MAR KOORILOS (DEAD) AND ANR. ETC. versus M. PAPPY (DEAD) AND ANOTHER ETC. on 28 August 2018

SUPREME COURT REPORTS

[2018] 10 S.C.R.

AMATHEWS MAR KOORILOS (DEAD) AND ANR. ETC.

v.

M. PAPPY (DEAD) AND ANOTHER ETC.

(Civil Appeal Nos. 6263-6265 of 2001)

BAUGUST 28, 2018

[RANJAN GOGOI, R. BANUMATHI ANDNAVIN SINHA, JJ.]

Church: Suit filed by appellant no.1/Metropolitan of QuilonDiocese of the Malankara Orthodox Syrian Church and appellantCno.2/Vicar appointed by him for St.Mary’s Church against theParishioners of the Church prayed for declaration that the QuilonMetropolitan and the Vicars appointed by him have exclusive rightto conduct religious services in the plaint Church and Cemeteryand prayed for prohibitory injunction restraining the defendantsDand others who do not obey the plaintiffs-appellants from enteringthe plaint church and plaint scheduled properties – Case ofappellants was based on Ext A3-assignment-cum-gift deed assignedin their favour – Trial court held in favour of appellants declaringthat the appellants have right to conduct religious services in theplaint church and cemetery and granted permanent injunctionErestraining respondents-defendants and persons who do not obeythe appellants from entering the church and conducting religiousservices and obstructing others who obey the appellants – Singlejudge of High Court upheld the decision of trial court – However,Division Bench of High Court set aside the judgment of single judgeFinter alia holding that though the title of properties vested with theQuilon Diocese, the properties including church, cemetery etc. underExt. A3 were still in the control and management of the parishioners– On appeal, Held: The detailed discussions and conclusions arrivedat in K.S. Varghese case had settled the disputes between thePatriarch and the Malankara – As per the Constitutional BenchGdecision in Thukalan and P.M.A, St. Mary’s Church was bound by1934 Constitution and the control of the Metropolitan – Havingheld that the 1934 Constitution is binding upon the Parish Churchand Parishioners, Division Bench was not right in holding that theMetropolitan had no power to appoint Vicar, Priests etc. – It is notHopen to any individual church to have a parallel system of management in the churches under the guise of spiritual supremacyin the Patriarch – Malankara Metropolitan enjoys all the temporal,ecclesiastical and spiritual administrative powers – St. Mary’s Churchis a constituent of Malankara and the power to appoint Vicar, Priestsetc. is vested with the first plaintiff-Malankara Metropolitan or hisrepresentatives – The finding of the Division Bench that theMetropolitan had no authority to appoint a Vicar is directly opposedto the provisions of the 1934 Constitution and also recitals in Ext.-A3-Sale-cum-Gift Deed and number of other documents adducedby the appellants – Constitution of India – Arts.25 and 26.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. The detailed discussions and conclusions arrivedat in K.S. Varghese case settles the disputes between the appellantPatriarch and the respondents Malankara. 1934 Constitution isvalid and binding upon the Parishioners. The Parish Church hasto be managed as per the powers conferred under the 1934Constitution. It is not open to any individual church to have aparallel system of management in the churches under the guiseof spiritual supremacy in the Patriarch. As per the consistentfindings in the judgments referred, the prime jurisdiction withrespect to the temporal, ecclesiastical and spiritual administrationof the Malankara Church is vested with Malankara Metropolitanand other authorities appointed by Malankara Metropolitan.Malankara Metropolitan enjoys all the temporal, ecclesiasticaland spiritual administrative powers. As held in K.S. Varghese case,“Full effect has to be given to the finding that the spiritual power ofthe Patriarch has reached to a vanishing point. Consequently, hecannot interfere in the governance of parish churches by appointingVicar, priests, Deacons, Prelates (High Priests), etc. and therebycannot create a parallel system of administration. …….”.[Paras 15, 16] [863-F; 864-A-D]

K.S. Varghese and others v. Saint Peter’s and SaintPaul’s Syrian Orthodox Church and others (2017) 15SCC 333 – relied on.

2. The present matter relates to the Parish Church-St.Mary’s Church, Kattachira. Ext.-A3-Sale-cum-Gift Deed wasexecuted in favour of Metropolitan of Quilon Diocese. Ext.-A3provided that the Metropolitan may directly administer the said AB

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Aproperties or through his representatives. Ext.-A3 furtherprovided that the Parishioners and the Managing Committeeshould abide by the dictates of the Metropolitan from time totime. The recitals in Ext.-A3 make it clear that St. Mary’sOrthodox Syrian Church, Kattachira and the properties have beengifted in favour of first plaintiff-Metropolitan Malankara to beBtreated as Bhadrasanam properties subject to the control of theMetropolitan in appointing Vicar, Priests etc. As per recitals inExt.-A3, the plaint church and the properties come under thespiritual and the temporal control of the Malankara Metropolitan.Considering the recitals in Ext.-A3 and the judgments of theCSupreme Court in Thukalan Paula Avira and P.M.A. Metropolitancase, the trial court and the Single Judge rightly held that the St.Mary’s Church is a constituent of Malankara and the power toappoint Vicar, Priests etc. is vested with the first plaintiff-Malankara Metropolitan or his representatives. The plaint churchhas been a constituent of Metropolitan Malankara and theDchurches and its properties come under the spiritual and temporalcontrol of Catholicos. [Paras 17, 18, 20] [864-D-G; 865-C; 866-C]

