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
Conclusion
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.
Comments
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
Versus
Moat Rev.Mar Poulose Athanaslus
Case No. :
193 of 1952
Date of
Decision : 21-May-1952
Advocates
Appeared:
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.
JUDGMENT/ORDER:
JAGANNADHADAS
(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.
