PETITIONER:
MOST. REV.P.M.A. METROPOLITAN & ORS.ETC.
Vs.
RESPONDENT:
MORAN MAR MARTHOMA MATHEWS & ANR.ETC.
DATE OF JUDGMENT20/06/1995
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
JEEVAN REDDY, B.P. (J)
SEN, S.C. (J)
CITATION:
1995 AIR 2001 1995 SCC Supl. (4) 286
JT 1995 (5) 1 1995 SCALE (4)1
ACT:
HEADNOTE:
JUDGMENT:
B.P. JEEVAN REDDY.J.
Leave granted in Special Leave Petitions.
These appeals represent the latest round of litigation
between two rival sections in the Malankara Jacobite Syrian
JUDGEMENT
Christian Community. A brief reference to the earlier rounds
of litigation is necessary for a proper appreciation of the
questions arising herein.
St.Thomas, one of the disciples of Jesus Christ came to
Malabar in 52 A.D. to spread his message. He died in India.
At the Council held at Nicea in 325 A.D. - First
General Council – convened by the Roman Emporer Constantine,
four Patriarchates were established spanning the Christendom
as it was known then, viz., Rome, Constantinople, Alexandria
and Antioch, each headed by a Patriarch. Within the
jurisdiction of Patriarch of Antioch was established another
office, viz., the great Metropolitan of the East, also known
as “Catholicos”. The office of Catholicate fell into disuse
later and was revived in 628 A.D. Sometime later, it again
fell into disuse. All these are matters of faith and are
stated merely by way of introduction.
By the 16th century, Christianity had gained a fairly
substantial foothold in the area now comprised in Kerala.
The dominant faith was of the Syrian Orthodox Church. 16th
century saw the rise of Portugese political power on the
west Coast of India. The Portugese were Roman Catholics.
They compelled the local christians to accept Roman Catholic
faith. They succeeded to some extent but not for long. In
the year 1654, the Christians of Malabar rebelled against
the imposition of an alien faith and affirmed their loyalty
to Syrian Orthodox Church headed by the Patriarch by taking
an oath en masse at Mattancherry, known as the “Koonan Cross
Oath”. Since then the Patriarch of Antioch was exercising
ecclesiastical supremacy over what may be called the
“Malankara Syrian Christian Church”. With the rise of the
British power in the Southern India during the 19th century,
they in turn pressurised the Malankara Syrian Christian
Community to embrace the Protestant faith. They too
succeeded in some measure. Disputes arose between the two
groups (one that embraced the Protestant faith and the other
adhering to the Orthodox faith), which was settled by an
award called “Cochin Award” rendered on April 4, 1840. As
per this award, the Church properties were divided between
the Church Mission Society (Protestants) and the Malankara
Jacobite Syrian Church (Orthodox faith). The amount of 3,000
Star Pagodas deposited by Mar Thoma VI (Dionysius the
Great) with the East Indian Company at eight percent
interest came to be allotted to Malankara Jacobite Syrian
Church in this division.
On account of certain disputes and bickerings between
the members of Malankara Jacobite Syrian Church, Patriarch
Peter III of Antioch came to Malabar in 1876. He called a
meeting of the accredited representatives of all Churches in
Malabar which is known as the “Mulanthuruthy Synod”. At
this Synod, Malankara Syrian Christian Association,
popularly called the “Malankara Association”, was formed to
manage the affairs of the Church and the Community. The
Malankara Metropolitan was made the ex-officio President of
this Association. Each member Church was to send three
representatives to the Association. A Managing Committee of
twenty four, called the “Standing working Committee of the
Association” was also constituted. Until 1876, the entire
Malabar was comprised in one Diocese. But thereafter it was
divided into seven Dioceses, each Diocese headed by a
Metropolitan. One of them was to be designated as Malankara
Metropolitan who exercised spiritual and temporal powers
over all the Dioceses.
SEMINARY SUIT:
On July 4, 1879 Mar Joseph Dionysius claiming to be the
properly consecrated Metropolitan of Malankara Jacobite
Syrian Church and as the President of Malankara Association
filed O.S.No.439 of 1054 in the Zilla Court of Alleppey
against one Mar Thomas Athanasius. The main dispute between
them was while the plaintiff asserted the supremacy of
Patriarch comprised in consecrating and appointing
Metropolitans from time to time to govern and rule over the
Malankara Edavagai, in sending Morone (the sanctified oil)
for baptismal purposes, in receiving the Ressissa (tribute)
from the Community to maintain his dignity and in generally
controlling the ecclesiastical and temporal affairs of the
Edavagai, the defendants denied any such Patriarchal
supremacy. The suit was ultimately disposed of by the
judgement of Travancore Royal Court of Final Appeal in the
year 1889. The Royal Court found that the ecclesiastical
supremacy of the Patriarch of Antioch over Malankara Syrian
Christian Church in Travancore had all along been recognised
and acknowledged by Jacobite Syrian Christian Community and
their Metropolitans; that the exercise of supreme power
consisted in ordaining, either directly or through a duly
authorised delegates, Metropolitans from time to time to
manage the spiritual matters of the local Church, in sending
Morone to be used in the Churches for baptismal and other
purposes and in general supervision over the spiritual
government of the Church. The Royal Court further ruled
that the authority of Patriarch never extended to temporal
affairs of the Church which in that behalf was an
independent Church. It was further declared that the
Metropolitan of the Syrian Christian Church in Travancore
should be a native of Malabar consecrated by the Patriarch
or by his duly authorised delegate and accepted by the
people as their Metropolitan. The Court found that the
plaintiff was so consecrated by Patriarch and accepted by
the majority of the people and, therefore, entitled to be
recognised and declared as the Malankara Metropolitan and as
the trustee of the Church properties.
ARTHAT SUIT:
It appears that the Patriarch of Antioch did not relish
the judgment of the Royal Court of Travancore insofar as it
declared that he had no control over the temporal affairs of
the Malankara Church. Some local Christians supported him
in that behalf which led to the institution of a suit in
1877 which resulted in the judgment of the Court of Appeal
of Cochin dated August 15, 1905, re-affirming the findings
of the Travancore Royal Court. The Cochin Court of Appeal
declared that while the Patriarch of Antioch is the
spiritual head of Malankara Syrian Jacobite Christian
Church, the Churches and their properties are subject to the
spiritual, temporal and ecclesiastical jurisdiction of the
Malankara Metropolitan. In other words, the Patriarch’s
claim of control over the temporal affairs of the Malankara
Church was negatived once again.
THE REVIVAL OF CATHOLICATE IN 1912:
The Sultan of Turkey withdrew the recognition given to
Abdul Messiah as the Patriarch of Antioch and recognised
Abdulla II as the Patriarch. There is a difference of
opinion as to the effect of this withdrawal of recognition
by the Sultan. While one view is that this recognition
resulted in Abdul Messiah ceasing to exercise any and all
the powers of Patriarch, the other view is that the said
withdrawal did not affect the spiritual authority of Abdul
Messiah. Be that as it may, there were now two rival
claimants to the Patriarchate of Antioch and as we shall
presently indicate it is this dispute between Abdul Messiah
and Abdulla II which led to the formation of two groups in
the Malankara Church.
In the year 1907, Mar Geevarghese Dionysius was
ordained as Metropolitan by the Patriarch Abdulla II at
Jerusalam. In 1909, Mar Geevarghese Dionysius became the
Malankara Metropolitan on the death of Mar Joseph Dionysius.
Because of certain differences arising between Mar
Geevarghese Dionysius and Abdulla II, the latter ex-
communicated the former on March 31, 1911. A few months
later, Abdulla II appointed one Paulose Mar Kurilos as the
Malankara Metropolitan. Mar Geevarghese Dionysius responded
by convening a meeting of the Malankara Syrian Christian
Jacobite Church which declared his excommunication as
invalid. In the year 1912, Patriarch Abdul Messiah came to
Malankara and declared the excommunication of Mar
Geevarghese Dionysius by Abdulla II as invalid. In addition
to that, Abdul Messiah also purported to revive and
reestablish the Catholicate by consecrating one Mar Ivanios
as the Catholicos. It is relevant to notice the roceedings
relating to the revival of Catholicate.
Two documents are put forward as the Kalpana of Abdul
Messiah reviving the Catholicate, namely, Exs.A.13 and A.14.
The Patriarch group (who are the appellants before us)
dispute Ex.A.13. They say that Ex.A.14 is the only version
while Catholicos group (who are respondents before us) say
that Ex.A.14 was preceded by Ex.A.13 and that without
Ex.A.13 there could not have been Ex.A.14. We may notice
the contents of both the documents. Ex.A.13 which is dated
September 17, 1912, says inter alia, “by virtue of the order
of the office of the Shephard, entrusted to Simon Peter by
our Lord Jesus Messiah, we are prompted to perpetuate for
you Catholicos or Mapriyana to serve all spiritual
requirements that are necessary for the conduct of the order
of the holy true Church in accordance with its faith
……With Geevarghese Mar Dionysius Metropolitan, who is
the head of the Metropolitans in Malankara and with other
Metropolitans, Ascetics, Deacons and a large number of
faithfuls, we have ordained in person our spiritually
beloved Evanios in the name of Baselius as Mapriyana, i.e.,
as the Catholicos on the Throne of St.Thomas in the East,
i.e., in India and other places at the St.Mary’s Church,
Niranam on Sunday, 2nd Kanni, 1912 A.D. as per your request”
(emphasis added). A.13 then sets out the authority and the
jurisdiction of Catholicos so revived in the following
words:
“The authority to serve all spiritual
elements in public, which are
necessary for protecting the tradition
of the Holy Church has been given to
him (Evanios) by the Holy Ghost as was
given to the Holy Apostles by our Lord
Jesus Messiah. Authority means
the authority to ordain
Metropolitans, Episcopas, and to
consecrate Holy Morone and to serve all
the other spiritual items and
also to administer the Kandanadu
Diocese as he was earlier ……You must
respect and love him properly and
suitably because he is your head,
Shepherd and spiritual father. He
who respects him, respects us. He
who receives him, receives us. Those
who do not accept his right words and
those who standing against his opinions
which are in accordance with the Canon
of the Church, defy him and quarrel with
him, will become guilty……”.
Coming to Ex.A.14, which is dated February 19, 1913,
the third paragraph starts by saying “After bestowing on you
our blessings a second time, we desire to make known to you
our true affection that ever since your letters reached our
weakness in midiat, we have been deeply grieved at the
dissensions sown by Abdulla Effendi among our spiritual
children in all our Churches in Malabar”. A little later
A.14 says:
“Accordingly, we, by the Grace of God,
in response to your request, ordained a
Maphrian, that is, Catholicos by name
Poulose Basselios and three new
Metropolitans, the first being
Gheevarghese Gregorius, the second
Joachim Evanios and the third,
Gheevarghese Philexinos. It appears to
us that, unless we do instal a
Catholicos, our Church, owing to
various causes, is not likely to
stand firm, in purity and holiness.
And, now, we do realise that by the
might of our Lord, it will endure unto
Eternity, in purity and holiness, and
more than in times past, be confirmed in
the loving bond of communion with the
Throne of Antioch. The Joy of our Heart
is herein realised. Our children, abide
ye now in peace. As for ourselves, we
leave you. Rest assured that though we
leave you, we shall never be unmindful
of you. We shall incessantly lift up
our eyes unto heaven and offer our
prayers and intercessions for the
guileless lambs, redeemed by the
previous blood of our Saviour Jesus
Christ. Pray ye for us, and for our
entire community. Abide ye in love,
peace and concord. Pray ye for your
enemies, and, for those that revile you
without cause. Be not afraid of the
uncanonical and unjustifiable
interdicts and curses of the usurper.
Heed not those who create dissensions.
God will reward them for their action,
be they good or bad. We commend you
into the hands of Jesus Christ, our
Lord, the Great Shepherd of the flock.