Moram Mar Basselios Catholicos v. Thukalan PauloAvira and others AIR 1959 SC 31; Most Rev. P.M.A.EMetropolitan and others v. Moran Mar Marthoma andanother (1995) Supp 4 SCC 286 : [1995] 1 Suppl. SCR542; Most Rev. P.M.A. Metropolitan and others v. MoranMar Marthoma Mathews and another (1996) 8 SCC470 : [1996] 3 SCR 857 – relied on.F

Case Law Reference

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From the Judgment and Order dated 04.04.2000 of the High Courtof Kerala at Ernakulam in A.F.A. Nos. 27 & 26 of 1997 and C.R.P. No.H1314 of 1998-F.

C. U. Singh, S. Sreekumar, Shyam Divan, Sr. Advs., E. M. S.Anam, A. Raghunath, P. J. Philip, Ms. Anupama Sharma, Vishnu Sharma,Ms. Sonali Negi, Mohit Rai, Advs. for the appearing parties.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Suit O.S. No.187 of 1977 was filed byappellant No.1/Metropolitan of Quilon Diocese of the MalankaraOrthodox Syrian Church and appellant No.2/Vicar appointed by him forSt. Mary’s Church, Kattachira. Defendants/respondents in the suitrepresent the Parishioners of the Church. Plaintiffs/appellants inter aliaprayed for a declaration that the Quilon Metropolitan and the Vicarsappointed by him have exclusive right to conduct religious services inthe plaint church, Cemetery and Kiurisumthotty and prayed for prohibitoryinjunction restraining the defendants and others who do not obey theplaintiffs/appellants from entering the plaint church and plaint scheduleproperties.

2. Case of the appellants is that as per Ext.-A3 (original of whichis Ext.-B19) assignment-cum-gift deed dated 29.06.1972, the firstdefendant C.K. Koshy assigned the plaint properties along with the churchand cemetery etc. situated thereon, to the Metropolitan, Quilon Dioceseand that they are entitled to conduct religious services and to managethe church and its properties. The Parishioners who question suchauthority are not entitled to hold any office as members of the ChurchCommittee or to enter the church.

3. Defendants/respondents who are said to be the representativesof the Parishioners contended that the Church was founded with theobject of conducting religious services by religious dignitaries who possessthe spiritual grace transmitted from the Patriarch of Antioch and all theEast, for the benefit of the Parishioners. The church and its propertiesconstitute a trust and can be used only for the purpose for which it wasfounded. The respondents/defendants contended that the plaintiffs/appellants have repudiated and defied the spiritual powers of the Patriarchand the appellants/plaintiffs are not entitled to conduct any religiousservices in the plaint church. According to them, the plaint church isadministered under the Constitution framed by the Parishioners markedas Ext.-B9 dated 23.01.1959 and no priest can function in the churchwithout the consent of the Parishioners.

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A4. The Parishioners/respondents have filed a separate suit in O.S.No.17 of 1976 challenging the validity of Ext.-A3-Sale-cum-Gift Deed(dated 29.06.1972) in favour of Quilon Metropolitan. On the same groundstaken by them in the other suit, they alleged that as beneficiaries of theChurch and as its Managing Committee Members, they are entitled tosee that its properties are not lost. They prayed for a decree declaringBthat Ext.-A3-Sale-cum-Gift Deed is ab initio void and for a perpetualinjunction restraining the Metropolitan from implementing any of theprovisions in the said document.

5. The trial court vide common judgment dated 06.03.1986dismissed the suit O.S. No.17 of 1976 filed by the respondents and decreedCthe appellant’s suit O.S. No.187 of 1977, declaring that the appellantshave the right to conduct religious services in the plaint church andcemetery. The trial court granted permanent injunction restraining therespondents/defendants and persons who do not obey the plaintiffs/appellants from entering the church and the plaint schedule propertiesDand conducting religious services, and obstructing others who obey theplaintiffs/appellants. The respondents/defendants were also restrainedfrom obstructing the appellants in completing the construction of theKattachira church building or attending to its repairs.

6. Being aggrieved, the respondents/defendants filed appeals A.S.ENos.140 and 142 of 1986 in O.S. No.187 of 1977 before the High Courtof Kerala challenging the common judgment dated 06.03.1986. TheSingle Judge dismissed both the appeals and held as under:-

1. Various clauses of Ext. A3 gift deed dated 29.06.1972 makeit clear that the executant Koshy gave the assignment-cum-Fgift in favour of the Quilon Metropolitan intending that itmay be treated as Bhadrasanam properties. Ext. A3 alsoprovided that the Metropolitan may directly administer thesaid properties or through his representative and that theParishioners and the Managing Committee should abideby the dictates of the Metropolitan from time to time. InGview of the unambiguous terms in Ext. A3, the parishionersare not entitled to question the right of Metropolitan overthe plaint church and its properties and its right to conductreligious services.

