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Moran Mar Basselios Catholicos vs Moat Rev. Mar Poulose Athanaslus decided on 02.05.52 by Supreme Court of India, Case No 193 of 1952
Judges B. Jagannath Das; Ghulam Hasan and S.R. Dass.
DRT Solutions Citation DRTS-019-Moran MB Catholicos vs Moat MP Athanaslus-1952
We have now numbered the Judgments published on this web site as DRTS-00. Accordingly all the judgments published so far have been numbered. The judgment on this page is numbered as DRTS-019.
Comments by DRT Solutions
An Important Supreme Court Judgment on Review Misconception of the Court is Sufficient Reason for Review
Utility of this Judgment Borrowers, Guarantors and their Advocates must scrutinize all the orders and if there is any Misconception of the Court, Review must be filed
On account of hurry, bias towards the banks and lack of knowledge of banking, industry and finance, in most of the cases at times, the DRT Judges are passing such judgments and orders which contain Misconceptions of facts and or law, Review Petitions must be filed so that such error is corrected.
The full text of the judgment is given below with important portions marked in Red reproduced below with comments:-
(1) Extract from Para 29
the defendants filed a petition for review of the Judgment on the ground that It contained several mistakes or errors apparent on the face of the record and that in that event there were sufficient reasons post of ft District Judge. Not less than 92 grounds were set forth in the petition of review.
Our Comments:- There were 92 grounds for Review when the Review Petition was filed on 22.08.46. This shows how much in detail and depth the advocates were preparing the said Review Petition.
(2) Extract from Para 36
The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.
(3) Extract from Para 40
In our opinion the appellants have made out a valid ground for allowing their application for review we accordingly allow this appeal, set aside the judgment of the High court and admit the review
IN THE SUPREME COURT OF INDIA
Equivalent Citations: 1954 AIR(SC) 526: 1955 (1) SCR 520 :
Judges : B.Jagannath Das : Ghulam Hasan : S.R.Dass
Moran Mar Basselios Catholicos
Moat Rev.Mar Poulose Athanaslus
Case No. : 193 of 1952
Date of Decision : 21-May-1952
Abraham K.P. : Abraham M. : Bhagwati P.N. : Engineer N.P. : Iyer T.R. Balakrishna : Pillai M.B.Krishna : Setalvad M.C. : Shastri M.S.K.
(1) THIS appeal by Special Leave arises out of a suit filed in the District court of Kottayam as far back as in 1938. That suit was concerned with the disputes that had arisen between two rival S. of the Malankara Jacobite Syrian Christian community regarding the fundamental tenets of their church and the possession and administration of the church properties.
IN order to fully appreciate the rival contentions carefully formulated and elaborately argued by learned advocates for both parties appearing before us, it is necessary to -know the genesis of the controversy between the parties which has behind it a fairly long history and which must, accordingly, be stated at the very outset.
(2) IN Malabar there is a Christian community commonly known as the Malankara Jacobite Syrian Christians. That community traces its origin to 52 A.D. when St. Thomas, one of the disciples of Jesus Christ came to Malabar and established the church there. In 1599 A.D. under the influence of the Portuguese political power on the West Coast of India the community accepted the Roman Catholic faith. This affiliation, however, did not last long. At a meeting known as Mattancheri meeting held in 1654 the Roman Catholic Supremacy was thrown off and the Church In Malabar came under the authority of the Patriarch of Antioch who began to depute Metropolitans (Bishops) from Persia and Syria for ordaining Metropolitans in Malabar.
THIS continued up to 1800 A.D. Between 1800 A.D. and 1842 A.D. the local Metropolitan ordained his successor. The last of the' Metropolitans so ordained was Mar Cheppat Dionysius. In 1840 one Mar Mathew Athanasius went to Syria and got himself ordained as Metropolitan by the then reigning Patriarch of Antioch. This Is said to be the first Instance of a Metropolitan being ordained by the Patriarch himself.
(3) THERE were disputes between the Church Mission Society and the Malankara Jacobite Syrian Church over properties held jointly by them. These disputes were settled by what Is known as the Cochin Award made In 1840. This award divided the properties between the two, bodies and so far as .the properties allotted to 'the Malankara Jacobite Syrian Church were concerned It provided that they should be administered by three Trustees, namely, (1) the Malankara Metropolitan, (II) a Kathanar (i.e. priestly) trustee and (III)a lay trustee.
(4) IN 1842 Mar Mathew Athanasius returned to India but Mar Cheppat Dionysius refused to hand over charge to the former. In 1846 the Patriarch of Antloch sent one Mar Kurilos to settle the dispute. Mar Kurilos adopted a novel way of settling the disputes. He excommunicated Mar Mathew Athanasius and appointed himself as the Metropolitan of Malankara. This he is said to have done by utilising certain blank papers containing the signatures of the Patriarch. Mar Cheppat Dionysius withdrew In favour of Mar Kurils but Mar Mathew Athanasius persisted in. his claim.
IN 1848 the Travancore government set up what was called, the Quillon Committee to settle the dispute. That Committee decided in favour of Mar Mathew Athanasius who, therefore, took over charge as Malankara Metropolitan. It appears. that later on Mar Mathew Athanasius Incurred the displeasure of the Patriateh who in 1865 excommunicated Mar Mathew Athanasius and ordained one Mar Joseph Dionysius, who had gone to Syria, as. Metropolitan. On the return of Mar Joseph Diunysius, however. Mar Mathew Athanasius refused to hand over charge to the former but continued in possession of his office and the church properties.
(5) IN 1876 Patriarch Peter III came to Malabar. He called a meeting of the accredited representatives of all the churches In Malabar which accepted the ecclesiastical supremacy of the Patriarch of Antioch. The said representatives met together in a Synod called the Mulamthuruthu Synod under the presidentship of Patriarch Peter III.
AT that Synod the Malankara Syrian Christian Association, popularly called the Malankara Association, was farmed to manage all the affairs of the churches and the community. It consisted of the Malankara Metropolitan as the ex-officio President and three representatives from each church. A Managing Committee of 24 was to be the standing working committee of the said Malankara Association. During his stay in Malabar Peter III ordained 6 Metropolitans.
(6) IN the-same year Mar Mathew Athanasius died after having ordained his brother Mar Thomas Athanasius as his successor and accordingly the latter took possession of the church properties and began to act as the Malakara Metropolitan.
(7) ON the 4th March 1879 Mar Joseph Dionysius claiming to be the proper person consecrated and appointed Metropolitan of the Jacobite Syrian Church' and the President of the Malankara Association filed a suit (0. S. No. 439 of 1054) in the Zilla court of Alleppey against Mar Thomas Atha nasius and two other persons for the recovery of the church properties, .movable and immovable, and other incidental reliefs. The most important point In dispute related to the authority of the Patriarch of Antioch over the Malankara Edavagal, i.e- the Syrian Christian Diocese of Travancore.
MAR Joseph Dionysius asserted that the supremacy of the Patriarch consisted In his consecrating and appointing Metropolitans from time to time to govern and rule over the said Edavagali sending Morone (the sanctified oil) tor baptismal purposes, receiving Ressissa from the community to maintain his dignity and generally in controlling the ecclesiastical and temporal affairs of the Edavagal.
MAR Thomas Athanasius' contention amounted to a total denial of such alleged supremacy of the Patriarch. According to him the Patriarch could not claim, as a matter of right, to have any control cover the Syrian Church In Malabar, either in temporal or spiritual matters and that as a high dignitary in the churches of the country where their Saviour was born and crucified the Malabar Syrian Christian community did venerate the Patriarch but that such veneration did not create any right In him to take the position that was claimed for him by Mar Joseph Dionysius.
(8) AFTER various proceedings to which It Is not necessary to refee the Travancore Royal court of final Appeal pronounced Its Judgment (Ex. DY) In 1879 and by majority of 2 to 1 dismissed the appeal of the defendant Mar Thomas Athanasius and confirmed the decree of the lower courts in favour of the Respondent Mar Joseph Dionysius. The paragraph 347 of the majority judgment summarised the conclusions as follows:
"347. The conclusions we have arrived at on the whole, are that the Respondent's claim Is not barred by limitation; that the Ecclesiastical Supremacy of the See of Antioch over the Syrian Church in Travancore has been all along recognised and acknowledged by the Jacobite Syrian Community and their Metropolitans; that the exercise of the supreme power consisted In ordaining, either directly or by duly authorised Delegates, Metropolitans from time to time to manage the spiritual matters of the local Church, In sending Morone (Holy Oil) to be used in the churches In this country tor Baptismal and other purposes and in general supervision over the spiritual government of the Church; that the authority of the Patriarch has never extended to the government of the temporalities of the Church which. In this respect, has been an Independent Church; that the Metropolitan of the Syrian Jacobite Church In Travancore should be a native of Malabar consecrated by the Patriarch of Antloch, or by his duly authorised Delegates and accepted by the people as their Metropolitan to entitle him to the spiritual and temporal government of the local Church; that the Respondent had been so consecrated and accepted by the majority of the people and consequently had a perfect right to succeed to the Metropolitanship on the death of Mar Athanaslus; that the appellant had neither been properly consecrated nor accepted by the majority thereof and therefore had no title to the Dignity and Office of Metropolitan; that the Appellant's possession of the properties of the Church and its appurtenances and the assumption of the office of Metropolitan have been wrongful since the death of Mar Athanaslus, the admitted last Metropolitan and Trustee; that the Appellant should, therefore, surrender the insignia and office of Metropolitan of the Malankaral Syrian Jacobite Church and give up possession of all the properties and moneys appertaining thereto which he now holds, to the Respondent who would assume and take possession of the properties etc., to be administered with two other Trustees as required by the Endowment Deed (Exhibit in); that the Respondent's suit against the second Defendant, second Appellant, having no cause of action, should be dismissed;, that the mortgage In favour of 3rd Appellant (7th. Defendant) Is null and void and should be cancelled; that the clerical errors In the Decrees of the Lower courts above noted should be rectified".
AS a result of the aforesaid judgment (Ex. Dy) Mar Joseph Dionysius came Into possession of the office of the Malankara Metropolitan and of the church properties.
(9) PATRIARCH Peter III did not, naturally enough, approve of that judgment and In 1882 Issued 8 Kalpana or message (Ex. 172(b) ) addressed to the 24 members of the Synod appointed at Mulamthuruthu (presumably referring to the Managing Committee of the Malankara Association) ordering that thenceforth Mar Joseph Dionysius had no authority to decide any matter In Synod and enter Into any common affair of the Dioceses except Cochin or Quilon and authorising the 24 members to elect one Of the Kasisas (Priests) as the President. It is not quite clear whether any effective action was taken on this Kalpana.