May he keep you. We rest confident
that the Catholicos and
Metropolitans = your shepherds = will
fulfil all your wants. The
Catholicos, aided by the Metropolitans,
will ordain melpattakkars, in
accordance with the Canons of our
Holy fathers and consecrate Holy
Morone. In your Metropolitans is vested
the sanction and authority to instal
a Catholicos, when a Catholicos died.
No one can resist you in the exercise
of this right and, do all things
properly, and in conformity with
precedents with the advice of the
committee, presided over by Dionysius,
Metropolitan of Malankara. We beseech
your love, and counsel you in the
name of our Lord Jesus that Ye faint
not in your true faith of Saint
Peter, on which is built, the Holy
Catholic and Apostolic Church. What we
enjoin your true love is that the
unlawful conduct of a usurper, may not
induce you to sever that communion which
is the bond of love connecting you with
the Apostolic Throne of Antioch.”
(Emphasis added)
The main difference between Ex.A.13 and Ex.A.14 is two
fold: Firstly, A.13 speaks of “Catholicos on the Throne of
St.Thomas in the East”, which words are not to be found in
A.14. Secondly, A.14 contains the following words: “in your
Metropolitans is vested the sanction and authority to
install a catholicos, when a catholicos dies. No one can
resist you in the exercise of this right and do all things
properly, and in conformity with precedents with the advice
of the committee, presided over by Dionysius, Metropolitan
of Malankara”, which are not found in Ex.A.13. More about
these documents later.
Mar Ivanios, who was consecrated as the Catholicos,
died on April 16, 1913. Abdul Messiah died on August 30,
1915 and Abdulla II died on November 25, 1915. No one was
installed as the Catholicos till 1925, when one Mar
Geevarghese Philixinos of Vakathanam was installed as the
second Catholicos but without reference to the Patriarch. On
the death of Mar Philixinos on December 17, 1928,
Geevarghese Gregorius was installed as the third Catholicos,
again without reference to the Patriarch.
VATTIPANAM SUIT:
Dispute arose as to the persons entitled to the
interest on 3,000 Star Pagodas aforementioned. In view of
the dispute, the Secretary of State for India instituted an
interpleader Suit No.O.S.94 of 1088 in the District Court,
Trivandrum. It was later converted into a representative
suit between two groups, viz., defendants 1 to 3
representing what may be called the Catholicos group (i.e.,
the group owing allegiance to the Catholicos installed by
Patriarch Abdul Messiah) and defendants 4 to 6 representing
what may be called the Patriarch group (i.e., the group
owing allegiance only to the Patriarch). The first defendant
claimed to have been appointed as Malankara Metropolitan by
Abdul Messiah and disputed the validity of the Bull of
excommunication issued by Abdulla II. On the other hand,
defendants 4 to 6 claimed that the first defendant having
been ex-communicated by the Patriarch Abdulla II, ceased to
be the Malankara Metropolitan and that the fourth defendant
has been validly appointed by Abdulla II as the Malankara
Metropolitan in the place of the first defendant. Defendants
4 to 6 further contended that by their conduct and
declarations, defendants 1 to 3 have become schismatics and
hence disqualified to act as the trustees of the Church
properties. The fourth defendant died pending the suit and
in his place defendant No.42 was impleaded as the Malankara
Metropolitan. The learned District Judge held inter alia
that the first defendant is the validly appointed Malankara
Metropolitan, having been accepted by the community at the
installation meeting held in the year 1084. He also held
that the withdrawal of recognition by the Sultan of Turkey
did not deprive Abdul Messiah of his purely spiritual
functions and powers and that the ex-communication of the
first defendant by Abdulla II was invalid. With these
findings, the learned District Judge upheld the claim of
defendants 1 to 3 to the interest amount.
The Patriarch group filed an appeal before the High
Court of Travancore (reported in 41 T.L.R.1). A Full Bench
of the High Court allowed the appeal and reversed the
judgment and decree of the Trial Court and upheld the claim
of defendants 4 to 6 as the true and valid trustees entitled
to the said interest amount. The findings recorded by the
High Court are:
“(a) That Exhibit 18, and not Exhibit A,
is the version of the Canon Law that
has been recognised and accepted by the
Malankara Jacobite Syrian Christian
Church as binding on it;
(b) That under Ex.18, the Patriarch of
Antioch possessed the power of
ordaining and excommunicating
Episcopas and Metropolitans by himself,
i.e., in his own right and that it is
not necessary for him to convence a
Synod of Bishops and proceed by way of
Synodical action, in order to enable him
to exercise these powers; the person
ordained should, of course, be a
native of Malabar and be acc epted
by the people;
(c) That there is nothing in the
Mulanthuruthy Resolutions, Exhibit EL,
which limits the powers possessed
by the Patriarch under the Canon Law
in matters of spiritual character, or
which imposes restrictions on him in
regard to the exercise of such powers;
and
(d) That no special forms of
procedure are prescribed by Exhibit 18
for observance by Patriarch before he
exercises his powers of
excommunication.”
Thereupon defendants 1 to 3 applied for review of the said
judgment. The review petition was admitted subject to the
condition that the reciew petitioners shall not question the
following three findings recorded in the judgment under
review – the three findings being:
“(1) as to the authenticity of Ex.A.18,
the version of Canon Law produced by
defendants 5, 6 and 42.
(2) as to the power of Patriarch to
ex-communicate without the intervention
of the Synod; and
(3) as to the absence of an indirect
motive on the part of the Patriarch
which induced him to exercise his power
of ex-communication.”
Accordingly, the appeal was re-heard by another Full Bench
which by its judgment pronounced on July 4, 1928 upheld the
decision of the learned District Judge and confirmed his
decree. Under this judgment, the Full Bench held:
“(i) The excommunication of Mar
Geevarghese Dionysius (the first
defendant) was invalid because of the
breach of the rules of natural justice
in that he was not apprised of the
charges against him and had not been
given a reasonable opportunity to
defend himself. In other words, he
remains the Malankara Metropolitan;
(ii) That defendants 1 to 3 had not
become heretics or aliens or had not
set up a new Church by accepting the
establishment of the Catholicate by
Abdul Messiah with power to the
Catholicos for the time being to ordain
Metropolitans and to consecrate Morone
and thereby reducing the power of the
Patriarch over the Malankara Church
to a vanishing point;
(iii) That the defendants 4 to 6 had
not been validly elected.”
It is interesting to notice that in this suit while the
Patriarch group was contending that members of the
Catholicos group have become aliens to the faith by
repudiating the supremacy of Patriarch (by recognising the
authority and the power of the Catholicos), the Catholicate
group contended that they have not repudiated the Patriarch
and that by recognising the Catholicos, they have in no
manner denied the ecclesiastical superiority of the
Patriarch. It is equally relevant to note that the
excommunication which was in question there was the
excommunication of the Malankara Metropolitan and not of the
Catholicos. The question whether the Patriarch has the power
to excommunicate the Catholicos and if so in what manner and
on what grounds was not in question in that suit. Another
feature to be noted is that it was the Patriarch group which
was saying that by espousing the cause of and the revival of
Catholicos, defendants 1 to 3 therein had in effect reduced
the power of the Patriarch over the Malankara Church to a
vanishing point - which in their view amounted to
repudiation of the power and authority of the Patriarch -
while the Catholicos group was denying that they have done
any such thing or that they had any intention to do so. The
excommunication of first defendant (Mar Geevarghese
Dionysius, Malankara Metropolitan) was held invalid not on
the ground of lack of power in the Patriarch but on the
fround that he did not follow the principles of natural
justice in excommunicating him. Once the excommunication of
first defendant was held to be invalid, it followed
logically that the appointment of defendant No.4 as
Malankara Metropolitan was invalid. Yet another noticeable
feature of this judgment is the following finding recorded
by the Court:
“The whole matter resolves itself
into a personal dispute between two
claimants to the Patriarchate in which
it is said, the first defendant
deserted the Patriarch who had created
him Metropolitan and supported his
rival. Such conduct might amount to an
ecclesiastical offence for which the
offender could be deprived by his
ecclesiastical superior but it could
not be an offence for which the civil
courts could try him or express any
opinion as to his guilt…. 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.”
DEVELOPMENTS SUBSEQUENT TO THE FINAL DISPOSAL OF THE
VATTIPANAM SUIT:
After the aforesaid judgment, it appears, both the
parties tried to strengthen their respective positions. On
August 16, 1928 the Managing Committee of the Malankara
Association was formed which was authorised to draw a
constitution for the Church and the Association. On the very
next day, i.e., August 17, 1928, Mar Julius Elias, the
delegate of the Patriarch who was then in Malabar, issued an
order calling upon Mar Geevarghese Dionysius to execute an
Udampadi (submission deed) within two days accepting the
authority of the Patriarch and also suspending him for
having committed several grave offences against the Holy
Throne of Antioch and for having repudiated the authority of
the ruling Patriarch. He addressed letters to the
Governments of Travancore and Madras to withhold payment of
interest to Mar Geevarghese Dionysius in view of his
suspension from the office of Malankara Metropolitan.
On August 21, 1928, O.S.2 of 1104 was filed in the
District Court of Kottayam by eighteen persons belonging to
Patriarch group against Mar Geevarghese Dionysius and two
others including the then Catholicos Mar Geevarghese
Philixinos. Mar Geevarghese Philixinos died in 1929.
Thereupon Moran Mar Basselios was impleaded as a defendant.
On January 23, 1931, O.S.2 of 1104 was dismissed for non-
compliance with certain orders regarding payment of monies
to the Commissioner appointed in the suit. The application
for restoration of the suit was dismissed on September 29,
1931, against which order the plaintiffs therein filed Civil
Misc. Appeal No.74 of 1107 in the High Court. While the
aforesaid C.M.A. was pending in the High Court, certain
developments took place which require to be noticed.
With a view to put an end to the disputes between the
two rival groups in the Malankara Church, Patriarch Elias I
visited Malabar in 1931 at the instance of Lord Irwin, the
then Viceroy of India. Patriarch Elias I, however, died in
Malabar before he could effect any settlement. In his place,
one Ephraim was elected as the Patriarch of Antioch in the
year 1933, but, it is said, without notice to the Malabar
Community. For this reason, Mar Geevarghese Dionysius and
his supporters did not recognise Ephraim as the duly elected
Patriarch.
Mar Geevarghese Dionysius died in February, 1934 with
result the trust properties passed into the possession of
his co-trustees, Mani Poulose Kathanar and E.J.Joseph.
Shortly thereafter, the draft constitution prepared by the
Managing Committee of the Malankara Association was
published in the shpae of a pamphlet. On December 3, 1934
notices were issued convening a meeting of all the Churches
to be held on December 26, 1934 at M.D. Seminary at Kottayam
for, inter alia, electing the Malankara Metropolitan and
adopting the draft constitution. Notices were also published
in two leading Malayalam newspapers. The meeting was held on
the appointed day (the proceedings whereof were exhibited as
Ex.64 in Samudayam suit), at which, thethird Catholicos, Mar
Basselios Geevarghese II was elected as Malankara
Metropolitan. The draft constitution was also adopted at the
said meeting.
THE CONSTITUTION ADOPTED BY THE MALANKARA ASSOCIATION
HELD ON DECEMBER 26, 1934:
The Constitution which was adopted on December 26, 1934
provides for various aspects concerning the Malankara Church
and the Malankara Association. The relevant Articles, as
originally approved in 1934, read thus:
“(1) Malankara Church is a division of
Orthodox Syrian Church. Primate of the
Orthodox Syrian Church is Patriarch.
(2) Malankara Church was founded by
St. Thomas, the apostle and supremacy
in the Orthodox Syrian Church of the
East and the Primate of the Orthodox
Syrian Church is with the Catholicos.
(5) The approved canon of this church
is Hudaya Canon written by Bar Hebreus
(the same canon book as one printed in
Paris in 1898).