2. Ext. A3 makes it clear that a particular individual hasHgifted the properties in favour of the first appellant Metropolitan to be treated as Bhadrasanam properties andsubject to the control of the first appellant Metropolitan.Once it is recognised that the properties are Bhadrasanamproperties over which the first appellant Metropolitan canexercise absolute control and management, appellants areentitled to these reliefs.

3. The 1934 constitution shall govern and regulate the affairsof the Parish Churches too. The Parish Churches are notexempted from the clauses of the 1934 Constitution andthey are equally constituent of the Malankara Associationthough it enjoys some degree of autonomy.

4. The ex-communication of Catholicos by the Patriarch and/or by the Universal Synod is invalid.

The Single Judge also held that it is Vicar who should conduct the electionas provided in Ext.-A1 Constitution. However, in order to allay theapprehension of both parties and to ensure that the election is free andfair and in accordance with Ext.-A1 Constitution, the Single Judgeappointed two observers to oversee the process of election right fromthe beginning to ensure that the conditions in Ext.-A1 1934 Constitutionand the directions of the Supreme Court are followed.

7. Being aggrieved, the defendants/respondents filed appealsA.F.A. Nos.26-27 of 1997 before the Division Bench. The DivisionBench vide common judgment dated 04.04.2000 allowed CRP No.1314of 1998 and disposed of AFA Nos.26-27 of 1997 and set aside the findingsof Single Judge. The Division Bench recorded its conclusions as under:- •That the civil courts have jurisdiction to entertain suits relatingto church and its properties and to mould reliefs in such a wayas to promote the paramount interest of the parishioners andto reflect the will of the community.

•That though the title of the properties vests with the Quilondiocese, the properties including church, cemetery etc. underExt.-A3 are still under the control and management of theparishioners of St. Marys Syrian Church, Kattachira.

•That the first plaintiff-Metropolitan of Quilon Diocese hadno authority to appoint Vicar for the control and managementof the plaint church and its properties though Ext.-A3-Sale- A

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cum-Gift Deed executed by C.K. Koshy in favour of QuilonDiocese and C.K. Koshy, executor of Ext.-A3-Sale-cum-Gift Deed intended to transfer his right in the propertiesover for the benefit of entire members of the Church andthat the Parishioners have the power to hold the movableand immovable properties of St. Mary’s Church.

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•That the provisions of the 1934 Constitution sufficientlyestablish that the Parishioners have power to hold movableand immovable items of properties.

8. We have heard learned senior counsel for the parties at length.CWe have considered the written submissions and perused the impugnedjudgment and other materials on record.

9. The issue of spiritual and temporal authority between MalankaraChurch and the Patriarch of Antioch has been the subject matter ofseveral rounds of litigations in various matters right from the year 1879.DIt is not necessary for us to elaborately refer to those litigations; sufficeto refer the litigations which led to the Constitution Bench judgment inMoram Mar Basselios Catholicos v. Thukalan Paulo Avira and othersAIR 1959 SC 31 and the judgment of three-Judges Bench in Most Rev.P.M.A. Metropolitan and others v. Moran Mar Marthoma andanother 1995 Supp (4) SCC 286 and the latest judgment in K.S. VargheseEand others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others(2017) 15 SCC 333.

10. Samudayam Suit:- The Patriarch group in the year 1938 filedSamudayam suit in the District Court, Kottayam for a declaration oftheir title as trustees of Samudayam properties (common properties ofFthe Malankara Church) and for a further declaration that the defendantsto that suit belonging to Catholicos group, were not lawful trustees. Thesuit was dismissed by the trial court on 18.01.1943 against which theplaintiff thereon filed an appeal which was allowed on 08.08.1946 andthe suit was decreed[1] by majority of Judges by 2:1. The matter wasGcarried to this Court. This Court directed[2] the High Court to rehear theappeal on all the points. Thereafter appeal was reheard and was allowed 1 Moram Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose Athanasius &Ors. 1951 SCC OnLine Ker 7

2 Moram Mar Basselios Catholicos & Anr. v. Mar Poulose Athanasius & Ors. AIRH1954 SC 526

vide judgment dated 13.12.1956. The suit was decreed. The defendants,Catholicos group, filed an appeal in this Court which was allowed on12.09.1958 as per Moram Mar Basselios Catholicos v. Thukalan PauloAvira and others AIR 1959 SC 31. Samudayam suit has been elaboratedand discussed in paras (17) to (21) in K.S. Varghese and others v.Saint Peter’s and Saint Paul’s Syrian Orthodox Church and others(2017) 15 SCC 333.