(10) III 1905 Abdul Messiah was the Patriarch of Antloch. The Sultan of Turkey withdrew the 'firman' he had Issued in favour of Abdul Messisb and Issued a fresh Firman In favour of one Abdulla II was a matter of dispute whether there was a valid Synodical removal of Abdul Messlah from the office of Patriarch.
(11) IN 1907 one Mar Geeverghese Dionysius, whose name figures very prominently In the present proceedings, went to Syria and got himself ordained as a Metropolitan. In 1909 Mar Joseph Dionysius died. The Malankara Association elected and installed Mar Geeverghese Dionysius as the Malankara Metropolitan and as such he became the ex-officio President of the Malankara Association and one of the trustees of the church properties. The other two co-trustees of Max Joseph Dionysius, namely, Kora Mathan Malphan and. C. J. Kurean, continued as co-trustees of Mar Oeeverghese Dionysius.
(12) IN 1909 Abdulla n came to Malabar. He convened a meeting of the Malankara Association at the old Seminary of Kottayam and demanded that the said Association should accept and acknowledge the temporal authority of the Patriarch. The congregation. It is said, declined to comply with such demand and the meeting ended In confusion. Abdulla II thereafter visited the parisb churches separately and attempted to get Udampadis (submission deeds) acknowledging spiritual and temporal supremacy of the Patriarch and actually succeeded In getting them from some of the churches.
ABDULLA n started ordaining new Metropolitans who gave Udampadis to him. He excommunicated those who declined to do so and by Issuing Kalpanas he enjoined the faithful not to have anything to do with them. In 1910 Mar Poulose Athanaslus (the first plaintiff and now the first respondent) gave an Vdampadi and he was ordained as a Metropolitan. Mar Geeverghese Dionysius, however, declined to submit and give any Udampadi. Accordingly In 1911 Abdulla excommunicated Mar Oeeverghese Dionysius whom he himself had ordained In 1907 and ordained Mar Kurilos as the Metropolitan of Malankara so as to make the latter automatically the ex-officio President of the Association and trustee of the church properties.
THE other two trustees Kora Mathan Malpan and C. J. Kurean sided with Abdulla II and his new nominee Mar Kurlios Mar Geeverghese Dionysius thereupon convened a meeting of the Malankara Association That meeting declared the excommunication of Mar Geeverghese Dionysius invalid and removed Kora Mathan Malpan and C.J kurean from trusteeship and appointed two new trustees namely Mani Poulose Kathanar (the present second applicant) and Kora Kochu Forula (since deceased).
THE said meeting alse resolved to enquire into the real position of Abdulla II and Abdulla messiah and suspended the payment of ressissa to the patriarch, upon this Abdulla II in 1912 issued a kalpana (Ex. 9) enjoining that his supporters should entirely keep, aloof from these wolves (meaning Abdul Messiah and Mar Geeverghese Dionysius) and that you should accept them in any way"
(13) AT this stage in 1912, Abdula messiah whose firman had been withdrawn by Sultan of Turkey came to Malabar. He declared the excommunication of Mar Geeverghese Dionysius by Abdulla II as invalid In 1913 he issued a kalpana (Ex.80)establishing the Catholicate in Malabar as It appeared to him that "unless we do install a catholicos, Our Church, owing to various causes is not likely to stand firm In purity and holyness" By this Kalpana Abdul Messiah ordained Mar Poulose Basselios as the first catholicos and also ordained three Metropolitans. this Kalpana further provided thus:
"THE Catholicos, aided by the Metropolitans, will ordain Melpattakkars, In accordance with the Canons of OUT Holy Fathers and consecrate Holy Moron. In your Metropolitans is vested the sanction and authority to Install a Catholios, when a Catholicos dies. No one can resist you In the exercise of this right".
SHORTLY alter this Abdul Messiah left Malabar. the position at that time was that there were two rival groups in the Church who were represented by two rival sets of trustees, namely, (1) Mar Geeverghese Dionysius and his co-trustees Mani Poulose Kathanar (the second appellant) and Kora Kochu Korula (since deceased) and (3) Mar Kurilos and Kora Mathan Malpan and C. J. Kurean who had sided with Mar Kurilos.
(14) IN 1912 both Abdulla II and abdul Messiah died ft In 1917 Eilias became the Patriarch of Africa. Mar Geeverghese Dionyslus and his group contended that elias had pot been duly installed as no notice had been given to the Malankara Metropolitans. On the death of the tint catholicos Mar Poulose Baselios, Mar Geeverghese Philixinos was installed the second catholicos in 1939, on the death of the latter, the present appellant Moran Mar Basselios was installed as the third catholicos. Both these installations were made by the local Metropolitans in terms of the procedure prescribed by the kalpana (Ex. 80) issued by Abdul Messiah
(15) IN the meantime In 1913 the secretary of state for India tiled an interpleader suit (No. 94 of 1908) in the District: court of Trivandrum against (1) Maree Verghese dionysius(3) Mani pouloose kathanar, (S) kochi Kochu Korula, (4) Mar Kurilos, (5) Kora Mathan Malpan and (r) C. J. Kurean for the determination of the question as to which of the two rival sets of trustees were untitled to draw the interest on the amounts standing to the credit of the Malankara Jacobite christain community in the British Treasury.
THE two rival sets of trustees filed written statemants interpleading against each other. The suit was converted into a representative suit and defendants 7 to 41 got themselves impleaded in the suit as defendants and supported defendants 1 to 3 during the pendency of the suit mar kurilos died and Mar Poulose athanasius(the present first) Respondent) who claimed to be the successor of Mar kurilos as Malankara Mertopolitan was added ar defendant No. 43.
(16) THIRTY-THREE Issues were struck In that wit but It Is not necessary tor our present purpose to recount all the findings of the trial court on all those Issues. Suffice It to say that the District Judge found and held, amongst other things
(1) that Mar Geeverghese Dionyslus was the lawful Malankara Metropolitan and was recognised and accepted as such by the Malankara Syrian Church and as such had become a trustee of the Church properties. (Issue 1):
(11) that the Patriarch had only a power Of general supervision over the spiritual government of the Church but had no right to interfere with the internal administration of ttw Church la spiritual matters which rested only In the Metropolitan and that the Patriarch has no authority, jurisdiction. control, supervision or concern over or with the temporalities of the Arch Diocese of Malankara, (issue III)
(III) that Patriarch Abdulla II and make an attempt to secure authority over the temporalities of the Syrian Church when be visited Travancore In 1035 but that his attempts and pretensions In regard to the government of ttw temporalities of the Church were illegal and against the Interest and well-being of the Malankara church and the community, (issues V & VI);
(IV) that Mar Geeverghese Dionyslus was excommunicated by Patriarch Abdulla n but such excommunication was opposed to the constitution of the Malankara Church as laid down by the Synod of Mulamthuruthu and was canonically Invalid and was still recognised and accepted as the Malankara Metropolitan by a large majority of Malankara Christian community. (issues VII to XVII);
(V) that defendants 3 and 3 (Mani Poulose Kathanar and Kora kochu Korula) had been elected by the community as trustees to cooperate with Mar Geeverghese Dionyslus. (Issue XVIID;
(VI) that 4th Defendant (Mar Kurilos) bad not been elected and was not accepted and recognized as the Malankara metropolitan by the community and was not competent to be a trustee (issues XIX and XX);
(VII) that defendants 6 and a (Kora Mathan) Malpan and C. J. Kurean) had been validly removed from the office of trustee and defendants 2 and 3 (Mani Poulose Katbanar and Kora Kochu Korula) bad been validly appointed to their places, (issues XXI and XXII);
(VIII)THAT defendants 1, 3 and 3 (Mar Geeverghese Dionyslus, Mani Poulose Kathanar and Kora Kochu Korula) did not accept Abdul Messiah or deny the authority of Abdulla II over the spiritual supervision of the Church and they bad not by such act become aliens to the faith or incompetent to be trustees, (issue XXVID)
(IX) that the 43nd defendant (Mar Poulose Athanasiue, the present first Respondent) had not been canonically ordained or validly appointed as Malankara Metropolitan or as President of the Malankara Association. (Issues XXX to XXXIID);
(X) that defendant 1, 2 and 3 were entitled to receive payment of the interest In deposit.
On these findings the learned District Judge passed a decree in favour of Mar Geeverghese Dionysius (Defendant 1), Mani poulose Kathnar (Defendant 2) and Kora Kochu Korula (Defendant 3) as the lawful trustees of the chuch properties.
(17) THE defendant 5,6 and 42 (Kora Mathan Malpan, C.J. Kurean and Mar Poulose Athansius) appeared to the High court, The principal questions urged in that appeal were:
(1) What was the cannon law binding on the Church and what were the powers of the Patrilch under that law In regard to the excommunication of a Metropolitan;
(2) Was the excommunication of Mar Geeverghese Dionysius by the Patriarch opposed to the canon law and the constitution of the Malankara Syrian Church as laid down by the synod of Mulamthuruthu;
(3) It the Patriarch was by himself competent to excommunicate a Metropolitan, whether any procedure had been prescribed to be followed by the Patriarch before the power of excommunication could be exercised by him;
(4) It no such procedure had been so prescribed, whether that power had been exercised in a manner consonant with the principles of natural Justice and with no corrupt motive; and
(5) Wheroer the excommunication of Mar Geeverghese Dionyalua was valid.
THE full bench of the Travancore High court pronounced judgment In 1933 which will be found reported In '41 Trav LR I (A)' 618 marked as Zx. DZ In the present proceedings, the paragraph 80 at p. 74 of the Report the Pull bench held that Bx. 18 which was produced by the appellants WBJ the correct version of the canon law which was treated and accepted as such by the Malankara Jacobite Syrian Church. The conclusions arrived at by the Pull bench on questions 1, 2 and 3 were summarised In paragraph 124 of their Judgment at pp. 114-115 as follows:
"124. Our conclusions on the questions 1, 2 and 3 formulated tor decision 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 Byriab Christian Church af binding on It;
(B) That under Exhibit 18, the Patriarch of Antloch possesses the power of ordaining and excommunicating Bisops and Metropolitans by himself, i.e" in his own right and that It Is not necessary tor him to convtae a Synod of Bishops and proceed by way of Synodical action, In order to enable hte to exercise these powers, the person ordained being, of course, a native of Malabar and accepted by the people;
(C) That there Is nothing In the Mulamthuruthu Resolutions Exhibit EL, which limits the powers possessed by the Patriarch under the Canon Law in matters of spiritual character or which Imposes restriction 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 power of excommunication".
THEN, after an elaborate discussion of the relevant materials, the learned Judges In paragraph 254 at p. 212 recorded their findings on questions 4 and 5 In the affirmative and held that in consequence Mar Geeverghese Dionysius had lost his status of Malankara Metropolitan and Metropolital trustee. In that view of the matter they considered It unnecessary to express any opinion on the question whether Mar Geeverghese Dionysius had become a schismatic or alien to the Jacobite faith by the repudiation of Patriarch Abdulla II and the recognition of Abdul Messian as Patriarch..
