were still bound when due complaint was
made that a member of the society was injured in any manner of a mixed
E spiritual and temporal character to inquire into the laws and rules of the
tribunal or authority which inflicted the alleged injury and ascertain
whether the act complained of was law and discipline of the Church and
whether the sentence was justifiably pronounced by a competent authority.
The decision in Long (supra) has been followed in this country in Anadrav
F Bhikaji Phadke & 010·. v. Shankar Daji Charya & Ors., ILR 7 Bombay 323
were certain persons brought a suit that their right of worship in the
sanctuary for a temple was being infringed, it was held that the right of
exclusive worship of an idol at particular place set up by a caste was civil
right.

G The law being such it may be seen whether the suit filed by the
respondent is covered within the forecorners of Section 9. Whether the
relief sought by the respondent was regarding the status or office of the
-
Metropolitan? In Original Suit No. 4 of 1979 it is claimed that various
persons said to be ordained as metropolitans have no right to act as such
H and priest ordained in turn by them would equally have no right to act as
P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.] 593

such, all these being usurpers. Further the office of metropolitan in the A
Malankara Church has, with it, attached legal obligations for the non-per-
formance of which sanctions or penalties are provided is clear both from
the canonical law as well as the Constitution. Apart from this four suits,
namely, Original Suit Nos. 2/79, 5179, 6179 and 8/79 concern themselves
solely with the interference in the administration of Church properties B
being scheduled specifically in the respective plaints. Similarly the claim
founded on allegations against wrong persons exercising the functions by
those who have been wrongly designated as metropolitans and are inter-
fering with the right to worship in Churches appears to be squarely covered
in Section 9. The prayers in Original Suit No. 4/79 were 'A' to 'H'. Even if
the prayer 'A' which seeks a declaration that Malankara Church is epis- C
copal in character ignored the suit for reliefs 'E', 'F', 'G' and 'H' which
read as under cannot be held to be touching. only religious rites and
therefore, are not cognisable by Civil Court:

"E. To declare that any Priest who refuses to recognize the D
authority of the Catholicos and Malankara Metropolitan, the
2nd plaintiff and other Metropolitans under him is not en-
titled to minister in any of the churches or its institutions in
Malankara.

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

G. To prohibit defendants 4 onwards from performing any
religious services a sacraments whatsoever in or about any of F
the church of Malankara and for the Malankara church or its
constituent churches or institutions.

H. To prohibit the defendants from interfering in any manner
with the administration of the Malankara church."
G
The appellant placed reliance on various averments in different I.As,
written arguments and affidavits to demonstrate that the nature of relief
sought was beyond the pale of Section 9. In fact this dispute was not
seriously raised before the courts below. The dispute is going on since long
and this is as stated the third round in this Court. But it appears that in ,H
594 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A earlier litigations in the Royal Court of Final Appeal and the Supreme
Court no such objection was taken that the suit was not maintainable. The
submission that the locus standi of the respondent was suspect as they
having been ex-communicated by the Synod of the orthodox church ;,,ith
Patriarch as its head, did not have any substance as in Sardar Syedna Taher
B Saifuddin Saheb v. 77ze State of Bombay, [1962] Supp. 2 SCR 496 a
Constitution Bench of this Court held that the exercise of the power of
ex-communication by the religious head on religious ground form part of
the management of its affairs in matters of religion and since Articles 25
and 26 of the Constitution protect not merely religious, doctrine and beliefs
but also acts done in pursuance of religion and themselves carrying the
C rituals and observations, ceremonies and right of worship which are in-
tegral part of religion it is difficult to agree that there was no forum for
vindication of such right.

Even the argument that the declaration that the Church was
D autocephalous or Episcopal is cognisable only in the ecclesiastical jurisdic-
tion and the civil courts could not embark on such an enquiry does not
appear to be well founded. A civil court may be precluded from deciding
\Vhat rites are necessary to impart religious character. For instance,
whether kaivapu, that is placing of the hand by the spiritual head for
ordination is necessary or Marone, that is, the oil of see must be there may
E be a matter for the Synod. But who has a right to perform it or whether it
has been performed as provided in the religious book and whether a
Church has become autocephalous due to adoption of Constitution by a
Synod are matters which can surely and certainly be decided by the courts.
The learned counsel submitted ·that question whether the Malankara
F Church was governed in its administration by the Constitution of
Malankara Church with reference to the Constitution passed in M.O.
Seminary meeting in 1934, which dealt with religious and ecclesiastical
aspects of the Church, could not be adjudicated upon by the civil courts.
According to learned counsel the Constitution expressly adopted the
Catholico version of the canon and made provisions in regard to ordination
G of priecs, bishops, Catholicos and the discipline to which they were sub-
jected, these were mere matters of religious rites and ceremonies and
involved an adjudication of the question of religious faith, creed and
doctrine which would be wholly outside the scope of the civil courts. The
learned counsel submitted that the single most important question on
H which the fate of these appeals and suits would turn was as to which was
P.MA. METROPOLITAN v. M.M. MAR1HOMA [RM. SAHA!, J.] 595

the correct version of the canon applicable to Malankara Church and this A
was a matter which entirely depended on questions relating to the religious
faith, doctrine and belief. It was also emphasised that the various decisions
given by this Court, namely, Sardar Syedna Taher Saifuddin Saheb v. The
State of Bombay, [1962] Supp. 2 SCR 496;Ugamsingh & Mishramal v.
Kesrimal & Ors., (1971] 2 SCR 836;Thirnvenkata Ramanuja Pedda Jivyan- B
gar/u Valu v. Prathivathi Bhayankaram Venkatachar/u & Ors., AIR (1947)
PC 53;M. Appadorai Ayyangar & Ors. v. P.B. Annangarachariar & Ors., AIR
(1939) Mad. 102:,Kattalai Michael Pillai & Ors. v. J.M. Barthe & Ors., AIR
(1917) Mad. 43l;E.C. Kent v. E.E.L. Kent, AIR (1926) Madras 59 and Sri
Sinna Ramanuja Jeer & Ors. v. Sri Ranga Ramanuja Jeer & Anr., (1962) 2
SCR 509 would indicate that Explanation 1 to Section 9 saved only those C
suits where the right to property or to an office was contested. But where
no contest was raised the suit would not be covered within the forecorners
of the Section. Reference was made to paragraphs 301 to 304, 313 to 315,
318, 321, 332 to 339, 343 to 346, 352, 354 and 356 of vol. 14 of Halsbury's
Laws of England and it was urged that these paragraphs would show that D
the position of the crown in England in respect of Church was entirely
different. The learned counsel submitted that passages which have been
relied to deal with the Anglican Church relate to colonies where the
supremacy of the Crown in ecclesiastical affairs still exists. He urged that
those passagos have no relevance to a sovereign secular country like India.
The learned counsel pointed out that the decisions in Long (supra) and E
Dame (supra) arose in different colonies which accepted the supremacy of
the Crown in ecclesiastical matters and apart from the regular hierarchical
set up in the Anglican Churches or the Churches in the colonies the civil
courts also exercised jurisdiction. These decisions arising from jurisdictions
where Church was part of the State could not apply in a country like India p
where eligious neutrality was mandated by the secular constitution. In the
end the learned counsel submitted that the judiciary should keep its hands
off in respect of such religious matters.

The submissions do not appear to stand the test in light of what has
been stated earlier. The relevant passage from Halsbury's Laws of England G
have already been extracted to demonstrate that the ecclesiastical law of
England does not apply to colonies. There is no statute framed even during
British regime which had adopted the statutory or common law to the
Churches in India. The mere fact that the Churches in England are
governed by ecclesiastical law could by no stretch of imagination furnish H
596 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

A foundation for the submission that the Churches in India would also be
governed by ecclesiastical law. The jurisdiction of courts depends either on
statute or on common law. The jurisdiction is always local and in absence
of any statutory provision the cognizance of such dispute has to be taken
either by a hierarchy of ecclesiastical courts established in the country
B where the religious institutions are situated or by a statutory law framed
by the Parliament. Admittedly no law in respect of Christian Churches has
been framed, therefore, there is no statutory law. Consequently any dispute
in respect of religious office in respect of Christians is also cognisable by
the civil court. The submission that the Christians stand on a different
footing than Hindus and Buddhists, need not be discussed or elaborated.
C Suffice it to say that religion of Christians, Hindus, Muslims, Sikhs, Budhs,
Jains or Parsee may be different but they are all citizens of one country
which provides one and only one forum that is the civil court for adjudica-
tion of their rights, civil or of civil nature.

D In reading Section 9 widely and construing it expansively the juris-
diction to entertain a suit for declaration whether the Church was episcopal
or congregational and whether the appellants could have been ordained by
the Patriarch when it was contrary to the earlier decision given by this
Court that the ordination was required to be approved by Synod, the court
is not being asked to adjudicate on faith but whether the exercise of right
E in respect of faith was valid. The Grace no doubt comes from Patriarch
and on that there is no dispute but whether the Grace came in accordance
with the Canon or the Constitution is certainly a matter which would fall
within Section 9 C.P.C. Status and office are no doubt different but what
was challenged is not the status or faith in Patriarch but the exercise of
F right by Patriarch which interfered with the Office of Catholico held validly.
Apart from it, as stated earlier, after coming into force of the Constitution
Article 25 guarantees a fundamental right to every citizen of his conscience,
faith and belief, irrespective of cast, creed and sex, the infringement of
which is enforceable in a court of law and such court can be none else
except the civil courts. It would be travesty of justice to say that the
G fundamental right guaranteed by the constitution is incapable of enforce-
ment as there is no court which can take cognisance of it. There is yet
another aspect of the matters that Section 9 debars only those suits which
are expressly or impliedly barred. No such statutory bar could be pointed
out. Therefore, the objection that the suit under Section 9 C.P.C. was not
H maintainable cannot be accepted.
P.M.A. ME1ROPOLITAN "· M'.M. MARTIIOMA (RM. SARAI, J.] 597

The other objection to the maintainability of the suit was based on A
the Places of Worship (Special Provisions) Act, 1991 ('Act' for short). This
Act was eoacted to prohibit conversion of any place of worship and to
provide for the maintenance of its religious character as it existed on the
15th day of August, 1947 and for matters connected therewith or incidental
thereto. Section 2( c) defines 'worship' to mean 'a temple, mosque, B
gurudara, church, monastery or any other place of public religious worship
of any religious denomination or any section thereof, by whatever name
called'. Section 3 bars any person from converting any place of worship or
any religious denomination into a place of worship of a different section
of the same religious denomination or of a different religious denomination
or any section thereof. Section 4 declares that the religious character of a C
place of worship existing on 15th day of August, 1947 shall continue to be
same as it existed on that date. Therefore, it was urged that the suit having
been filed for declaration that the Syrian Churches were apostolic and
autocephalous, it amounted to seeking a declaration as to religious char-
acter of the places of worship and consequently it was barred and the court D
cannot assume jurisdiction to grant such declaration. The learned counsel
urged that each Parish Church is a place of worship within the meaning of
Section 2(c) of the Act and the religious denomination is the Jacobite
Syrian Orthodox church in Malabar. According to learned counsel, it
having been held in successive decisions that there were two sections of
the said religious denomination, one, the Patriarch Group and the other, E
Catholicos and these two denominations existed on 15th day of August,
1947, factually and legally, the suit filed by the respondents for a declara-
tion that the Jacobite Church was autocephalous was not maintainable and
liable tu be dismissed on this ground alone. The learned counsel submitted
that the Parish Churches believed in uninterrupted apostolic succession of p
St. Peter through the Patriarch and that the spirit!Jal grace emanates
through such Patriarchs and, therefore, the declaration sought by the
respondents could result in destroying the basic character of the religious
denomination. It is not necessary to deal with these submissions at length
as sub-s_ection (3) of Section 4 is a complete answer to it. It reads as under:-
G
"Nothing contained in sub-section (1) and sub-section (2) shall
apply to, -

(a) any place of worship referred to in the said sub-sections which
is an ancient and historical monument or an archaeological H
598 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R,

A site or remains covered by the Ancient Monuments and
Archaeological Sites and Remains Act, 1958 (24 of 1958) or
any other law for the time being in force;

(b) any suit, appeal or other proceeding, with respect to any
matter referred to in sub-section (2), finally decided, settled
B or disposed of by a court, tribunal or other authority before
the commencement of this Act.

(c) any dispute with regard to any such matter settled by the
parties amongst themselves before such commencement;
c (d) any conversion of any such place effected before such com-
mencement by acquiescence;

(e) any conversion of any such place effected before such com-
mencement which is not liable to be challenged in any court,
D tribunal or other authority being barred by limitation under
any law for the time being in force".

The Syrian Jaco bite Church is an ancient and historical monument which
was established sometime in 51-52 century A.O. the respondents did not
seek a declaration for conversion of the church or place of worship. The
E matter of the religious denomination was settled as far back as 1876 in the
Mulunthuruthy Synod. Even the declaration sought that the Church is
autocephalous is founded on the Kalpana issued in 1912 and the Constitu-
tion framed in 1934. No declaration is sought for change of the place as it
existed in 1947. Further, whether the declaration sought for can be granted
F or not is a different matter than claiming that the declaration if granted
would result in com<erting the place of worship or the religious denomina-
tion. This objection, too, therefore, is not available on facts of this case.

Reverting to merits the principal issue that calls for adjudication is
about the scope of ex-communication in ecclesiastical matters and the
G extent to which the Court can examine it and lastly whether the ex-com-
munication of the Catholico by the Synod held at Damascus under the
Presidentship of the Patriarch of Antioch was valid either canonically or
conventionally? The principal defence in the suit from which these appeals
have arisen, was that the Catholico-plaintiffs were ex-communicated, there-
H fore, the suits were liable to be dismissed. Two questions arise, one, the
P.M.A. METROPOLITAN v. M.M. MARTI!OMA [R.M. SAHA!, J.] 599

jurisdiction of the civil court to examine ex-communication and secGAd, A
whether the ex-communication was in accordance with law. Taking up the
first question as to whether the civil courts are competent to decide on the·
validity of the ex-communication, the answer, in this connection, has been
given while deciding the objection of maintainability of the suit under
Section 9 CPC. Yet it would not be inappropriate to mention how far the B
protection of a civil court extends regarding the ecclesiastical matters. The
law has been explained in paragraphs 315, 332 and 337 of Halsbury's Laws
of England, Vol. 14. A church is formed by the voluntary association of
individuals. And the churches in the commonwealth are voluntary body
organised on a consensual basis - their rights apart from statutes will be
protected by the courts and their discipline enforced exactly as in the case C
of any other voluntary body whose existence is legally recognised. There-
fore, all religious bodies are regarded by courts of law in the same position
in respect of the protection of their rights and the sanction given to their
respective organisations. It is further settled that discipline of a church
cannot affect any person except by express. sanction of the civil power or D
by the voluntary submission of the particular person. But for purposes of
enforcing discipline within a church religious body may constitute a
tribunal to determine whether its rule have been violated by any other
members or not and what will be the consequence of that violation. In such
case the tribunals so constituted are not in any sense courts, they derive no
authority from the statutes and they have no power of their own to enforce E
their sentence. Their decisions are given effect to by the courts as decision
1
of the arbitrators whose jurisdiction rests entirely on the agreement of the
parties. Consequently if any member of such body has been injured as to
his rights in any matter of mixed spiritual and temporal character the courts
of law will, on due complaint being made, inquire into the laws and rules F
of the tribunal or authority which has inflicted the injury and will ascertain
whether any sentence pronounced was regularly pronounced by competent
authority, and will give such redress as justice demands. See Long (supra),
Dame (supra) and Anadrav (supra). In Hasanali & Ors. v. Nansoorali &
Ors., AIR 35 (1948) PC 66, it was held that a court of law cannot recognise
a purported ex-communication as valid if principles of substantial justice G
have not been complied with.

