REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 6263-6265 OF 2001

MATHEWS MAR KOORILOS (DEAD)  AND ANR. ETC.   ….Appellants

Versus

M. PAPPY (DEAD) AND ANOTHER ETC.        ….Respondents

J U D G M E N T

R. BANUMATHI, J.

Suit  O.S.  No.187  of  1977  was  filed  by  appellant

No.1/Metropolitan  of  Quilon  Diocese  of  the  Malankara  Orthodox

Syrian Church and appellant  No.2/Vicar appointed by him for  St.

Mary’s  Church,  Kattachira.   Defendants/respondents  in  the  suit

represent the Parishioners of the Church.  Plaintiffs/appellants inter

alia prayed for a declaration that the Quilon Metropolitan and the

Vicars appointed by him have exclusive right to conduct religious

services  in  the  plaint  church,  Cemetery  and  Kiurisumthotty  and

prayed  for  prohibitory  injunction  restraining  the  defendants  and

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others who do not obey the plaintiffs/appellants from entering the

plaint church and plaint schedule properties.

2. Case of the appellants is that as per Ext.-A3 (original of which

is Ext.-B19) assignment-cum-gift  deed dated 29.06.1972, the first

defendant C.K. Koshy assigned the plaint properties along with the

church  and  cemetery  etc.  situated  thereon,  to  the  Metropolitan,

Quilon  Diocese  and  that  they  are  entitled  to  conduct  religious

services  and  to  manage  the  church  and  its  properties.  The

Parishioners who question such authority are not entitled to hold

any office as members of  the Church Committee or  to enter the

church.   

3. Defendants/respondents  who  are  said  to  be  the

representatives of the Parishioners contended that the Church was

founded with the object of conducting religious services by religious

dignitaries  who  possess  the  spiritual  grace  transmitted  from  the

Patriarch  of  Antioch  and  all  the  East,  for  the  benefit  of  the

Parishioners.  The church and its properties constitute a trust and

can be used only for the purpose for which it was founded.  The

respondents/defendants  contended  that  the  plaintiffs/appellants

have repudiated and defied the spiritual powers of the Patriarch and

the  appellants/plaintiffs  are  not  entitled  to  conduct  any  religious

services in the plaint church.  According to them, the plaint church is

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administered  under  the  Constitution  framed  by  the  Parishioners

marked as Ext.-B9 dated 23.01.1959 and no priest can function in

the church without the consent of the Parishioners.   

4. The  Parishioners/respondents  have  filed  a  separate  suit  in

O.S. No.17 of 1976 challenging the validity of Ext.-A3-Sale-cum-Gift

Deed (dated 29.06.1972) in favour of Quilon Metropolitan.  On the

same grounds taken by them in the other suit, they alleged that as

beneficiaries  of  the  Church  and  as  its  Managing  Committee

Members, they are entitled to see that its properties are not lost.

They prayed for a decree declaring that Ext.-A3-Sale-cum-Gift Deed

is  ab  initio  void and  for  a  perpetual  injunction  restraining  the

Metropolitan from implementing any of  the provisions in the said

document.

5. The  trial  court  vide common  judgment  dated  06.03.1986

dismissed the suit O.S. No.17 of 1976 filed by the respondents and

decreed the appellant’s suit O.S. No.187 of 1977, declaring that the

appellants have the right to conduct religious services in the plaint

church and cemetery.  The trial court granted permanent injunction

restraining  the  respondents/defendants  and  persons  who  do  not

obey the plaintiffs/appellants from entering the church and the plaint

schedule  properties  and  conducting  religious  services,  and

obstructing  others  who  obey  the  plaintiffs/appellants.   The

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respondents/defendants were also restrained from obstructing the

appellants in completing the construction of the Kattachira church

building or attending to its repairs.

6. Being  aggrieved,  the  respondents/defendants  filed  appeals

A.S. Nos.140 and 142 of 1986 in O.S. No.187 of 1977 before the

High  Court  of  Kerala  challenging  the  common  judgment  dated

06.03.1986.  The Single Judge dismissed both the appeals and held

as under:-

1. Various clauses of Ext. A3 gift deed dated 29.06.1972 make it clear that the executant Koshy gave the assignment-cum-gift in favour  of  the  Quilon  Metropolitan  intending  that  it  may  be treated as Bhadrasanam properties.  Ext. A3 also provided that the Metropolitan may directly administer the said properties or through his  representative  and that  the  Parishioners and the Managing  Committee  should  abide  by  the  dictates  of  the Metropolitan from time to  time.   In view of the unambiguous terms in Ext. A3, the parishioners are not entitled to question the right of Metropolitan over the plaint church and its properties and its right to conduct religious services.  

2. Ext. A3 makes it clear that a particular individual has gifted the properties  in  favour  of  the  first  appellant  Metropolitan  to  be treated as Bhadrasanam properties and subject to the control of the first appellant Metropolitan.  Once it is recognised that the properties  are  Bhadrasanam  properties  over  which  the  first appellant  Metropolitan  can  exercise  absolute  control  and management, appellants are entitled to these reliefs.   