They held that although the Malankan Association had the power to remove tbrn them the defendants 5 and 6 had not been validly removed inasmuch as the meeting which had removed them was convened and presided over by Mar Geeveerghese Dionysius, an excommunicated Metropolitan and that the proceedings of that meeting having been 'ab Initio' void the defendants 5 and 6 continiud to be trustees. In the result the full bench reversed the judgment and decree of the District Judge and directed that the money lying deposited In court br drawn by the defendants 5 and 6 and by the person to be thereafter duly elected, appointed and consecrated as the Malankara Metropolitan.
(18) MAR Grevrerghese Dionysius and his contrustees applied under section 12 of the Travancore High court Regulation 1099 for review of the aforesaid judgment of the full bench. That application was allowed but It was made a condition to the admission of the review that on the rehearing, the findings recorded, (i)as to the authenticity of Ex. 18 (the then appellanto' vienlon of the Canon Law), (ii) as to the power of the Patriarch to excommunicate without the Intervention of the Synod and (III) as to the absence of an Indirect motive on the part of the Patriarch which induced him to exercise his powers of excommunication, must be taken as binding. The appeal was then reheard by a full bench on the basis of that order.
(19) AFTER rehearing the appeal the full bench pronounced its judgment In 1928 which will be found reported in '46 Trav LR 110 (B)' and Is marked as Ex. 256 In the present proceedings Chatifield, C. J. held in paragraph 32 of his judgement at p. 182 of the Report that no enquiry was Into the conduct of Mar Geeverghese Dionysius who was never placed on his defence or apprised of the charges against him or given any opportunity of defending himself and as such his excommunication was invalid and he continued to be the Malankara Metropolitian an as such the Metropolitan trustee and, therefore, the meeting which removed defendants 5 and 6 was validly convened by a competent Metropolitan. To the same effect were the findings on this point of Joseph Thaliath, J., at p. 204 and of Parameswaran Pillai J. In Paragraph 48 of his judgment at p. 360. Learned Advocate for the them appellants fell back on the case that quite irrespective of the validity of the excommunication Mar Geeverghese Dionysius and his co-trustees could not be permitted to act as trustees for the Jacobite Church as they had rendered themselves aliens to the faith by reason, amongst others of their repudiating the lawful Patriarch Abduto II and accepting an unlawful Patriarob Abdul Messiah and by upholding the Catholicate. It was contended on the authority of the decision of the House of Lords in 'Free Chruch of Scotland v. Overtoun', 1904 AC 515 (C) that Mar Geeverghese Dionysius and his adherents had set up a new Church effectively freed from the control of the Patriarch and that if he and his co-trustees were allowed to act as trustees they would divert the trust funds of the former Jacobite Church to the use and benefit of a new and strange church. Chatfield, C. J. at pp. 190-191 negatived this contention with the following observations:
"THE objection to the trusteeship of defendants 1 to 3 does not seem to have been stated In this form in the written statements of defendants 4 to 6 and 42. in any case It Is not contended that the appointment of a Catholicos is a thing which Is In Itself forbidden and to work for which is a sign of disloyalty to the church. In the Canon "of Nicea" as given on both Exhibits A and XVIII there is express provision for a great "Metropolitan of the East 'who was to have power like the Patriarch, to consecrate Metropolitans in the East. All that can be urged against the 1st defendant therefore to that he cooperated with one who was not a valid Patriarch when .the latter was doing acts which could only be done by a Patriarch or at the worst that he caused this unlawful Patriarch to do such acts. It is conceded by the defendants that if Abdullah had done these acts there would have been no objection. Therefore the whole matter resolves itself into a personal dispute between two claimants to the Patriarchate in which it is said, the 1st 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 offeree for which the civil courts could try him or express any opinion as to his guilt". Further down on the same page the learned chief justice concluded: "In 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. Therefore no question of any loss or forfeiture of trusteeship by the 1st defendant irrespective of Exhibit L or of any threatened diversion of trust funds can arise".
Joseph Thaliath, J., disposed of this point at pp. 207-208 of the Report In the following way: "Ordinarily, it is for the ecclesiastical tribunals to pronounce whether a person is guilty of an ecclesiastical offence, and what the consequences are if one Is found so guilty. The decisions of secular courts with respect to ecclesiastical matters, by the very nature of things, cannot be very satisfactory. We have also to consider the probable inconvenience that will result from the temporal courts determining whether a person is guilty of any declaration made by proper ecclesiastical tribunals. If we are now to enquire into the alleged offence of schism of the 1st defendant, it will come to this. Every time the Metropolitan trustee applies for the interest on the trust fund, there will be some people who are members of the Jacobite Church, to object to the payment of Interest, on the ground that the Metropolitan cannot act as the trustee of the Church, since, according to them, he is guilty of some heinous ecclesiastical offence or other. And every time, a fresh suit will have to be instituted to decide the question. For these reasons. It seems to me, that the better policy for the temporal courts to adopt will be not to enter into such questions as long as there has been no pronouncement on the subject made by the ecclesiastical authorities. There has been no such pronouncement in the present case. Hence I have to find this point also against the defendants". Parameswaran Pillai, J" expressed his views in paragraah 50 of his judgment at p. 251 which runs as follows:
"50, I have considered this aspect' of the case very carefully and bave come to the conclusion that there Is no substance in this contention. The 1st defendant has not denied the authority of the Patriarch of Antloch and therefore he remains the Metropolitan Trustee of the Malankara Church and he claims to draw the money on behalf of that Church. At best, what he did was, when Abdulla and. Abdul Messiah both claimed to be the Patriarchas of Antloch, he acknowledged the latter as the true Patriarch In preference to the former. If he was wrong In this he has committed a spiritual offence for which his spiritual superiors might punish him in a proper proceeding. This court has nothing to do with his spiritual offence, 1904 AC 515 (C)' referred to In this connection by Sir C. P. Rarmnswami lyer, has no bearing upon the facts of this case".
The full bench, therefore, upheld the decision of the learned District Judge and continued his decree. Accordingly Mar Geeverghese Dionysius and his co-trustees as the lawful trustees became finally entitled to withdraw the moneys deposited. into court.
(20) WITHIN two weeks after this decision was pronounced Mar Julius Ellas, the Patriarch's delegate who was in Malankara at the time and who has figured as P. W. 17 In the present proceedings issued an order (Ex. 165) suspending Mar Geeverghese Dionysius for having "committed several grave offences against the Holy Throne of Antioch and the faith and practices of the Holy Church. and repudiated the authority of the ruling Patriarch".
(21) IN view of the raging disputes between the two S. of the community resulting in acute dissension in the church an attempt was made to restore goodwill and amity and to bring about a compromise and at the instance of Lord lrwin, the then Viceroy of India, Patriarch Ellas visited Malabar In 1931. Elias, however, died In Malabar before he could effect any settlement. Alter Ellas' death Mar Geeverghese Dionyslus on the 7/03/1932 wrote a letter (Ex. 65) to the Metropolitans in Syria warning them that If notice was not given to the Malabar Metropolitans before the election of the successor to Ellas, they would not recognise the Patriarch so elected without notice. In 1933 Ephralm was elected as Patriarch of Antloch without, it is said, any notice to ths Malabar Metropolitans. Mar Geevergese Dionysius and his supporters did not recognise Ephraim. as the duly installed Patriarch.
(22) IN 1934 Mar Geeverghese Dionyslus died. A meeting of the Malankara Association was called. at M. D. Seminary. Invitations were issued to all the churches to attend the meeting. Three months before the meeting was held. Patriarch Ephraim Issued a Kalpana (Ex. Z) to the effect that
"THOSE Who believed In and supported thetbe Catholicos were allens to the Church and that none of his followers. Metropolitans, priests, deacons and people, should cooperate with them. or join them in any worship pertaining to the Church".
However, the meeting was held In December 1934. At this meeting the first appellant Moran Mar Basselios was elected Malankara Metropolitan. in the place and stead of Mar Geeverghese Dionyeius and Ex. AM was adopted as the Constittution of the Church. As a counter measure the first respondent Mar Poulose Athanaslus and other Metropolitans on his side convened & meeting of the malankara Association at Karingasserai Motic of this meeting, It is said, was not given to all the churches Which supported the first appellant moran Mar Basselios. this meeting was held in August 1935. At this meeting me first Respondent Mar Poulose Athanasius was elected Malankara Metropolitan and the two cotrustees of Mar Gcevergnese Dionyslus, namely, the second appellant Mani Poulose Kathanar and E. J. Joseph were removed from the office of trustee &, the second respondent Thukalan Poulo Avira and 'one Joseph Kathanar were appointed co-trustees of the first respondent Mar poulose Athanasius
(23) IT was in these circumstances that In 1938 the first and the second Respondents, namely, Mar Poulose Athanaslus and Thukalan Poulo Avira puliathu and said Joseph Katbanar filed in the Odistrict court of Kottayam a suit (being C. s. No. 1111 of 1113) against the first and the second Appellants, namely, Moran Mar Basselios Catholicos and Mani Poulose Kathanar and the said E. J. joseph. It Is out of this suit that the present appeal 'has arisen and If Is necessary, therefore, to analyse the plaint In some detail. The properties claimed to belong to the Malankara Jacobite Syrian Church and which have to be administered by three trustees, namely, the Malankara Metropolitan, a clergyman and a layman to be elected by the church are mentioned 19 paragraphs 1 and 2 of the plaint. The salient facts summarised above as constituting the background of the present disputes are concisely set forth In paragraphs 3 to 12 of the plaint. Reference Is then made In paragraphs 13 and 14 of the plaint to the meeting said to be a meeting of the Malankara Association and said to have been held at Kingasserai in August 1935. It is alleged that at that meeting the first plaintiff was elected as the Malankara Metropolitan and the second and third plaintiffs were elected respectively as the clergyman trustee and lay trustee tad that the second and the third defendants bad been removed from trusteeship. In paragraph 15 is formulated the plaintiffs' claim to be In possession of. the church properties. In paragraphs 16 to 31 are repudiated the claims of the defendants allegedly founded on their election as the Malankara Metropolitan find trustees at a meeting of the Malankara Association said to have been held In December 1934. it Is alleged that the last mentioned meeting was not. convened by competent persons nor was due notice given to all the churches. In paragraph 22 it is stated that for reasons mentioned therein below and more particularly specified In paragraph, 26 ,the first defendant was disqualified and unfit to be the Malankara Metropolitan. The reasons forth are five In number and each of them to 'characterised as amounting to a denial or repudiation of the authority of His Holiness the patriarch of Antitoch. the contentions formulated In paragraphs 23 to 25 are that the acts and pretensions referred to in paragraph 22 constituted heresy and that the flint defendant as well as the second and third defendants were supporting and co-operating with the first defendant had become Ipso facto' heroic and alien to the Malankara Jacobite syrian church paragraph 26 of the pliant runs thus : 26 the defendant and their partisans have voluntarily separated themselves from the ancient jocobite syrian church and have constituted for themselves a new church called Mahankara orthodox syrian church .According to the belief and doctrines of that church such function of metropolitians granting of station and allotting entitlement to metropolitans privileges which are exzclusively within the power of his holiness the patriarch could be done by the to the beliefs and doctrines of that Church, and functions as, 'consecration of Moron, ordination of Metropolitans, granting of stations and allotting Bdavagals to Metropolitans-privileges which are exclusively within the powers of his Holiness 1116 Patriarch could be done by the first defendant and others, without any recourse to His Holiness the Patriarch. could be done by the first defendant and other without any recourse to his holiness the patriarch
FURTHER it be provided, that ressissa, which is due to His Holiness the Patriarch, may be paid to the person holding the dignity of Catholicos of the said Church. In short, this act which provides Mr the permanent constitution of the said. Church without any connection with His Holiness the Patriarch, and In repudiation and negation of him, as well, constitutes heresy. The defendants have no right to claim membership of the ancient Jacobite Syrian Church. For these reasons also, the defendants have become disqualified and unfit to be the trustees of or to hold any other position In, or enjoy any benefit from, the Jacobite Syrian Church". The Constitution referred to above Is Ex. AM which is said to have been adopted at 'the said meeting of December 1934. The rest of the allegations In the plaint need not be scrutinised in detail except that It may be acted that In paragraph 35 the plaintiffs claimed to maintain the suit not only as trustees but also in their personal capacity as members of the community.