(90) The throne of the Catholicos was
re-established in the Orthodox Syrian
Church of the East which includes
Malankara church in 1088 M.E. (1913)
and this institution has been
funtioning ever since then in the
Orthodox Syrian Church of the East.
(91) Catholicos shall have the right
to Visit all churches in Malankara
and that the expenses of such visits
shall be borne by the respective parish
churches.
(92) Malankara church shall recognise
the Patriarch consecrated in co-
operation with the episcopal Synod
of which the Catholicos is the President
and in accordance with the canons.
(93) Whenever Catholicos is to be
consecrated, if there be Patriarch
recognised as stated above, the
Patriarch should be invited for the
consecration and if the Patriarch
arrives, he shall as President of
the Synod consecrate Catholicos with
the co-operation of the Synod.
(101) No one shall have right to alter
the faith of the Sabha. In case there
is any dispute regarding matters of
faith, episcopal synod is vested with
power to decide the dispute.”
(Emphasis added)
The constitution was amended in 1951 and again in 1967.
When the 1951 amendments were made, the judgement of the
Travancore High Court dated August 8, 1946 was holding the
field whereunder the Catholicos group were declared as
strangers to the Malankara Church. For that reason, it
appears, none of the members of the Patriarch group
participated in effecting the said amendments.
SAMUDAYAM SUIT:
On July 5, 1935 the Metropolitans of the Patriarchal
party issued notice summoning a meeting of the church
representatives for August 22, 1935 at Karingasserai to
elect the Malankara Metropolitan. The notice stated that
none of the persons belonging to Catholicos party should be
elected. The meeting was accordingly held on August 22, 1935
whereat Mar Poulose Athanasius was elected as the Malankara
Metropolitan. The meeting purported to remove the trustees
elected at the Meeting held on December 26, 1934 (i.e., Mani
Poulose Kathanar and E.J. Joseph, belonging to Catholicos
group) and appointed two other persons in their place.
Having done this, the Patriarch group (plaintiffs appellants
in C.M.A. 74 of 1107 pending in the High Court) allowed the
appeal to be dismissed for non-prosecution.
The Patriarch group then instituted, on March 10, 1938,
O.S.111 of 1113 in the District Court of Kottayam
(hereinafter referred to as ‘the samudayam Suit’) for a
declaration of their title as trustees of the Samudam
properties (common properties) of the Malankara Church and
for a further declaration that the defendants to that suit
(belonging to Catholicos group) were not lawful trustees and
for possession of the trust properties. Certain ancillary
reliefs were also asked for. The plaintiffs in the said suit
based their title on the proceedings of the Karingasserai
meeting aforesaid, whereat the plaintiffs therein were
elected as Malankara Metropolitan and co-trustees and the
trustees belonging to Catholicos group (defendants to the
suit) were removed. The suit was dismissed by the Trial
Court on January 18, 1943, against which the plaintiffs
therein preferred an appeal to the Travancore High Court
being A.S.I of 1119. On August 8, 1946 the appeal was
allowed and the suit decreed by a majority of Judges (2:1).
The defendants (Catholicos group) thereupon applied for
review which was rejected. The matter was carried to this
Court in Civil Appeal No.193 of 1952 which was allowed on
May 21,1954. This court directed the High Court to re-hear
A.S.I of 1119 on all the points. Accordingly, the High Court
took up the appeal for hearing and allowed the same by its
judgement dated December 13,1956. The suit was decreed
accordingly. On a certificate being granted by the High
Court, the defendants (catholicos group) filed an appeal in
this Court which was allowed on September 12, 1958 (reported
in A.I.R.1959 S.C.31). It is necessary to notice the
relevant findings recorded by this Court:
“(1) The main plea of the
plaintiffs that the defendants had
become heretics or aliens or had gone
out of church by establishing a new
Church because of the specific acts and
conduct imputed to them is
unacceptable for the reason that the
said issue is concluded by the judgement
of the High Court of Travancore in
O.S.94 of 1088 (vattipanam suit). The
charges which were sought to be relied
upon as fresh cause of action in the
suit (Samudayam Suit) are not covered
by the pleadings or the issues on which
the parties went to trial. Some of
them are pure after-thoughts and
cannot therefore be permitted to be
raised. The said charges, or at any
rate most of them, ought to have been
and should have been put forward in the
vattipanam suit and the plaintiffs
having not done that, cannot now
put them forward. They are barred by
the rule of res judicata from doing so.
It must therefore be held that it is
no longer open to the plaintiffs to re-
agitate the contention that the first
defendant in the said suit had ipso
facto become heretic or alien or
had gone out of Church and in
consequence has lost his status as a
member of the Church or his office as a
trustee.
(2) The M.D. Seminary meeting held on
26.12.1934 at kottayam was a properly
held meeting and the first defendant in
the said suit was validly appointed
as the Malankara Metropolitan and as
such became the ex-officio trustee of
the church properties.
(3) The Karingasserai meeting cannot
be held to be a properly held meeting
of the Malankara Association and
therefore the proceedings of the
said meeting and the decisions taken
therein are not valid.
(4) Since the plaintiffs have failed to
prove that they are validly elected
trustees, their suit for ejectment must
fail for want of title as trustees.”
DEVELOPMENTS SUBSEQUENT TO THE JUDGEMENT OF THIS COURT
IN MORAN MAR BASSELIOS CATHOLICOS & ORS. V. THUKALAN PAULO
AVIRA & ORS. (A.I.R. 1959 S.C.31):
Even while the aforesaid appeal was pending in this
Court, the then Patriarch expressed a desire through his
Kalpana dated November 30, 1957 (Ex.B.197) to settle
outstanding disputes in the Malankara Church. He stated in
the Kalpana that he was deeply interested in joining those
who were divided and in strengthening the spiritual bond
between Malankara and Antioch and that he was opening his
heart for peace and unity. It appears that this desire of
the Patriarch was reciprocated by the Catholicos group. The
judgement of this Court delivered on 12th September, 1958
affirming that the Malankara Church remained a single
unified church and rejecting the contention that the
defendants in the said suit (Samudayam Suit) had become
heretics and had established a separate Church away from the
Jacobite Syrian Church appears to have given an impetus to
the drive towards unity between the two groups.
On December 9, 1958, the Patriarch issued a Kalpana
dated December 9, 1958 (Ex.A.19) stating inter alia:
“It is no secret that the disputes and
dissensions that arose in the Malankara
Church prevailing for a period of 50
years have in several ways weakened
and deteriorated it. Although right
from the beginning several persons who
loved the Church and devout of God
desired peace and unity putting an end
to the dissension, they departed in
sorrow without seeing the fulfilment of
their desire. We also were longing for
peace in the Malankara Church and the
unity of the organs of the one body of
the Church. We have expressed this
desire of ours very clearly in the
apostolic proclamation (reference is to
the proclamation dated November 11,
1957) we issued to you soon after our
ascension on the Throne. This desire
of ours gained strength with all vigour
day by day without in any way
slackened and the Lord God has been
pleased to end the dissension through
us. Glory be to him. To bring forth the
peace in the Malankara Church we hereby
accept with pleasure Mar Baselious
Gheevarghese as Catholicose.
Therefore we send our hearty
greetings ……..”.
(Emphasis added)
It is significant to mention here that this Kalpana
Ex.A.19 was issued by Patriarch Yakub, who was in India
during the conduct of Samudayam suit/appeal, attending to
the said litigation on behalf of the Patriarch party. He
became the Patriarch sometime earlier to his Kalpana dated
November 30, 1957.
On December 16, 1958 the Catholicos responded by
issuing his Kalpana (Ex.A.20) wherein he described himself
as “meek Baselious Catholicos named as Geevarghese II seated
on the Throne of the East of Apostle St.Thomas”. Having
expressed his grief at the dessensions in the Malankara
Church and his happiness at the end of discord, the
Catholicos stated “we, for the sake of peace, in the Church,
are pleased to accept Moran MAr Ignatius Yakub III as
Patriarch of Antioch subject to the constitution passed by
the Malankara Syrian Christian Association and now in
force”. (Emphasis added). The Catholicos futher stated in
the said Kalpana, “we have also pleasure to accept the
Metropolitans under him (Patriarch) in Malankara subject to
the provisions of the said constitution……”.
On December 22,1958 the three Metropolitans appointed
by Patriarch during the pendency of the Samudayam
suit/appeal sent submission deeds Ex.A.37 and Ex.A.154 to
the Catholicos. Under these letters of submission, the
Metropolitans expressed their joy at the restoration of
peace and unity in the Malankara Church and promised to
perform their functions under the Catholicos and to follow
the canons, the constitution in force and the orders to be
issued by the Catholicos. We may quote the last sentence in
Ex.A.37 written by Poulose Philixinos, Metropolitan of
Kandanad Diocese, (who has indeed been appointed later as
Catholicos by the Patriarch). It reads: “I hereby inform
that I shall act always in accordance with the directions
issued by you from time to time and also in accordance with
the canons of the Church and the constitution now in force.”
On December 26, 1958 a meeting of the Malankara
Association was held. Ex.A.43(a) is the copy of the minutes
of the said meeting. It shows that the meeting was attended
by Bishops, Clergy and laity of both the groups and was
presided over by the Catholicos. This meeting was held after
due notice intimating all concerned that new trustees of the
Malankara Association would be elected at the said
meeting.The Patriarch’s delegate, who was then in India,
also attended the meeting by special invitation. At this
meeting, new trustees were elected. Ex.A.44, the newspaper
report, contains a group photograph of the Metropolitans of
both the groups and the delegate of Patriarch. A meeting of
the Bishops of both the groups was held on January 12, 1959.
Ex.A.153 is a copy of the minutes of the meeting.It was
attended by six Metropolitans of Catholicos group and three
Metropolitans of Patriarch group.The meeting resolved to
unite various rival organisations, youth leagues, students’
organisations and womens’organisations under one
Association. Committees were formed to devise ways and means
of unification. It was decided to implement the Constitution
of Malankara Association wherever it was not implemented and
to appoint a committee to study the particulars and report
at the next meeting. It was also decided to re-allot the
dioceses since the total number of Metropolitans of both the
groups put together exceeded the number of dioceses.
Accordingly, at the Synod meeting held on February 21, 1959
[Ex.A.153(a)] attended by all the Metropolitans, re-
allotment of dioceses was made. It was decided to send the
copies of the Constitution to all the Parishioners with a
direction to obey the same. Under the re-allotment of the
dioceses, three dioceses were allotted to Metropolitans
belonging to Patriarch group. The Catholicos issued the
Kalpana dated February 25, 1959 (Ex.A.38) affirming the
allotment of Dioceses as per Ex.A.153(a). Ex.A.36 is a
memorandum submitted by thirty persons of Patriarch group
(including D.W.2 in the present suit) on January 12, 1959 to
the Catholicos requesting him to inform the community about
the Constitution of Malankara. In this memorandum, they
requested that fresh elections should be held to the
Managing Committee and that the Managing Committee should
have members representing both the groups. This document
inter alia refers to the peace and unity brought about in
Malankara Church on December 16, 1958, complaining at the
same time that complete unity has not been achieved as yet.
While the above developments were taking place here,
the Patriarch addressed a letter dated April 8, 1959
(Ex.A.23) to the Catholicos, the purport of which is: I have
received your two letters. I could not reply soon on account
of some inevitable reasons. In your letter you have stated
that you accepted me in accordance with the terms of
Constitution. But you have not made it clear what is the
substance of the terms. The developments in Malankara are
contrary to my expectations. Your use of the expression
‘holiness’ with your name is not right. This expression can
be used only by the Patriarchs. Your assertion that you are
sitting at the Throne of St.Thomas is unacceptable. No one
has ever heard of St.Thomas establishing a Throne. Similarly
your assumption that yours is the Church of the East and
that you are Catholicos of the East is equally untrue and
unwarranted. I have learnt from the newspapers that a new
arrangement has been made in respect of dioceses in
Malankara. Before effecting the said arrangement, it was
necessary to decide the limits of the relationship between
Malankara Church and Patriarchate. The new arrangement of
dioceses could have been made only thereafter and that too
with my knowledge. You also seem to have assumed the
management of Simhasana Churches which are directly under my
rule. Without my authority you could not have assumed the
administration of the said churches.