11. In the year 1979, Catholicos filed O.S. No. 4 of 1979 interalia praying that Malankara Church be declared Episcopal in characterand that it is governed in its administration by the Constitution of theMalankara Church. The Catholicos sought for further declaration thatno metropolitan, priest or deacon can officiate in any of the MalankaraChurches unless appointed under 1934 Constitution. After dismissal ofthe suit by the Single Judge of the High Court, the Division Bench allowedthe appeal thereby upholding the claim of Catholicos group to largerextent. The matter finally reached to Supreme Court. The Supreme Courtin Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthomaand another 1995 Supp (4) SCC 286 held that the power and authorityof the Catholicos was affirmed in Kalpana A-13 and A-14 and wasreinforced and enlarged in 1934 Constitution. It was held that 1934Constitution is applicable to Malankara Church and its parish Churchesand organisations recognising that the Malankara has control over bothspiritual and communal affairs of the Malankara Church. It was heldthat the Patriarch group cannot question the legality and validity of the1934 Constitution. The court issued further directions for amendment ofclause 68 of Constitution to bring about proportional representation basedon the size of congregation of each Parish Church.

12. In P.M.A. Metropolitan[3], this Court has inter alia recordedthe conclusions in para (89) as under:- “89. The conclusions thus reached are:

1. (a) The civil courts have jurisdiction to entertain the suits forviolation of fundamental rights guaranteed under Articles25 and 26 of the Constitution of India and suits.

(b) The expression ‘civil nature’ used in Section 9 of the CivilProcedure Code is wider than even civil proceedings, and

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[2018] 10 S.C.R.

Athus extends to such religious matters which have civilconsequence.

(c) Section 9 is very wide. In absence of any ecclesiasticalcourts any religious dispute is cognizable, except in veryrare cases where the declaration sought may be whatBconstitutes religious rite.

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4. (a) The effect of the two judgments rendered by the AppellateCourt of the Royal Court and in Moran Mar Basselios(supra) by this Court is that both Catholicos and PatriarchCgroups continue to be members of the Syrian OrthodoxChurch.

(b) The Patriarch of Antioch has no temporal powers over theChurches.

(c) Effect of the creation of Catholicate at Malankara and 1934Constitution is that the Patriarch can exercise spiritualDpowers subject to the Constitution.

(d) The spiritual powers of the Patriarch of Antioch can beexercised by the Catholico in accordance with theConstitution.

5. (a) The Hudaya Canon produced by the Patriarch is not theEauthentic version.

(b) There is no power in the Hudaya Canon to excommunicateCatholicos.

6. The excommunication of the Catholicos by the Patriarchwas invalid.F

7. All churches, except those which are of EvangelisticAssociation or Simhasana or St. Mary are under spiritualand temporal control of the Malankara Association inaccordance with 1934 Constitution.”

The judgment in P. M. A. Metropolitan[4 ]has been elaborately referredGto and discussed in paras (26) to (36) in K.S. Varghese case[5].

5 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333H

13. Amendment of the Constitution as per P.M.A.Metropolitan[6] judgment:- Amendment proposals were considered bythis Court in P.M.A. Metropolitan[7]. This Court permitted the amendmentand directed substitution of Section 68 corresponding to Section 71 andalso directed that the election shall take place within three months on thebasis of Articles 71 and 46 as amended. This Court further directedstatus quo to be maintained until the new Managing Committee waselected. Subsequently, the matter came up again before this Courtpursuant to the P. M. A. Metropolitan[8 ]and revised decree was passedin Most Rev. P.M.A. Metropolitan and others v. Moran Mar MarthomaMathews and another (1996) 8 SCC 470. The court directed certainmodifications in paras (2), (3) and (4). This Court inter alia held thus:- “5. The decree shall then say that the decree passed by the HighCourt (decree under appeal) shall stand modified to the extentindicated above.

PART II

6. In Part II of the order dated 25.03.1996[9], the following sentenceshall be inserted before the last sentence: ‘The above directionis subject to the condition that any and every person claimingto hold any office or post in this Church shall be bound byand shall swear allegiance to the 1934 Constitution.’”[Referred to and quoted in para (39) of K.S. Varghese case[10]]

The judgment in P.M.A. Metropolitan[11] was implemented in executionproceedings before the Kerala High Court. The details of the executionproceedings are discussed in paras (40) to (42) in K.S. Varghese case[12].

9 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma Mathews andanother(1996) 8 SCC 470

10 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

11 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and another1995 Supp (4) SCC 286

12 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

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A14.Dispute arose relating to Kolenchery Church, VarikoliChurch and Mannathur Church regarding which civil suits were filedin a representative capacity. The dispute arising from all these threeChurches travelled to this Court. This Court again considered the earlierjudgments in Moram Mar Basselios Catholicos v. Thukalan PauloAvira and others AIR 1959 SC 31 and Most Rev. P. M. A. MetropolitanBand others v. Moran Mar Marthoma and another 1995 Supp (4)SCC 286. After considering the submissions on both sides, in the light ofThukalan Paula Avira[13 ]and P. M. A. Metropolitan[14] judgments andafter such elaborate consideration, this Court in K. S. Varghese case[15]summarised the conclusions inter alia as under:-C“228. Resultantly, based on the aforesaid findings in the judgment,our main conclusions, inter alia, are as follows:

228.1. Malankara Church is episcopal in character to the extentit is so declared in the 1934 Constitution. The 1934 Constitutionfully governs the affairs of the parish churches and shall prevail.D228.2. The decree in the Most Rev. P.M.A. Metropolitan v.Moran Mar Marthoma 1995 Supp (4) 286 is completely in tunewith the judgment. There is no conflict between the judgmentand the decree.