Ex-communication in religious order and that. top of a spiritual head
entails serious consequences both religious and civil. 'Ex-communication'
is defined in Black's Law Dictionary as 'a sentence of censure pronounced H
600 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A by one of the spiritual courts for offences falling under the ecciesiastical
cognizance. It is described as two-fold: (1) The lesser excommunication,
which is an ecclesiastical censure, excluding the party from the sacraments;
(2) the greater, which excludes him from the company of all Christians.
Formerly, too, an excommunicated man was under various civil disabilities.
B He could not serve upon juries,.or be a witness in any court; neither could
he bring an action to recover lands or money due to him. These penalties
were abolished in England by St. 53 Geo. III, c.127. Excommunication is
still a censure under Canon Law". in Faiths of the World by James Gardner,
it is discussed under 'Anathema' and 'Censure'. The Anathema was usually
administered to offenders. 'It is well known that a solemn curse or
C anathema "with bell, book, and candle" against all heretics, is annually
pronounced by the Pope at Rome, and by other ecclesiastics in other places
on the Thursday of Passion week, the day before Good Friday, the anniver-
sary of the Saviour's crucifixion''. The substance of the "Anathema" is in
these words :
D "Excommunicated and accursed may they be, and given body and
soul to the devil. Cursed be they in cities, in towns, in fields, in
ways, in paths, in houses, out of houses, and all other places,
standing, lying, or rising, walking running, waking, sleeping, eating,
drinking, and whatsoever things they do besides. We separate them
E from the threshold, and from all prayers of the church."

'Censures (Ecclesiastical)" is 'the various punishments inflicted by
the Christian church upon delinquent members of her communion,
in virtue of that authority which has been committed to her by
Christ, the great King and Head of the church'.
F
One of the effects of such action is that the person concerned is
deprived of the right of worship. Under our Constitution it is a fundamental
right. Any interference with it or its deprivation can be challenged in a
court of law. Even in England the Courts extend protection regarding
G ecclesiastical matters if they affect the right as is clear from paragraph 337
of Halsbury's Laws of England, Fourth Edition, Volume 14.

In the light of the law thus stated it may be examined if the ex-
communication of Catholico by the Patriarch was valid as if the power of
H ex-communication was validly exercised then the suit filed by them was not
P.M.A. METROPOLITAN v. M.M. MARTH OMA {R.M. SAHA!, J.] 601
..
maintainable. The specific case in this regard of the appellants was that, A
'canonically', and, 'traditionally' the Patriarch of Antioch is the supreme
'·'. head of the Holy Universal Syrian Orthodox Church and the Catholicos,
is subordinate to the Patriarch of Antioch'. Therefore, the Catholico was
validly ex-communicated in accordance with the canon filed as Ex.18,
which is the foundation of the power and jurisdiction of Patriarch. How B
far is this correct? In Moran Mar Basselios (supra} it was held that the
Catholicos had not committed any act of heresy. Could they be held to have
committed act of hereby when, then used the word 'Holiness' and on the
'Throne of St. Thomas'. From The new Testament - The Gospel according
to St. Mathew, Chapter 19 it appears there was throne for each apostle :-
c
"Then answered Peter and said unto him, Behold, we have
foresaken all, and followed thee; what shall we have therefore?"

- "And Jesus said unto them, Verily I say unto you, That ye which
have followed me, in.the regeneration when the Son of, man shall D

--
sit in the throne of his glory, ye also shall sit upon twelve thrones,
judging the twelve tribes of Israel".

St. Thomas was, 'one of the original apostles of Jesus Christ' [Religions of
India by Dr. Karan Singh, p.15]. In a book written by E.M. Philip, one of
the authors on Syrian Church, the effect of the judgment by Royal Court E
of Appeal is described thus, 'of course, the majority judgment prevailed
and Mar Dionysius was established on the Throne of St. thomas'. The
expression 'Melapattakaran of the throne in Malayalam' has been used by
Royal Court of Cochin in its judgment thus,

"He upheld the contention of Mar Thomas Athanasius, and found F

-
that the syrian Church was independent of the Patriarch of An-
tioch. Of course, the majority judgment prevailed, and Mar
Dionysius v. was established on the throne of St. Thomas".

In Exht. A-4 (Notice for M.D. Seminary Meeting of 1934} issued to Vicars, G
Priests, Kykars and Parishioners, it was mentioned :-

"From the meek Baselius Catholicos under the Gheevarghese I!
seated on the Throne of Apostle St. thomas in the East".

In the letter dated 8th June, 1959, Ex. A-24, the Catholic in his reply to H
602 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A the Patriarch wrote as under:-

"3. His Holiness: The propriety of using the title 'His Holiness'
along with my name is questioned. Now I must bring to your notice
that fact that customarily the same ephithets have been attached
to the Patriarch and the Catholicos in our church as evinced by
B our Holy writs and other books. For example, in the diptych (first
intercession of the Church, during the Holy Qurbans, the people
are asked to pray for our Patriarchs Aboon Mar Ignatius and
Aboon Mar Baselios. The very same titles are here seen applied
to the Patriarch and the Catholicos, alike, the later himself being
c called a Patriarch. The inference is that the titles proper to the
Patriarch of Antioch are proper also to be Catholicos of the East.
We also see that such epithets as Moran, Aboon, Etc. are applied

D
to both the prelates in common. Further this title has been in use
here for long time.

4. The Throne of St. Thomas : Your Holiness says 'It is never heard
-
that St. Thomas established a throne of the Catholicos or the ....
Mapriano, either in India or in my other place'. I must, without
presumption, ask your Holiness, whether for that matter, any
apostle has established a throne anywhere. Is it not that such
E honours have been connected, with them in latter times. There is
also no special thronal ascension for any dignitary of our church
except the installation ceremony (..... ) done at the time of the
consecration of Bishops and other prelates and at their acceptance
by their respective dioceses. Besides, we see that this term 'throne'
F is added to the Patriarchs, Metropolitans and Bishops alike in the
Hudaya Canon and other books (Canon Chap. VII, Section I) and

G
the ceremony of enthronement is done over for Bishops.

Your Holiness knows that the very eminent Syrian Historical
writer Gregories Bar Hebraous regards St. Thomas, the apostle,
as the first bishop of the East. Let me also bring to your notice
-
that the Malankara Church Historian, E.M. Philip who had been
a staunch partisan of the Patriarch, refers to the throne of St.
Thomas; in his history of the Malankara Syrian Church (2nd
Edition page 253). That being the case, can we say that St. Thomas,
H one among the twelve eminent apostles, had no throne at all.
P.M.A. METROPOLITAN v. M.M. MARTHOMA [RM. SAHA!, J.] 603
•
Your Holiness says 'Also we could not find such a throne in A
the document given by Abdul Messiah II'. I am indeed happy that
your Holiness respects and depends upon the Kalpana given by
Abdul Messiah II. But it must caution your Holiness that the
Kalpana yon refer to may be the General Kalpana that he issued
just before he left Malankara (1913). The earlier Kalpana L<sned B
by him from Niranam Church on the day he installed Mar Ivanios
of Mnrimattom as Catholicos, had to be necessarily referred to.
To make things clear, I shall quote a sentence from it. "According
as yon requested we have consecrated our spiritual and beloved
Ivanious as Mapriano under the name Baselios of the East, on the
throne of the Diocese of St. Thomas in India and other places". C
(1912;. This is very definite and no one could say that a.throne
like this was a now fmd or one found· without the knowledge of
the throne of Antioch".

This letter explained the justification for use of the expression,
'Throne of St. Thomas' and 'Holiness'. Whatever may be its religious D
significance but in view of what has been stated above coupled with. the
conduct of the Patriarch in not only condoning and accepting its use but
even presiding in the installation ceremony, it is difficult to treat it as an
act of heresy deserving ex-communication.
E
Apart from it, the four charges levied in the show-cause notice were
as under :-

(i) That the Catholicos claimed to be seated on the Throne of
St. Thomas.
F
(ii) That he declared that he was equal in status to the Patriarch
which was uncanonical as he was a subordinate.

(iii) That he did not accept the Patriarch delegate in India (sent
in 1972) and resorted by all means "to send him off'.
G
(iv) That at the time of ordination of three Metropolitans in 1966
by the Catholicos, the Catholicos did not take an oath of
subordination to the Patriarch.

None of them individually or collectively could attract the punishment of
excommunication even if found to be true. The nature and the power to H
604 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A be exercised for excommunication have been indicated earlier. They are
not lightly exercised as they deprive a person of his right of worship. The
accusation that the Catholico was subordinate to Patriarch was not an
accurate description. The Patriarch of Antioch was and is undoubtedly the
highest ecclesiastical functionary. But the second highest dignitary was and
B is the Catholicate of the East. The concept of subordinate amongst such
spiritual heads is out of place. They function in their own sphere according
to religious canon. When Patriarch of Antioch was established in Synod of
Nicea the Catholico of the East was established at Tigris. The two
authorities in the hierarchy existed from 4th century. Therefore, the crea-
tion of Catholico in 1912 in Malankara conferring jurisdiction over India,
C Ceylon and Burma was neither against scriptures nor against faith. The
exercise of power by the Catholico in pursuance of such creation and under
the Constitution which was framed in 1934 could not entail ex- communica-
tion. The action of Patriarch in ex-communicating the Catholico deprived
him of the religious right guaranteed to him under the Constitution, there-
D fore, it had to be in accordance with law. Even the meeting summoned at
Damascus being in violation of the Constitution of 1934 was invalid. There-
fore, the ex-communication of Catholicos was not in accordance with law.

Was the ex-communication canonical? If the religion is a bond
uniting man to God then canon is a rule or decree, a body of principles
E and standards the practice and observance of which identifies the man with
the religion. 'The identity of the religious community described as church
consist in the identity of its doctrine, creeds, formularies, rituals etc.'.
[Hidayatullah, J. in Nina/ Daniel v. Most Rev. Ubanon Marthoma,
Metropolitan of Mar Thoma Church, and Others, Civil Appeal No. 947 of
p 1964 decided on 7th January, 1965.]

Canon is explained in Black's Law Dictionary as under :

"A law, rule or ordinance in general, and of the church in par-
G ticular. An ecclesiastical law or statute. A rule of doctrine or
discipline. A criterion or standard of judgment. A body of prin-
ciples, standards, rules, or norms.u

Canon means both a norm and attribute of the scripture. The term
H 'canon law' is explained in Ihe Encyclopedia of Religion Vol. 3 as under :
P.MA. METRO PO UTAN v. M.M. MARTHOMA [R.M. SAHA!, J.] 605

"The term canon is based on the Greek word Kanon. Originally A
signifying a straight rod or bar, especially one used to keep some-
thing else straight, canon came to mean something that is fixed, a
rule or norm. The term has several applications in church usage:
the canon of scripture, or that fixed list of books that are deter-
mined to belong to sacred scripture; the canon of the Mass, the B
fixed portion of the eucharistic prayer; the process of declaring a
deceased person to be among the fixed list of saints in heaven, or
canonization. From the third century, directives for church living
and norms for church structures and procedures have been issued
as canons.
c
Canon law refers to the law internal to the church. In the early
centuries of Christianity, canon was used for internal church
norms, to distinguish them from the imperial nomos (leges in
Latin) or laws. Church norms have also been known as sacred or
divine, to distinguish them from civil or human laws. At times they D
11 11
are referred to as the "sacred canons" or the canonical order The •

term ecclesiastical law is used synonymously with canon law, al- .•
though at times ecclesiastical law also refers to the civil. law
adopted in various nations to regulate church affairs. The term
canon law is used in the Roman Catholic, Anglican, and Orthodox
communions. E

Canon law is drawn from sources in scripture, custom, and
various decisions of church bodies and individual church
authorities. Over the centuries these have been gathered in a
variety of ~ollections that serve as the law books for various F
churches."

Canons are thus the principal scriptural bases for the religious prac-
tices observed in a Church. Syrian Orthodox Church is very old. But its
canon appears to have come in existence sometime in 13th Century col-
lected and written by Bar Hebrew who was the Catholico of Tigris. In the G
appeal arising out of interpleader suit this Court after examining the
evidence in detail particularly of C.Philip, P.W.5, who was the Professor of
the Sriram College, Calcutta and was examined, as expert on canon law
held that there was no authorised edition of these canons even though o.ne
of the resolutions at the Mulunthuruthy Synod ran thus: H
606 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A "It will be very good if a book containing the Canons and procedure
necessary for the firmness in the Orthodox faith is printed in Syriac
or Malayalam as per orders (of the Holy father) and a copy with
his seal given to each church and decided that future conduct shall
not be except in accordance with that."

B
The absence of any canon in such an old Church existing since 51-52
Century AD. with such extensive and widespread following not only in this
country but even others is a tribute to the honest, firm and sincere belief
in the Syrian Church. Even without any written Code or rule their never
was any controversy over faith, practice, belief, rituals etc. But what is
C surprising is that till the advent of late 19th and the beginning of 20th
Century there was no authentic publication of it. Consequently when the
battle in courts of law started between the two groups there appeared two
divergent versions differing on vital aspects. To add to this the courts have
not been consistent in accepting one or the other version. More so because
D of the accusation of interpolation and tampering. Even though the first
occasion to examine the canons arose in the appellate judgment of the
Royal Court, the scope was limited as to whether the Patriarch alone had
the power to consecrate Marone. The authority to ex-communicate etc. in
which the interpolation is alleged was never examined. The decision,
therefore, cannot be taken to be as putting its seal of approval on the
E authority of the canon produced on behalf of Patriarch of Antioch. And
when the power and jurisdiction to ex-communicate in accordance with
canon law was raised in the interpleader suit (Vattipanam suit) both the
sides came with different versions, the one filed by Catholico was accepted
by the trial court whereas the High Court found the version placed by the
p Patriarch as authentic. Both the judgments abound in thorough and careful
analysis of difficult subject. The discussion is extensive and learned. But all
this labour was lost when the appeal in the High Court was dismissed in
consequence of the review judgment. It is true that the Bench while
admitting the review petition had confined its scope but one it found that
the excommunication was invalid for violation of principles of natural
G justice and question having been raised that the ordination of defendant
no. 1 (that is catholico) as Malankara Metropolitan was invalid he was the
Malankara trustee. Justice Chatfield with whom Justice Pillay agreed that,
'he (that is catholicos) did not forefeit these positions afterwards by any
heresy or schism. The meeting of the Malankara Association which
H removed the 5th & 6th defendants (that is Patriarch) was presided over by
P.M.AMETROPOLITAN v. M.M. MARTIIOMA [RM. SAHA!, J.] 607

the Malankara Metropolitan and the reason given in the original judgment .;\.
of this court for holding that their removal was illegal cannot therefore
stand'. On these findings it was held :

"In the result therefore by reason of the decision on the contentions
as to natural justice and apostacy the appeal must fail quite apart B
from the decision of the other questions in dispute in this suit. It
would not be necessary to consider these other questions even if
it were open to this court to do so in view of the orders already
referred to. 11

The effect in law of this order, on review, was that the finding C
recorded by the High Court on the authenticity of the canon etc. in its
original order ceased to be operative. But the learned counsel for the
appellant vehemently urged that since the Bench which admitted the review
petition had restricted its scope and made it subject to the findings
recorded on the authenticity of the canon and the power of the Patriarch D
to ex-communicate without any intervention by the Synod, the findings
recorded on these aspects were not destroyed in consequence of the order
passed on the review petition. The submission does not appear to be
correct either legally or factually. When a review petition is entertained
and notice is issued by a court it is open to it to restrict the scope of hearing
but once the petition is heard and the court is satisfied that the order under E
review was erroneous at the fact of it then it is not precluded from allowing
the petition and setting aside the findings which were earlier not permitted
to be re-opened. After the review petition was admitted and the Catholicos
were restricted from re-opening other points, an application was filed on
their behalf which was rejected but while rejecting the application it was F
observed, 'if it is found that any of these questions is so legally·connected
with the questions relating to natural justice that the latter questions cannot
be properly dealt with without considering such excluded questions then
for this purpose and for this purpose alone the excluded questions may be
considered'. This observation of Chatfield, J. was concurred by other
judges also. And when the review petition was heard on merits the court G
was of the opinion, 'these (These) orders did not prevent the defendants
(that is Patriarch) from relying on contentions not expressly found in their
favour in the original judgment and they have in fact relied on the conten-
tions previously set up by them that the defendants 1 to 3 have become
aliens to the faith of Syrian Jacobite Church and for this reason alone are H
608 SUPREME COURT REPORTS (1995] SUPP. l S.C.R.