On June 8, 1959, the Catholicos replied to the
Patriarch (Ex.A.24). In this letter, the Catholicos stated
that the letters Ex.A.19 and A.20 were exchanged by him and
the representative of the Patriarch, Mar Julius Elias,
Metropolitan, on 16th December at the old Seminary before an
august gathering consisting of Bishops, Priests and laymen
of both the parties. Before the said exchange, there were
negotiations between the two parties in which it was made
clear that the acceptance of Patriarch shall be subject to
the Constitution. It was only after the acceptance of the
same by the Patriarch’s representative, Mar Julius Elias,
that the letters, A.19 and A.20 were exchanged. Protesting
against the same after four or five months is not justified.
With respect to the use of the expression ‘holiness’, the
Catholicos justified the same saying that it can be used by
the Catholicos also and is not confined to Patriarchs only.
Regarding the claim of the Throne of St.Thomas, the
Catholicos stated in this letter that this expression is
used not only by Patriarchs but also by Metropolitans and
Bishops alike, as is evident from the Hudaya Canon and other
books. As a matter of fact, no apostle had ever established
a Throne anywhere. It is only a honorific. Indeed, Ex.A.13
and A.14 reviving the Catholicate refer to the Throne of
St.Thomas in India. Therefore, the Throne of St.Thomas is
not a new thing. Similarly, the Church of the East and
Catholicos of East are well established entities. The
judgment of the Supreme Court affirms the Constitution and
it is binding upon every one. For these reasons, there can
be no ground or reason for entertaining any apprehensions by
the Patriarch.
On July 16, 1960, the Patriarch again wrote to the
Catholicos reiterating his objections. In this letter, the
Patriarch asserted that the provisions of the said
Constitution “seem to be destructive of every principle of
apostolic and episcopal Churches. So we could not approve
your constitution”. The letter concluded by saying, “it is
reported to us that our people there and the churches
remained divided mainly on the scope of your acceptance and
the validity of the constitution which you hold more sacred
than the holy scriptures, the canons of the church and its
traditions. In the circumstances we have no alternative but
to recognise those people and churches who hold fast to the
original principles of the foundation of their church.” The
letter called upon the Catholicos to clarify his position
immediately within a month failing which it would be taken
that the Catholicos has nothing to reply and he could take
such further steps as are deemed necessary for the peace of
the church and preservation of its faith, order and
discipline as a holy and apostolic church.
On August 13, 1960, the Catholicos replied to Patriarch
in which he reiterated that when the Samudayam suit was
pending in the Courts, the Patriarch himself was in India
(at that time, he was not the Patriarch) as the
representative of the Patriarch and prosecuting the said
suit. He appeared as a witness, produced several documents
and was aware of all the developments including the
enactment of the Constitution and its acceptance by the
Supreme Court. With reference to the Patriarch’s proposal to
accept only his followers as members of the true faith, the
Catholicos expressed a doubt whether a Patriarch can
continue as such once he recognises schismatics into the
fold. He closed the letter by saying that he expected full
cooperation from and recognition of the Constitution by the
Patriarch.
The correspondence went on like this with the language
and accusations in each letter becoming more and more shrill
with each exchange.
With the above correspondence was going on, following
developments took place in Malankara: On September 16, 1959
a meeting of the Malankara Association was held wherein
members of both the groups participated [Ex.A.43(a) is the
minutes of the meeting]. The strength of the Managing
Committee was fixed at ninety, of which seventy four were to
be elected and sixteen to be nominated by Malankara
Metropolitan. Several other decisions were taken. Ex.A.98
shows that the elected members of the Managing Committee
took oath to abide by the Constitution. Pursuant to the
decision of the Managing Committee of the Malankara
Association, Catholicos invited the Patriarch to come to
Malankara. The Patriarch, however, replied on October 27,
1961 [Ex.A.31(a)] that a canonical invitation should be
issued which will be placed before the Patriarchal Synod.
Accordingly, a canonical invitation Ex.A.32 was sent on
January 18, 1962. Since the then Catholicos had become very
old, a meeting of the Malankara Association was held on May
12, 1962 for electing his successor. It elected Ougen Mar
Timothious, which was approved by the Synod on June 21,
1963. This was conveyed to Patriarch. On January 13, 1964, a
letter of invitation was sent by Malankara Episcopal Synod
inviting Patriarch to come to India for the installation of
the new Catholicos. This letter Ex.A.35 was signed by nine
Metropolitans belonging to both the groups. The plaintiffs-
respondents say that this invitation was sent as
contemplated by Article 114 of their Constitution. Ex.A.41
is the Kalpana dated April 29, 1964 issued by three
Metropolitans (including one of the Patriarch group)
regarding the proposed installation of Catholicos. The
Patriarch arrived in India and the new Catholicos was
installed by him on May 22, 1964. A day before the
installation of new Catholicos, it may be mentioned, there
was a discussion with respect to the demarcation of
jurisdiction of Catholicos pursuant to which the Malankara
Synod resolved that “hereafter the jurisdiction of the said
see shall not be extended to the Arabian countries or Persia
and that the see includes only eastern countries situated on
the east of them. But H.H., the Patriarch shall agree to
continue the present system of sending priests to the
Arabian gulf countries from Malankara for ministering to the
spiritual needs of the Malayali Parishioners as long as
Malayalis stay there”.
The address presented to the Patriarch by the
Catholicos, Metropolitans, Clergy and the people of
Malankara Orthodox Syrian Church on May 22, 1964 affirmed
that the Patriarch’s ‘monumental act of December, 1958′ has
infused new hopes for a bright future and that the Malankara
Church is thankful to the Patriarch for acting with
imagination, courage and persistence in handling a difficult
situation in the Church. The address further affirmed:
“We beg to assure your holiness that
though we have had differences in the
past, there was a deep-seated sense of
attachment among our people
irrespective of party opinions about our
connection with the apostolic see of
Antioch. Even in our worst period of
controversy, that sense of attachment
was not lost to us. The Catholicate was
never visualised as a rival to the
exalted Throne of Antioch. On the other
hand it is the symbol of real
cooperation with that Throne while it
signifies the Church’s right and
freedom to carry out God’s purposes in
the land in the footsteps of the
saints and the faith of the Fathers”.
Ex.A.48, A.49, A.52, A.178, A.179 and A.189 series show
that a new Managing Committee was elected for the Malankara
Association and that the Committee was composed of
representatives of both the groups and that the newly
elected members took oath affirming the 1934 Constitution.
More significantly in the year 1970, a meeting of the
Malankara Association was held (on December 31, 1970)
participated by representatives of both the groups, whereat
one Mathew Athanasius was elected as the successor
Catholicos to Mar Ougen I. [It may be recalled that Mathew
Athanasius was ordained as Metropolitan in 1951 by Basselios
Geevarghese II, (first defendant in the Samudayam suit);
Mathew Athanasius is the second plaintiff in O.S.4 of 1979,
the main suit before us.] It appears that this election was
challenged by certain members owing allegiance to Patriarch
by way of O.S.3 of 1979 which was dismissed by the Trial
Judge. The judgment became final since no appeal was
preferred against it. Ex.A.5 shows that the Managing
Committee of the Association appointed a Rules Committee in
accordance with the Constitution to suggest amendments to
the Constitution. The Rules Committee included the
representatives of both the groups including D.W.2 in the
present suit. The draft amendments suggested by the Rules
Committee were approved by the Managing Committee and by the
Synod meeting, as would be evident from the documents
Ex.A.11 series and Ex.A.162(f).
At this stage, what appears to have triggered the
dispute again is the nomination of a delegate to Malankara
Sabha by the Patriarch in the year 1972. This nomination
implied the exercise of active spiritual supremacy by the
Patriarch over Malankara Church which was evidently not
relished by the Catholicos and other members. Under a letter
dated February 16, 1972 (Ex.A.76) the Catholicos and nine
Metropolitans including the members of the erstwhile
Patriarch group requested the Patriarch not to send the
delegate. They pointed out that sending such delegate will
lead to disturbance of peace and to dissensions among the
Malankara Church. The Patriarch did not pay heed to this
request. On the contrary, he wrote back to the Secretary to
the Malankara Association (Ex.A.192 dated July 9, 1973) that
he is not aware of any such Sabha or of the Malankara
Association. His delegate arrived in Malankara and started
ordaining priests and deacons. The Catholicos objected to
this activity of the delegate by his letter Ex.A.79 dated
August 7, 1973 addressed to the Patriarch. Nothing happened.
On September 1, 1973, the Patriarch himself ordained the
first defendant in O.S.4 of 1979 (the main suit now before
us) as Metropolitan of the Evangalistic Association of the
East. Then started a series of correspondence between the
Patriarch and the Catholicos each accusing the other of
several ecclesiastical violations.
EXCOMMUNICATION OF CATHOLICOS BY PATRIARCH:
On August 7, 1973 the Catholicos sent a telegram to
Patriarch to the following effect:
“Local newspapers report your
holinessintention to consecrate one of
our priests as Bishop. We unequivocally
object to such action if contemplated
by your Holiness as uncanonical and
as a clear violation of 1958 peace
agreement. (Letter follows).”
In the confirmatory letter, the Catholicos stated that there
was no necessity for the Patriarch to send a delegate to
Malankara and added further:
“The Catholicate of the East is an
autocephalous which consecrates its
own Bishops and its own Morone.
This autocephaly is a fact quite
independent of the name of our Throne.
The autonomy exercised by the
Catholicate over Malankara has been
well established. It was for no other
reason that your Holiness in May, 1964
expressed a desire to delimit the
geographical jurisdiction of this
heirarchy”.
(Emphasis added)
The Catholicos then referred to the re-definition of
the geographical jurisdictions of both the Patriarch and the
Catholicos prior to installation and to the installation of
the new Catholicos by the Patriarch on May 22, 1964. He also
referred to the activities of Mar Thimotheos, the delegate
of Patriarch whom the Catholicos described as a
troublemaker. The Catholicos stated that the activities of
the delegate would have constituted a sufficient ground,
normally speaking, for him to protest against his actions
with the Patriarch but that he has not taken such action
only because he considers his link with Patriarchate as
valuable. Finally, he protested against any proposal to
conserate Metropolitans for India by Patriarch and stated
that any such action would be treated as an uncanonical
action.
After receiving the above letter of the Catholicos, the
Patriarch communication a list of chages to the Catholicos
on January 30, 1974 (Es.A.80). This letter is in the nature
of a show-cause notice calling upon the Catholicos to answer
the charges levelled against him within one month. It is
unnecessary to detail the charges herein. The main grievance
of the Patriarch was the attempt of Catholicos to style
himself as the head of an independent Church of Malankara
and repudiation of the Patriarchal authority. The letter
also complained of the “most discourteous and impudent
manner which is unbecoming from the Catholicos” in which the
letter dated August 7, 1973 was addressed to him.
On March 9, 1974 the Catholicos replied to the
Patriarch stating that the Patriarch has no jurisdiction to
level any charges against him or to ask for his explanation.
He stated that the only authority to do so is the Malankara
Episcopal Synod. He stated that the charges communicated by
the Patriarch have been forwarded to the said Synod for
consideration and appropriate action and that the Synod has
assumed jurisdiction in the matter. A similar letter was
addressed by the Secretary of the Malankara Synod on March
5, 1974 to the Patriarch. This letter also asked the
Patriarch to prove his charges against Catholicos before the
Malankara Synod. This exchange went on with the language and
tone of each letter becoming more and more discourteous
towards each other. Suffice it to mention that on July 5,
1974 the Malankara Synod met and not only justified the
actions of the Catholicos but found the Patriarch guilty of
several ecclesiastical violations. A copy of the proceedings
was forwarded to the Patriarch.