The plaintiffs claimed that they be declared the lawful trustees, that the defendants' pedaled to have no right to retain possession of the church properties, that the defendants be compelled to surrender and the plaintiffs be put In. possession of the said properties, that the defendants be directed to pay mesne profits and render accounts of their administration and of the rents etd realised by them and that the first defendant be restrained from doing any act as Cathalicos or mislankara Metropolitan and the defendants 1 to 9 be restrained from functioning as trustees.
(24) THE defendants -have filed their written statement denying the contentions of the plaintiffs. In particular they deny that they were guilty of any act of heresy or that even it they were, they 'Ipso facto' ceased to be members .of the Church. Paragraphs 22 to 26 are denied in paragraphs 36 to 38 of the written statement. It is averred that there were not two different churches or two kinds of faith and that the defendants had not established a separate church 'and had not separated from the Jacobite Syrian Church. They deny that the meeting said to have been held at Karingasserai in August 1935 was convened by competent persons or was held on notice to all churches. They contend that the said meeting was invalid and the first plaintiff was-not validly elected Malankara Metropolitan and the second and third plaintiffs had not been validly elected trustees. It Is also pleaded In paragraph 45 of the written statement that It was the plaintiffs and their partisans who had been, from 1085 (: 1910 AD) contending that the Patriarch had temporal power over the properties of the church, that the Patriarch had the power, acting by himself, to excommunicate and ordain Melapattakaren (Bishop), that only the Patriarch might consecrate Moron (Holy oil), that the canon of the church is the book which was marked as Ex.18 In the suit of 1913 and that the Catholicate had not been validly established and that by thus non-cooperating with and opposing the Malankara Church the plaintiffs had voluntarily separated themselves and had ceased to be members of the church. in paragraph 46 of the written statement an alternative piea is taken that the plaintiffs and their partisans had their rights if any to the church properties by adverse possession and limitation. The defendants contend that In the premises the plaintiffs had no title and were not entitled to maintain the suit.
(25) THE allegations in the written statement are denied and the averments In the plaint are reiterated in the replication filed by the plaintiffs. It will suffice to refer only to paragraph 32 extract of which is as follows: "The allegations, In paragraphs 42 to 40 of the written statement, are denied. The defendants are barred by reason of 'res judicata from contending, In disregard of the findings, In the final decision, In O. S. 94 of 1088 and the Judgment of the Royal court of Final Appeal, concerning the faith and practices of the Malankara Church the power of the Patriarch over It, and, the canons governing It. These contentions, In paragraph 45 of the written statement, are not available to the defendants, as they had been raised and found against In the said suits. whatever might have been the views developed among the members of the community, during the controversy, In O. S. 94 of 88, the decision In the case binds people of all shades of opinion. The contention is not acceptable, in law, that the right of any party may be lost, or, other rights may accrue to any other party, on the strength of the positions adopted, by them, during the said controversy. The facts railed on lor such a position are neither correct nor acceptable. It Is not true to say that alterations have been made In the 'Thaksa'." Certain clarifications called "Pleadings" which are In the nature of Interrogatories and answers thereto have been filed by the parties but they need not be referred to ai this stage.
(26) NOT less than 37 Issues have been raised on the pleadings. Of them Issues 1 and 2 raise the question of the validity of the respective titles of the three plaintiffs, namely, that of the first plaintiff as the Malankara Metropolitan. and that of the second and third plaintiffs as the trustees of the Church properties and the validity of the Karingasserai meeting of August 1986 and Issssues 6 and 9 question the validity of the M. D. seminary meeting of December 1984 at which the first defendant was elected as Malankara Metropolitan and the second and third defendants were selected co-trustees of the first defendant. Issues Nos. 11, 14, 16, 19 and 20 were as follows :
"11. is the Patriarch of Antioch, the ecclesiastical head of the Malankara Jacobite syrian Church or Is he only the supreme spiritual head? (a) What Is the nature, extent and scope of the Patriarch's ecclesiastical or spiritual authority, Jurisdiction, or supremacy over the Malankara Jacobite syrian Church? (b) is the Patriarch acting by himself or through the Delegate duly authorised by him in that behalf, the only authority competent to consecrate Metropolitans tor Malankara? Or Is the consecration a synodical act in which the Patriarch acts and can act only in conjunction with a synod of two or more Metrans? (c) Whether "Kalvappu" or "the laying on of hands" which is a necessary and indispensable Item In the consecration of a Metropolitan should be by the Patriarch or his duly appointed Delegate alone or can It be done by the catholicos also? (d) Is the Patriarch alone entitled to and competent to consecrate "Moron" tor use In the Malankara Church? Or Is the Catholicos also entitled to do It? (e) Whether by virtue of long-standing custom accepted by the Malankara Church and rulings of courts, the Holy Moron tor use in the Malankara Churches has to be consecrated by the Patriarch? (f) Is the allocation of Dioceses advantageous In Malankara a right vesting solely in the Patriarch and whether before exercising Jurisdiction In any Diocese the Metropolitan ordained and appointed by the Patriarch (by issuing a stathlcon) has only to be accepted by the people of the Diocese? Or Is the allocation of adavagais, so far as Malankara is concerned not a right which the Patriarch or Catholicos or Malankara Metropolitan has or has ever had, but a right which vests and has always vested In the Malankara Jacobite syrian Association? Whether a Metropolitan, before he can exercise Jurisdiction In any Diocese In Malankara, must have been either elected tor the office before ordination by the Malankara Jacobite Syrian Association in July convened tor the purpose or accepted by the same after ordination? (g) is the Patriarch the sole and only authority competent to ordain and appoint the Malankara Metropolitan? is the Issue of a stathicon or order of appointment by the Patriarch either before selection or election by the meeting of the church representatives or after such election or selection essential? Or Is such order unnecessary and the election, or acceptance by the Jacobite syrian Association sufficient? (h) What Is Ressisa? Is It a contribution which the Patriarch and Patriarch alone ls entitled to levy as a matter of right? Or Is It only In the nature of a voluntary gift which may be made to or received by the Patriarch and Cathoilcos? (i) Has the Patriarch no temporal, authority or Jurisdiction or control whatever over the Malankara Jacobite syrian Church? Or whether, as the ecclesiastical head, he could exercise and has all along exercised temporal authority by awarding such spiritual punishment as he thinks fit In cases of mismanagement or misappropriation of church assets?
14. Do all or any of the following acts of the 1st defendant and his partisans amount to open defiance of the authority of the Patriarch? Are they against the tenets of the Jacobite syrian Church and do they amount to heresy and render them facto' heretics and allens to the faith? (i) Claim that the 1st defendant is a Catholicos? (ii) Claim that he Is the Malankara Metropolitan? (iii) Claim that the 1st defendant has authority to consecrate Moron and the fact that he Is so consecrating? (iv)collection of Ressisa by the 1st defendant?
15. (a) have the 1st defendant and his partisans voluntarily given up their allegiance to and seceded from the ancient Jacobits Syrian church? (b) Have they established a new church styled the Malankara Orthodox Syrian church? (c) Have they framed a constitution for the new church conferring authority in the catholicos to consecrate Moron to ordain the higher orders of the ecclesiastical hierarchy to issue stathicons allocating dioceses to the metropolitans and to collect Resdisa? (d) Do these functions and right appertain solely to the patriarch and does the assertion and claim of the 1st defendant to exercise these rights amount to a rejection of the patriarch? (e) Have they instituted the catholicate for the first time in Malankara? do the above facts if proved amount to heresy? 19 (a)have the plaintiffs and their patricians formed themselves into a separate church opposition to mar Goeverghese Dlonyaius and the Malankara Jacobite Syrian church? (b) Are they separated themselves from the main body of the beneficiaries of the trust from 1085?
20 I. Do the following sots and claims of the plaintiffs constitute such separation (a) (1) the claim that patriarch alone concentrate moron? (II) That the Cannon of the church is Ex XXIII in O s 94? (III) That the catholicate is not established (iv) That the patriarch by himself can claim and ex-communicate metropolitans? (b) Have the plaintiffs been claiming that the patriarch has temporal power over the church? (c) have they been urging that as Geaverghese Dionysius was not the Malankara metropolitan? (d) have they made siterations in the liturgy of the church? (e) has the 1st plaintiff executed an udampady to the patriarch conceding him temporal powers over the jacobite syrian church and Its properties? (f) Have the plaintiffs been acting against the trust? 11. Have the plaintiffs and their partisans by virtue of the above acts and claims become aliens to the church and disentitled to be trustees or beneficiaries of the church and Its properties?"
(27) THE suit was heard by the District judge who by his Judgment delivered on the 18th January 1843 held, amongst other things that the acts and conduct Imputed to the defendants did not, for reasons elaborately discussed by him, amount to heresy or schism or to voluntary separation from the church in any event, according to canon law there could be no lapse of a decision on proper notice to and after hearing the person accused of heresy or schism.