228.3. The Most Rev. P.M.A. Metropolitan v. Moran MarEMarthoma 1995 Supp (4) 286 arising out of the representativesuit is binding and operates as res judicata with respect to thematters it has decided, in the wake of the provisions of Order 1Rule 8 and Explanation 6 to Section 11 CPC. The same bindsnot only the parties named in the suit but all those who haveinterest in the Malankara Church. Findings in earlier representativeFsuit i.e. Samudayam suit are also binding on parish churches/parishioners to the extent issues have been decided.

228.4. As the 1934 Constitution is valid and binding upon theparish churches, it is not open to any individual Church, to decideto have their new Constitution like that of 2002 in the so-calledGexercise of right under Articles 25 and 26 of the Constitution ofIndia. It is also not permissible to create a parallel system of 13 Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR 1959 SC 3114 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and another1995 Supp (4) SCC 28615 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox ChurchHand others (2017) 15 SCC 333

management in the Churches under the guise of spiritualsupremacy of the Patriarch.

228.5. The Primate of Orthodox Syrian Church of the East isCatholicos. He enjoys spiritual powers as well, as the MalankaraMetropolitan. Malankara Metropolitan has the prime jurisdictionregarding temporal, ecclesiastical and spiritual administration ofMalankara Church subject to the riders provided in the 1934Constitution.

228.6. Full effect has to be given to the finding that the spiritualpower of the Patriarch has reached to a vanishing point.Consequently, he cannot interfere in the governance of parishchurches by appointing Vicar, priests, Deacons, Prelates (HighPriests), etc. and thereby cannot create a parallel system ofadministration. The appointment has to be made as per the powerconferred under the 1934 Constitution on the Diocese,Metropolitan, etc. concerned.

228.7. Though it is open to the individual member to leave aChurch in exercise of the right not to be a member of anyassociation and as per Article 20 of the Universal Declaration ofHuman Rights, the Parish Assembly of the Church by majorityor otherwise cannot decide to move Church out of the MalankaraChurch. Once a trust, is always a trust.

228.8. When the Church has been created and is for the benefitof the beneficiaries, it is not open for the beneficiaries, even by amajority, to usurp its property or management. The MalankaraChurch is in the form of a trust in which, its properties havevested. As per the 1934 Constitution, the parishioners thoughmay individually leave the Church, they are not permitted to takethe movable or immovable properties out of the ambit of the1934 Constitution without the approval of the Church hierarchy.

228.9. The spiritual power of Patriarch has been set up by theappellants clearly in order to violate the mandate of the MostRev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp(4) 286 of this Court which is binding on the Patriarch, Catholicosand all concerned.

228.10. As per the historical background and the practices whichhave been noted, the Patriarch is not to exercise the power toappoint Vicar, priests, Deacons, Prelates, etc. Such powers are

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reserved to other authorities in the Church hierarchy. ThePatriarch, thus, cannot be permitted to exercise the power inviolation of the 1934 Constitution to create a parallel system ofadministration of Churches as done in 2002 and onwards.

228.11. This Court has held[4]in 1995 that the unilateral exerciseof such power by the Patriarch was illegal. The said decisionhas also been violated. It was only in the alternative this Courtheld in the Most Rev. P.M.A. Metropolitan v. Moran MarMarthoma 1995 Supp (4) 286 that even if he has such power,he could not have exercised the same unilaterally which we haveexplained in this judgment.

228.12. It is open to the parishioners to believe in the spiritualsupremacy of the Patriarch or apostolic succession but it cannotbe used to appoint Vicars, priests, Deacons, Prelates, etc. incontravention of the 1934 Constitution.

228.13. Malankara Church is episcopal to the extent as providedin the 1934 Constitution, and the right is possessed by the Dioceseto settle all internal matters and elect their own Bishops in termsof the said Constitution.

228.14. Appointment of Vicar is a secular matter. There is noviolation of any of the rights encompassed under Articles 25 and26 of the Constitution of India, if the appointment of Vicar, priests,Deacons, Prelates (High priests), etc. is made as per the 1934Constitution. The Patriarch has no power to interfere in suchmatters under the guise of spiritual supremacy unless the 1934Constitution is amended in accordance with law. The same isbinding on all concerned.