On January 10, 1975 the Patriarch suspended the
Catholicos from his office until further orders. On January
11, 1975 the Patriarch wrote to all the Metropolitans in
Malankara inviting them to the Universal Synod convened by
him for June 6, 1975 to consider the charges against the
Catholicos. The Patriarch also addressed letters on the
same day to several Bishops in Malankara condemning the
several actions of the Catholicos which according to him
were contrary to the faith.
On May 22, 1975, another meeting of Malankara Episcopal
Synod was held reiterating the independent nature of
Malankara Church and disputing the authority of the
Patriarch. All these minutes were duly communicated to the
Patriarch including the minutes of the meeting held on June
5, 1975.
On June 16, 1975 the Universal Synod met at Damuscus to
consider the charges against the Catholicos. The Synod met
on several subsequent dates upto December 20, 1975, the
proceedings whereof are enclosed to the letter Ex.A.22 dated
June 22, 1975 addressed by the Patriarch to Catholicos. The
Universal Synod concluded that the Catholicos Ougen I is
guilty against the faith and the laws of the Church and has
violated the oath taken by him at his consecration as the
Catholicos of the East and as the Metropolitan of Malankara
and must be considered to have become an apostate to the
Syrian Orthodox Church. Accordingly, he was stripped off all
the offices, authority and privileges of the said office.
The Synod authorised the Patriarch to announce the said
decision to whole church and to all concerned. The Patriarch
issued a notice to the Catholicos calling upon him to
intimate whether he accepts and submits to the resolutions
of the Universal Synod within ten days. He was intimated
that if he does not so submit, he will be declared as
apostate. A Bull of excommunication was issued by the
Patriarch excommunicating the Catholicos from the Syrian
Orthodox Church.
THE INSTITUTION OF THE PRESENT SUITS:
Eight suits in all were instituted which were later
transferred to the High court for disposal. Of these eight
suits, two are no longer before us,viz., O.S.347/73
(numbered as O.S.3/79 in the High Court of Kerala) and
O.S.35/76 (numbered as O.S.7/79 in the High Court). The
other six suits which are now before us are the following.
(For the sake of convenience, we shall mention their High
Court numbers only):
(1) O.S.2/79, a suit filed by the
Catholicos and his group challenging
the authority of the Patriarch to
ordain Bishops and Metropolitans on the
ground that the Bishops and
Metropolitans so appointed were
interfering with the worship and other
functions of the Malankara Churches in
Kottayam.
(2) O.S. 6/79 – also filed by the
Catholicos and his group. This suit
pertains to the ordaining of priests
by Patriarch in certain dioceses.
(3) O.S. 4/79 - this is treated as
the main suit by the parties (It was
actually instituted in the District
Court on 27.6.1974). We shall
presently mention the frame of the suit
since that would constitute the main-
frame of the dispute before us.
(4) O.S. 8/79 – that was instituted
by Catholicos Ougen. On his death his
successor Catholicos was impleaded as
the plaintiff.
(5) O.S. 1/79, instituted by
Parishners of Kothamangalam belonging
to the Catholicos group against the
members of the Patriarch group.
(6) O.S. 5/79, instituted by
Metropolitan of the Diocese of
Kottayam and certain other members
belonging to Catholicos group against
the Managing Committee of Simhasana
Church at Pompady, Kottayam.
The plaintiff-respondent’s case, as put forward in
O.S.4/79, is to be following effect:
Until 1912 the Malankara Metropolitan, necessarily a
native of Malankara, was invariably exercising
administrative powers over temporal and ecclesiastical
matters which authority was derived because of his
election/approval by the members of the community. The
persistent interference by the Patriarch in the affairs of
the Church compelled the community to feel the need for re-
establishment of Catholicate. Accordingly, it was revived
and re-established in 1912. The seat of Catholicate was
transferred from Tigris in Persia to Malankara. After the
establishment of Catholicate, “Practically no residuary
power (was) left with the Patriarch of Antioch over this
Episcopal Church”. There are about 1,000 Parish Churches
comprised in the Malankara Church. They are under the
authority of Malankara Metropolitan. The Malankara Church is
neither a union nor a federation of congregational
autonomous units, but a Church with a unique solidarity
derived from apostolic succession. The 1934 Constitution
governs and regulates all the affairs of this Church. The
Constitution enables the Malankara Metropolitan to hold the
office of Catholicos as well. “Thus in the Malankara
Metropolitan-cum-Catholicos converge all temporal, spiritual
and ecclesiastical powers without mitigating the exalted
position and status of the Patriarch, the Primate of the
Orthodox Syrian Church”. After the judgment of the Supreme
Court the Patriarch and his group accepted the Catholicos
and the 1934 Constitution. But later they have been acting
against the interests of the Church at the instance of
Patriarch and others. They also denied the authority of the
first plaintiff (Catholicos-Malankara Metropolitan). The
defendants are impleaded in their individual capacity and as
representing the Patriarchal group. “No person irrespective
of his position has any locus standi in the Malankara Church
without believing in the holy church, headed by the
Catholicos of the East-Cum-Malankara Metropolitan and
without affirming and accepting the ecclesiastical authority
of the first plaintiff and the administrative set up and
heirarchy, the principle being that the lawful Metropolitan
is necessary to the very being of the Church”. In Para 24 a
reference is made to Church properties. The paragraph reads
thus: “Defendants and their partisans are trying to
intermeddle in the affairs of individual churches and create
dissensions and discord therein. They are attempting to make
use of the properties of the church in this illegal and
unlawful attempt”.
It is relevant to notice the reliefs sought for in the
suit. They are :
“A. To declare that the Malankara
Church is episcopal in character and is
not a union or federation of autonomous
church units and is governed in its
administration by the constitution of
the Malankara Church ;
B. To declare that defendants 1 to 3
are not competent to ordain priests and
deacons for Malankara church;
C. To declare that defendants 1 to 3
are not legally consecrated
Metropolitans of the Malankara
Church and defendants 4 to 8 are not
legally ordained priests or deacons
of the Malankara Church.
D. To declare that no Metropolitan,
priest or deacon unless validly
ordained and appointed under the
provisions of the Constitution of the
Malankara Church can officiate in any of
the churches or its institutions in
Malankara Church.
E. To declare that any priest who
refuses to recognise the authority of
the first plaintiff and other
Metropolitans under him is not entitled
to minister in any of the churches or
its institutions in Malankara.
F. To prohibit defendants 1 to 3 by
an order or permanant injunction from
ordaining priests or deacons or
performing any other sacraments,
service, etc. for the Malankara
church or its institutions.
G. To prohibit defendants 4 onwards from
performing any religious service or
sacraments whatsoever in or about any
of the church of Malankara and for the
Malankara church or its constituent
churches or institutions.
H. To prohibit the defendants from
interfering in any manner with the
administration of the Malankara Church.”
The defendants in their written statements denied and
disputed the several averments, assertions and claims made
in the plaint and reiterated the supremacy of the Patriarch
in the affairs of the Malankara Church. According to them,
the Catholicos and the members of his group have become
apostates to the faith on account of their acts and
declarations and are not entitled to any of the reliefs
prayed for.
A number of issues were framed on the basis of the
pleadings. The learned Single Judge dismissed the suits. On
appeal, the Division Bench of the Kerala High Court
reversed. The Division Bench re-formulated the issues in
controversy into 31 issues. Of them issues 1 to 22 and 27 to
31 pertain to the main dispute now under discussion, whereas
Issues 23 to 26 pertain to certain individual churches to
which we shall advert later. The Division Bench has upheld
the claim of the Catholicos group to a large extent.
O.S.4/79, the main suit, has been decreed as prayed for
against defendants 1 to 17 without costs. It has been
dismissed against defendant No.18 (Evangelical Association
of the East). So far as D.19 (Knanaya Samudayam) is
concerned, the suit has been decreed but with certain
qualifications which we shall mention while dealing with the
appeal preferred by D.19. The result of the other suits is
consistent with the decree in O.S.4/79 and need not be
mentioned separately.
OUR FINDINGS:
The following facts, in our considered view, are of
fundamental significance. Once they are kept in view, it
would be unnecessary to go into many of the issues agitated
before the learned single Judge and the Division Bench of
the High Court. The fundamental facts which decide the fate
of the main dispute are:
(a) The Patriarch of Antioch was undoubtedly acknowledged
and recognised by all the members of the Malankara Church as
the supreme head of their Church.In the year 1654, they took
the oath known as the ‘Koonan Cross Oath’ re-affirming their
loyalty to the Syrian Orthodox Christian Church headed by
the Patriarch. It was the Patriarch who convened the
Mulanthuruthy Synod at which the Malankara Syrian Christian
Association was formed. However, the authority of the
Patriarch extended only to spiritual affairs - the Syrian
Christians in Malankara believed in the efficacy of
‘Kaivappu’ (laying of hands by Patriarch on the head) while
consecrating the Metropolitan and considered it essential to
a proper ordaining – but not to the temporal affairs of the
Malankara Church as declared finally by the Travancore Royal
Court of Final Appeal in the year 1889 in the Seminary suit.
The Royal Court declared that the authority of the Patriarch
never extended to temporal affairs of the Church which in
that behalf was an independent Church. The Royal Court
further declared that the Metropolitan of the Church in
Travancore should be a native of Malabar consecrated by the
Patriarch or his duly authorised delegate and accepted by
the people as their Mulanthuruthy Synod. This declaration
was affirmed by the Cochin Court of Appeal in the Arthat
suit in 1905.
(b) The revival of Catholicate in 1912 by Patriarch Abdul
Messiah made a qualitative change in the situation. Under
Ex.A.14, the Kalpana issued by the Patriarch Abdul Messiah,*
(which document was produced in several earlier suits and
whose authenticity is not disputed by the Patriarch group
before us) and A.13 which precedes A.14, empower the
Catholicos to ordain metropolitans and other officials of
the Church in accordance with the canons of the Church and
also to consecrate holy Morone. A.14 states expressly that
the power to instal a Catholicos on the death of the
incumbent is vested in the Metropolitans. It is in this
manner that the power of ordaining Metropolitans and
melpattakars and consecrating holy Morone, which hither to
vested in Patriarch, came to be vested in the Catholicos by
the Patriarch himself. Further, the power to instal a
Catholicos on the death or disability of the
———————————————
*”It was conceded on both sides (in
vattipanam suit) namely that the Firman
issued to Abdul Messiah was withdrawn
and that such withdrawal in itself has
no effect on the exercise by a
Patriarch of purely spiritual
functions”. (Judgment of Chatfield
C.J.). Another learned Judge
Parameshwaran Pillai.J., held in the
same suit: “The fact that temporal
govt. withdrew his (Abdul Messiah’s )
recognition cannot affect the spiritual
standing and position of Abdul Messiah.
It is also pointed out in Para 42 of
the judgment under appeal that no plea
has been raised in any of the pleading
alleging the invalidity of, or the
grounds of invalidity of, Abdul Messiah
continuing to perform his spiritual
functions as the Patriarch. The
judgment under appeal also refers to the
canonical position when ther are two
Patriarchs. We agree with their views.”
incumbent was also vested in the Metropolitans of Malankara
Church and it is in exercise of this power that on the death
of the first Catholicos installed by Patriarch Abdul Messiah
in 1913, the second Catholicos Basselios Geevarghese I (Mar
Geevarghese Philixinos) was installed in the year 1924 by
the Malankara Synod without reference to the Patriarch.
Again in 1929, Basselios Geevarghese II was elected as the
third Catholicos by the Association and was installed as
such. In the M.D. Seminary meeting held on December 26, 1934
the third Catholicos was elected as the Malankara
Metropolitan, thus combining both the posts in one person.