A capable of acting as trustees. The plaintiffs on the other hand have failed
to show that any of the questions which have been declared to be excluded
from consideration at the re-hearing are inseparably connected with these
questions and thereupon in disposing of this appeal the excluded questions
will not be referred to'. It is thus clear that the Bench heard the appeal
B not only on the questions on which the review was entertained but even on
other questions as the questions of natural justice and apostacy were
closely connected with and could not be separated from the issues which
had earlier been closed. It was after these observations that Justice Chat-
field made the observations which have been extracted earlier. To argue,
therefore, that the finding recorded in the earlier judgment by the High
C Court the Ex.18 filed by the Patriarch group and relied as authentic canon
survived, does not appear to be correct.

Even assuming, although there appears no doubt, that the finding
recorded by the High Court in its earlier judgment on the authenticity of
D the canon survived, there is yet another reason to disregard it. If the
ex-communication of Dionysius was invalid for violation of principles of
natural justice, as was found by the Bench reviewing the order, then the
findings on other issues were rendered unnecessary and it is fairly settled
that the finding on an issue in the earlier suit to operate as res judicata
should not have been only directly and substantially in issue but it should
E have been necessary to be decided as well. For instance, when a decision
is taken in appeal the rule is that it is the appellate decision and not the
decision of the Trial Court that operates as res judicata. Consequently
where a suit is decided both on merits and on technical grounds by the
Trial Court, and the appellate court maintains in on technical ground of
F limitation or suit being not properly constituted then the decision rendered
on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali
Khan v. Ganesh Das, AIR (1917) PC 201 the Court while considering the
expression, 'heard and finally decided' in Section 10 of the British Baluchis-
tan Regulation IX of 1896 held that where the suit was dismissed by two
courts on merits but the decree was maintained in second appeal because
G the suit was not properly constituted then the finality on merits stood
destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh, !LR (1897) Cal. Vol.
XXIV where parentage of defendant was decided in his favour by the Trial
Court but the High Court maintained the order as the suit was defective
the claim of the defendant in the latter suit that the finding on parentage
H operated as res judicata was repelled and it was held, that the question of
P.M.A. METROPOLITAN v. M.M. MARTIIOMA [R.M. SAHAl,J.] 609

percentage had not been heard and finally decided in the suit of 1885. The A
appeal in that suit had put an end to any finality in the decision of the first
Court, and had not led to a decision on the merits.
"
The rationale of these decisions is founded on the principle that if
the suit was disposed of in appeal not on merits but for want of jurisdiction
or for being barred by time or for being defectively constituted then the
B
finality of the findings recorded by the Trial Court on merits stands
destroyed as the suit having been found to be bad for technical reasons it
becomes operative from the date the decision was given by the trial court
thus rendering any adjudication on merits impliedly unnecessary. On the
same rationale, once the Royal Court of Appeal allowed the Review c
Petition and dismissed the appeal as the ex-communication of Dionysius
was contrary to principles of natural justice and he had not become heretic
then the finding on authenticity of the canon etc. rendered in the original
order was rendered unnecessary. Therefore, the finding recorded on the
authenticity of the canon ajld power of the Patriarch etc. recorded in the
D
earlier order could not operate as res judicata in subsequent proceedings.

Last but not the least reason to hold that the finding in the Vat-
tipanam Suit recorded by the High Court in its original judgment op: canon
etc. could not operate as res judicata is where a decree is one of dismissal
in favour of the defendants, but there is an adverse finding against him, a E
plea of res judicata cannot be founded upon that decision because the
defendant having succeeded on the other plea had no occasion to go
further in appeal against the adverse finding recorded against him [see
Midnapur Zamindari Company Ltd. v. Naresh Narayan Roy, AIR (1922) PC
241]. Mr. Parasaran, the learned senior counsel for the appellant, urged F
that this is not an absolute rule as there is mutuality in res judicata and
even the succeeding party is bound by the question decided against him.
Reliance was placed on Mt. Munni Bibi & Anr. v. Tirloki Nath & Ors., AIR
(1931) PC 114;V.P.R. V. Chockallagam Chetty v. Seethai Ache & Ors., AIR
(1927) PC 202; Sham Nath Madan v. Mohammed Abdullah & Ors., AIR
j (1967) J&K 85 and Arjun Singh & Ors. v. Tara Das Ghosh & Ors., AIR
G
(1974) Patna 1. The two Privy Council decisions do not appear to be of
any assistance as the first one, Mt. Munni Bibi (supra), is the· leading
decision on the principle of res judicata amongst co- defendants. True the
Patriarch and Catholico were co-defendants and there was lis too but in
view of the finding on natural justice and apostacy the finding on other H
610 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A issues was rendered unnecessary. The rule of res judicata amongst co-
defendants is also governed by those rules which apply to normal rule of
res judicata. The decision in Clwckalingam Chetty (supra) is an authority
for the principle that where an appeal is filed without impleading a
defendant through whom other defendants derived title then the decision
B in his favour operates as res judicata between plaintiff and other defendants
as well. Similarly, in the decision of the Patna High Court in A1ju11 Si11gh
(supra) the primary question was whether a party against whom a finding
is recorded has got a right of appeal even though the ultimate decision was
in his favour and it was held that there was no bar, but what was necessary
was that the finding so recorded should operate as res judicata. On facts it
C was found that the Appellate Court while maintaining the order of dismiss-
al of the suit on preliminary issue recorded findings on other issues which
were against the plaintiff, yet the plaintiff was not entitled to file an appeal
as the findings on merits which were adverse to him could not operate as
res judicata. In Sham Nath's case (supra) the learned Single Judge rejected
D the plea of res judicata raised on behalf of the plaintiff, but while consider-
ing the alternative argument, observed that an adverse finding recorded
against a defendant in a suit dismissed could not operate as res judicata
unless the adverse finding formed a fundamental part of the decree itself.
None of the decisions, therefore, are of any help to ! he appellant. In any
case the findings on cannon or power of Patriarch which were the findings
E adverse to the Catholico could not form fundamental part of the decree
itself, therefore, it could not operate as re judicata. Truly speaking, the
findings on the authenticity of the canon and the power of Patriarch etc.
recorded in the earlier judgment and the finding on apostacy and breach
of natural justice recorded in the review judgment could not go together.
F Otherwise in Mora11 Mar Besse/ios (supra) it would not have been possible
for this Court to come to a finding that the findings recorded on Issue Nos.
14 15, 16 and 19 in the Vettipanam Suit operated as res judicata in the
Samudayam Suit. The finding recorded by the learned Single Judge and
the Division Bench, therefore, that, 'the decision in XLI T.L.R. that Ext.18
there in (Ext.BP in the Samudayarn case and Ext. B161 in these cases) is
G the version of Hudaya canons accepted as binding on the Malankara
Church has not become concluded and does not operate as res judicata
between the parties', its well founded.

Could the finding ou the authenticity of the canon be relied as a
H precedent? For that it must fall either under Section 42 or Section 43 of
P.M.A METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.J 611

the Indian Evidence Act. Section 42 which makes any judgment relating to A
public nature admissible itself provides but 'such judgments are not con-
clusive proof of that which they state'. Section 43 makes a judgment
admissible if existence of such a judgment is in issue. In Kumar Gopika
Raman Roy v. Atal Singh & Ors., AIR (1929) PC 99, it was held that 'the
Indian Evidence Act does not make finding of fact arrived at on the· B
evidence before the court in one case evidence of that fact in another case'.
In Benode Lal v. Secret01y of State, AIR (1931) Calcutta 239 where the law
was clearly explained, it was observed, 'when an appeal is taken against a
decree, the decree of the lower gets merged in the decree of the Appellate
Court and so the judgment of the trial court is not final adjudication on
the point in issue between the parties in the suit'. The Court further C
observed that even assuming that, 'the existing judgment may be relevant,
but the truth of it, by which it is understood, the decision of the Judge and
the opinion expressed by him, is not relevant'. Applying these principles
once the appellate judgment was set aside, the appeal was dismissed and
the order of the trial curt was maintained, the findings recorded on canon D
etc. in the appeal could not be relied.

That is why when he suit was file din 1938, that is the Samudayam
Suit, the parties joined issue, once again, on the authenticity of the canon
and the Court framed the issue as to which was the correct and genuine
version. No issue about res judicata was raised hy the Patriarch. Coinciden- E
tally same story was repeated, the Trial Court accepting the version filed
by the Patriarch. But when the matter came to this Court in 1959 it while
considering the objection of Patriarch that by inserting Clause 5 in the
Constitution the Catholicos were guilty of heresy as it was contrary to the
authentic version produced by them did observe that for deciding this p
aspect it was necessary to decide the issue which related to authenticity of
the version. Since this Court had not recorded any finding itself on the
authenticity of the canon the dispute again arose, when these suits were
filed, about the authenticity of the canon and the findings and conclusions
recorded in earlier suits that is the Vattipanam Suit and the Samudayam
Suit and whether any one of them operated as res judicata. It has already G
been explained why the findmgs recorded in Vattipanam Suit could not
operate as res judicata. or the finding could be treated as binding prece-
dent.

Can the same be said about the finding in the Samudayam Suit? It H
612 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A is not disputed that the Trial Court not only framed Issue No. 13 but even
recorded specific finding tbat the canon produced by the Patriarch group
was not the authentic version. But its binding effect was rendered nugatory
both according to the Division Bench and the learned counsel for the
appellant because when this Court restored only the decree of the Trial
B Court and not judgment then the findings recorded by the Trial Court
could not be taken to be binding or final. Two legal questions, therefore,
arise one, whether the authenticity of the canon was directly and substan-
tially in issue and second the effect of restoration of the decree of the Trial
Court. The first was answered by this Court itself while adjudicating upon
the plea advanced on behalf of the Patriarch group to support the judgment
C of the High Court. To appreciate it, it is appropriate to extract Issue No.
13 which reads as under :

"13. Which is the correct and genuine version of the Hoodaya
Canons compiled by Mar Habraeus? Whether it is the book
marked as Ext.A or the book Marked as Ext.XVIII in O.S.91 of
D
1088."

Issues Nos. 19 and 20 related to as to whether the defendants, that is, the
Catholicos formed themselves into a separate Church and whether the acts
mentioned under the Issues constituted separation. This Could did not
E permit the appellants, that is, Patriarchs to support the order of the High
Court on the ground that insertion of clause 5 in the Constitution of 1934
was contrary to canons, as it was not raised in the pleadings. Nor did the
Court find any merit in the submission that Issues Nos. 13 and 16 which
related to loss of status as members of the Church was wide enough to
f include it. But it held that reference to pleadings would indicate why Issue
No. 13 was raised. It further found that to decide Issues Nos. 16, 17, 19
and 20 it was, 'absolutely necessary to determine which is the correct book
of canons, for the plaintiff (that is the Patriarch Group) founded their
charges on Ex.B.P. - Ex. 18 in O.S. No. 94 of 1088 and the defendants took
their stand on Ex.26 - Ex. A in O.S. No. 94 of 1088. Issue No. 13 was
G directed to determine that question'. The issue whether the Hudaya canon
filed by the Patriarch Group as Ex.18 in the earlier suit and as Ex. BP in
the present was authentic was not only directly and substantially in issue
but as held by this Court was necessary to be decided for the principal and
the main dispute which arose in that case. In the circumstances it is difficult
H to agree with the Division Bench, that, 'this does not mean that findings
P.M.A. METROPOLITANv. M.M.MARTHOMA [R.M:SAHAl,J.] 613

were really relevant or necessary for the ultimate decision in the litigation A
by the Supreme Court. Issue Nos. 14 to 17 and 19 and 20 were raised by
the plaintiffs and had to be decided'. The Trial court no doubt observed
that it was not necessary to decide. the issue in the broad and general sense
but it held that the discussion and conclusions in the earlier suit that in
Vattipanam Suit on the question of canon did not operate as res judicata. B
It did make some observations which furnished occasion to the appellants
to urge that once the Court found that it was not necessary to decide the
larger issue it should not have discussed the smaller one only because
additional evidence had been led and the counsel had argued the matter.
But this submission cannot he accepted as in view of the observation made
by this Court that the finding on Issue'No. 13 was necessary the observa- C
tions lose importance. And the finding if recorded by the Trial Court would
have to be accepted and_ any observation to the contrary ignored. The
finding of the Trial Court on Issue No. 13 was that no Hudaya canon book
approved as authentic and genuine by the Patriarch was ever supplied to
the Malankara Sabha and the manuscript were of questionable origin and D
it could not be shown that,

"either in Malankara or in Syria or Turkey or other places under
the Patriarch or any where in the Jacobite church outside
Malankara, there is or has been in existence and in use any version
of the Hudaya canon corresponding to Ext. BP or that such a version E
has been approved and accepted by the Jacobite church as a correct
version".