228.15. Udampadies do not provide for appointment of Vicar,priests, Deacons, Prelates, etc. Even otherwise once the 1934Constitution has been adopted, the appointment of Vicar, priests,Deacons, Prelates (High priests), etc. is to be as per the 1934Constitution. It is not within the domain of the spiritual right ofthe Patriarch to appoint Vicar, priests, etc. The spiritual poweralso vests in the other functionaries of the Malankara Church.

228.16. The functioning of the Church is based upon the divisionof responsibilities at various levels and cannot be usurped by asingle individual howsoever high he may be. The division ofpowers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against thebasic character of the Church being episcopal in nature asmandated thereby. The 1934 Constitution cannot be construedto be opposed to the concept of spiritual supremacy of thePatriarch of Antioch. It cannot as well, be said to be an instrumentof injustice or vehicle of oppression on the parishioners whobelieve in the spiritual supremacy of the Patriarch.

228.17. The Church and the cemetery cannot be confiscatedby anybody. It has to remain with the parishioners as per thecustomary rights and nobody can be deprived of the right toenjoy the same as a Parishioner in the Church or to be buriedhonourably in the cemetery, in case he continues to have faith inthe Malankara Church. The property of the Malankara Churchin which is also vested the property of the parish churches, wouldremain in trust as it has for time immemorial for the sake of thebeneficiaries and no one can claim to be owners thereof even bymajority and usurp the Church and the properties.

228.18. The faith of Church is unnecessarily sought to be dividedvis-à-vis the office of Catholicos and the Patriarch as the commonfaith of the Church is in Jesus Christ. In fact an effort is beingmade to take over the management and other powers by raisingsuch disputes as to supremacy of Patriarch or Catholicos to gaincontrol of temporal matters under the garb of spirituality. Thereis no good or genuine cause for disputes which have been raised.228.19. The authority of Patriarch had never extended to thegovernment of temporalities of the Churches. By questioningthe action of the Patriarch and his undue interference in theadministration of Churches in violation of the Most Rev. P.M.A.Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286, itcannot be said that the Catholicos faction is guilty of repudiatingthe spiritual supremacy of the Patriarch. The Patriarch factionis to be blamed for the situation which has been created post1995 judgment[4]. The property of the Church is to be managedas per the 1934 Constitution. The judgment of 1995[4]has notbeen respected by the Patriarch faction which was binding onall concerned. Filing of writ petitions in the High Court by theCatholicos faction was to deter the Patriarch/his representativesto appoint the Vicar, etc. in violation of the 1995 judgment[4]ofthis Court.

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228.20. The 1934 Constitution is enforceable at present and theplea of its frustration or breach is not available to the Patriarchfaction. Once there is Malankara Church, it has to remain assuch including the property. No group or denomination by majorityor otherwise can take away the management or the property asthat would virtually tantamount to illegal interference in themanagement and illegal usurpation of its properties. It is not opento the beneficiaries even by majority to change the nature of theChurch, its property and management. The only method tochange management is to amend the Constitution of 1934 inaccordance with law. It is not open to the parish churches toeven frame bye-laws in violation of the provisions of the 1934Constitution.

228.21. The Udampadies of 1890 and 1913 are with respect toadministration of churches and are not documents of the creationof the trust and are not of utility at present and even otherwisecannot hold the field containing provisions inconsistent with the1934 Constitution, as per Section 132 thereof. The Udampadyalso cannot hold the field in view of the authoritativepronouncements made by this Court in the earlier judgments asto the binding nature of the 1934 Constitution.

228.22. The 1934 Constitution does not create, declare, assign,limit or extinguish, whether in present or future any right, title orinterest, whether vested or contingent in the Malankara Churchproperties and only provides a system of administration and assuch is not required to be registered. In any case, the Udampadiesfor the reasons already cited, cannot supersede the 1934Constitution only because these are claimed to be registered.228.23. In otherwise episcopal Church, whatever autonomy isprovided in the Constitution for the Churches is for managementand necessary expenditure as provided in Section 22, etc.

228.24. The formation of the 2002 Constitution is the result ofillegal and void exercise. It cannot be recognised and the parallelsystem created thereunder for administration of parish churchesof Malankara Church cannot hold the field. It has to beadministered under the 1934 Constitution.

228.25. It was not necessary, after amendment of the plaint inMannathoor Church matter, to adopt the procedure once again of representative suit under Order 1 Rule 8 CPC. It remained arepresentative suit and proper procedure has been followed. Itwas not necessary to obtain fresh leave.

228.26. The 1934 Constitution is appropriate and adequate formanagement of the parish churches, as such there is no necessityof framing a scheme under Section 92 CPC.

228.27. The plea that in face of the prevailing dissension betweenthe two factions and the remote possibility of reconciliation, thereligious services may be permitted to be conducted by two Vicarsof each faith cannot be accepted as that would amount topatronising parallel systems of administration.

228.28. Both the factions, for the sake of the sacred religionthey profess and to pre-empt further bickering and unpleasantnessprecipitating avoidable institutional degeneration, ought to resolvetheir differences if any, on a common platform if necessary byamending the Constitution further in accordance with law, butby no means, any attempt to create parallel systems ofadministration of the same Churches resulting in law and ordersituations leading to even closure of the Churches can beaccepted.”