In other words, the spiritual and temporal powers over the
Malankara Church came to be concentrated in one person. It
may be that by this act of revival of Catholicate and the
Kalpanas A.13 and A.14, the Patriarch is not denuded of the
powers delegated by him to the Catholicos – assuming that
these powers were not already possessed by the Catholicos
and that they came to be conferred upon him only under A.13
and A.14 – yet, reasonably speaking, the Patriarch was, and
is, expected to exercise those powers thereafter in
consultation with the Catholicos and the Malankara Sabha
(Association) - and, of course, in accordance with the 1934
Constitution. This was necessary for the reason (i) to avoid
creating parallel authorities leading to conflict and
confusion and (ii) the acceptance by the local people was a
sine qua non for any Metropolitan or melpattakar in
Malankara Church as provided in the Mulanthuruthy Synod
(convened and presided over by the then Patriarch himself)
and given a judicial sanction by the judgment of the
Travancore Royal Court of Appeal aforementioned. Without
removing the Catholicos in accordance with the canon law and
the principles of natural justice, the Patriarch could not
have purported to exercise unilaterally the powers delegated
by him to the Catholicos under A.14.
(c) It is significant to notice that the Catholicos-cum-
Malankara Metropolitan, Basselios Geevarghese II, was
accepted and recognised as the Catholicos by the Patriarch
Yakub under his Kalpana Ex.A.19 dated December 9, 1958.
Basselios Geevarghese II was elected as Catholicos by the
local Metropolitans and installed as such by the local
melpattakars without reference to the Patriarch and which
Catholicos was all through fighting against the Patriarch
group in the Samudayam suit. It is no less significant that
Patriarch Yakub, who issued the Kalpana A.19, was, before
his installation as the Patriarch, the delegate of the
Patriarch in India and was prosecuting the Samudayam suit
for a number of years. If so, it is reasonable to infer that
when he accepted and recognised the Catholicos as such under
Ex.A.19, he did so with the full knowledge that he was
thereby recognising the Catholicos as revived by Abdul
Messiah in 1912 under A.14 and as described and affirmed in
the 1934 Constitution. Moreover, the Kalpanas A.19 and A.20
were not issued in an abrupt fashion – they could not have
been - but were preceded by a good amount of discussion and
negotiations between members of both the groups. Under his
Kalpana Ex.A.20 dated December 16, 1958, from the Catholicos
to the Patriarch, the Catholicos accepted the Patriarch
subject to the Constitution passed by the Malankara
Association and as then in force. The Metropolitans ordained
by Patriarch duly accepted the authority of Catholicos and
participated in several proceedings. There was reallotment
of dioceses among the Metropolitans of both the groups. The
members of the erstwhile Patriarch group swore loyalty to
the 1934 Constitution. (These events have been detailed
hereinabove). After all these developments, and after a
lapse of four months after A.20, the Patriarch raised an
objection to the use of certain expressions employed in
Ex.A.20, viz., the Catholicos claiming to be seated on the
Throne of St. Thomas and also to the qualification added by
the Catholicos to his acceptance to the Patriarch, viz.,
“subject to the constitution……”. But even this objection
which is reflected in the correspondence which passed
between them during the years 1959 to 1962 (referred to
supra) must be deemed to have been given up and abandoned by
the Patriarch by his acts and declarations in the year 1964.
As stated supra, the Patriarch came to India pursuant to a
canonical invitation from the Malankara Synod and
consecrated and duly installed the new Catholicos (Mar
Ougen), who was elected by the Malankara Association in
accordance with the 1934 Constitution. Before he did so, the
Patriarch took care to see that the respective territorial
jurisdictions of the Patriarchate and the Catholicate are
duly defined and demarcated. The Middle East which was
supposed to be hitherto under the jurisdiction of the
Catholicos was excluded from his jurisdiction confining his
authority to India and East alone.
Now what do the above facts signify? Do they not show
that Patriarch had, by 1964, recognised and accepted the
revival of the Catholicate A.13, A.14 and the 1934
Constitution? Do they not show that the Patriarch had also
given up his objections to the use of the words “seated on
the throne of St.Thomas in the East” and to the
“qualification” added by Catholicos in A.20? We think, they
do. Once this is so, it is no longer open to the Patriarch
or his followers to contend that the revival of Catholicate
was not in accordance with the religious tenets and faith of
the Syrian Jacobite Christian Church, that the Constitution
of 1934 was not duly and validly passed or that the power
and authority of the Patriarch as obtaining prior to 1912
remains and continues unaffected and undiminished. In this
connection, it is relevant to remind ourselves that it was
the contention of the Patriarch group in Vattipanam suit
that the Catholicos group had, by espousing the cause of and
the revival of Catholicate, reduced the power of the
Patriarch to a vanishing point and have thereby become
aliens to the faith. The power and authority of the
Catholicos under A.13 and A.14 was affirmed, re-enforced and
enlarged in the 1934 Constitution (as amended in 1951) and
yet under Ex.A.19 the Patriarch accepted with pleasure Mar
Basselios Geevarghese as the Catholicos. At the same time,
it is equally significant to note that the 1934 Constitution
does not repudiate the Patriarch. On the contrary, it re-
affirms that he is the primate of the Orthodox Syrian Church
of which the Malankara Church is said to be a part – though
it is true, all the effective powers exercised by the
Patriarch prior to 1912 were vested in the Catholicos under
Ex.A.13 and Ex.A.14.
In this view of the matter, the submissions of the
Patriarch group that the 1934 Constitution was not put
forward by the Catholicos group as one of the bases of their
claim in Samudayam suit or that no finding as such was
recorded by this Court in the said suit regarding the
validity of the Constitution are of little consequence. We
are not relying upon the rule of estoppel in this behalf but
are only pointing out that having conceded, recognized and
affirmed all the above things, the Patriarch group cannot
make a legitimate grievance of these very things. They
cannot be heard to say so. Nor have they made any effort to
explain the said acts and conduct of the Patriarch and of
the persons owing allegiance to him. They must be deemed to
have given up and abandoned all their objections to the
aforesaid events and documents.
THE VALIDITY OF THE EXCOMMUNICATION OF THE CATHOLICOS:
In the Vattipanam suit, the High Court found that of
the two versions of Hudaya Canon put forward by the
Patriarch group and Catholicos group, the version put
forward by the Patriarch group (Ex.18 in that suit) is the
correct one. The very same version was put forward by the
Patriarch group as the true version in the Seminary suit. Of
course, at that time, both the groups concerned herein were
comprised in Patriarch group and were fighting against the
renegade group of Mar Athanasius. It is really pointless to
go into the question whether the judgement in Vattipanam
suit operates as res judicata. Even if it is assumed that it
does not, yet its value as a precedent – a finding arrived
at by the High Court after a full enquiry - cannot be
denied. According to the first judgment of the High Court,
the Patriarch has the power to excommunicate the
Metropolitans. It does not say anything about the power of
the Patriarch to excommunicate Catholicos and if so
according to what procedure. We have seen supra that while
granting the review of the said judgment, the High Court
specified that three findings recorded by it in the judgment
under review should not be reopened. The three findings
inter alia included the finding relating to the authenticity
of Ex.18. According to the said version of the Hudaya Canon,
the Catholicos ”shall act according to the orders of (be
subject to) the Patriarch of Antioch. He shall not defy (act
against) his superiors”. It repeatedly says that the
Catholicos is subject to the authority of Patriarch and that
the Patriarch is the “head or superior” of the Catholicos.
Though the canon does not say so, we shall proceed on the
assumption for the purpose of this case – without recording
any finding to that effect - that the Patriarch has the
power to excommunicate the Catholicos. Yet the question
remains whether the grounds on which the excommunication of
the Catholicos has been effected are valid and permissible
grounds. A perusal of the charges communicated to the
Catholicos by the Patriarch in his letter dated January 30,
1974 makes it clear that charges related to the use of the
word “Holiness” along with his name by the Catholicos, his
assertion of being “seated on the Throne of St.Thomas in the
East” and his assertion of “cordial relationship” with the
Patriarch instead of admitting his subordinate - all
objections which were raised by Patriarch during the years
1959 to 1961 but given up and abandoned in May, 1964, as
explained supra. It is also alleged that the Catholicos did
not accept the delegate sent by Patriarch to Malankara and
has also changed the oath administered to the members of the
Church wherein he substituted himself for the Patriarch. The
proceedings of the Malankara Association were also cited as
one of the charges. Having revived the Catholicos with the
powers under Ex.A.13 and 14 and having accepted (by
necessary implication) the Constitution of 1934 under his
Kalpana Ex.A.19 and having installed the Catholicos in 1964
notwithstanding his objections raised in his letters written
during the years 1959 to 1962, it was not open to the
Patriarch to seek to excommunicate the Catholicos on those
very grounds. Ex.A.13 speaks of Throne of St.Thomas.Ex.A.13
and Ex.A.14 specifically vest the Catholicos with the power
to consecrate Metropolitans and other officials of the
Church and to consecrate Morone. A.14 empowers the
Metropolitans to elect their own Catholicos. In these
circumstances, it is difficult to understand how could the
use of the expression ”Holiness” or the assertion of being
seated at the Throne of St.Thomas in the East or the claim
that the Malankara Church is an autocephalus Church can be
treated as heresy when the very Constitution by which the
Catholicos and his group were swearing affirmed in clear
terms that the Patriarch is the supreme head of the
Malankara Church. As a matter of fact, some of the charges
in the letter dated January 30, 1974 can also be termed as
vague. For example, Charge No.9 reads thus:
“The books taught in the Sunday
Schools there contain uncanonical and
wrong teachings and fallacious
historical facts especially with a view
to inject wrong ideas into the tender
minds regarding the fundamentals and
history of the Church.”
The letter does not set out or refer to the alleged
uncanonical or wrong teachings and fallacious historical
facts taught in the books in the Sunday Schools. Similarly,
Charge No.8 says that in the ordinations administered by the
Catholicos, the heretical two-nature theory propounded by
pope Leo is not repudiated. It is not stated under what
Canonical Law such an assertion is obligatory. So far as the
non-acceptance of the delegate sent by Patriarch is
concerned, it can hardly be considered to be a ground for
excommunication. After all that has happened between 1912
and 1964, the sending of a delegate over the prostestations
of all the Metropolitans of Malankara including those
belonging to Patriarch group was totally uncalled for. The
delegate started ordaining priests here and the Patriarch
himself ordained the first defendant in O.S.4/79. All this
certainly could not have been done unilaterally. It is one
thing to say that the Patriarch could do these things in
cooperation with the Catholicos but the ordaining of the
priests and Metropolitans by him and his delegate without
reference to - indeed over the protestations of the
Catholicos - was certainly not the right thing to do since
it purported to create a parallel administrative mechanism
for the Church in spiritual/temporal matters. We are,
therefore, of the opinion that the charges, at any rate the
main charges, on which the excommunication is based were not
available as grounds of excommunication and could not
constiute valid grounds therefor. Accordingly, it is held
that the excommunication of Catholicos is not valid and
legal.