HE further held that although the plaintiffs and their adherents, by taking up the positions which they had adopted In 1055(: 1910 AD).) and persistently maintained up to date had unlawfully and un Justifiably created a split in the church often been guilty of schism, nevertheless the plaintiffs could not be said to have become aliens to the Church or of separate church or voluntarily separated from the church as they had not been punished with removal or ex-communication and consequently they had not lost their rights in ftnd to the church properties as members of the Malankara church and as beneficiaries The learned District judge came to the conclusion that the Karingasseral meeting of August 1935 had not been convened by competent persons and that as the defendants and their partisans were still member of the church It could not be sftid thftt notice of thftt meeting hftd been given to all the churches and that consequently the proceedings of that meeting cuiminating in the elections of the first piaintiff the malankara Metropolitan and of the second and third plaintiffs fts trustees were not valid or binding on the defendants ftnd their partisans. The leftroed Judge also held that the M. .D. seminary meeting of December 1984 wherein the elections of the defendants took place was convened by competent persons and that Invitations to that meetings had been sent to all churches in the result the learned district Judge came to the conciusion that the plaintiffs were not entitled to maintain the suit which was there fore, dismissed accordingly.
(28) BEING aggrieved by the said Judgment of the trial court the plaintiffs appealed to the high court of travancore that appeal (being appeal No. 1 of 1119) was heared by a full bench of that court consisting of krishnaswamy iyer C. J. and nokes and sathyan JJ. and on the 8/08/1946 was allowed a major rity of the Judges, the chief justic diasenting nokes and sathyanesan jj.held that by adopt. Ing the written constitution (Ex. AM) the deten' dftnts hftd repudiated the tundinental prinicipal and teaets of the tenets of the Malankara Jacobite Syrian Chureh and had established a new church and had thereby voluatarily separated from and ceased to be members of the Malankara Jacobite Syrian Church. They further held thftt fts the deteadftats hftd voluntarily gone out of the Church before the lEftringasseral meeting of August 1935 they were not entitled to receive ftny invitation tor the said meeting and acoordingly the said meeting was validly convened, tor notices were given .to all churonee entitled thereto. The majority Judges held thftt the piftintiffs had been vaildly elected as trUstees and as such were entitled to posseesion Of the church properties. They accordigly allowed the appeal and passed a decree for possession and mner reliefs In favour of the plaintiffs.
(29) ON the 22/08/1946, that is to say, within fortnight after the High Court Judgment was pronounced, the defendants filed a petition for review of the Judgment on the ground that It contained several mistakes or errors apparent on the face of the record and that in that event there were sufficient reasons post of ft District Judge. Not less than 92 grounds were set forth in the petition of review. In February 1947 an affidavit affirmed by Sri E. J. Philipose who was one of the Advocates for the respondenta was filed stating that the statement made by Nokes and Sathyanesan JJ. that the respondents' Advocate conceded that the plaintiffs had not left the Church and that they were as good members of the Church as anybody else were inaccurate, incomplete and misleading. Along with that affidavit were produced two letters written to the deponent by his leading Advocate Sri T. R. Venkatrama Sastri whose signature was duly proved by him as genuine. The application came up tor 'ex parte' hearing In March 1947 belore the chief justice, Nokes and Krishnaswamy 'Pilar JJ. and orders were reserved. In April 1947 Nokes J. retired. On the 4/12/1947 an orders was made directing a notice to issue to the respondents to show cause why review should not be granted. The said petition came up for hearing before a full bench of three Judges. The learned Advocate for the respondents raised a preliminary point to the effect that as one learned Judge (Nokes J.) had retired and another (Sathyanesan J.) had reverted to his substantive post of a District Judge, the application for review could not be maintained, and submitted that the application should, therefore, be dismissed In limine. That preliminary point was referred to a bench of five Judges and was rejected on the 30/06/1941. The court of Review thereafter took up the hearing of the application on Its merits. The petitioners for review confined their objections to fifteen grounds. The court of Review on the 21/12/1951 rejected all of them and dismissed the application holding that there was no error apparent on the face of the record and that there "were not sufficient reasons for the rehearing of the said appeal. The High court having declined to grant a certificate under Article 133 of the Constitution, the defendants applied for and on the 14/04/1952 obtained special leave of this court to prefer this appeal. The appeal has now come up before us for final disposal.
(30) IT will be convenient at this stage to discuss and deal with a preliminary point raised by the learned Attorney-General appearing for the plaintiffs respondents. In order to appreciate and deal with the point so raised it will be necessary to take note of the changed conditions that had been brought about in the matter of the judicial administration In the State by the recent political changes culminating in the adoption of the new Constitution of India. It will be recalled that the present review application was made on the 22/08/1946 and a notice to show cause was Issued on the 4/12/1947. The preliminary question as to the maintainability of the review application was decided on the 29/06/1949. During all this period Regulation IV of 1099 was in force in the State of Travancore. Section 11, omitting the explanations which are not material for our present purpose, and section 12 of that Regulation provided as follows:
"11. (1) A full bench shall hear and decide all appeals from the decrees of the District courts in suite In which the amount or value of the subject-matter is not less than five thousand rupees and the amount or value of the matter In appeal Is not less than that sum. The judgment of the full bench or the judgment of the majority. It there be difference of opinion together with the records of the case, shall be submitted to us in order that the judgment may be confirmed by Our Sign Manual.' (2) Notwithstanding, anything In the provisions of the Civil Procedure Code, the date of the decree shall be the date on which the judgment ,is declared In open court after being confirmed by Our Sign Manual. Explanation I. .................... (a) .................... (b) .................... (c) .................... Explanation II. 12. In cases decided under section II of this Regulation a full bench of the High court may admit a review of judgment subject to the provisions of the Code of Civil Procedure. If, on review, a fresh judgment be passed, the provisions of section II shall, as far as may be, apply."
It will be seen that under section 12 It a fresh judgment be passed then the provisions of section II shall, as far as possible, apply, that Is to say, the judgment shall have to be submitted to the Maharaja for confirmation by his Sign Manual and the judgment so confirmed shall have to be declared In open court alter such confirmation. This was the position until the end of June 1949. In the meantime on the 29/05/1949 came the Covenant of merger between the Rulers of Travancore and Cochin with the concurrence and guarantee of the then governor-General of India for the frmation as from the 1/07/1949 of the united State of Travancore and Cochin with a common Executive, Legislature and Judiciary.
ART.III provided that as from the appointed day (i.e. 1/07/1949) all rights, authority and jurisdiction belonging to the Ruler of either of the covenanting States which appertained or were Incidental to the government of that State would vest in the United State. Article IV enjoined that there should be a Rajpramukh of the United State, the then Ruler of Travancore being the first Rajpramukh during his lifetime. Broadly speaking. Articles VI and XI vested the executive and legislative authority of the United State In the Rajpramukh subject to the conditions and for the period therein specified. Article XXI preserved the power of the Rulers to suspend, remit or commute death sentences. In exercise of the powers conferred on him by Article XI of the Covenant the Rajpramukh on the 1/07/1949 promulgated Ordinance No. J of 1124. Clause 3 of that Ordinance continued In force for that portion of the territories of the United State which formerly formed the territory of the State of Travancore all existing laws until altered, amended or repealed. Similar provision was made In clause 4 tor the continuance of Cochin laws for that part of the United State which formerly formed the State of Cochin. On the 7/07/1949, however, came Ordinance No. n of 1124. Clause 4 of this Ordinance repealed the Travancore High court Act (Regulation IV of 1099). The relevant part of clause 8 which is Important for the purpose of the present discussion was In the terms following:
"8. All proceedings commenced prior to the coming Into force of this Ordinance In either of the High courts of Travancore and Cochin, hereinafter In this Ordinance referred to as the existing High courts, shall be continued and deaend In the High court as If they had commenced in the High court after such date ........." The jurisdiction and powes of the High court were defined thus:
"18. Subject to the provisions of this Ordiance, the High court shall have and exercise 11 the jurisdiction and powers vested in It by this and any other. Ordinance and under any law which may hereafter come Into force and any power or jurisdiction vested In the existing high courts by any Act or Proclamation in force In the States of Travancore and Cochin immediately prior to the coming into force of this Ordinance." Clsuse 25 leaving out the two Explanations which are not material for our present purpose and clause 20 ran as follows: "25. A full bench shall hear and decide all appeals from the decrees of the District courts or the court of a Subordinate Judge or of a single Judge of the High court In Suits In which the amount or value of the subjectmatter Is not less than five thousand rupees and the amount or value of the matter In appeal is not less than that sum. Explanation I................ Explanatlon II............... 26. In cases decided under section 25 of this Ordinance, a full bench of the High court May admit a review of judgment subject to the provisions of the Travancore and Cochin codes of Civil Procedure." Clauses 18, 25 and 26 have been substantially reproduced In S. 18(1), 25 and 26 of the united State of Travancore and Cochin High court Act 1125 (Act No. V of 1125) which pealed, amongst other things. Regulation IV 1099, Ordinance II of 1124. Then came the constitution of India in 1950 which created a union of several states grouped In Parts A, B and C by the First Schedule. The United State of Travancore-cochin became one of the Part B States. Under Article 214 the High court of the United State of Travancore and Cochin became the High court of the Part B State of Travancore-Cochin and Article 225 continued the jurisdiction of and the laws administered In the then Misting High court.
(31) THE contention of the learned Attorney-Genreal is that In view of the changes referred to above which had the effect of setting up a cominon High court for the United State of Travancore and Cochin with jurisdiction and pover defined therein, the review application has become infructuous, for, even II It be allowed, there will be no authority which will have Jurisdiction and power to pronounce an effective Judgment after rehearing the appeal. It Is pointed out that a review may be admitted under sectior 29 of the United State of .Travancore and Cochin High court Act, 1125 only In case decided under section 25 of the Act. This case was not decided by a full bench under section 25 of the Act and, therefore, no review Is maintainable under section 26. Further, if it be held that the appeal having been filed under section II of the Travancore High court Regulation (IV of 1098), the application for re. view must be dealt with under section 12 of that Regulation then, says the Attorney-General, If after the review is admitted a fresh judgment has to be passed after rehearing the appeal the provisions of section II would have to be complied with, namely, the fresh judgment will, under section 11, have to be submitted, to the Maharaja to be confirmed by his Sign Manual and the decree will have to be dated as of the date on which the judgment will be declared in open court after such confirmation. It Is pointed 'out that the Maharaja of Travancore no longer possesses the power to consider and to confirm or reject judicial decisions .and ic is submitted that such being the position la law the review application had become Infructuous and should have been dismissed by the full bench In limine'. In our opinion, this contention is not well-founded. The application for review was property made to the Travancore High court and the Travancore High court had to decide whether to admit or to reject the appllication. The judgment to be pronounced on the application for review did not require, under any provision of law to which our attention has been drawn, to be confirmed by the Maharaja 'or any other authority. It was a proceeding properly Instituted and was pending on the 1/07/1949 and chosequently under section 8 of Ordinance No. n of 1124 had to be continued In the High court of the United State as if It had commenced In the said High court after the coming Into force of the said Ordinance. In this case, the application for review was rejected by the High court. If, however, the High court had admitted the w view then such admission would, have had. the effect of reviving the original appeal which was properly filed In the Travancore High court under section II of the Travancore High Oburt Regulation (IV of 1099).