3. The 1934 constitution shall govern and regulate the affairs of the  Parish  Churches  too.   The  Parish  Churches  are  not exempted from the clauses of the 1934 Constitution and they are equally constituent of the Malankara Association though it enjoys some degree of autonomy.

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

The Single Judge also held that it is Vicar who should conduct the

election as provided in Ext.-A1 Constitution.  However, in order to

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allay  the  apprehension  of  both  parties  and  to  ensure  that  the

election is free and fair and in accordance with Ext.-A1 Constitution,

the Single Judge appointed two observers to oversee the process of

election right  from the beginning to ensure that  the conditions in

Ext.-A1 1934 Constitution and the directions of the Supreme Court

are followed.

7. Being  aggrieved,  the  defendants/respondents  filed  appeals

A.F.A. Nos.26-27 of 1997 before the Division Bench.  The Division

Bench  vide common  judgment  dated  04.04.2000  allowed  CRP

No.1314 of 1998 and disposed of AFA Nos.26-27 of 1997 and set

aside the findings of Single Judge.  The Division Bench recorded its

conclusions as under:-

 That the civil courts have jurisdiction to entertain suits relating

to church and its properties and to mould reliefs in such a way

as to promote the paramount interest of the parishioners and

to reflect the will of the community.  That though the title of the properties vests with the Quilon

diocese, the properties including church, cemetery etc. under

Ext.-A3 are  still  under  the  control  and  management  of  the

parishioners of St. Marys Syrian Church, Kattachira.  That the first plaintiff-Metropolitan of Quilon Diocese had no

authority to appoint Vicar for the control and management of

the plaint church and its properties though Ext.-A3-Sale-cum-

Gift Deed executed by C.K. Koshy in favour of Quilon Diocese

and  C.K.  Koshy,  executor  of  Ext.-A3-Sale-cum-Gift  Deed

intended to  transfer  his  right  in  the  properties  over  for  the

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benefit  of  entire  members  of  the  Church  and  that  the

Parishioners  have  the  power  to  hold  the  movable  and

immovable properties of St. Mary’s Church.  That  the  provisions  of  the  1934  Constitution  sufficiently

establish that the Parishioners have power to hold movable

and immovable items of properties.  

8. We  have  heard  learned  senior  counsel  for  the  parties  at

length.  We have considered the written submissions and perused

the impugned judgment and other materials on record. 9. The  issue  of  spiritual  and  temporal  authority  between

Malankara  Church  and  the  Patriarch  of  Antioch  has  been  the

subject matter of several rounds of litigations in various matters right

from the year 1879.  It is not necessary for us to elaborately refer to

those  litigations;  suffice  to  refer  the  litigations  which  led  to  the

Constitution Bench judgment in Moram Mar Basselios Catholicos

v.  Thukalan Paulo Avira  and others AIR 1959 SC 31 and the

judgment of three-Judges Bench in Most Rev. P.M.A. Metropolitan

and others v. Moran Mar Marthoma and another 1995 Supp (4)

SCC 286 and the latest judgment in K.S. Varghese and others v.

Saint  Peter’s  and  Saint  Paul’s  Syrian  Orthodox  Church  and

others (2017) 15 SCC 333.  

10. Samudayam Suit:- The Patriarch group in the year 1938 filed

Samudayam suit in the District Court, Kottayam for a declaration of

their title as trustees of Samudayam properties (common properties

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of  the  Malankara  Church)  and  for  a  further  declaration  that  the

defendants  to  that  suit  belonging  to  Catholicos  group,  were  not

lawful  trustees.   The  suit  was  dismissed  by  the  trial  court  on

18.01.1943 against which the plaintiff thereon filed an appeal which

was allowed on 08.08.1946 and the suit was decreed1 by majority of

Judges by 2:1.  The matter was carried to this Court.  This Court

directed2 the  High  Court  to  rehear  the  appeal  on  all  the  points.

Thereafter  appeal  was  reheard  and  was  allowed  vide judgment

dated  13.12.1956.   The  suit  was  decreed.   The  defendants,

Catholicos group, filed an appeal in this Court which was allowed on

12.09.1958 as per Moram Mar Basselios Catholicos v. Thukalan

Paulo Avira and others AIR 1959 SC 31.  Samudayam suit has

been  elaborated  and  discussed  in  paras  (17)  to  (21)  in  K.S.

Varghese and others v. Saint Peter’s and Saint Paul’s Syrian

Orthodox Church and others (2017) 15 SCC 333.