PLAINTIFFS CLAIM THAT MALANKARA CHURCH IS EPISCOPAL IN
CHARACTER AND NOT A UNION OR FEDERATION OF AUTONOMOUS UNITS:
Though in Para (1) of the Plaint in O.S.4/79 an
assertion is made that “the Malankara Orthodox Syrian
Church…..is an autocephalous division of the Orthodox
Syrian Church which traces its origin to Jesus Christ and
his apostles”, the relief asked for in the plaint is for a
declaration “that the Malankara Church is Episcopal in
character and is not a union or federation of autonomous
church units…..”.* The expression “Episocopal” appears to
have been used in contrast to the expression
“congregational”. In the absence of any material brought to
our notice with respect to the meaning of these expressions,
we may refer to Para 66 of the judgment under appeal where
the meaning of these expressions has been explained. It
reads thus:
“Episcopalism is defined in the New
English Dictionary of Historical
Principles - By Sir John Murray
Vol.III as ‘Theory of Church Polity
which places the supreme authority in
the hands of episcopal or pasteral
orders’. The same ———————-
————————————–
* It is therefore unnecessary for us to
record a finding on the question
whether the Malankara Church is
an autocephalous church as claimed by
the plaintiffs. If it is found necessary
to do so, we may indicate that we agree
with the finding of the Division Bench
recored in Para 99 of the judgment under
appeal. For this reason, it is
equally unnecessary to consider the
effect and relevance of the
resolutions passed by the Malankara
Synod in its meeting held on
February, 1975 and May 22, 1975
affirming the autocephalous and
independent nature of the Malankara
Church. It is significant to notice that
even after the 1967 amendments to the
1934 Constitution, clause (1) still
declares that “(T)he Malankara Church
is a division of the Orthodox Syrian
Church. The Primate of the Orthodox
Syrian Church is the Patriarch of
Antioch”. It is not brought to our
notice that this clause has been
amended later so as to repudiate the
affirmations contained in it.
dictionary defines the word
congregationalism as ‘A system of
ecclesiastical polity which
regards all legislative disciplinary
and judicial functions as vested in the
individual church or local
congregation of believers’. Chambers
Dictionary Vol.4 defines
congregationalism as ‘the doctrine held
by churches which put emphasis on the
autonomy of the individual
congregations’. Congregationalism has
for its sign-manual the words of Jesus
‘Where two or three are gathered
together in my name, there am I in
the midst of them’.
(Emphasis in original)
The Division Bench also referred to the judgment of the
Kerala High Court in John V. Rev.Thomas Williams (1953
K.L.T.605) on the meaning and content of the expression
“congregationalism”. The judgment describes
“congregationalism” as one of the non-conformist Protestant
denominations. Relying upon the Encyclopaedia of Britannica,
it says that the congregationalism is the name given to that
type of church organisation in which the autonomy of the
local church or body of persons assembling in Christian
fellowship is fundamental. It constitutes one of the three
main types of ecclesiastical polity, the others being
Episcopacy and Presbyterianism. It regards church authority
as inherent in each local body of believers, as a miniature
realisation of the whole church which can itself have only
an ideal corporate being on earth. While in practice it is
religious democracy, in theory it claims to be a theocracy
since it assumes that God himself rules directly through
Christ. It springs from the religious principle that each
body of believers in actual Church Fellowship must be free
of all external human control, in order the more fully to
obey the will of God as conveyed to conscience by His
Spirit. The essential Teatures of congregationalism are
stated to be the autonomy or independence of the individual
Churches or organisations, though in matters in which the
individual charges are interested as a whole and in order to
enable the churches to effectively fulfil their
responsibilities, they may enter into unions.
Congregationalism is stated to be the opposite of Episcopacy
which means Government of the Church by the Bishops on the
theory of apostolic succession. In other words, the Bishops
are supposed to be the successors of the apostles of the
Christ. The congregationalism believe that every Christian
has the right to perform all functions pertaining to the
priestly office and permits the laymen to celebrate
sacraments whereas in Episcopal Churches only the ordained
priests can celebrate sacraments.
On a consideration of the relevant material placed
before it, the Division Bench has held that while the
Orthodox Syrian Church including the Malankara Church is
Episcopal in spiritual matters, in temporal matters it is
not Episcopal. It referred, in our opinion rightly, to the
judgment of the Royal Court of Final Appeal of Travancore in
Seminary Suit where it is observed: “parties agree that head
of Syrian Church in this country or its Metropolitan should
be a properly ordained Bishop and that regarding temporal
affairs acceptance of Malankara Metropolitan as such by the
community is necessary”. It was further held in the said
judgment that “while the ecclesiastical supremacy of the
Patriarch has all along been recognised, authority of
Patriarch never extended to Government of temporalities of
the Church”. The Division Bench at the same time clarified
that it does not mean to hold that the Metropolitan has the
jurisdiction over the day-to-day management of temporal
affairs of Parish Churches. The Division Bench has also
referred to the Mulanthuruthy Synod resolutions which say
that the Parish Churches have a degree of autonomy with
certain supervisory powers alone being vested in the
Managing Committee of the Association of Catholicos or the
Malankara Metropolitan, as the case may be. The Division
Bench has held that “Malankara Church though it has some
episocopal charaterstics is not a purely episcopal church.
But we are not able to agree that the individual Parish
Churches are independent churches or churches with
independent status…..The Parish Churches are constituent
parts of the Malankara Church and enjoy a degree of autonomy
and the administration of the day-to-day affairs vests in
the Parish Assembly and committee elected by the Parish
Assembly subject to supervisory powers of the Metropolitan -
and the provisions of the constitution of the Malankara
Sabha do not affect this position”.** We are, however, of
the opinion that in this suit no declaration can be granted
affecting the rights of Parish Churches in their absence nor
can it be declared that the properties held by Malankara
Parish Churches vest in the Catholicos or the Malankara
Metropolitan or the Metropolitan of the concerned diocese,
as the case may be. Indeed, no such specific relief has been
asked for in the suit and without impleading the affected
parties, no declaration can be claimed by the plaintiffs
that their church is
———————————————
*** The words underlined by us in the above
quote introduce certain amount of
ambiguity in the finding recorded. May
be this is the result of granting a
declaration without hearing the affected
parties.
episcopal in nature, if that declaration means that if that
declaration means that it gives the Catholicos/Malankara
Metropolitan/the Metropolitan of the Diocese any title to or
any control over the properties held by the Parish Churches.
We have pointed out hereinbefore that the only place in the
plaint where a reference is made to the properties of the
Parish Churches is in Para 24 where all that it is alleged
is that the defendants and their partisans are tyring to
intermeddle in the affairs of individual churches and are
attempting to make use of the properties of the church to
further their illegal and unlawful objects. No list of
Parish properties is enclosed nor are the particulars of the
alleged intermeddling mentioned in the plaint. In the state
of such a pleading, the only observation that can be made
herein is that the 1934 Constitution shall govern and
regulate the affairs of the Parish Churches too, insofar as
the said Constitution provides for the same. In this
connection, the learned counsel for appellants has brought
to our notice the following facts: Inasmuch as the
plaintiffs asked for a declaration that Malankara Church is
an Episcopal Church and appended a list of more than one
thousand Churches to their plaint, several Parish Churches
came forward with applications under order I Rule 10(2) of
the Civil Procedure Code to implead themselves as defendants
to the suit. All the applications were dismissed by the
Trial Judge against which a batch of Civil Revision
Petitions was filed before the Kerala High Court being
C.R.P.Nos. 1029/75 and batch. It was contended by the
revision petitioners (Parish Churches who were seeking to be
impleaded in the suit) that if the first relief prayed for
in O.S.142/74 (O.S.4/79) is granted, it will affect the
autonomy and individuality of the individual Parish Churches
and, therefore, they should be impleaded as defendants to
the suit. This argument was repelled by Khalid,J. (as he
then was) in the following words:
“I do not think that this apprehension
is well founded. Even under Order I
Rule 10 a party does not have any
inherent right to get himself
impleaded; that lies in the discretion
of the Court on being satisfied that the
petition is well founded on merits.
The counsel for the contesting
respondents (plaintiffs) would contend
that all that the plaintiffs want is
for a declaration of the supervisory and
spiritual control over the Church.”
(Emphasis supplied)
Accordingly, the revision petitions were dismissed. If the
plaintiffs mean merely spiritual control by saying
episcopal, probably there may be no difficulty in holding
that Catholicos and the Malankara Metropolitan have
spiritual control over the Parish Churches, but if it means
control over temporal affairs of, or title to or control
over the properties of, the Parish Churches beyond what is
provided for in the Constitution, a declaration to that
effect can be obtained only after hearing and in the
presence of the concerned Parish Churches. It also appears
that each of these Parish Churches/Associations has its own
constitution, whereunder the general body of the Parishes is
declared to be the final authority in temporal matters. All
this is mentioned only to emphasise that in the absence of
the Parish Churches and proper pleadings and proof, no
declaration touching the Parish Churches can be granted in
these suits. In Para 103 of its judgment, the Division Bench
has held that while the Malankara Metropolitan has
supervisory jurisdiction over the Parish properties as
provided in the 1934 Constitution, it cannot be said that
the administration of the Parish properties vests in him. It
held that the administration vests in Parish Assemblies or
Parish Churches, subject again to the provisions of the
Constitution. In sum, we observe that the 1934 Constitution
governs the affairs of the Parish churches too insofar as it
does. The power of the Malankara Metropolitan or the
Metropolitan in temporal affairs must be understood in these
suits too in the same manner as has been declared in
Samudayam judgment, i.e., with respect to the common
properties of the Malankara Church as such.
The result of the above discussion may be summarised
thus:
(1) The Vattipanam judgment has held that the version of
Hudaya Canon put forward by Patriarch group as Ex.18 in the
suit is the correct version and not the version put forward
by the Catholicos group. However, in Samudayam suit, the
District Judge (Trial Court) accepted the version of Canon
put forward by the Catholicos group as against the version
put forward by the Patriarch group. It is suggested by the
learned counsel for the respondent that this finding of the
District Judge must be deemed to have been restored by this
Court in A.I.R.1959 S.C.31. It is really unnecessary for us
to go into this question since it has lost all significance
in view of the subsequent developments and their effect, as
accepted by us.
(2) The Catholicate was revived and re-established by
Patriarch Abdul Messiah in the year 1912. The powers and
functions of the Catholicos are set out in Ex.A.14. Moreover
by virtue of their acts and conduct subsequent to the
judgment of this Court (in A.I.R.1959 S.C.31),the defendants
in the present suit (i.e., the members of the Patriarch
group) cannot now dispute the validity of the revival of the
Catholicate or of Ex.A.14.
(3) It may be that by conferring upon the Catholicos the
powers of ordaining Metropolitans, consecrating Morone and
to exercise other spiritual powers over Malankara Church,
the Patriarch may not have denuded himself completely of the
said powers which he enjoyed until then. But in view of the
fact that he had himself created another centre of power in
India with the aforesaid powers, it would be reasonable to
hold that thereafter the Patriarch cannot exercise those
powers unilaterally, i.e., without reference to the
Catholicos. He can exercise those powers only in
consultation with the Catholicos. Moreover, the person to be
appointed as Metropolitan or Malankara Metropolitan has to
be accepted by the people as has been affirmed in the
judgment in Seminary suit. The Patriarch’s power to ordain
the Metropolitans now is subject to the Constitution of
1934.
(4) It may be that by virtue of the revival of Catholicate
and by issuing the Kalpana Ex.A.14 – and also by accepting
the 1934 Constitution (as to be mentioned presently) – the
power of the Patriarch may have been reduced to a vanishing
point, but all the same he remains the supreme head of the
Syrian Church of which the Malankara Church is a division.
He is spiritually superior to the Catholicos though he does
not, and indeed never did, enjoy any temporal powers over
the Malankara Church or its properties.
(5) The 1934 Constitution was approved at a validly convened
meeting of Malankara Association, which Association was
created by the Patriarch himself under the Resolutions of
Mulanthuruthy Synod. The defendants in the present suits
(Patriarch group) cannot question its legality and validity
in view of the acts and conduct of the Patriarch and the
members of his group subsequent to the judgment of this
Court in A.I.R. 1959 S.C.31.
(6) Ex.A.19, Kalpana, was issued by Patriarch Yakub with the
full knowledge of revival of Catholicate, Ex.A.14 and the
1934 Constitution and the various claims and contentions of
both the parties put forward in Samudayam suit and the
decision of this Court in A.I.R.1959 S.C.31. It must,
therefore, be held that the Patriarch has thereby accepted
the validity of the revival of Catholicate Ex.A.14 and the
1934 Constitution, and abandoned and gave up all or any
objections they had in that behalf. Several members of his
group including some of the defendants also accepted the
Constitution and took oath to abide by it. They cannot now
turn round and question the same.