THAT appeal, so revived, having teen commenced prior to the coming Into force of Ordinance No. II of 1124 would, under section 8 of that Ordinance, have had to be continued In the High court of the United States as If It had commenced in that High court after such date. The position will be the same If on this appeal this court now admits the review, for, upon such admission the appeal filed In the Travancore High court will be revived and then, having been commenced In the Travancore High courst and continued In the High court of the .United State by virtue of section 8 of ordinance no. II of 1124 the appeal so revived will, under section 8 of the act of 1125, have to be continued in that High court as if it had commenced in that High court alter the coming Into force of that Act. In other words, the old appeal. It restored by this court on this appeal, will, by the combined operation of sectlon 8 of Ordinance 11 of 1124 and section 8 of the Act of 1125, be an appeal pending In the High court of the United State. Under our present Constitution Travancorecochin has become a Part B State and under Article 214 the high court of the United State of Travancore-Cochin has become the High court of the Part B State of Travancore-Cochin and shall have the Jurisdiction to exercise all the jurisdiction of and administer the law administered by the High court of the United stste. such appel must, accordingly, be disposed of under section 25 of the last mentioned Act. That section does not require any confirmation of the Judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or any other authority. Assuming however, that the appeal, if restored, will have to be governed by section 12 of the Travancore High court Regulation (iv of 1099) even then the provisions of section 11 would have to be applied "as far as may be" and it may well be suggested that the portion of section 11 which requires the confirmation by the maharaja will. In the events that have happened, be Inapplicable. In our opinion, therefore, the preliminary obection cannot prevail and must be rejected.
(32) BEFORE going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the provisions in the Travancore code of civel more restricted than that of an appeal. Under the provisions in the Travancore code of civil procedure which is similar in terms to order 47, rule 1 of our code civil procedure 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein.
IT may allow a review on three specified grounds, namely (1) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient resson. it has been held by the judicial committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specfied in the rule". see Chhajju Ram v. Neki' AIR 1922 pc 112 (D). This conclusion was reiterated by the judicial committes in Bisheahwar pratap sahi v. parath Nath', AIR 1934 PC 213 (E) and aspted'by out federal court in Hari shankar V. Anath Nath', AIR 1949 fc 106 at pp. 110, 111 (f) learded counsel appearing in support of this appeal recognises the aforesaid limitations and submits that his case comes within the ground of "mistake or error apparent on the face of the recors" or, some ground analogous thereto As already odserved, out of the 99 oblectionc taken in the grounds of review to the Judgment of the majority of the High court only 15 objections were urged before the High court on the hearing of the application tor review. Although most of those points have been referred to by learned counsel tor the appellants, he mainly stressed three of them before us. We now proceed to examine these ob Jections.
(33) THE first objection reiates to the validity of the election of the first plaintiff as the Maiankara Metropolitan and as such the ex offcir trustee and the elections of plaintiffs 2 and 3 as his cotrustees at the karingasseri meeting. This meeting is pleaded to paragraphs 13 and 14 of the plaint. IN paragraph 18 of the plaint the plaintiffs refer to the meeting said to have been hels at the M. d. suminary in december 1934 on which the defendants rely, the plaintirrs' contantion. being that that meeting was not covened by competent persos nor after due notice to all the churches according to custom. In paragrph 20 of their written statement the defendants deny the factum or the validity of the Karingasseras meeting relied upon by the plaintiffs.
THEY conend taht that meeting was not convened by competent person nor was invitation sent to the large majority of the churches. In paragraph 29 the defendants requdists the allegations plesded in paragraph 18 of the posont and maintain that their meeting was convenec properly and upon notice to all the churches in malankara. In paragraphs 16 and of thir replication the plaintiffs reiterate the allefations in the plaint. Issue 1(b) raises the qusstior of validity of the Karingasserai meeting of August 1935 and issue 6(a) raises the qusstion of the validity of the M. D. seminary meeting of decem. Ber 1934.
AS the suit to tor possession of the churckh properties the plaintiffs, in order to sucoeed, must establish their title as trustees and this they cas only do adducing sufficient evidence. to discharge the onus that to on them under issue 1(b) irrespective of whether the defedants have proved the validity of their meeting, for it is well established that the plaintiff in ejectment must succed on the strength of his own title. It will be noticed that the defendsnts' objection to the karingadderal mesting was two-foid, (i) that the meeting had not deen convened by convened persons and (ii) that notice had not beengiven to all the churches The District judge in paragaaph 164 of the judgment held, for ressons stated by him, that that meeting had not been convened by competent persons and in paragraph 165 found that notice of the asid meeting had been given to all the churches. It having been conceded the plaintiffa' advocate at the time of the final argument before the district judge that is no svidence on the plaintiffs' side to prove that all the churches in existence prior to 1086 had been issued notices, the position was taken up that in the view of the plaintiffs' party the defendants and their partisand by adopting the new constitution Ex. AM had become aliens to the church and as such were not entitled to be invited to that meeting.
THEIR argument was that karingasserai meeting was oniy a meeting of the repressntatives of those chuchss which stood by the patriarch adbulls II and the succsding patriarcchs and as the defendants and their partissnd had becme ailens to the church no notice to them was necessary. This argument clearly amounted to an admission shat no notics was sent to the churches on the defendants' side.
THE distrct judge having heid, contrary to the submission of the plaintiffs, that the defendants and their partisand had not gone out of the church it follwed, sccording to him, that they were entitied to notice and as it was not proved that notices were sent to them but on the contrary as it was contended that no notice was necessary to be sent to them the district Judge felt if to be quite clear that the said meeting was not duly coavened. In this view of the mattar it was not necessary for the learned District judge to go further into the matter and enquire whether notices had been given to churches which haad not adopted the new constituion Ex. AM.
(34) COMING to the judgment of the High court it appears that the majority of the judges deait with the quedtion of the validity of the meeting in a superficial and summary manner. Nokes,J. said;
"THE lower court held that the meeting was not duly convened, mainiy decause notice was not given to the defendants' party (judgment paragraphs 166, 167) the want of notice was not disputed but was justified in sccordance with the patriarchal monition (EXhibit Z)In view of the Conciusion stated above, that the adoption of the new constitution was clear svidence of the defendants' repudistion of the patriarchs' church, and of the fact that the adoption took place in 1934 about 8 months eariier than the meeting at karingasserai, the want of notice was justifiadie apart from the montion. the iower coutrt's conciusion that the meeting formed only a minority of the church id thus serroneous as is conciusion judigment paregraghs 164, 167) that the meeting was not convened by competent persons."
Mr. Justics sathyanesan simply. odeerved.
"THE only defect pointed out was that no invi. tation of the meeting was given to the churches under the control of 1st defendant. the short answer to this id that having alread decorne memders of a new church, they were not contitied to any invitation and were rightiy ignored." . It thus appears that the quedtien as to the competency of the persons who convened the karingasserai meeting was disposed of by nokes, j. in one dingle sentence at the end of the paragraph quoted abov, the learned Judege doed not appear to have seriousiy applied his mind at all to the question of the competency of the convenors of that meeting. sathyanesan, J. did not deal with the quedtion and thought,quits wrongly, that the only question raised by the defendants was as to whether notice was given to the churches under the controi of the defendants. It is pointed out by the learned Attorney-General that the judgmant of sathyanessn, J, was only a supplernentary jufgment, for he prefaced his fudgment with the chservation that he entirely agreed with the findings of Nokes, J. This argument might have had some force if nokes, J. had dealt with the point the posution therefore, is that neither of the judges applied his mind to the queation of the competency of the persons who had convened the karingasseraj meeting. As to service of the notice on all churches, Nokes, J. in the passage qucted above hald that the defendants had gone out of the church by reason of thir adoption of the new constitution Ex. AM and that consequently no notice was bue to them. sathyanesan, J. also in the passage quoted above took the view that the defendants having become members of a new church the defendante were not entitiled to any invitation to the karingasserai meeting. the learned judges having reversed the finding of the District Judge was held that the defendants had gone out of the Church by adopting the new constitutlon Ex. AM. It became Incumbent on them to enquire whether all churches not on the plaintlff's side had adopted Ex. AM. Md It not whether sich of them who had not adopted Ex. AM. had been summoned to the meeting. It may be noted in this context that the learm ed Judg of the High court their judgment seem to indicate that the churches which adopted Ex. AM. did so by participation at the M. D. seminary mesting. Referencea has been made ir. the arguneats to the various figures set out in the judgmeat of the District Judge as to the number of schurches which sccording to the evi dence had attended the meeting. It is not ciear how many out of 310 churches cisimed by the defendants to have been compoetaiy on their side acoording to Ex. 272 had attended the M. D. suming meeting and formally adopted the new constitition Ex. AM. if adoption of the Ex. AM. is the test for determining whether notice to due or not, thea It becomes imoportant to consider whether all the churches which were not with the plaintiffs but who had not adopted Ex. AM. had been served. Apart from the question of the service of the notice there was also the question as to the competency of the persons who had convened the karingasserai meeting where the plaintiffs are Mid to have been elected. While Mar Geeverghese Dionysius was alive be, as President of the Malankars Association, used to convene the meeting of the Associatlon. Who, after his death, was competent to issue notice of meeting?
There appear to be no rules on the subject, in this situation, says the learned Attorney-Generai, of all the members of the Association attended the meeting thi defect of want of proper notice does not matter. But did all members attend, even If the defendants' party who had adopted Ex. AM be left out It does not appear that either of the two majority Judges of the High court adverted of either of these aspects of the matter, namely, service of notice to all churches and competency of the persons who Issued the notice of the Karingasserai meeting and in any case did not come to a definite finding on that question. the majority judgments, therefore, are detective on the face of them In that they did not effectively deal with and determine an Important Issue In the case on which depends the title of the plaintiffs and the maintainability of the suit This in our opinion, to certainly an error apparent on the face of the record.
(35) THE next point urged by learned counsel appearing for the plaintiffs to that the majority decision proceeds on a misconception as to a concession said to have been made by the defendants' Advocate. It will be recalled that issues nos. 14 and is quoted above raise the question of the defendant having gone out of the Church, for having committed acts of heresy or having voluntarily given up their allegiance to the ancient saccbite Syrias church and establishing a new church and traming a constitutio tor the same. likewise, issues nos. 19 and 20 raise the question as to whether the plaintiffs and their partisans formed themselves into a new church and separated from the old Church by reason of the several acts and dates therein referred to. Here again the suit being one in ejectment It more Important for the plaintiffs to establish their own title by getting issues 19 and decided in thir favour than to destroy the defendants' title by getting issued 14 and 15 decided against the defendants, for a mere destruction of the defendants' title in the absence of establishments of their own title carries the plaintiffs no where. It is to be remembered that this is a suit by the plaintiffs as validly constituted trustees and not a suit under the section, analogous to section 92, C. P. C., for removal Of defendants from trusteeship or for the framing of a scheme.