[Emphasis supplied]
F
In appeal (The Most. Rev. Mar Pou/ose Athanasius & Ors. v. Moran Mar
Basselios Catho/icos & Ors., (1957) KLT 63) the findings recorded by the
Trial Court were not set aside, on merits but the canon filed by Patriarch
was accepted as authentic since, 'in the final judgment after review the
question of natural justice alone was considered and decided and this G
means that the earlier finding on the question of canons, which was a
matter directly and substantially in issue in this suit, was accepted as
correct even for the purpose of the final decision on the question of natural
justice. Thus by implication the finding on the question of the canons forms
an integral part of the final decision in 45 T.L.R. 116 because, without
maintaining the finding, the question of natural justice could not have H
614 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A arisen at all'. But that judgment did not and could not operate as res
judicata for reasons explained earlier. The judgment of the High Court in
171e Most. Rev. Mar Poulose Athanasius & 01!. v. Moran Mar Bassaelios
Catho/icos & Ors., (1957) KLT 63. was reversed by this Court. It was held
that Catholico had not become heretic or separated from the Church. But
B for recording this finding the decision on Issue No. 13 was as observed by
this Court necessary. Therefore, the appellate judgment of this Court
precluded the Patriarch from claiming that the Hudaya Canon filed by
them was authentic as the earlier judgment operated as bar to this plea as
once this Court recorded the finding that the Catholico had not separated
the finding on Issue No. l3 stood affirmed even though it was not referred
C since the finding on the Catholic having become heretic or separated from
the Church depended as observed by this Court itself, on finding on Issue
No. 13. If the finding of the trial court on Issue No. l3 was necessary for
deciding whether the Catholico had become heretic and that finding was
affirmed in the review judgment then the finding of the High Court in its
D earlier judgment on the authenticity of the canon cannot stand. It could
neither be res judicata nor a precedent.

The next aspect is the legal effect of rest~ration of decree of the Trial
Court. Did it result in revival of the findings on authenticity of the canons
as well. The Division Bench held that, 'once an appeal is disposed of it is
E the appellate judgment which should be considered for the purpose of
deciding the question of res judicata. Appellate judgment supersedes the
judgment of the trial court, and it is no longer open to look into the
judgment of the trial court except to the extent it might have been specifi-
cally confirmed by the appellate court. See Benodial Chakravarthy v.
p Secreta1y of State for India, AIR (1931) Cal. 239 and Ve11kiteswarnlu v.
Venkitanarasimham and Others, AIR (1967) A.P. 557. The reasoning that
once an appeal is taken to higher court then it is the appellate decree which
is final and binding cannot be faulted with. But the other observation that
the findings of the Trial Court cannot be locked into except to the extent
it might have been specifically confirmed is not wholly correct. None of the
G decisions referred in the order support it. The Calcutta decision has
already been referred to. In Venkateswarlu v. Venkata Narasimham & Ors.,
AIR (1957) Andh. Pradesh 557, the High Court observed, 'Now the appel-
late court rested its conclusion not on the ground that Ex.A-1 was unsup-
ported by consideration but on the ground that the transaction was such
H as not to bind the joint family. Though the trial court found that the
P.M.A. MEIBOPOLITANv. M.M. MARTIIOMA (RM. SAHA!, J.) 615

consideration for the sale Ex.A-1 was wholly fictitious, the appellate court A
did not give a finding upon that question but confirmed the decree of the
trial court on the ground that the sale was for a consideration not binding
on the joint family'. But what the Division Bench ignored was that the High
Court did not look into the earlier judgment as the order was upheld on a
different ground, therefore, it could not be held that it was express or B
implied approval of the decision of the Trial Court. In Narayanan Chetty
v. KannammaiAchi & Ors., !LR Madras (1905) Vol. XXVIII which is more
in point it was held :

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

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

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

There is one additional feature in this case that Clause 5 of the H
616 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Constitution framed in 1934 read as under :

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

B
This Constitution has been upheld by this Court in Moran Mar
Basse/ius (supra). It is now binding on the Syrian Christians. Any action
taken against the respondent contrary to it could not have been upheld.
Religious persons in all religions have been men of great learning and
character. Spiritual superiority emanates from purity of character. Any
C person elected or nominated to such high spiritual office as Catholicate of
East could not be subjected to ex-communication. That is why the Canons
did not contain any provision. The entire proceedings of ex-communica-
tion, therefore, were unsustainable. If the spiritual heads of such high
stature start ex-communicating each other, it may not be conducive for the
D religious order. That is why even though the Sultan of Turkey withdrew the
Firman issued in favour of Abdul Messiah, the court in absence of any
material to show that such withdrawal resulted in deprivation of his
spiritual superiority refused to act upon it. Apart from it, once a Constitu-
tion for Malankara Association was framed, accepted and upheld by the
Court, the ex-communication, if any, could be in exercise of that power
E only. The power to ex-communicate can be exercised by a spiritual head
either when the scriptures specifically permit it or it is in respect of the
authorities which function under him and are subordinate to it. Normally
in religious matters such decisions depend either on the text and if there
is no text on the Constitution of the trust or on convention developed in
F course of time. From the history of Orthodox Syrian Church, it appears
such important decisions are taken by the synod that is a general body of
bishops, vicars, clergies etc. and, therefore, before ex-communication can
be held to be valid two things were required to be proved, one, that such
power existed either in the spiritual head or in the general body and the
power was exercised in respect of a person or holder of an office for whom
G it could be exercised. It has already been indicated that in consequence
of Ex. A-14 the Kalpana issued by Abdul Messiah the entire power,
spiritual or temporal, which was exercised by the Patriarch of Antioch was
conferred on the Catholico of the East. The only relation which was to be
observed in future was the communion of the two. In fact if the history is
H traced from the Mulunthuruthy Synod held in 1876 to 1912 then it is
',
P.M.A. METROPOLITAN v. M.M. MARTIIOMA [RM. SAHA!, J.l 617

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

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

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

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

These observations are well settled and reiterate established principle laid H
618 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

"Our forensic system, with its machinery of cross-examination of
witnesses and forced disclosure of documents, it characterised by
a ruthless investigation of truth. Nevertheless, the law recognises
that the process cannot go on indifinitely. There is a fundamental
c principle of English law (going back to Coke's Commentary on
Littleton) generally expressed by a Latin maxim which can be
translated: 'It is in the interest of society that there should be some
end to litigation'. This fundamental principle finds expression in
many forms. Parliament has passed Acts (the latest only last year)
D limiting the same within which actions at law must be brought.
Truth may be thus shut out, but society considers that truth may
be bought at too high a price, that truth bought at such expense
is the negation of justice. The great American Judge, Story, J.
delivering the judgment of the Supreme Court of the United States . ,.
in Bell v. Monison, called the first of these Acts of limitation 'a
E statute of repose'; and in England Best CJ called it 'an act of peace'
(A'Cowt v. Cross). The courts of equity, originally set up to make
good deficiencies in the common Jaw, worked out for themselves
a parallel doctrine. It went by the technical name of !aches. Courts
of equity would only give relief to those who pursued their
F remedies with promptitude. Then, people who have long enjoyed
possession, even if they cannot demonstrate a legal title, can rarely
be dispossessed. Scottish law goes even further than English: delay
in vindicating a claim will not only bar the remedy but actually
extinguish the right. But the fundamental principle that it is in
society's interest that there should be some end to litigation is seen
G most characteristically in the recognition by our law- by every
system of law- of the finality of a judgment. If the judgment has
been obtained by fraud or collusion it is considered a nullity and
the law provides machinery whereby its nullity can be so estab-
lished. If the judgment has been obtained in consequence of some
H procedural irregularity, it may sometimes be set aside. But such
P.M.A. MEIBOPOLITANv. M.M. MARTHOMA (R.M. SAHA!, J.I 619

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

[emphasis supplied] E

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

Therefore, the judgment of this Court in Moran Mar Basselios
(supra) would preclude the parties from agitating those issues which have G
been concluded. Effect of the judgment delivered by this Court in 1958 on
the rights of Catholicos was twofold, one their status was defined and two,
their relationship with Patriarch of Antioch was explained. What stands out
clearly from the decision after decision rendered right from 1899 to 1959
is that the Patriarch of Antioch is the spiritual bead of the Syrian Orthodox H
620 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

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

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

H 2. The Malankara Church was founded by St. Thomas the Apostle
P.M.A. METROPOLITAN v. M.M. MARTHOMA [R.M. SA.HAI, J.) 621

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

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

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

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

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

The combined reading of these documents along with the findings recorded
by this Court in Moran Mar Basse/ios (supra), thus, leaves no doubt that
Catholicate of East whether due to disuse of the Catholicate which, un-
disputedly, existed at Tigris or because of creation of a new one by the G
Kalpana of 1912 or for any other reason did come into existence. The
power and jurisdiction to be exercised by such Catholicate is spelt out from
the Kalpana A-12 and A-13 and the Constitution of 1934. In fact, going by
the history it was nothing new or unusual as it has already been narrated
that even in the first Eccuminical Council when Patriarch of Antioch was
created, the Catholicate of the East was also created and he was entrusted H
622 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

This was fairly observed. Between 1912 to 1970 four Catholicos were
appointed, the first B. Paulose I by Abdul Messiah in 1912, second Bas-
selius Gheevarghese I in 1924, third in 1929 after the Vattipanam Suit,
F fourth Mar Ougen I in 1964. What is significant is that second and third
were not installed by or with the consent of Patriarch. And the fourth was
installed after the judgment of this Court in Moran Mar basse/ios (supra)
by the Malankara Synod presided over by the Patriarch Yakub III. But
what led to filing of suits by members of the Catholico group and the
Catholico himself and successors-elect was the wrongful consecration by
G the Patriarch of Paulose Athanasius on 3.9.1973 (the first ordination by the
Patriarch after 15 years). Original Suit no. 274 of 1973 filed in the District
Court was numbered as O.S.No. 2/79 in the High Court. The suit was filed
as Paulose Athanasius had never been elected by the Malankara Associa-
tion and, therefore, was not entitled to function as Metropolitan in the
H Malankara Church. In view of the findings recorded by the Travancore
P.MA METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!. J.] 623

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

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

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

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

A Parish Church is a, 'district committed to the charge of one
incumbent having the cure of souls in it'. [Halsbury's Law of England, Vol.
B 14 para 534]. 'The ancient parishes appear to have been gradually formed
between the 7th and 12th or 13th Centuries. Their boundaries seem to have
been originally identical with or determined by those of manors, as a manor
very sarfdom extends over more than one of these parishes, although in
many cases one parish contains two or more manors. Besides being ec-
clesiastical units, ancient parishes have been at different periods, and in
C many cases still are, administrative areas for various civil purposes, al-
though the boundaries for parishes for civil purposes have in many cases
been altered under statutory authority'. [Halsbury's Laws of England Vol.
14 para 535]. 'The word 'Parish' was in use as early as the third century,
but it was at that time equivalent to the term Diocese (which see). In
D primitive time the diocese of a bishop was neither more nor less than what
is now called a Parish; and even when the jurisdiction of bishops had
become extensive, the diocese long continued to be called the parish.
Afterwards the word was limited to the district attached to a single church
over which a presbyter presided, who was hence called parochus ...... .
During this formation of the parochial system, the ....... measures were
E adopted to retain these churches in a state of dependence on the mother
or cathedral church. The diocesans, however, were often obliged to allow
the parish churches a greater degree of independence than they were of
their own accord willing to concede to them ...... For sometime after the
first introduction of the parochial system, the revanues of a diocese con-
F tinued to be regarded as a whole the distribution of which was subjected
to the bishop; that is to say, whatever obalations or the like were made in
parish churches were paid into the treaswy of the cathedral church, as the
one heart of the body and thence distributed among the clergy after the claims
of the parish had been satisfied [emphasis supplied]. This arrangement
remained generally in force until the end of 5th century, many parish
G Churches having in the meantime greatly increased in wealth by means of
bequests and donations and having come into the receipt of considerable
obalations ...... But in the course of the sixth century the revenues of the
parochial clergy came to be considered simply as their own, the bishops
being obliged to relay their hold of them' Faiths of the World, by James
H Gardner p.617.
P.M.A. METROPOLITAN v. M.M. MARTH OMA [RM. SAHAI. J.] 625

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

When the Malankara Association was formed in the Mulunthuruthy
Synod a resolution was passed constituting 8 of the priests assembled there
and 16 of the laymen of the fi;st class with the ruling Metropolitan as D
President entrusted with the complete responsibility of management for
•
I every matter connected with th~ common religious and communal affairs
of the entire Syrian .community. The other resolution passed was that the
'committee shall have liberty to collect other amounts as well in addition
to the amounts above mentioned to cause its increase, to make sub-com-
mittees and to do everything beneficial'. In respect of administration of E
property it was resolved that 'for altering the existing rules relating to the
administration of the property belonging to, the church and to the Syrian
community, and for enacting new laws for the same, for examining and
approving the accounts of the various churches, for confirming the
epithopas (stuarts of the Church) of the respective churches decided by F
the Yogam, for printing the books useful and necessary for the community,
for repairing the churches which have fallen into disrepair, for building new
churches and for erecting schools, the above said committee shall have full
responsibility'. The Committee was further entrusted with responsibility to
_ collect and send the "Ressissa" due to His Holiness the Patriarch, to collect G
the 'Kaimuthu and other income due to the metropolitans from the chur-
ches and in case it was not sufficient to find other ways for the same and
also for maintenance of the Dayaras (Monasteries), to effect payment of
salaries to the vicars according to the capacity of the parish and pay the
salary of the Secretary and others. Thereafter when the Constitution of
1934 was made a full chapter was devoted to the Parish church. The H
626 SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

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

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

H Whether the finding is well founded or not and whether the Division
P.M.A. METROPOLITAN v. M.M. MARTIJOMA [RM. SAHA!. J.) 627

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

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

In the written statement filed by different defendants the entire claim
of the Catholicos was denied. The averments went to the extent of denying
establishment or revival of Catholicate in Malabar. The basic claim was
that the Catholicate of East was deputy to the Patriarch of Antioch. It was H
628 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

E It is too late, therefore, to urge that no declaration on the status of
Parish Churches be granted. No such objection was taken either before the
learned Single Judge or the Division Bench. May be that the 1000 Parish
Churches were not impleaded. But it was a representative suit. Then the
suit was for a declaration that the Malankara Church was episcopal in
F character and not a Union of Federation of Autonomous Churches. It was
not necessary to implead every Parish church as a party. The question
whether Malankara Church is episcopal or not had to be decided on the
pleading of the plaintiff. The defence raised by the defendants, who were
ordained by the Patriarch of Antioch, was that they were the metropolitans
and, therefore, entitled to protect the interest of Parish Churches.
G Moreover the declaration sought is as a matter of law. No factual dispute
arises. The suit was filed for enforcement of this right. Once it was found
by this Court in 1958 that the Constitution was validly framed the
Catholicos could not be denied this declaration. In paragraph 94 of the
1954 Constitution it was provided that, 'the (The) Prime jurisdiction
H regarding the temporal ecclesiastical and spiritual administration of the
•
P.M.A. MErn.OPOLITAN v. M.M. MARTHOMA [R.M. SAHAI •.T.] 629

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

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

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

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

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

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

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

"This word, like the term Church (which see) is sometimes used
in a more extended and at other times in a more restricted sense.
In its widest acceptation, it includes the whole body of the Christian G
people. It is thus employed by the Psalmist when he says, "Let the
congregation of saints praise Him." But the word more frequently
implies an association of professing Christians, who regularly as-
semble for divine worship in one place under a stated pastor. In
order to constitute a congregation in this latter sense of the term, H
630 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

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

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

"Government of a church by bishops".