(7) Though the Patriarch raised objections to the honorifics
(e.g., use of “Holiness” with the name of the Catholicos and
his assertion that he was seated “on the Throne of St.Thomas
in the East”) and to the qualification added by the
Catholicos in his Kalpana Ex.A.20 (i.e., accepting the
Patriarch subject to the Constitution), the Patriarch must
be deemed to have given up and abandoned all those
objections when he came to India, pursuant to a canonical
invitation from the Malankara Synod and installed and
consecrated the new Catholicos on May 22, 1964. It is also
worth noticing that a day before such
installation/consecration, the Patriarch took care to have
the territorial jurisdiction of Catholicate duly defined and
de-limited by excluding certain areas in the Middle East
from the jurisdiction of the Catholicos.
(8) So far as the declaration of the the Malankara Church
being Episcopal in character is concerned, all we need hold
is that it is episcopal to the extent it is so declared in
the 1934 Constitution. The said Constitution also governs
the affairs of the Parish Churches and shall prevail.
(9) The excommunication of Catholicos by the Patriarch
and/or by the Universal Synod is invalid for the reason that
the grounds/charges on which the excommunication has been
effected are not permissible or relevant grounds. The denial
of Patriarch’s spiritual authority by the Catholicos and his
group and similarly the Patriarch’s refusal to recognise the
Catholicos or the 1934 Constitution in the correspondence
that passed during the years 1972 to 1975 are attributable
to the personal differences and the mutual bickering between
the two dignitaries and their respective groups. On that
basis, it can neither be said that the Catholicos or his
followes have become apostates or that they have deviated
from the tenets of the faith. Similarly, Patriarch cannot be
said to have lost his spiritual supremacy over the Malankara
Church (on account of his accusations and declarations)
which he enjoyed prior to the commencement of the said
correspondence, i.e., according to the 1934 Constitution.
(10) The common properties (Samudam properties) held by the
Malankara Church are vested in Malankara Metropolitan and
others as declared in the judgment of this Court in
A.I.R.1959 S.C.31.
In view of the above findings, it is unnecessary to go
into the other questions urged before us, viz.,
maintainability of the suit (in view of Section 9 of the
Civil Procedure Code), effect of the Places of Worship
(Special Provisions) Act, 1991, non-joinder of parties and
so on. Indeed, so far as the objection on the basis of
Section 9 of the Civil Procedure Code is concerned, it was
not urged by the defendants-appellents before the Division
Bench and must be deemed to have been abandoned.
The situation resulting from the above summary of the
findings is that the situation obtaining on January 1, 1971
(i.e., the day after the election of Mathew Athanasius at
the meeting of the Malankara Association held on December
31, 1970, in accordance with the 1934 Constitution) shall be
deemed to be the position even today in all respects. It is
after January 1, 1971 that there was fresh spurt of quarrel
between two groups and between the Patriarch and the
Catholicos. Any attempt to bring peace, reconciliation and
rapprochment between the two groups must take the said date
as the starting point - [This does not, however, mean that
installation of Mathew Athanasius, elected as the Catholicos
on December 31, 1970, in October, 1975 is to be ignored.
Similarly, the election and installation of sixth
Catholicos, Mathew II (third respondent in the present
appeals) cannot also be ignored. They are accomplished facts
and shall remain unquestioned]. It is with reference to the
said date that the directions to be mentioned hereinafter
are made with the hope that the said measures will succeed
in bringing about a reconciliation between the two warring
groups and establish peace in Malankara Church which should
be the desire of every well meaning member of that Church.
Before, however, we set out the bases of reconciliation
between the two groups, we may indicate the approach we are
adopting in this case.
The resolutions passed by the Mulanthuruthy Synod
establish that to prevent mismanagement of the Church
affairs and to check the autocracy of the Metropolitans, it
was thought necessary that there should be an organisation
for the entire community called “Syrian Christian
Association”, of which Patriarch should be the Patron and
the ruling Metropolitan its President. For transacting the
business of the Association, a Chief Committee consisting of
eight priests and sixteen laymen with the ruling
Metropolitan as the President was formed. This Committee was
“entrusted with complete responsibility and management of
every matter connected with religious and communal affairs
of the entire Syrian Community”. Neither party before us
disputes the validity of these resolutions. In Seminary
suit, it was held by the Royal Court of Final Appeal on the
basis of the said resolutions and other material placed
before it that the Metropolitan of the Syrian Christian
Church in Travancore should be a native of Malabar
consecrated by Patriarch or his delegate and accepted by the
people as their Metropolitan. Indeed, this aspect has been
repeatedly stressed before us by the learned counsel for the
Catholicos group. We too find this to be a very desirable
feature - an instance of infusion of democratic spirit in
religious affairs. It may be mentioned that in the appeal
preferred in this Court against the rejection of their
review petition in Samudayam suit (judgment reported in
A.I.R.1954 S.C. 526), the stand of the Catholicos group was
that the said judgment of the Royal Court represents the
constitution of the Malankara Church. The subsequent
judgments too re-affirm the said position. It is thus clear
that the Malankara Association was formed not only to manage
the temporal affairs of the Church but also its religious
affairs and that the appointment of Metropolitans was
subject to acceptance by the people of Malankara. The
emphasis is upon the people of Malankara and not upon the
individual Churches/Parish Churches. It is true that the
1934 Constitution of the Malankara Association provides that
the members of the said Association shall be one priest and
two laymen elected by each Parish Yogam (Assembly) (clause
68), yet Clause 4 of the very Constitution declares that
“all those men and women who accepted the Holy Baptism and
who believe in the Godhead of the Trinity, in the
incarnation of the Son and the procession of the Holy Ghost,
in the Holy Church, in the performance of the seven
sacraments, in the observance of the precepts, in the use of
the Nicean creed and who have undertaken the responsibility
of performing them are members of this Church”. It thus
appears that while the membership of the Malankara
Association is limited to one priest and two laymen elected
by each Parish Assembly, the membership of the Malankara
Church as such consists of all men and women, who accept the
tenets and the faith mentioned in Clause (4) aforesaid. The
learned counsel for the appellants contended that with a
view to retain control over the Malankara Association, the
Catholicos group have created a large number of Parish
Churches though among the individual members of the Church,
the majority swears allegiance to Patriarch. His contention
is that because in the Malankara Association each Parish
Church, whether big or small, is entitled to have three
delegates, the Association is not a true representation of
the will of the members of the Church as such. He suggests
that while some Churches have a large body of believers
running into several thousands, there are Churches having as
little as fifty members and yet each of them has equal
representative in the Malankara Association. On this
account, the learned counsel says, the proceedings of the
Malankara Association cannot be said to be reflecting the
will of the majority of the Malankara Christians truly. It
cannot be said that there is no substance in this
submission. If the Malankara Association is to be vested
with the control over the religious and communal affairs of
the entire Malankara Christian community, it must truly and
genuinely reflect the will of the said community. For
ensuring it, its composition must be so structured as to
represent the entire spectrum of the community. A powerful
body having control over both spiritual and communal in a
reasonable and fair manner. Judged from this angle, clause
(68) of the 1934 Constitution cannot be said to be a fair
one. [After 1967 amendment, the corresponding clause is
Clause (71) which reads, "a priest and two laymen elected by
each Parish Assembly (and the members of the existing
Managing Committee?) shall be members of the Association"].
It may, therefore, be necessary to substitute Clause (68)
(now Clause (71) and other relevant clauses of the
Constitution to achieve the aforesaid objective which would
also affirm the democratic principle, which appears to be
one of the basic tenets of this Church. Accordingly, we
direct both the parties as well as the Rule Committee
(mentioned in clause (120) of the Constitution) to place
before this Court within three months from today draft
amendments to the Constitution. After perusing the same, we
shall give appropriate directions. Thereafter, elections to
the Malankara Association shall be held on the basis of the
amended Constitution. The Association so elected shall be
the Association for all purposes within the meaning of and
for the purposes of the 1934 Constitution (as amended from
time to time).
We hope that the unity and integrity of the Malankara
Church will be maintained and continued by the above
arrangement which is wholly consistent with and indeed in
furtherance of the objectives underlying the Mulanthuruthy
Synod resolutins. Elections to the Malankara Association
shall have to be held periodically so as to keep its
representative character alive and effective.
THE POSITION OF SIMHASANAM CHURCHES, KNANAYA CHURCHES,
EVANGELICAL ASSOCIATION OF THE EAST AND ST.ANTHONY’S CHURCH,
MANGALORE:
Before we conclude, it is necessary to deal with the
position of the above Churches. The Division Bench of the
High Court has dealt with them under Points 23, 24, 25 and
26 formulated by it. So far as Simhasanam Churches,
Evangelical Association of the East and St.Anthony’s Church,
Mangalore are concerned, the Division Bench has dismissed
the suits, viz., O.S.5/79, O.S.6/79 and O.S.4/79, insofar as
they related to the above Churches agreeing with the
findings and the decree of the learned Single Judge in that
behalf. We see no grounds to depart from the concurrent
findings recorded by the learned Single Judge and the
Division Bench. We affirm their judgment and decree in this
behalf. So far as Knanaya Samudayam is concerned, while the
learned Single Judge had dismissed O.S.4/79 with respect to
this defendant (D.19) subject to the declaration that
Knanaya Sabha is part of Malankara Church, the Division
Bench Leading members of the Knanaya Community were elected
as members of the Managing Committee of the Malankara
Association.
The above facts were placed against the following
facts appearing in favour of the Knanaya Church, viz.,
(i) in the plaint, there was no specific prayer with respect
to the Knanaya Church. Because Knanaya Churches were also
listed in the list of Parish Churches appended to the
plaint, the Knanaya Samudayam applied for impleading itself
as a defendant to the suit and was impleaded as D.19. Only
in response to the averments made in written statement of
D.19, did the plaintiffs aver facts on the basis of which
they claimed that Knanaya Churches are part of Malankara
Association and subject to the 1934 Constitution;
(ii) the material established that Knanaya Churches had
adopted their own Constitution in 1912 (which was brought
into force in 1918), that they had indeed constituted a
Committee known as “Knanaya Committee” even in 1882, which
was later designated as “Knanaya Association” and that
throughout these Churches stood by the Patriarch and its
Metropolitans were always ordained by Patriarch alone.
(iii) the proceedings of the Malankara episocopal Synod
meetings held during the period January 12,1959 to June 7,
1960, which indicate certain discussions between the
Malankara Church and Knanaya Church with respect to
relationship between them. A Committee was appointed to
submit a report in that behalf to the Synod.
(iv) the tradition relating to the origin of Knanaya
Committee in India and their zealous concern throughout to
maintain and retain their separate ethnic identity and
beliefs.
After hearing the learned counsel for the appellant
(D.19) and the respondents and perusing their written
submissions, we are of the opinion that the decree of the
Division Bench has to be affirmed but with certain
modification. The modification is called for for the reason
that when a particular people say that they believe in the
spiritual superiority of the Patriarch and that it is an
article of faith with them, the Court cannot say `no; your
spiritual superior is the Catholicos’. The guarantee of
Article 25 of the Constitution has also got to be kept in
view. The decree of the Division Bench makes no difference
to the Patriarch. It only says that Catholicos is declared
to be the spiritual superior of the Knanaya Community. Then
it says that in temporal matters, the 1934 Constitution of
Malankara Association can be implemented subject to the
Knanaya Constitution only until both the Constitutions are
reconciled. In all the facts and circumstances of the case,
it would be enough to declare that by their acts and
conduct, D.19 has accepted that they are an integral unit
within the Malankara Church and that, therefore, the 1934
Constitution of the Malankara Church shall govern them but
subject to their own Knanaya Constitution until such time
the Knanaya Church Samudayam decides otherwise.
The appeals cross-objections and applications are
disposed of in the above terms.
List the matters for further orders after three months
along with the draft amendments (suggestions), if any,
submitted by the parties pursuant to the directions given
hereinbefore.