IN paragraph 132 of his judgment the leaned District Judge found that the acts are claims imputed to the defendants did not amount to heresy and did not make the defendants or their partisans heretics or aliens to the faith and that such acts and conduct mentioned In issue U, even if proved, would not amount to heresy aad would not amount to a voluntary giving up of their allegiance to or secession from the ancient Jacobite Church. On the other band. In paragrapth 133 the District Judge held that the plaintiffs and their adherents by taking up the position which they adopted In 1085 and which they had persistently maintained till then bad unlawfully and unjustifiably created a split in the Malankars' Church and might In a sense be said to have pursued a course of conduct amounting to persistent schism.
He held that, nevertheless, the plaintiffs and their partisans had not become aliens to the Church or created or formed themselves Into a separate church as they had not been found guilty and punished with the removal ftom the Church or excommunication from the Church by a proper ecclesiastical authority. It will be noticed that the learned District Judge found the facts Imputed to the defendants not proved but the facts Imputed to the plaintiffis to have been proved. He made no difference between acts of heresy and merely voluntary separation from the Church but treated them-on the same footing. It will be recalled that In the interpleader suit of 1913 the District Judge had held that by accepting Abdui Messiah as their eccliastical head or by denying the authority of Abdulla 11, Mar Geeverghese Dionysius and his co-trustees had not become allens to the faith. Finally, in the judgment on rehearing of the appeal reported in '45 Trav lr 116 (fB) (B)' from which passages have been quoted above the acts imputed to the defendants in that case which are similar to those Imputed to the defendants In the present case, with the exception of the adoption of Ex. AM, were held not to amount to a voluntary separation from the Church by the estsblishmant of a new church and that 1904 AC 515 (C)' had no application to the facts of that case. Likewise, to the present case the District judge dealt with issues 15, 16, 19 and 30 together, which covered issues on both heresay and voluntary separation. Presumably to view of the decision of the court of Appeal in the previous suit the learned District judge in this case did not make any distinction between acts of heresy and voluntary separation from the church and held that there was "no case of inso facto heresy or 'iper facto' has of membership of the church or Indian Penal Codeo iacto' loss of status as priest and prelates for ecclesiastical offences unless the offenders were tried and punished by a competent authority". Indeed, the evidence of P.W. 17, the Pope's delegate, is claimed as supporting this view. It is in the light of this situation that the question as to the misconception of the concession has to be considered. Sathyanesan, J. in paragraph 4 of his judgment, referred to the concession said to have been made by the learned Advocate for the defendants in the following terms:
".......HOWEVER the learned advocate for the respondents clarified the situation by very fairly conceding that plaintiffs had not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else. Another clarification has been made by the learned advocate for the appellants that the plaintiffs, whatever might have happened in the past, do not hold that the patriach can at all interfere in the internal administration of the Malankara trust properties. Plaintiffs seem to have made their position clear even at the time of pleadings. According to them "The Patriarch as the ecclesiastical head of the Malankara Church could exercise that authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or mis-appropriation of church properties"-vide pleading No. 124 (1). The concession made by the learned advocate for the defendants has obviated the necessity of a lengthy discussion of several matters. So it is worth pausing a while and understanding the importance and the implications of the concessions. It tends to mean(i) that the Patriarch is not an alien to the Church, i.e. the Patriarch and his predecessors in question are the true and lawful head of the original Jacobite Syrian Church, (ii) that the plaintiffs and their partisans, holding that (a) the patriarch has only a spiritual supervision of the administration of the trust properties by the trustees, (b) the Patriarch alone can consecrate Morone, (c) that Exhibit BP is the true Canon of the Jacobite Church, and (d) that the Catholicate was not properly established, cannot, on these grounds, be considered to have become aliens to the original church. So the question is more properly whether the defendants have seceded from the original church and formed a new church. In the nature of the suit, the plaintiffs can succeed only if they make out, (A) that the defendants are using the trust properties belonging to Malakara Jacobite Church for the maintenance, support and benefit of another and a different body, namely, Malankara Orthodox Syrian Church, and (B) that the plaintiffs are the duty elected trustees". Likewise, Nokes, J. at pp.355-356 referred to the concession as follows: "..........In this court the defendants' advocate did not seek to disturb the finding that the plaintiffs had not become aliens to the church. Indeed, as previously stated, he based his case on the ground that both parties were still within the church. This abandonment of his clients' contention in the lower court was no doubt due to the fact that the written statement involved an admission of the plaintiffs' case; for the plaintiffs in effect said, we are the trustees of the Patriarch's church'. while the defendants said. 'we are the trustees of a church to which the Patriarch is an alien'. Nor was any attempt made here on behalf of the defendants to challenge the finding that the trust had not become altered; for any contention to the contrary provided no defence and was a further admission of the plaintiffs case. But the existence of this allegation on the pleadings served to emphasize the defendants' attitude to the trust". Further down the learned Judge said:
".........THE learned Judge held against the general allegation of separation (judgment, paragraph 133), but in favour of the special allegation as to the palintiff's view on temporalities (paragraph 108). He also recorded findings as to the limited scope of the patriarch's powers in temporal affairs (paragraph 58,60), which seem to be based on the erroneous view 'inter alia' that persons who are subject to two systems of law are amenable for different aspects of the same offence only to punishment under one system (see paragraph 57). The general finding was challenged in the memorandum of objection (grounds 10 and 11), but not in the argument for the defendants here, which, as previously stated, proceeded on the basis that both sides were still members of the church".
On a plain reading of the two judgments it appears that the majority Judges took the view that even if, as held by the District Judge, the plaintiffs had been guilty of acts and conduct imputed to them it was not necessary for them to enquire whether those acts were mere heresy or also amounted to a setting up of a new church or whether the Canon law requiring the verdict of an ecclesiastical authority applied to both or only to acts of heresy. This attitude they adopted simply because of what they understood was the concession made by the defendants' advocate, namely, that the plaintiffs had not gone out of the church. They, however, felt bound, notwithstanding the contention of the defendants that they were also, for similar reasons, within the church, to consider whether the defendants had voluntarily gone out of the church by setting up a new church as evidendced by their aforesaid acts. Learned counsel for the appellants contends, and we think there is a good deal of force in such contention, that the majority Judges do not appear to have examined the question or considered whether voluntarily going out of the church was a concept separate and sistinct from acts of heresy and if so whether the acts and conduct imputed to the plaintiffs apart from being acts of heresy from an ecclesiastical point of view, amounted also to voluntarily going out of the church by establishing a new chrch. Nor do they appear to have considered whether the Canon law required in both case. There can be no doubt, therefore, on the face of the judgment, that the decision of the learned Judges in this behalf proceeds on what they considered was a concession made by the defendant's advocate that the plaintiffs had not gone out of the church. Learned counsel for the defendants appellant contends that this was a misapprehension and he relies on the affidavit of Sri.E.J.Philipose, Advocate, with which were produced two letters written to him by the senior advocate. In the first letter it is stated as follows: "I argued at length of the misconduct of the plaintiffs in going against the basic conditions of the Royal courts' judgment and said that while the conduct of each party is open to examination neither could be said to have left the church. Their acts may be set aside in both case but they cannot be said to have left the church. The Judges cannot accept it in one case as a concession and in the other case as my submission. Deciding one part of it as a concession not requiring the decision of court is jujust of my lengthy argument on the misconduct of the paintiffs in regard to their diversion of property from the trust". In the second letter we find the following passages".
"THROUGHOUT my argument was that the plaintiffs had steadily and consistently set at naught the fundamental principles of the charity as settled in the judgments of the Royal court and the Cochin court. As between the charge and counter charge of violation of the foundation rules, I expressed it as my view that while their views may be corrected by the court neither party should be treated as having become aliens to the church by reason merely of erroneous views. That is what is explained in paragraph 17 of the grounds. My opinion sko expressed is not to be treated as to the other. If my view of the law was not acceptable the learned Judges must decide and not treat one part of a connected statement as a concession not requiring to be considered by the court". In the Review petition ground No. 17 is as follows:
"17 Their Lordships' observation that the Defendants' Advocate based his case on the ground that both parties were still within the church & that the Defendants' Advocate conceded that the Plaintiffs have not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else is inaccurate & incomplete, and misleading. The Advocate devoted a great part of the argument to showing that the plaintiffs have departed from the Constitution as settled by the Royal court Judgment. The Plaintiffs stated that the Defendants have left the Church. In reply the argument was that there is no such thing as 'ipso facto' secession merely because of differences of views on the powers of the Patriarch or about the Canon to be followed. It was in that sense and in that sense only that the argument was advanced that in law it must be taken that both parties were within the church. The Judges were not justified in taking it out of its setting and using part of it as an admission in support of the plaintiffs and rejecting the other portion as a mere argument not sustainable in law so far as the defendants are concerned. If it should be treated as an admission at all it must have been accepted or rejected as a whole. It must not have been torn piece-meal and part used and part rejected. The reasons assigned for concluding that the defendants have gone out of the Church apply even more strongly to the plaintiffs and the Judges should have dismissed the suit 'in limine'. Their Lordships failed to note that the basic constitution of the Church had been laid down by the Royal court judgment and the plaintiffs by disowning and repudiating it had really seceded from it. If the view of the court was that departure from the rules of the foundation put the parties out of the Church it should apply alike to both the parties and the statement that neither party had gone out of the church cannot be used to sustain the plaintiff's right and at the same time rejected as untenable to support the precisely similar rights of the Defendants. Their Lordships failed to not that the Defendants' Advocate strongly urged that it was necessary to have the charges framed, enquiry held and due and proper grounds made out before a person can be put out of the Church and there was not even a whisper of it as having been complied with in this case. Their Lordships also failed to note that there can be no such thing as an entire body of persons against whom nothing was alleged or proved being held to have gone out of the Church. Their Lordships failed to note that the so called admission did not in any way affect the Defendants' case that the patriarch and the Plaintiffs and their partisans have voluntarily left the church and had thereby ceased to be members thereof".