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

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

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

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

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

"the bishop who presides over the other bishops of a province. In
the Latin church it is used as synonymous with an archbishop. In
England, the archbishops of Canterbury and York are both
H Metropolitans ..... The title was not in use before the council of Nice
P.M.A. MEfROPOUfANv. M.M. MARTHOMA [RM. SAHAI.J.) 631

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

Even factually it was not open to the Patriarch to take up this
defence. The Canon on which reliance was placed by them and filed as Ex.
B-161 dealing with properties and income of the Churches provided. 'If the
valuable souls of the beliain can be entrusted to the (Episcops Bishop) it H
632 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

Whether a public institution or a public Church unlike private
religious places is autonomous or not depends on its trust deed, the
intention of the members who found it, the purpose for which it was
D established. The establishment of a Church is normally understood as an
institution established for public charities. Its objective is religious and
spiritual. Whenever a charity is created it is either public or private. The
latter is for individual, may be for fixed period or for determinate person.
But public charities are of permanent character, the membership of which
keeps on fluctuating. Lewin on Trust explained a 'charitable trust' thus, 'a
E public or charitable trust, on the other hand, has for its object the members
of an uncertain and fluctuating body and the trust itself is of a permanent
and indefinite character and is not confined within the limits prescribed to
a settlement upon a private trust. These trusts may be said to have as their
object some purpose recognised by the law rather than human
F beneficiaries'. Tudor on Charities at page 131 of 6th Edn. has stated thus,
'when a charity has been founded and trusts have been declared, the
founder has M power to revoke, vary or add to the trusts. This is so
irrespective of whether the trusts have been declared by an individual, or
by a body of subscribers or by trustees'. That the Parish Churches were
established for promoting ideals of Syrian Orthodox or Jacobite Church
G has been the consistent claim of both the Patriarch and the Catholicos. Its
nature cannot be changed by the persons who are entrusted to manage it.
They were episcopal in character when they were found, they continue to
be so at present and shall remain so in future. The character of public
charities from episcipal to congregational cannot be changed as it would
H be against basic purpose for which these Churches were established. In
P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHAI, J.] 633
' .
Attomey General v. Pearson & Ors., [1814-23] All England Law Reports A
p.60 at 63 it was observed as under :

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

..'..
establishment of catholicate or after it their nature could not change. On
the material on record the courts have found them to be so. Therefore, the
submission that they are autonomous does not appear to be well founded.
antonomy for what, religious worship or temporal matters. Former cannot
be pleaded as once a Church was found for religious worship it continued
to be so. The autonomy in temporal matters as claimed appears to be E
two-fold, one, freedom to disassociate from Malankara Association and
second to control and supervise its internal affairs. The first cannot arise.
In law it is not open to members of public or public trust to appropriate
trust properly for themselves. Under Hill on the Law of Tmsts and Tmstees
has explained in thus, 'However, the crucial difference surely is that no F
absolutely entitled members exist if the gift is on trust for future and
existing members, always being for the members of the association for the
time being. The members for the time being cannot under the association
rules appropriate trust property for themselves for there would then be no
property held on trust as intended by the testator for those persons who G
some years later happened to be the members of the association for the
time being'. Non of the Parish Churches claim autonomy in the sense that
they have changed their faith and belief. Each of them claims that their
spiritual head is Patriarch of Antioch. That is they are the believers and
followers of Syrian Church. So are the members of Malankara Association
and Catholicate of East. Therefore, the existence or exercise of autonomy H
634 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

Mr. Parasaran submitted that the Malankara Church was from very
B ancient times episcopal to a limited extent in spiritual and ecclesiastical
matters but has been congregational/autonomous in temporal matters. It
was urged that if Jacobite Syrian Orthodox Church has been or WdS
episcopal as claimed by the respondents then the Patriarch would have had
control over temporal matters also. The learned counsel submitted that
Malankara Church being essentially congregational it was to be presumed
C that every Parish Church was an independent Church. The learned counsel
criticised the Constitution of 1934 as the deliberate departure from the
established norms and practice of the Church and the attempt by it to
invest it with episcopal character in temporal matters. The learned counsel
submitted that the custom which was prevalent in the Malankara church
D throughout has been that the Parish Churches and its properties were
administered by the congregation that is Parishioners and in that sense the
Malankara church has been congregational in temporal matters and this
well established custom must prevail even over the provisions of the canon.
It was urged that this was already recognised in the Samudayam suit by the
Trial Judge and the admission of the Catholicos before the District Judge.
E The learned counsel submitted that the status of the Parish Churches even
before Malankara Synod was independent and if indeed the Church was
episcopal in temporal matters there was no necessity for the creation of an
Association in the meeting of 1876 for the purpose of raising funds since
the Patriarch directly or through the Malankara Metropolitan could have
F raised the necessary finance from the Parish Churches and above all if the
Parish Churches were episcopal then where was the question of entering
into an Udampadi with every individual Parish Church. The learned coun-
cil submitted that the entire claim of the respondents that the entire body
of Churches, institutions and common properties formed one organic unit
to be administered by the provisions of the impugned Constitution was
G based on a misrepresentation of the words 'Church' and 'Sabha' and is
contrary to the history, customs and proceedings and the Malankara
Church. Reliance was placed on the evidence of P.W. 4 and P.W. 8 and it
was urged that if they were read along with Ex.A-19 and A-80 then they
would indicate that it did not result into bringing into effect any voluntary
H association. The learned counsel submitted that if the exchange of Kai-
P.M.A. METROPOLITANv. M.M. MARTIIOMA [R.M. SAHA!.].] ·635

panas are sought to be treated as legally binding on individual Parish A
Churches amounting to unification and acceptance of the Constitution on
the basis that the Patriarch will bind the Parish Churches then necessarily
Patriarch will have to be accepted as the supreme ecclesiastical and
temporal superior. It was urged that it was so because the Constitution
framed in 1934 deals with all the three aspects and can be imposed on the B
Parish Churches only on the basis that they did not have autonomy in
respect of any one of the three and the Patriarch will have the power to
impose such a constitution on the individual Parish Churches without
obtaining their individual consent. According to learned counsel if
Patriarch had such a spiritual, ecclesiastical and temporal supremacy snch C
supremacy could not only be in regard to Parish Churches in the Patriarch
section but also in regard to the Churches of the Catholico section. And
otherwise the religious beliefs, practice etc. would be different in Parish
Churches in the two sections and there cannot be any unification. It was
urged that Ex.A-19 could not be construed as a surrender of the authority
which existed in the Patriarch in favour of the Catholico as if the Kalpana D
is construed as such then it would amount to a change of faith so far the
Parish Churches in the Patriarch section were concerned and on the
principle of religious trust the properties and the Churches could not go
to Catholicos section. Minutes of the meetings held by the Association in
1959, 1962, 1965 and 1970 including the presence of the Patriarch in the E
installation ceremony of Mar Ougen as Catholico was placed. It was urged
that if these are construed as claimed by the respondents then it would
inevitably result in applying the law relating to religious trusts. But that
would not be in consonance with law. According to learned counsel on the
principle of voluntary association even if it is assumed that they decided to F
be under Catholico there was nothing to prevent them in law from opting
out of it. Attention was draw to various suits filed during this period and
the failure of the Catholico to impose their constitution. In respect ·of
presence of the Patriarch at the installation ceremony of the Catholieo the
learned counsel urged that it only strengthened their claim that Patriarch
was the supreme head as a person as delegation of power can be made G
... only by a person who is superior then the person whom he ordains. In any
case if the Patriarch was authorised to delegate and participate in the
installation ceremony as the head of the Syrian Orthodox Church then
there was nothing in law to prevent him from withdrawing it. The submis-
sion was placed on yet another aspect that the Catholicos had never H
636 SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.

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

The nature of public charities has already been explained. Non of the
p submissions appear to have substance. A Church is either episcipal or
congregational. It cannot be episcopal in spiritual matters and congrega-
tional in temporal matters. That would be against the basic characteristic
of such a Church. It would be against specific provisions in the Constitu-
tion. The temporal matters or administration of Churches flows from its
.
establishment for religious purposes, namely, 'the cure of souls'. Where a
G building is consecrated as a Church, 'it continues to exist in the eye of law
as a church and the body corporate which had been endowed in respect
of it remains in possession of the endowment even though the material
building is destroyed'. Every Parish Church of Malankara acknowledges
the Patriarch of Antioch as the spiritual head. They have been paying
H ressissa to Patriarch. The ordination, consecration and every spiritual or
P.M.A. METROPOLITAN v. M.M. MARTH OMA [RM. SAHA!, J.j 637

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

- Metropolitan in ·accordance with the Constitution. The fact that every D
Church has its own bye law does not militate against its nature of being
episcopal as Clause 122 of the Constitution of 1934 itself provides that,
'byelaws which are not inconsistent with the principles contained in this
constitution may be passed from time to time by the Parish Assembly, the
Diocesan Assembly or the Diocesan Council and may be brought into force E
with the approval of the Rule Committee'. The Parish Churches are thus
governed in their administration by the Constitution of the Malankara
Church. The nature of relationship between the two bodies can be gathered
either from the circumstances or from the documents if they are on record.
The Resolution of the Mulunthuruthy Synod, the Constitution of 1934 and F
its amendment in 1967 unmistakenly demonstrate a close link between the
Malankara Association and each Parish Church. A Church is established
by followers of a religious faith. The mere establishment is not sufficient
unless it assures the realisation of the ultimate goal that is salvation and
that could come only when such a body has a link with the higher spiritual
body which religiously is considered to be the one which could help in G
-~ permitting a man to achieve the end. It is not the case of the appellants
that the Parish Churches are independent in the sense that they have no
link with any higher spiritual power. It is their specific case that they claim
. their spiritual link from the Patriarch of Antioch. The ordination of the
i.tetropolitan-consecrate of Bishop even according to them has to be from H
638 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Antioch. When D.W. 28 was asked whether after creation of Catholicate
the Patriarch ceased to have any power, he stated 'ordaining a
Metropolitan is not a power. It is a bond and duty'. The witness denied
that Patriarch of Antioch was only the head of the Jacobite Church and he
had no power over or concerning the Malankara Church. Therefore, they
B are not independent and autonomous in the sense in which it was claimed
by the learned counsel. If it be so and if what has been stated earlier that
the Patriarch of Antioch himself created a Catholico of the East in 1912
with all the spiritual powers then it is difficult to visualise that how the
Parish Churches can claim that they are independent and separate from
the Malankara Association. In Moran Mar Basselios (supra) it has been
C decided that the Constitution was framed after notices were sent to every
Parish Church. Therefore, whether they attended or not is not material and
in any case once the Constitution was framed and its validity has been
upheld then under the provisions of the Constitution the Metropolitan
appointed by the Malankara Association has control over the Parish Chur-
0 ches. It is not necessary to refer to various observations made in the earlier
judgments by the courts which undoubtedly indicate that the Malankara
Association which was a creation of Malankara Synod and is the repre-
sentative body that has the right to bind the holy community and all the
Churches by its deliberations and actions. The Full Bench of the Royal
-
E Court of Cochin in 1905 held that the Churches and its properties were
subject to spiritual, temporal and ecclesiastical jurisdiction of the
Metropolitan of Malankara. Even in the very first judgment of 1889 it was
held that, 'once Metropolitan of the Syrian Jacobite Church was accepted
by the people it would, 'entitle him to spiritual and temporal governance
F of the local churches'. In the Samudayam suit this Court had observed that
the whole of the Malankara Church was represented by the Malankara
Association. The District Judge whose decree had been restored by this
Court, and in appeal this Court had not said anything contrary to what was
observed by him, observed, 'It cannot therefore be denied that this Jacobite
..
'Syrian Association' which was a creation of the Mulunthurn Synod was
G and is the representative body that has the right to bind the whole com-
munity and all the churches by iLs deliberations and action.' The claim,
therefore, that the Patriarch Churches are autonomous and independent
in temporal matters cannot be accepted. That would be contrary to the
Mulunthuruthy Synod, the decision in the Royal Court of Appeal, the
H Arthat Case and the Constitution of 1934. A power which vested in
P.M.A. METROPOLITAN v. M.M. MARTH OMA [R.M. SAHA!, J.J 639

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

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

The Malankara Suriyani Knanya Samudayam referred to as 'Knanaya
Samudayam' traces its origin from one Mar Thomas of Corra and one
Bishop Joseph who migrated along with 400 persons comprising of 72 H
640 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A families from a place called Cana in 345 A.O. They claim that they are
-
different racially, culturally and socially from the Syrian Christians and the
membership in the community is only by virtue of birth. It is claimed that
the community all along kept its status separate and functioned under the
guidance and supervision of spiritual leadership of the Patriarch of An-
B tioch. It claimed that Patriarch ordained Mar Sevoten as the Metropolitan
in 1910 and Mar Clemis in 1951 who is still continuing. Attention was also
drawn to the Constitution framed in 1912 and amended in 1918, 1932, 1939,
1951 and 1959 wherein the supremacy of Patriarch of Antioch was always
offered. Various other provisions were pointed out and it was urged that
it was clear that it was an autonomous church. The followers of Kundara
C church claimed that it was established by followers of Mar Cyrial who had
come to India as prelate of the Patriarch of Antioch who resolved the
differences between Mar Athanasius and M. Dionysius, but failed in his
attempt due to the Roya Proclamation which was in operation. It is claimed
that it was at the instance of the Patriarch that the Queen of England issued
D a second proclamation permitting the followers to establish a new church.
Therefore, their fore-fathers were associated with Kundara Old Church
now called 'Valiapaly'. According to them, this church was established as
Athanasius denied spiritual supremacy of Antioch. However, it is not
denied that once ex-communication of Gheevarghese was cancelled in 1912
E and when I. Ibrahim Kathanan, the priest of the Church died his son Fr.
J. Abrahim was ordained as priest by Gheevarghese Dionysius, the
Metropolitan of Malankara. The claim of Kothamangalam Church was that
it was only an Archdiocese of the Syrain Orthodox Church under the
Patriarch of Antioch which is administered by its Parishioners according
F to congregational principles of governance and its administration is carried
on in accordance with its Constitution which provided for Edavaka Yogam,
a managing committee, a working committee and Thonnanda Kaikors. In
the appeal filed by the five churches established during 1951-56 it was
claimed that when Catholicos were declared as aliens to the church by the
Travancore High Court, they established the church under the Patriarch
G of Antioch. They claimed that they have their own Constitution and mode
of administration. }hey are registered under the Societies Registration Act
to whom the Constitution of Sabha was never made applicable. According
to them, they having been established exclusively by the Patriarch Group,
there can presumably be no doubt as to the object of its foundation and
H its basic faith. In the SLP filed by the Catholicos against the Evangelistic
P.M.A. METROPOLITAN"· M.M. M.\RTirOMA [R.M. SA.HAI •.T.I 641