15. Though various arguments were advanced by learned seniorcounsel Mr. Shyam Divan to urge that the conclusions arrived in K.S.Varghese case[16 ]is not in consonance with the judgment in P.M.A.Metropolitan[17], the same do not merit acceptance. Having carefullygone through the conclusions in para (228) of the K.S. Varghese case[18],in our view, the conclusions are well in consonance with the ThukalanPaula Avira[19]and P.M.A. Metropolitan[20] judgments. The detaileddiscussions and conclusions arrived at in K.S. Varghese case[21 ]settles thedisputes between the appellant Patriarch and the respondents Malankara.

16 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

18 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

19 Moram Mar Basselios Catholicos v. Thukalan Paulo Avira AIR 1959 SC 3120 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and another1995 Supp (4) SCC 286

21 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

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A16. As per the consistent view taken in the above judgments,1934 Constitution is valid and binding upon the Parishioners. The ParishChurch has to be managed as per the powers conferred under the 1934Constitution. It is not open to any individual church to have a parallelsystem of management in the churches under the guise of spiritualsupremacy in the Patriarch. As per the consistent findings in the aboveBjudgments, the prime jurisdiction with respect to the temporal, ecclesiasticaland spiritual administration of the Malankara Church is vested withMalankara Metropolitan and other authorities appointed by MalankaraMetropolitan. Malankara Metropolitan enjoys all the temporal,ecclesiastical and spiritual administrative powers (Para (145) of K.S.CVarghese case[22]). As held in K.S. Varghese case[23], “Full effect hasto be given to the finding that the spiritual power of the Patriarchhas reached to a vanishing point. Consequently, he cannot interferein the governance of parish churches by appointing Vicar, priests,Deacons, Prelates (High Priests), etc. and thereby cannot create aparallel system of administration. …….”.D

17. The present matter relates to the Parish Church-St. Mary’sChurch, Kattachira. The plaint Church was listed as Serial No.41-among1064 Parish Churches included in the plaint Schedule in the representativesuit in OS No.4 of 1979. Ext.-A3-Sale-cum-Gift Deed was executed byC.K. Koshy in favour of Metropolitan of Quilon Diocese. The recitals inEExt.-A3 make it clear that C.K. Koshy executed the Sale-cum-Gift Deedin favour of Metropolitan of Quilon Diocese intending that it may betreated as Bhadrasanam properties. Ext.-A3 provided that theMetropolitan may directly administer the said properties or through hisrepresentatives. Ext.-A3 further provided that the Parishioners and theFManaging Committee should abide by the dictates of the Metropolitanfrom time to time. The recitals in Ext.-A3 make it clear that St. Mary’sOrthodox Syrian Church, Kattachira and the properties have been giftedin favour of first plaintiff-Metropolitan Malankara to be treated asBhadrasanam properties subject to the control of the Metropolitan in

appointing Vicar, Priests etc. As per recitals in Ext.-A3, the plaint churchGand the properties come under the spiritual and the temporal control ofthe Malankara Metropolitan.

22 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

23 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox ChurchHand others (2017) 15 SCC 333

18. As per the decision of the Supreme Court in the ConstitutionBench in Thukalan Paula Avira[24 ]and P.M.A. Metropolitan[25], St. Mary’sChurch is bound by Ext.-A1 Constitution and the control of theMetropolitan. Having held that the 1934 Constitution is binding upon theParish Church and its Parishioners, the Division Bench was not right inholding that the Metropolitan had no power to appoint Vicar, Priests etc.The conclusion of the Division Bench that the Parishioners have theright to make all such appointments and to manage the affairs of St.Mary’s Church is directly contrary to the express provisions of the 1934Constitution and the findings of the Supreme Court in P.M.A.Metropolitan[26]. Considering the recitals in Ext.-A3 and the judgmentsof the Supreme Court in Thukalan Paula Avira[27 ]and P.M.A.Metropolitan[28], the trial court and the Single Judge rightly held that theSt. Mary’s Church is a constituent of Malankara and the power to appointVicar, Priests etc. is vested with the first plaintiff-Malankara Metropolitanor his representatives.

19. Metropolitan of Quilon Diocesewas exercising control overSt. Mary’s Church is also evident from various document adduced inevidence referred to in detail in the judgment of the trial court as under:- “18. …….Ever since the reproachment was made between thepatriarch group and the Catholicose group after the judgment ofthe Supreme Court in the above case in 1958, the plaint churchhas paid dues both to the Diocesan Metropolitan and theCatholicose in recognition of their spiritual control over the church.Exts. A4 and A6 would show that the plaint church was sendingits delegates for representing it in the Malankara Syrian Christianassociation. The priests are appointed in the church by the firstplaintiff and the church was sending to him the salary due to thepriests regularly. Exts. A14 to A17 and A23 to A32 will bear thisout. Several other dues payable to the Metropolitan andCatholicose are also seen to have been sent by the plaint church 24 Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR 1959 SC 31

25 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and another 1995 Supp (4) SCC 286

27 Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR 1959 SC 3128 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and another1995 Supp (4) SCC 286

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accepting the spiritual supremacy of the Catholicose and theMetropolitan under him. Exts. A18 is the printed annual reportof the Quilon Bhadrasanam for the year 1974 showing thecontributions made by the Bhadrasanam for the building of theplaint church. Exts. A7 and A8 are Kalpanas issued by the firstplaintiff appointing priests to the plaint church…..”