(36) LEARNED Attorney-General strongly objects to any reference being made to the facts contained in the affidavit of E.J.Philipose or the letters produced along with it and he refers us to the decision of this court in-'Sha Mulchand & Co. Ltd. v. Jawahar Mills Ltd.', AIR 1953 SC 98 at p. 102 (G), and the cases therein referred to and to the case of 'Reg v. Pestanji Dinsha', 10 Bom HCR 75 (H), It will, however, be noticed that what was deprecated in that case was the fact that no affidavit had been filed before the trial court for the rectification of what, in the appeal court, was alleged to have been wrongly recorded by the trial Judge. The Privy council in 'Madhu Sudan v. Mt. Chandrabati', AIR 1917 PC 30 (I) also suggested that the proper procedure was to move the court in whose judgment the error is alleged to have crept in. In this case, as already stated, an affidavit was filed before the appeal court itself while the chief justice and Nokes J., were still in office. Further, if, as laid down in the judgment of this court to which reference has been made, the proper procedure is to apply to the court whose judgment is said to be founded on a misconception as to the concession made by the learned Advocate appearing before it by what procedure, unless it be by way of review, could that court be moved? Indeed, the Madras case referred to in the judgment of this court freely indicates that the application should be by way of review. Patanjali Sastri, J. (as he then was) sitting singly in the Madras High court definitely took the view in 'Govinda Chettiar v. Varadappa Chettiar', AIR 1940 Mad 17 (J) that a misconception by the court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this Affidavit and the letters accompanying it cannot be said to be part of "the record" within the meaning of order 47, Rule 1. We see no reason to construc the word "record" in the very restdicted sience as was done by Denning L.J., in 'Rex v. Northumberland Compensation Appeal tribunal, Ex Parte Shaw', 1952) 1 KB 338 at pp. 351-352 (K) which was case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the court assumed that a concession had been made when none had in fact been made or that the court misconceived the terms of the concession or the scope and extednt of it, it will not generally appear on the record but will have to be brought before the court by way of an affidavit as suggested by the Privy council as well as by this court and this can only be done by way of review. The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.
(37) TURNING to the affidavit and the letters and the ground No. 17 of review it is quite obvious that the defendants had not given up their contention, upheld by the District Judge, that the plaintiffs had been guilty of the acts and conduct imputed to them. What the learned Advocate for the defendants did was to accept the Canon law as interpreted by the District Judge, namely that noboby goes out of the Church without the verdict of an ecclesiastical authority, whether the acts complained of amount to acts of heresy or to the establishment of a new church so as to make the persons who are guilty of such conduct aliens to the faith. If the majority Judges took the view that such was not the Canon law and that the same acts and conduct may have an ecclesiastical aspect in the sense that they amount to heresy punishable as such and may also amount to a voluntary separation from the church which is not an ecclesiastical offence and does not require the verdict of any ecclesiastical authority to place the guilty person out of the church then it was clearly incumbent upon the majority Judges to consider whether the acts and conduct of which the plaintiffs had been found guilty had actually been committed by them and whether such acts and conduct also had the dual aspect, namely amount to an ecclesiastical offence requiring excommunication and also to a voluntary separation which not being an ecclesiastical offence did not require an ecclesiastical verdict to place a guilty person out of the pale of the Church. This on the face of the judgment, the learned Judges failed to do.
(38) LEARNED Attorney-General has submitted that the allegations against the plaintiffs are five in number, namely
(1) The Patriarch has Temporal powers over the properties of the Malankara Church; (2) The Patriarch has got the power acting by himself to ex-commuticate and ordain a Bishop; (3) Only the Patriarch may consecrate Monone; (4) The Canon of the Church is Ex. XVIII in O.S. 94 of 1088; and (5) The Catholicate has not been validly instituted In the Malankara Church; and suggests that these charges have been gone into directly or indirectly by the majority Judges and that, therefore no prejudice has been caused. Be, however, cannot dispute that the Judges have failed to consider and come to any definite finding on some of them. We do not consider that the contention of the learned Attorney-General to entirely well-founded.' Issue 30 (1) contains several charges against the plaintiffs and even if charges (a) and (b) have been referred to In the majority judgment, the charges (c), (d) and (e) have certainly not been dealt with. As to the temporal power of the Patriarch the District Judge held In paragraph 58 of his judgment that the Patriarch had no temporal authority or jurisdiction or control over the Malankara Jacobite Syrian Church and Its temporalities and that the power of general supervision over spiritual government conceded to the Patriarch in Ex. DY did not carry with It by necessary Implication the right to Interfere in the administration of the temporalities and properties of the Church. The decision to the contrary In '41 Trav LR 1 (FB) (A)' cannot be regarded as having any bearing after that judgment was set aside subject only to three points as hereinbefore mentioned. It does not appear that the majority Judges considered whether the plaintiffs Imputed full temporal powers to the Patriarch or the limited one as conceded to him In Ex. DY and It they did Impute to him full temporal powers whether they had departed from a fundamental tenet; of the Church. They do not also appear to have considered whether. If the plaintiffs originally pledged themselves to the tenet of full temporal power of the Patriarch and thereby departed from a fundamental article and such departure involved their having become aliens, any subsequent change in their attitude by limiting It as In Ex. DY would make a difference.
Further, as to the power of consecrating Metropolitans Nokes, J. found that a validly appointed Catholicos had the power, under both versions of the Canon, to consecrate Metropolitans without a Synod and that by so claiming the defendants had 'not become allens to the faith. The learned Judge, however, did not consider the implication of this finding so tar as the plaintiffs were concerned. This finding may lead to the implication that the claim that the Patriarch alone has got the power of ordination and the Catholicos has not that power cannot but be regarded as a departure from the Canon. Issue 30 (1) (a) (1) which relates to the consecration of Morone has been found In favour of the defendants. The District Judge held that Abdul Messiah by his Kalpana' Ex. 80 revived the Jacobite Catholicate. The Respondents' ground of appeal No. IT assumed that a CathoUcate had been established Nokes, J., held that Abdul Messiah was a Patriarch, that a Patriarch had the power by himself and without the synod to establish & that a Catholicate had been established by him although the old Catholicate of the East had not been revived. Sathyanesan, J" however, held that. the establishment of the cathoUcate In Malankara was dubious, surreptitious and uncanonical and that no Catholicate had been established. The two judgments appear to be somewhat at. variance In this respect, In any case, Nokes, J. has not considered whether the stand taken by the plaintiffs that no Catholicate had been established at all amounts to a departure by them from the Injunctions of the Canon law. On a mere reading of the majority judgments it appears to us that the majority Judges have been misled by a misconception as to the nature and scope of the concession alleged to have been made by the defendants' Advocate. If the acts imputed to the defendants amounted to a voluntary separation, the learned Judges should have considered whether the Acts Imputed to the Plaintiffs likewise amounted to a voluntary separation. IF the defendants had not gone out of the Church by asserting that a Catholicate had been established, that the Catholicos can ordain Metropolitans and consecrate Moron then they should have considered whether by denying these assertions the plaintiffs had not gone out of the Church. This they failed to do. They could not properly decline to go into the question of fact on account of the admission of the defendants Advocate that the plaintiffs remained in the Church. Such admission at best was an admission as to the canon law and the decision that the defendants had voluntarily gone out of the Church even in the absence of an ecclesiastical verdict necessarily implies that the concession made by the defendants' Advocate requiring an ecclesiastical verdict as a condition precedent to voluntary separation also was obviously wrong and an erroneous concession of law made by the defendants' Advocate could not be relied upon for saving the plaintiffs The facts, therefore, that cross-objection No. 11 filed in the High court by the defendants does not appear to have been pressed makes no difference. In our opinion, for reasons stated above, this head of objection raised by the learned Advocate for the Appellants before us is well-founded and the judgments of the majority Judges are vitiated by an error of a kind which is sufficient reason within the meaning of the Code of Civil Procedure for allowing the review.
(39) THE last point taken up by the learned Advocate tor the appellants Is that although certain matters had been agreed to be left out in connection with issue No. 11 (a), the learned Judges took an adverse view against the defendants on natters which had been 80 left out by agreement. Issue No. 11 relates to the powers of the Patriarch. Clauses (b) to (1) relate to specific powers of the Patriarch Clause (a) of that issue Is vague and to expressed in very general terms. Paragraph 60 of the District Judge's Judgment Is as follows:
"60. It was stated by the advocates on both sides that it is unnecessary for the purpose of this suit to determine or decide In a general and comprehensive manner or define exhaustively all the powers that the Patriarch may have over or in respect of the Malankara Church as the supreme spiritual or ecclesiastical head of the whole Jacobite Church including Malankara and I also think It Is not within the province or competency of this court to attempt to do It. Whether he is the supreme spiritual head or whether he is the supreme ecclesiastical head, his powers as the Patriarch In respect of the matters specified under clauses (b) to (h) of Issue 11 (which have formed the subject-matter at dispute in this .case) have been considered and defined under these various headings under this issue 11 and it has also been stated how far they have been determined or upheld .by law courts, custom, practice and precedent so tor as Malankara Is concerned and these findings, It Is conceded on both sides, will suffice".
It will be noticed that after this agreement issue No.11 related only to certain specific powers of the Patriarch, The findings on these issues, by themselves do not lead to any result. They were only Introductory issues & were material for other issues, e.g. issues 14, 15, 19 and 20. In other words the general Issue 11 (a) being given up, the other issues mentioned above were automatically limited to the specific Acts relating to the specific powers of the Patriarch. The majority Judges have however, certainly gone into these matters Which were then agreed to have been left out, e.g.(a) obligation to obey the patriarch whether canonically installed or not, (b) extant of the right of the Patriarch by himself to decide 'matters of faith and (c) whether the Patriarch has the right to approve of a Catholicos in the sense that such approval was necessary. These matters are not covered in pleadings and no specific issue have been raised and, in the circumstances, should not have been gone into The suggestion is that these points are covered by other issues. It is said that learned Judges held that the new constitution Ex. All amounted to a repudiation of the authority of the Patriarch on the following grounds: (1) Installation of Catholicos ignoring the Patriarch; (2) Absence of a provision for the approval by the Patriarch or Malankara Metropolitan: (3) Ordination of Metropolitan and the issuing of Staticons by the Catholicos, and (4) the right to collect Ressissa. These points are said to be covered by issues 11 (b), (c), (g) and (b), and also by issue 10 (b) 14, 15, and 16. Assuming it is so, it is clear that the leaned Judges also founded themselves on the three points hereinbefore mentioned which do not appear to fail within any of the issues in the case except issue 11 (a) which was given up. To decide against a party an matters which do not come within the issues on which the parties want to trial dearly amounts to an error apparent on the face of the record. It is futile to speculate as to the effect these matters had on the minds of the Judges in comparison with the effect of other points.
(40) THE above discussion in our opinion, is quite sufficient for the purpose of disposing of this appeal .ft It Is not necessary to go into the several other minor points raised before us. In our opinion the appellants have made out a valid ground for allowing their application for review we accordingly allow this appeal, set aside the judgment of the High court and admit the review. As the different points involved appeal are intimately interconnected we direct the entire appeal to be reheard on all points unless both parties accept any of the findings the High court. The costs must follow the event and we order that the appellants must get the costs of this appeal before us and of the application for review before the High court.
(41) WE need hardly add that .the observations that we have made in this judgment are only for the purpose of this application for review and should not be taken or read as observations on the merits of the appeal now restored and to be reheard by High court.
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