Association referred as 'Samajam' and 'Simhasana Churches', it is claimed A
that the object of the Evangelistic Association indicates that it is composed
of the members of the Malankara Church and it provided that any person
holding the faith of the .T acobite Syrian Church and acknowledging the
authority of that church can be a member of that Association. It was
claimed that even though Samajam is registered under the Societies B
Registration Act, but it being established in the territorial jurisdiction of
the Catholicos and having acknowledged the spiritual headship of the
Patriarch of Antioch as a supreme patron of the Samajam, they too should
be treated as a part of the Malankara Church. It was pointed out that in
1966 the Samajam amended Clauses 7 and 9 of its Regulations and Rules
and incorporated in clause 7(a) and (b), but their claim was rejected by C
the Division Bench as this amendment was subsequently withdrawn. In
respect of the Simhasana Churches, it was claimed that they were estab-
lished with the object of seeking grace from Patriarch of Antioch and,
therefore, they too should be deemed to be part of Malankara Church.
D
Since the basic controversy is the same and both the learned Single
Judge and the Division Bench have recorded the finding for or against the
catholicos in respect of different churches after considering the material
on record in each case and with full understanding and correct apprecia-
tion of law it is nol necessary to deal with them in any detail except lo hold
that they do not call for any interference. Suffice it to say that the parishes E
are the churches which cannot claim to be separate or autonomous bodies
only because their racial and cultural origin was different. Once they were
established whether they came from outside or they were local persons it
did not make any difference as after the establishment of the church with
the permission of the Government and the Metropolitan and acknow-
ledging the spiritual headship of Patriarch of Antioch which follows the F
apostolic succession, the nature of these churches was episcopal and,
therefore, it was not open to them to claim that they should be treated as
autonomous bodies merely because they have their separate bye-laws. As
stated earlier, the framing of the bye-laws in each church is necessary for
purposes of governance and administration. But once a church is estab- G
lished then the property vests in the endowment and it becomes a public
charity, the administration and control of which has to be governed in
accordance with the objective of the endowment. Since the objective is to
follow Syrian Orthodox Church of which Patriarch of Antioch is the head,
they cannot claim to be independent, especially after the Constitution of
1934 was framed. H
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

The conclusions thus reached are,

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

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

(c). Section 9 is very wide. In absence of any ecclesiastical courts
any religious dispute is cognizable, except in very rare cases
where the declaration sought may be what constitutes
H religious rite.
P.MA. METROPOLITAN v. M.M. MARTIIOMA [R.M. SAllAI, J.] 643

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

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

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

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

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

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

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

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

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

6. The ex-communication of the Catholicos by the Patriarch was
invalid. H
644 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

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

B Legal issues of jurisdiction, maintainability of the suits, ex-com-
munication of the Catholico, authenticity of the canon, res judicata of the
findigs recorded in the Samudayam Suit, relationship of Malankara As-
sociation with Parish churches having been resolved not much difficulty
remains in the manner in which these appeals should be decided. But
before doing so the stage is also ripe for recording the deep anguish on
C baffling tenacity, to fight till finish, between fwo groups, rather, members
of the same family of a community which is, 'a living tradition of faith and
culture' which teaches honesty, simplicity and above all sacrifice." What is
astonishing is that the two groups have had several rounds of bouts in the
courts, where mass evidence both oral and documentary was led not on
D ideological clash, religious difference, theological conflict or any scriptural
dispute or controversy about the right of worship, rituals and ceremonies
or belief and faith surfaced but on matters which appear to be extraneous
to establishment of the Syrian church a religious institution which has a
glorious history and proud record of service. Mr. Parasaran was justified
in submitting that SyriaD..f,hurches could not be thoght of without Patriarch
E of Antioch. But where is the dispute about it. Even the Catholicos acknow-
ledge that he is the highest spiritual head. Extent of his powers and
pregrogative and not the existence or his being highest spiritual authority
was disputed. Therefore, in nutshell the entire exercise was much ado
about nothing. If the Catholicos went to one extreme and claimed that a
F declaration be granted that the Church had become autocephalous then
the Patriarch went to other extreme by raising all possible defence denying
even the most basic and fundamental concepts which had been settled
either by judicial decision or the Constitution and Kalpanas issued from
time to time. Even when Patriarch of Antioch was constituted in the
G meeting of Nice a held in 325 A.D. the other higher spiritual authority was
the Catholico of the East. It was agreed even at that time that the Catholico
could perform every spiritual function but the Patriarch had the overall
superiority. There is no deviation from that, except to the extent it is
provided in the Constitution with consent of all and in accordance with the
convention and custom which has developed for all these long years.
H Therefore, in order to bring down the curtain and avoid any future digging
P.M.A. METROPOLITAN v. M.M. MARlHOMA [R.M. SAHAl,I.1 645

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

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

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

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

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

Before concluding it may be observed that while highlighting the
relationship between Malankara Association and the Parish Churches, it F
was submitted by Mr. Parasaran that the provisions in the Constitution
permitting every church to send same number of representatives irrespec-
tive of the strength of churches was not very fair. May be. But this is a
provision governing matters not only of administration of churches but of
faith and religion. The Malankara Association is like the executive body of G
the Malankara Church to exercise control over religion and temporal
matters. The Courts' function is restricted to ensure its proper implemen-
tation and not to determine whether the provisions in the Constitution
frmaed by the religious body was fair or unfair. Religion is not governed,
necessarily, by logic. In any case, it is not in the domain of secular courts
to substitute itw own opinion of fairness. Further, no foundation was laid H
646 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R. •
A for it either in the pleading in the trial court or in the SLPs filed in this
Court nor any argument appears to have been advanced either before the
Single judge or the Division Bench. In fact, if the figures given in the
Encyclopedia of Religion is any guide then the numerical strength of
Catholicos in 1970 was more than the Patriarch. However paragraphs 120
B and 121 of the Constitution of 1934 provide for a Rule Committee which
is empowered to amend the Constitution from time to time. The grievance,
therefore of fair representation, if it has any substance, can be raised before
the Committee.

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

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

These appeals represent the latest round of litigation between two
rival sections in the Malankara Jacobite Syrian Christian Community. A
brief reference to the _earlier rounds of litigation is necessary for a proper
H appreciation of the questions arising herein.
P.M.A. MEIROPOLITAN '· M.M. MARTIIOMA (B.P. JEEVAN REDDY. J.] 647

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

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

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

On account of certain disputes and bickerings between the members
of Malankara Jacobite Syrian Church, Patriarch Peter III of Antioch came H
648 SUPREME COURT REPORTS (1995] Sl)PP. 1 S.C.R.

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

SEMINARY SUIT:

D On July 4, 1879 Mar Joseph Dionysius claiming to be the properly
consecrated Metropolitan of Malankara Jacobite Syrian Church and as the
President of Malankara Association filed 0.S.No. 439 of 1054 in the Zilla
Court of Alleppey against one Mar Thomas Athanasius. The main dispute
between them was while the plaintiff asserted the supremacy of Patriarch
comprised in consecrating and appointing Metropolitans from time to time
E to govern and rule over the Malankara Edavagai, in sending Morane (the
sanctified oil) for baptismal purposes, in receiving the Ressissa (tribute)
from the Community to maintain his dignity and in generally controlling
the ecclesiastical and temporal affairs of the Edavaga~ the defendants
denied any such Patriarchal supremacy. The suit was ultimately disposed
F of by the judgment of Travancore Royal Court of Final Appeal in the year
1889. The Royal Court found that the ecclesiastical supremacy of the
Patriarch of Antioch over Malankara Syrian Christian Church in Travan-
core had all along been recognised and acknowledged by Jacobite Syrian
Christian Community and their Metropolitans; that the exercise of supreme
power consisted in ordaining, either directly or through a duly authorised
G delegates, Metropolitans from time to time to manage the spiritual matters
of the local Church, in sending Morone to be used in the Churches for
baptismal and other purposes and in general supervision over the spiritual
government of the Church. The Royal Court further ruled that the
authority of Patriarch never extended to temporal affairs of the Church
H which in that behalf was an independent Church. It was further declared
P.M.A. MEfROPOLIT AN'· M.M. MARTHOMA (B.P. JEEVAN REDDY. J.] 649

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

ARTHAT SUIT:

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

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

In the year 1907, Mar Geevarghese Dionysius was ordained as
Metropolitan by the Patriarch Abdulla II at Jerusalam. In 19Q9, Mar
Geevarghese Dionysius became the Malankara Metropolitan on tlie death
of Mar Joseph Dionysius. Because of certain differences arising between H
650 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

G "The authority to serve all spiritual elements in public, which are
necessary for protecting the tradition of the Holy Church has been
given to him (Evanios) by the Holy Ghost as was given to the Holy
Apostles by our Lord Jesus Messiah. Authority means the authority
to ordain Metropolitans, Episcopas, and to consecrate Holy
H Morone and to serve all the other spiritual items and also to
P.M.A. METROPOLITAN>. M.M. MARTHOMA [B.P. JEEVAN REDDY,J.J 651

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

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

"Accordingly, we, by the Grace of God, in response to your request,
ordained a Maphrian, that is, Catholicos by name Poulose Basselios D
and three new Metropolitans, the first being Gheevarghese
• Gregorius, the second Joachim Evanios and the third, Gheevar-
ghese Philexinos. It appears to us that, unless we do install a
Catholicos, our Church, owing to various causes, is not likely to
stand firm, in purity and holiness. And, now, we do realise that by
the might of our Lord, it will endure unto Eternity, in purity and E
holiness, and more than in times bast, be confinned in the loving
bond of communion with the Throne of Antioch. The Joy of our
Heart is herein realised. Our children, abide ye now in peace. As
for ourselves, we leave you, Rest assured that though we leave you,
we shall never be unmindful of you. We shall incessantly lift up F
our eyes unto heaven and offer our prayers and intercessions for
the guileless lambs, redeemed by the previous blood of our Saviour
Jesus Christ. Pray Ye for U5, and for our entire community. Abide
ye in love, peace and concord. Pray ye for your enemies, and, for
those that revile you without cause. Be not afraid of the uncanoni-
cal and unjustifiable interdicts and curses of the usurper. Heed not G
those who create dissensions. God will reward them for their
action, be they good or bad. We commend you into the hands of
Jesus Chcist, our Lord, the Great Shepherd of the flock. May he
keep you. We rest confident that the Catholicos and Metropolitans
- your shepherds - will fulfil all your wants. The Catholicos, aided H
652 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

(Emphasis added)

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

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

G VATTIPANAM SUIT:

Dispute arose as to the persons entitled to the interest on 3,000 Star
Pagodas aforementioned. In view of the dispute, the Secretary of State for
India instituted an interpleader Suit No. O.S.94 of 1088 in the District
H Court, Trivandrum, It was later converted into a representative suit be-
P.M.A METROPOLITAN>. M.M. MARTHOMA [B.P. JEEVAN REDDY,J.I 653

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

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

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

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

(b) That under Ex.18, the Patriarch of Antioch possesses the. power
of ordaining and excommunicating Episcopas and Metropolitans
by himself, i.e., in his own right and that it is not necessary for him
to convene a Synod of Bishops and proceed by way of Synodical H
654 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

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

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

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

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

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

(ii) That defendants 1 to 3 had not become heretic or aliens or
jH had not set up a new Church by accepting the establishment of the
P.MA METROPOLITAN,_ M.M MARTIJOMA (B.P.JEEVAN REDDY,J.J 655

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

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

"The whole matter resolves itself into a personal dispute between G
two claimants to the Patriarchate in which it is said, the first
defendant deserted the Patriarch who had created him
Metropolitan and supported his rival. Such conduct might amount
·to an ecclesiastical offence for which the offender could be
deprived by his ecclesiastical superior but it could not be an H
656 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

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

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

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

With a view to put an end to the disputes between the two rival
groups in the Malankara Church, Patriarch Elias I visited Malabar in 1931
al the instance of Lord Irwin, the then Viceroy of India. Patriarch Elias l,
H hnwever, died in Malabar before he could effect any settlement. In his
,
P.M.A METROPOLITAN,. M.M. MARTHOMA(B.P..TEEVAN REDDY.J.] 657

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

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

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

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

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

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

(90) The throne of the Catlwlicos was re- established in the 01thodox
Sy1ian Church of the East which includes Malankara church in 1088
M.E. (1913) and this institution has been functioning ever since H
658 SUPREME COURT REPORTS (1995] SUPP. I S.C.R.

A then in the Orthodox Syrian Church of the East.

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

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

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

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

(Emphasis added)

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

SAMUDAYAM SUIT:
F
On July 5, 1935 the Metropolitans of the Patriarchal party issued
notice summoning a meeting of the Church representatives for August 22,
1935 at Karingasserai to elect the Malankara Metropolitan. The notice
stated that none of the persons belonging to Catholicos party should be
G elected. The meeting was accordingly h<ild on August 22, 1935 whereat Mar
Poulose Athanasius was elected as the Malankara Metropolitan. The meet-
ing purported to remove the trustees elected at the Meeting held on
December 26, 1934 (i.e., Mani Poulose Kathanar and E.J. Joseph, belong-
ing to Catholicos group) and appointed two other persons in their place.
Having done this, the Patriarch group (plaintiffs- appellants in C.M.A. 74
H of 1107 pending in the High Court) allowed the appeal to be dismissed for
PM.A. METROPOLITAN'· M.M. MARTHOMA (B.P. JEEVAN REDDY,J.( 659
'
non-prosecution. A

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

"(l) The main plea of the plaintiffs that the defendants had become F
heretics or aliens or had gone out of Church by establishing a new
Church because of the specific acts and conduct imputed to them
is unacceptable for the reason that the said issue is concluded by
the judgment of the High Court of Travancor~ in 0.S. 94 of 1088
(Vattipanam suit). The charges which were sought to be relied G
upon as fresh cause of action in the suit (Samudayam suit) are not
covered by the pleadings or the issues on which the parties went
.to trial. Some of them are pure after-thoughts and cannot therefore
be permitted to be raised. The said charges, or at any rate most
of them, ought to have been and should have been put forward in
the vattipanam suit and and the plaintiffs having not .done that, H
660 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

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

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

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

H On December 9, 1958, the Patriarch issued a Kalpana dated Decem-
P.M.A. METROPOLITAN'· M.M. MARTIIOMA (B.P. JEEVAN REDDY. J.) 661

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

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

(Emphasis added)

It is significant to mention here that this Kalpana Ex.A.19 was issued E
by Patriarch Yakub, who was in India during the conduct of Samudayam
suit appeal, attending to the said litigation on behalf of the Patriarch party.
He became the Patriarch sometime earlier to his Kalpana dated November
30, 1957.
F
On December 16, 1958 the Catholicos responded by issuing his
Kalpana (Ex.A.20) wherein he described himself as "meek Baselious
Catholicos named as Geevarghese II seated 011 the Throne of the East of
Apostle St. Thomas". Having expressed his grief at the dissensions in the
Malankara Church and his happiness at the end of discord, the Catholicos G
stated "we, for the sake of peace, in the Church, are pleased to accept Moran
Mar Ignatius Yakub Ill as Patriarch of Antioch subject to the constitution
·passed by the Malankara Syrian C/uistian Association and now in force".
(Emphasis added). The Catholicos further stated in the said Kalpana, "we
have also pleasure to accept the Metropolitans under him (Patriarch) in
Malankara subject to the provisions of the said constitution ..... ". H
662 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.'R.