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20. The above exhibits referred to in the judgment of the trialcourt namely appointment of the Priests to the plaint church by theMetropolitan and the regular payment of salary to the Priests so appointedand the church sending its delegates for representing it in the MalankaraChurch Association and other documents would amply show that theCplaint church has been a constituent of Metropolitan Malankara and thechurches and its properties come under the spiritual and temporal controlof Catholicos.

21. DW-1 has spoken about the pothuyogam of the plaint churchwhich has taken the decision that Ext.-A1-1934 Constitution is not suitableDto the church and the sabha and that as per the said Resolution, thepothuyogam had decided to request the authorities of the MalankaraChurch or Sabha to repudiate the 1934 Constitution (Ext.-A1) whichwas then in force. As rightly observed by the trial court, once 1934Constitution (Ext.-A1) had been adopted by the plaint church and was inEforce, there can be no question of requesting the authorities to repudiateit. This is also an indication to show that the plaint church has acceptedthe 1934 Constitution and the spiritual authority of the Catholicos. Thefinding of the Division Bench that the Metropolitan had no authority toappoint a Vicar is directly opposed to the provisions of the 1934Constitution and also recitals in Ext.-A3-Sale-cum-Gift Deed and numberFof other documents adduced by the appellants. The finding of the DivisionBench that the Metropolitan had no authority to appoint Vicar and Priestsis directly in contradiction to the Constitution Bench judgment in ThukalanPaula Avira[29 ]and P.M.A. Metropolitan[30].

22. Contention of the respondent is that the issue regarding theGinterpretation of Articles 25 and 26 of the Constitution of India ought tobe determined by a Bench comprising at least five Judges of the SupremeCourt under Article 145 (3) of the Constitution of India is not tenable.

29 Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR 1959 SC 3130 Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma and anotherH1995 Supp (4) SCC 286

The contention of Patriarch that the Parishioners have a right of freedomof religion and the question of law regarding fundamental rights underArticles 25 and 26 of the Constitution of India had already been raisedand elaborately argued by different senior counsels in K.S. Varghesecase[31 ](vide paras 57.2, 57.2.1, 57.2.2, 57.4, 59.2, 60, 62 etc.). Contentionrelating to violation of Articles 25 and 26 of the Constitution of India hasbeen elaborately considered in K.S. Varghese case[32 ]under sub-heading“In re: parishioners have a right to follow their faith under Article25 and appointment of Vicar, priest and deacons, etc. and manageaffairs under Article 26 of the Constitution of India”. After referringto various judgments rejecting the contention of the Patriarch of Antiochas to the violation of the right under Articles 25 and 26 of the Constitutionof India. In para (146) of the judgment, it was held as under:-

“146. …….. Spiritual power is also with various authorities likeCatholicos, Malankara Metropolitan, etc. Thus it is too far-fetchedan argument that the Patriarch of Antioch or his delegate shouldappoint a Vicar or priest. There is no violation of any right ofArticles 25 or 26 of the Constitution of India. Neither any of theprovisions relating to appointment of the Vicar can be said to bein violation of any of the rights under Articles 25 and 26 of theConstitution of India. The 1934 Constitution cannot be said to bein violation of Articles 25 and 26 of the Constitution of India. Itwas suggested that the faith involved in the present case refersto apostolic succession from Jesus Christ viz. the blessings andgrace of Christ descends through an apostle i.e. St. Peter or St.Thomas as the case may be, and from the said apostle to thePope/Patriarch who appoints a Vicar. The argument ignores andoverlooks other offices that are in-between like Catholicos,Malankara Metropolitan, and Diocesan Metropolitan, etc. It isnot necessary for the Pope and the Patriarch to appoint Vicarbecause management of a Church is not a religious ritual.”

We endorse the above view taken in K.S. Varghese case[33 ]that the1934 Constitution cannot be said to be in violation of Articles 25 and 26of the Constitution of India.

31 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

32 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

33 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Churchand others (2017) 15 SCC 333

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A23.The impugned judgment of the Division Bench is incontradiction to the judgments of the Supreme Court in Thukalan PaulaAvira[34], P.M.A. Metropolitan[35 ]and K.S. Varghese case[36 ]and the samecannot be sustained. In the result, the impugned judgment is set asideand these appeals are allowed.

BDevika Gujral Appeals allowed.

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34 Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR 1959 SC 31

36 K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox ChurchHand others (2017) 15 SCC 333