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

On December 26, 1958 a meeting of the Malankara Association was
held. Ex.A.43( a) is the copy of the minutes of the said meeting. It shows
D that the meeting was attended by Bishops, Clergy and laity of both the
groups and was presided over by the Catholicos. This meeting was held
after due notice intimating all concerned that new trustees of the
Malankara Association would be elected at the said meeting. The
Patriarch's delegate, who was then in India, also attended the meeting by
special invitation. At this meeting, new trustees were elected. Ex. A.44, the
E newspaper report, contains a group photograph of the Metropolitans of
both the groups and the delegate of Patriarch. A meeting of the Bishops
of both the groups was held on January 12, 1959. Ex.A.153 is a copy of the
minutes of the meeting. It was attended by six Metropolitans of Catholicos
group and three Metropolitans of Patriarch group. The meeting resolved
F to unite various rival organisations, youth leagues, students' organisations
and womens' organisations under one Association. Committees were
formed to devise ways and means of unification. It was decided to imple-
ment the Constitution of Malankara Association wherever it was not im~
plemented and to appoint a committee to study the particulars and report
at the next meeting. It was also decided to re-allot the dioceses since the
G total number of Metropolitans of both the groups put together exceeded
the number of dioceses. Accordingly, at the Synod meeting held on
February 21, 1959 (Ex.A.153(a) J attended by all the Metropolitans, re-al-
lotment of dioceses was made. It was decided to send the copies of the
Constitution to all the Parishioners with a direction to obey the same.
H Under the re-allotment of the dioceses, three dioceses were allotted to
P.M.A. METROPOLITAN v. M.M. MARTHOMA (B.P. JEEVAN REDDY, J.J 663

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

On June 8, 1959, the Catholicos replied to the Patriarch (Ex.A.24). G
In this letter, the Catholicos stated that the letters Ex.A.19 and A.20 were
exchanged by him and the representative of the Patriarch, Mar Julius Elias,
Metropolitan, on 16th December at the old Seminary before an august
gathering consisting of Bishops, Priests and laymen of both the parties.
Before the said exchange, there were negotiations between the two parties H
664 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

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

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

On August 13, 1960, the Catholicos replied to patriarch in which he
reiterated that when the Samudayam suit was pending in the Courts, the
Patriarch himself was in India (at that time, he was not the Patriarch) as
H the representative of the Patriarch and prosecuting the said suit. He
P.M.A. ME1ROPOLITAN "· M.M. MARTHOMA (B.P. JEEVAN REDDY, J.} 665

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

The correspondence went on lie this with the language and accusa-
tions in each letter becoming more and more shrill with each exchange.
c
With the above correspondence was going on, following develop-
ments took place in Malankara: On September 16, 1959 a meeting of the
Malankara Association was held wherein members of both the groups
participated [Ex.A43(a) is the minutes of the meeting]. The strength of the
Managing Committee was fixed at ninety, of which seventy four were to be D
elected and sixteen to be nominated by Malankara Metropolitan. Several
• other decisions were taken. Ex.A.98 shows that the elected members of the
Managing Committee took oath to abide by the Constitution. Pursuant to
the decision of the Managing Committee of the Malankara Association,
Catholicos invited the Patriarch to come to Malankara. The Patriarch,
however, replied on October 27, 1961 [Ex.A.31(a)] that a canonical invita- E
tion should be issued which will be placed before the Patriarchal Synod.
Accordingly, a canonical invitation Ex.A.32 was sent on January 18, 1962.
Since the then Catholicos had become very old, a meeting of the Malankara
Association was held on May 12, 1962 for electing his successor. It elected
Ougen Mar Timothious, which was approved by the Synod on June 21, F
1963. This was conveyed to Patriarch. On January 13, 1964, a letter of
invitation was sent by Malankara Episcopal Synod inviting Patriarch to
come to India for the installation of the new Catholicos. This letter Ex.A.35
was signed by nine Metropolitans belonging to both the groups. The
plaintiffs-respondents say that this invitation was sent as contemplated by G
Article 114 of their Constitution. Ex.A.41 is the Kalpana dated April 29,
1964 issued by three Metropolitans (including one of the Patriarch group)
regarding the proposed installation of Catholicos. The Patriarch arrived in
India and the new Catholicos was installed by him on May 22, 1964. A day
before the installation of new Catholicos, it may be mentioned, there was
a discussion with respect to the demarcation of jurisdiction of Catholicos H
666 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R

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

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

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

F Ex.A.48, A.49, A.52, A.178, A.179 and A.189 series show that a new
Managing Committee was elected for the Malankara Association and that
the Committee was composed of representatives of both the groups and
that the newly elected members took oath affirming the 1934 Constitution.
More significantly in the year 1970, a meeting of the Malankara Association
was held (on December 31, 1970) participated by representatives of both
G the groups, whereat one Mathew Athanasius was elected as the successor
Catholicos to Mar Ougen I. [It may be recalled that Mathew Athanasius
was ordained as Metropolitan in 1951 by Basselios Geevarghese II, (first
defendant in the Samudayam suit); Mathew Athanasius is the second
plaintiff in D.S. 4 of 1979, the main suit before us.] It appears that this
H election was challenged by certain members owing allegiance to Patriarch
P.M.A MEfROPOLITAN,.. M.M. MARTHOMA (B.P. JEEVAN REDDY, J. J 667

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

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

EXCOMMUNICATION OF CATHOLICOS BY PATRIARCH:

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

"Local newspapers report your holiness intention to consecrate one
of our priests as Bishop. We unequivocally object to· such action
if contemplated by your Holiness as uncanonical and as a clear
violation of 1958 peace agreement. (Letter follows)." H
668 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

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

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

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

On March 9, 1974 the Catholicos replied to the Patriarch stating that
the Patriarch has no jurisdiction to level any charges against him or to ask
for his explanation. He stated that the only authority to do so is the
H Malankara Episcopal Synod. He stated that the charges communicated by
P.M.A ME1ROPOLITAN '· M.M. MARTIIOMA (B.P. JEEVAN REDDY, J.] 669

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

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

On June 16, 1975 the Universal Synod met at Damuscus to consider
the charges against the Catholicos. The Synod met on several subsequent p
dates upto December 20, 1975, the proceedings whereof are enclosed to
the letter Ex.A.22 dated June 22, 1975 addressed by the Patriarch to
f Catholicos. The Universal Synod concluded that the Catholicos Ougen I is
guilty against the faith and the laws of the Church and has violated the oath
taken by him at his consecration as the Catholicos of the East and as the
Metropolitan of Malankara and must be considered to have become an G
apostate to the Syrian Orthodox Church. Accordingly, he was stripped off
all the offices, authority and privileges of the said office. The Synod
authorised the Patriarch to announce the said decision to whole :Church
and to all concerned. The Patriarch issued a notice to the Catholiccls calling
upon him to intimate whether he accepts and submits to the resolutions of J;J. ,
670 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

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

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

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

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

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

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

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

The plaintiff-respondent's case, as put forward in D.S. 4/79, is to be
H following effect:
P.MA MEIROPOLITAN'· M.M. MARTIIOMA [B.P. JEE VAN REDDY. J.j 671

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

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

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

"A To declare that the Malankara Church is episcoal in character H
672 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

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

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

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

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

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

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

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

G The defendants in their written statements denied and disputed the
several averments, assertions and claims made in the plaint and reiterated
the supremacy of the Patriarch in the affairs of the Malankara Church.
According to them, the Catholicos and the members of his group have
become apostates to the faith on account of their acts and declarations and
H are not entitled to any of the reliefs prayed for.
P.M.A. METROPOLITAN v. M.M. MARTI!OMA [B.P. JEEVAN REDDY, J. [ 673

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

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

(a) The Patriarch of Antioch was undoubtedly acknowledged and recog-
nised by all the members of the Malankara Church as the supreme head
of their Church. In the year 1654, they took the oath known as the 'Koonan
Cross Oath' re-affirming their loyalty to the Syrian Orthodox Christian F
Church headed by the Patriarch. It was the Patriarch who convened the
Mulanthuruthy Synod at which the Malankara Syrian Christian Association
was formed. However, the authority of the Patriarch extended only to
spiritual affairs - the Syrian Christians in Malankara believed in the efficacy
of 'Kaivappu' (laying of hands by Patriarch on the head) while consecrating G
the Metropolitan and considered it essential to a proper ordaining - but
not to the temporal affairs of the Malankara Church as declared fmally by
the Travancore Royal Court of Final Appeal in the year 1889 in the
Seminary suit. The Royal Court declared that the authority of the Patriarch
never extended to temporal affairs of the Church which in that behalf was
an independent Church, The Royal Court further declared that the H
674 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

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

B (b) The revival of Catholicate in 1912 by Patriarch Abdul Messiah made a
qualitative change in the situation. Under Ex.A.14, the Kalpana issued by
the ·Patriarch Abdul Messiah,* (which document was produced in several
earlier suits and whose authenticity is not disputed by the Patriarch group
before us) and A.13 which precedes A.14, empower the Catholicos to
ordain metropolitans and other officials of the Church in accordance with
C the canons of the Church and also to consecrate holy Morone. A.14 states
expressly that the power to instal a Catholicos on the death of the incum-
bent is vested in the Metropolitans. It is in this manner that the power of
ordaining Metropolitans and melpattakkars and consecrating holy Morone,
which hitherto vested in Patriarch, came to be vested in the Catholicos by
D the Patriarch himself. Further, the power to instal a Catholicos on the
death or disability of the incumbent was also vested in the Metropolitans
of Malankara Church and it is in exercise of this power that on the death
of the first Catholicos installed by Patriarch Abdul Messiah in 1913, the
second Catholicos Basselios Geevarghe;;e I (Mar Geevarghese Philixinos)
was installed in the year 1924 by the Malankara Synod without reference
E to the Patriarch. Again in 1929, Basselios Geevarghese II was elected as
the third Catholicos by the Association and was installed as such. In the
M.D. Seminary meeting held on December 26, 1634 the third Catholicos
was elected as the Malankara Metropolitan, thus combining both the posts
in one person. In other words, the spiritual and temporal powers over the
F Malankara Church came to be concentrated in one person. It may be that
by this act of revival of Catholicate and the Kalpanas A.13 and A.14, the
Patriarch is not denuded of the powers delegated by him to the Catholicos
- assuming that these powers were not already possessed by the Catholicos
"It was conceded on both sides (in vattipanam suit) namely that the Firman issued to
Abdul Messiah was withdrawn and that such withdrawal in itself has no effect on the
G exercise by a Patriarch of purely spiritual functions~. (Judgment of Chatfield CJ.).
Another learned judge Paran1eshwaran Pillai.J., held in the same suit: "The fact that
ten1poral govt. withdrew his (Abdul Messiah's) recognition cannot affect the spiritual
standing and position of Abdul Messiah~. It is also pointed out in Para 42 of the
judgment under appeal that no plea has been raised in any of the pleading alleging the
invalidity of, or the grounds of invalidity of, Abdul Messiah continuing to perform his
spiritual functions as the Patriarch. The judgn1ent under appeal also refers to the
H canonical position when there are two Patriarchs. We agree with their views."
P.MA METROPOLITAN'· M.M. MARTllOMA [B.P. JEEVAN REDDY. J.J 675

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

(c) It is significant to notice that the Catholicos-cum-Malankara
Metropolitan, Basselios Geevarghese II, was accepted and recognised as D
the Catholicos by the Patriarch Yakub under his Kalpana Ex.A.19 dated
December 9, 1958. Basselios Geevarghese II was elected as Catholicos by
the local Metropolitans and installed as such by the local melpattakkars
without reference to the Patriarch and which Catholicos was all through
fighting against the Patriarch group in the Samudayam suit. It is no less
significant that Patriarch Yakub, who issued the Kalpana A.19, was, before E
his installation as the Patriarch, the delegate of the Patriarch in India and
was prosecuting the Samudayam suit for a number of years. If so, it is
reasonable to infer that when he accepted and recognised the Catholicos
as such under Ex.A.19, he did so with the full knowledge that he was
thereby recognising the Catholicos as revived by Abdul Messiah in 1912 F
under A.14 and as described and affirmed in the 1934 Constitution.
Moreover, the Kalpanas A.19 and A.20 were not issued in an abrupt
fashion - they could not have been - but were preceded by a good amount
of discussion and negotiations between members of both the groups. Under
his Kalpana Ex.A.20 dated December 16, 1958, from the Catholicos to the
Patriarch, the Catholicos accepted the Patriarch subject to the Constitution G
passed by the Malankara Association and as then in force. The
Metropolitans ordained by Patriarch duly accepted the authority of
Catholicos and participated in several proceedings. There was re-allotment
or dioceses among the Metropolitans of both the groups. The members of
the erstwhile Patriarch group swore loyalty to the 1934 Constitution. (These H
676 SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.

A events have been detailed hereinabove). After all these developments, and
after a lapse of four months after A.20, the Patriarch raised an objection
to the use of certain expression employed in Ex.A.20, viz., the Catholicos
claiming to be seated on the Throne of St. Thomas and also to the
qualification added by he Catholicos to his acceptance to the Patriarch,
B viz., "subject to the constitution....". But even this objection which is
reflected in the correspondence which passed between them during the
years 1959 to 1962 (referred to supra) must be deemed to have been given
up and abandoned by the Patriarch by his acts and declarations in the year
1964. As stated supra, the Patriarch came to India pursuant to a canonical
invitation from the Malankara Synod and consecrated and duly installed
C the new Catholicos (Mar Ougen), who was elected by the Malankara
Association in accordance with the 1934 Constitution. Before he did so,
the Patriarch took care to see that the respective territorial jurisdictions of
the Patriarchate and the Catholicate are duly defined and demarcated. The
Middle East which was supposed to be hitherto under the jurisdiction of
D the Catholicos was excluded from his jurisdiction confining his authority to
India and East alone.

Now what do the above facts signify? Do they not show that Patriarch
had, by 1964, recognised and accepted the revival of the Catholicate A.13,
E A.14 and the 1934 Constitution? Do they not show that the Patriarch had
also given up his objections to the use of the words "seated on the throne
of St. Thomas in the East" and to the "qualification" added by Catholicos
in A.20? We think, they do. Once this is so, it is no longer open to the
Patriarch or his followers to contend that the revival of Catholicate was not
in accordance with the religious tenets and faith of the Syrian Jacobite
F Christian Church, that the Constitution of 1934 was not duly and validly
passed or that the power and authority of the Patriarch as obtaining prior
to 1912 remains and continues unaffected and undiminished. In this con-
nection, it is relevant to remind ourselves that it was the contention of the
Patriarch group in Vattipanam suit that the Catholicos group had, by
G espousing the cause of and the revival of Catholicate, reduced the power
of the Patriarch to a vanishing point and have thereby become aliens to the
faith. The power and authority of the Catholicos under A.13 and A.14 was
affirmed, re-enforced and enlarged in the 1934 Constitution (as amended
in 1951) and yet under Ex.A.19 the Patriarch accepted with pleasure Mar
H Basselios Geevarghese as the Catholicos. At the sa!"e t\me, it is equally
P.M.A METROPOLITAN'· M.M. MARTIIOMA (B.P. JEEVAN REDDY, J. ( 677

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

THE VALIDITY OF THE EXCOMMUNICATION OF THE
CATHOLICOS:

In the Vattipanam suit, the High Court found that of the two versions E
of Hudaya Canon put forward by the Patriarch group and Patriarch group
(Ex.18 in that suit) is the correct one. The very same version was put
forward by the Patriarch group as the true version in the Seminary suit. Of
course, at that time, both the groups concerned herein were comprised in
Patriarch group and were fighting against the renegade group of Mar F
Athanasius. It is really pointless to go. into the question whether the
judgment in Vattipanarn suit operates as res judicata. Even if it is assumed
that it does not, yet its value as a precedent - a finding arrived at by the
High Court after a full enquiry - cannot be denied. According to the first
judgment of the High Court, the Patriarch has the power to excommunicate G
the Metropolitans. It does not say anything about the power of the
Patriarch to excommunicate Catholicos and if so according to what proce-
dure. We have seen supra that while granting the review of the said
judgment, the High Court specified that three findings recorded by it in
the judgment under review should not be reopened. The three findings
inter alia included the finding relating to the authenticity of Ex.18. Accord- H
678 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A ing to the said version of the Hudaya Canon, the Catholicos "shall act
according to the orders of (be subject to) the Patriarch of Antioch. He
shall not defy (act against) his superiors". It repeatedly says that the
Catholicos is subject to the authority of Patriarch and that the Patriarch is
the "head or superior" of the Catholicos. Though the canon does not say
B so, we shall proceed on the assumption for the purpose of this case -
without recording any finding to that effect - that the Patriarch has the
power to excommunicate the Catholicos. Yet the question remains whether
the grounds on which the excommunication of the Catholicos has been
effected are valid and permissible grounds. A perusal of the charges
communicated to the Catholicos by the Patriarch in his letter dated January
C 30, 1974 makes it clear that charges related to the use of the word
"Holiness" along with his name by the Catholicos, his assertion of being
"seated on the Throme of St. Thomas in the East" and his assertion of
"cordial relationship" with the Patriarch instead of admitting his subor-
dinate all objections which were raised by Patriarch during the years 1959
D to 1961 but given up and abandoned in May, 1964, as explained supra. It
is also alleged that the Catholicos did not accept the delegate sent by
Patriarch to Malankara and has also changed the oath administered to the
members of the Church wherein he substituted himself for the Patriarch.
The proceedings of the Malankara Association were also cited as one of
E the charges. Having revived the Catholicos with the powers under Ex.A.13
and 14 and having accepted (by necessary implication) the Constitution of
1934 under his Kalpana Ex.A.19 and having installed the Catholicos in 1964
notwithstanding his objections raised in his letters written during the years
1959 to 1962, it was not open to the Patriarch to seek to excommunicate
F the Catholicos on those very grounds. Ex.A.13 speaks of Throne of St.
Thomas. Ex.A.13 and Ex.A.14 specifically vest the Catholicos with the
power lo consecrate Metropolitans and other officials of the Church and
to consecrate Morone. A.14 empowers the Metropolitans to elect their own
Catholicos. In these circumstances, it is difficult to understand how could
the use of the expression "Holiness" or the assertion of being seated at the
G Throne of St. Thomas in the East or the claim that the Malankara Church
is an autocephalous Church can be treated as heresy when the very
<:;onstitulion by which the Catholicos and his group were swearing affirmed
jli clear terms that the Patriarch is the supreme head of the Malankara
IChurch. As a matter of fact, some of the charges in the letter dated January
H 30, 1974 can also be termed as vogue. For example, Charge No. 9 reads
P.M.A METROPOLITAN v. M.M. MARTHOMA !RP. JEEVAN REDDY, l.! 679

thus: A

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

PLAINTIFFS CLAIM THAT MALANKARA CHURCH IS EPISCOPAL
IN CHARACTER AND NOT A UNION OR FEDERATION OF
AUTONOMOUS UNITS:
G
Though in Para (1) of the Plaint in 0.S. 4/79 an assertion is made
that "the Malankara Orthodox Syrian Church...... is an autocephalous
division of the Orthodox Syrian Church which traces its origin to Jesus ,
Christ and his apostles", the relief asked for in the plaint is for a declaration
"that the Malankara Church is Episcopal in character and is not a union H
680 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

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

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

(Emphasis in original).

E
The Division Bench also referred to the judgment of the Kerala High
Court in John v. Rev. 1homas Williams, (1953) K.L.T. 605 on the meaning
and content of the expression "congregationalism. The judgment describes
"congregationalism" as one of the non-conformist Protestant denomina-
tions. Relying upon the Encyclopedia of Britanica, it says that the con-
F gregationalism is the name given to that type of church organisation in
which the autonomy of the local church or body of persons assembling in
It is therefore unnecessaty for us to record a finding on the question whether the
Malankara Church is an autocephalous church as claimed by the plaintiffs. If it is found
necessary to do so, we n1ay indicate that we agree with the finding of the Division
Bench recorded in Para 99 of the judgment under appeal. For this reason, it is equally
G unnecessary to consider the effect and relevance of the resolutions passed by the
!\falankara Synod in its nleeting held on February, 1975 and May 22, 1975 affirming
the autocephalous and independent nature of the Malankara Church. It is significant
to notice that even after the 1967 an1endments to the 1934 Constitution, clause (1) still
declares that "(T)he Malankara Church is a division of the Orthodox Syrian Church.
The Primate of the Orthodox Syrian Church is the Patriarch of Antioch". It is not
brought to our notice _that this clause has been amended later so as to repudiate the
H affim1ations contained in it.
P.M.A. MEJROPOLITAN v. M.M. MARTI!OMA [B.P. JEEVAN REDDY. J. J 681

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

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

On a consideration of the relevant material placed before it, the E
Division Bench has held that while the Orthodox Syrian Church including
the Malankara Church is Episcopal in spiritual matters, in temporal mat-
ters it is not Episcopal. It referred, in our opinion rightly, to the judgment
of the Royal Court of Final Appeal of Travancore in Seminary Suit where
it is observed: "parties agree that head of Syrian Church in this country or F
its Metropolitan should be a properly ordained Bishop and that regarding
temporal affairs acceptance of Malankara Metropolitan as such by the
community is necessary". It was further held in the said judgment that
1
"while the ecclesiastrical supremacy of the Patriarch has all along been
recognised, authority of Patriarch never extended to Government of tem-
poralities of the Church. The Division Bench at the same time clarified that G
. it does not mean to hold that the Metropolitan has the jurisdiction over
the day-to-day management of temporal affairs of Parish Churches. The
Division Bench has also referred to the Mulanthuruthy Synod resolutions
which say that the Parish Churches have a degree of autonomy with certain
supervisory powers along being vested in the Managing Committee of the H
682 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A Association or Catholicos or the Malankara Metropolitan, as the case may
be. The Division Bench has held that "Malankara Church though it has
some episcopal characteristics is not a purely episcopal church. But we are
not able to agree that the individual Parish Churches are independent
churches or churches with independent status ..... The Parish Churches are
B constituent parts of the Malankara Church and enjoy a degree of autonomy
-
and he administration of the day-to-day affairs vests in the Parish Assembly
and committee elected by the Parish Assembly subject to supervisory
powers of the Metropolitan - and the provisions of the constitution of the
Malankara Sabha do not affect this position"* We are, however, of the
opinion that in this suit no declaration can be granted affecting the rights
C of Parish Churches in their absence not can it be declared that the
properties held by Malankara Parish Churches vest in the Catholicos or
the Malankara Metropolitan or the Metropolitan of the concerned diocese,
as the case may be. Indeed, no such specific relief has been asked for in
the suit and without impleading the affected parties, no declaration can be
D claimed by the plaintiffs that their church is episcopal in nature, if that
declaration means that it gives the Catholicos/Malankara Metropolitan/the
Metropolitan of the Diocese any title to or any control over the properties
held by the Parish Churches. We have pointed out hereinbefore that the
only place in the plaint where a reference is made to the properties of the
Parish Churches is in Para 24 where all that it is alleged is that the
E defendants and their partisans are trying to intermeddle in the affairs of
individual churches and are attempting to make use of the properties of
the church to further their illegal and unlawful objects. No list of Parish
properties is enclosed nor are the particulars of the alleged intermedclling
mentioned in the plaint. In the state of such a pleading, the only observa-
F tion that can be made herein is that the 1934 Constitution shall govern and
regulate the affairs of the Parish Churches too, insofar as the said Con-
stitution provides for the same. In this connection, the learned counsel for
appellants has brought to our notice the following facts: Inasmuch as the
(
plaintiffs asked for a declaration that Malankara Church is an Episcopal
Church and appended a list of more than one thousand Churches to their
G plaint, several Parish Churches came forward with applications under
Order I Rule 10{2) of the Civil Procedure Code to implead themselves as
defendants to the suit. All the applications were dismissed by the Trial
..
The words underlined by us in the above quote introduce certain amount of ambiguity
in the finding recorded. May be this is the result of granting a declaration without
H hearing the affected parties.
P.M.A METROPOLITAN "· M.M. MARTI!OMA [B.P. lEEVAN REDDY, J.] 683

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

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

Accordingly, the revision petitions were dismissed. If the plaintiffs mean
merely spiritual control by saying episcopal, probably there may be no
difficulty in holding that Catholicos and the Malankara Metropolitan have
spiritual control over. the Parish Churches, but if it means control over E
temporal affairs of, or title to or control over the properties of, the Parish
Churches beyond what is provided for in the Constitution, a declaration to
that effect can be obtained only after hearing and in the presence of the
concerned Parish Churches. It also appears that each of these Parish
Churches/Associations has its own constitution, whereunder the general F
body of the Parishes is declared. to be the final authority in temporal
matters. All this is mentioned only to emphasis that in the absence of the
Parish Churches and proper pleadings and proof, no declaration touching
the Parish Churches can be granted in these suits. In Para 103 of its
judgment, the Division Bench has held that while the Malankara
Metropolitan has supervisory jurisdiction over the Parish properties as G
provided in the 1934 Constitution, it cannot be said that the administration
of the Parish properties vests in him. It held that the administration vests
in Parish Assemblies or Parish Churches, subject again to the provisions
of the Constitution. In sum, we observe that the 1934 Constitution governs
the affairs of the Parish Churches too insofar as it does. The power of the H
684 SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.

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

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

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

H (4). It may be that be virtue of the revival of Catholicate and by iSsuing the
P.M.A MElROPOLITAN'· M.M. MARIBOMA (B.P. JEEVAN REDDY, J.) . 685

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

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

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

(8). So far as the declaration of the the Malankara Church being Episcopal
in character is concerned, all we need hold is that it is episcopal to the H
686 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

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

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

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

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

The situation resulting from the above summary of the findings is that
the situation obtaining on January 1, 1971 (i.e., the day after the election
of Mathew Atanasius at the meeting of the Malankara Association held on
December 31, 1970, in accordance with the 1934 Constitution) shall be
G deemed to be the position even today in all respects. It is after January 1,
1971 that there was fresh spurt of quarrel between two groups and between
the Patriarch and the Catholicos. Any attempt to bring peace, reconcilia-
tion and rapprochment between the two groups must take the said date as
the starting point - [This does not, however, mean that installation of
H Mathew Athanasius, elected as the Catholicos on December 31, 1970, in
P.M.A. METROPOLITAN v. M.M. MARTIIOMA{B.P.JEEVAN REDDY, J.] 687

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

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

-
of the Metropolitans, it was thought necessary that there should be an
organisation for the entire community called "Syrian Christian Association",
of which Patriarch should be the Patron and the ruling Metropolitan its
President. For transacting the business of the Association, a Chief Com- D
mittee consisting of eight priests and sixteen laymen with the ruling
Metropolitan as the President was formed. This Committee was "entrnsted
with complete responsibility and management of every matter connected with
religious and communal affairs of the entire Syrian Community". Neither
party before us disputes the validity of these resolutions. In Seminary suit,
it was held by the Royal Court of Final Appeal on the basis of the said E
resolutions and other material placed before it that the Metropolitan of the
Syrian Christian Church in Travancore should be a native of Malabar
consecrated by Patriarch or his delegate and accepted by the people as their
Metropolitan. Indeed, this aspect has been repeatedly stressed before us by
the learned counsel for the Catholicos group. We too find this to be a very F
desirable feature - an instance of infusion of democratic spirit in religious
affairs. It may be mentioned that in the appeal preferred in this Court
against the rejection of their review petition in Samudayam suit (judgment
reported in A.l.R. 1954 S.C. 526), the stand of the Catholicos group was
that the said judgment of the Royal Court represents the constitution of
the Malankara Church. The subsequent jndgments too re-affirms the said G
position. It is thus clear that the Malankara Association was formed not
only to manage the temporal affairs of the Church but also its religious
affairs and that the appointment of Metropolitans was subject to accep-
tance by the people of Malankara. The emphasis is upon the people of
Malankara and not upon the individual Churches/Parish Churches. It is H
688 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

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

-
learned counsel for the appellants contended that with a view to retain
control over the Malankara Association, the Catholicos group have created
a large number of Parish Churches though among the individual members
D of the Church, the majority swears allegiance to Patriarch. His contention
is that because in the Malankara Association each Parish Church, whether
big or small, is entitled to have three delegates, the Association is not a
true representation of the will of the members of the Church as such. He
suggests that while some Churches have a large body of believers running
E into several thousands, there are Churches having as little as fifty members
and yet each of them has equal representative in the Malan~raAssocia-
tion. On this account, the learned counsel says, the procee · gs of the
Malankara Association cannot be said to be reflecting the l of the
majority of the Malankara Christians truly. It cannot be said that there is
F no substance in this submission. If the Malankara Association is to be
vested with the control over the religious and communal affairs of the
entire Malankara Christian community, it must truly and genuinely reflect
the will of the said community. For ensuring it, its composition must be so
structured as to represent the entire spectrum of the community. A power-
'
ful body having control over both spiritual and communal affairs of the·
G Malankara Church should be composed in a reasonable and fair manner.
Judged from this angle, clause (68) of the 1934 Constitution cannot be said
to be a fair one. [After 1967 amendment, the corresponding clause is
Clause (71) which reads, "a priest and two payment elected by each Parish
Assembly (and the members of he existing Managing Committee?) shall be
H members of the Association"]. It may, therefore, be necessary to substitute
P.M.A. METROPOLITAN'· M.M. MARTIIOMA [B.P. JEEVAN REDDY. J.l 689

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

THE POSITION OF SIMHASANAM CHURCHES, KNANAYA CHUR-
CHES, EVANGELICAL ASSOCIATION OF THE EAST AND ST.
ANTHONY'S CHURCH, MANGALORE:
E
Before we conclude, it is necessary to deal with the position of the
above Churches. The Division Bench of the High Court has dealt with them
under Points 23, 24, 25 and 26 formulated by it. So far as Simhasanam
Churches, Evangelical Association of the East and St. Anthony's Church,
Mangalore are concerned, the Division Bench has dismissed the suits, viz., F
O.S. 5/79, O.S. 6/79 and O.S. 4/79, insofar as they related to the above
Churches agreeing with the findings and the decree of the learned Single
Judge in that behalf. We see·no grounds to depart from the concurrent
findings recorded by the learned Single judge and the Division Bench. We
affirm their judgment and decree in this behalf. so far as Knanaya
Samudayam is concerned, while the learned Single Judge had dismissed G
O.S. 4179 with respect to this defendant (D.19) subject to the declaration
that Knanaya Sabha is part of Malankara Church, the Division Bench has
modified the decree in the following terms: "decree is granted declaring
that Catholicos is the spiritual superior of Knanaya community and
Knanaya Metropolitan and in regard to temporal matters as long, as the H
690 SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

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

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

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

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

H (iii). the proceedings of the Malankara episocopal Synod meetings held
P.MA METROPOLITAN'· M.M. MARTHOMA (B.P. JEEVAN REDDY,J.] 691

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

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

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

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

S.M. Appeals disposed of,