11. In the year 1979, Catholicos filed O.S. No. 4 of 1979 inter alia

praying that Malankara Church be declared Episcopal in character

and that it is governed in its administration by the Constitution of the

Malankara Church.  The Catholicos sought for further declaration

1  Moram Mar Basselios Catholicos & Anr. v. Most Rev. Mar Poulose

Athanasius & Ors. 1951 SCC OnLine Ker 7 2

Moram Mar Basselios Catholicos & Anr. v. Mar Poulose Athanasius  & Ors. AIR 1954 SC 526

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that  no metropolitan,  priest  or  deacon can officiate in  any of  the

Malankara  Churches  unless  appointed  under  1934  Constitution.

After dismissal of the suit by the Single Judge of the High Court, the

Division Bench allowed the appeal thereby upholding the claim of

Catholicos group to  larger  extent.   The matter  finally  reached to

Supreme  Court.   The  Supreme  Court  in  Most  Rev.  P.M.A.

Metropolitan and others v. Moran Mar Marthoma and another

1995 Supp (4) SCC 286 held that the power and authority of the

Catholicos  was  affirmed  in  Kalpana  A-13  and  A-14  and  was

reinforced and enlarged in 1934 Constitution.  It was held that 1934

Constitution  is  applicable  to  Malankara  Church  and  its  parish

Churches  and  organisations  recognising  that  the  Malankara  has

control over both spiritual and communal affairs of the Malankara

Church.  It was held that the Patriarch group cannot question the

legality  and  validity  of  the  1934  Constitution.   The  court  issued

further  directions  for  amendment  of  clause  68  of  Constitution  to

bring  about  proportional  representation  based  on  the  size  of

congregation of each Parish Church.   

12. In P.M.A. Metropolitan3, this Court has inter alia recorded the

conclusions in para (89) as under:-

3  Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and

another 1995 Supp (4) SCC 286

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“89. The conclusions thus reached are: 1. (a) The civil courts have jurisdiction to entertain the suits for violation

of fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India and suits.

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

(c) Section 9 is very wide. In absence of any ecclesiastical courts any religious dispute is cognizable, except in very rare cases where the declaration sought may be what constitutes religious rite.

……… 4. (a) The effect of the two judgments rendered by the Appellate Court

of  the  Royal  Court  and in  Moran Mar  Basselios (supra)  by  this Court is that both Catholicos and Patriarch groups continue to be members of the Syrian Orthodox Church.

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

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

(d) The spiritual powers of the Patriarch of Antioch can be exercised by the Catholico in accordance with the Constitution.

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

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

6. The excommunication of the Catholicos by the Patriarch was invalid. 7. All churches, except those which are of Evangelistic Association or

Simhasana or St. Mary are under spiritual and temporal control of the Malankara Association in accordance with 1934 Constitution.”

The  judgment  in  P.M.A.  Metropolitan4 has  been  elaborately

referred to and discussed in paras (26) to (36) in  K.S. Varghese

case5.

4  Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and

another 1995 Supp (4) SCC 286 5

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

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13. Amendment  of  the  Constitution  as  per  P.M.A.

Metropolitan6 judgment:-  Amendment proposals were considered

by this  Court  in  P.M.A.  Metropolitan7.   This Court  permitted the

amendment and directed substitution of Section 68 corresponding

to Section 71 and also directed that the election shall take place

within three months on the basis of Articles 71 and 46 as amended.

This Court further directed status quo to be maintained until the new

Managing Committee was elected.  Subsequently, the matter came

up again before this  Court  pursuant  to  the  P.M.A.  Metropolitan8

and revised decree was passed in Most Rev. P.M.A. Metropolitan

and others v. Moran Mar Marthoma Mathews and another (1996)

8 SCC 470.  The court directed certain modifications in paras (2),

(3) and (4).  This Court inter alia held thus:-

“5.  The decree shall then say that the decree passed by the High Court  (decree  under  appeal)  shall  stand  modified  to  the  extent indicated above.

PART II

6  Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and

another 1995 Supp (4) SCC 286 7

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 8

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

10

6.   In Part II of the order dated 25.03.19969, the following sentence shall be inserted before the last sentence: ‘The above direction is subject to the condition that any and every person claiming to hold any office or post in this Church shall be bound by and shall swear allegiance to the 1934 Constitution.’”  [Referred to and quoted in para (39) of K.S. Varghese case10]

The  judgment  in  P.M.A.  Metropolitan11 was  implemented  in

execution proceedings before the Kerala High Court.  The details of

the execution proceedings are discussed in paras (40) to (42) in

K.S. Varghese case12.

14. Dispute arose relating to Kolenchery Church, Varikoli Church

and  Mannathur Church regarding which civil  suits were filed in a

representative capacity.   The dispute arising from all  these three

Churches travelled to this Court.  This Court again considered the

earlier  judgments  in Moram  Mar  Basselios  Catholicos  v.

Thukalan Paulo Avira and others AIR 1959 SC 31 and Most Rev.

P.M.A.  Metropolitan  and others  v.  Moran Mar  Marthoma and

another 1995  Supp  (4)  SCC  286.   After  considering  the

9  Most Rev. P.M.A. Metropolitan and others v. Moran Mar Marthoma  

Mathews and another (1996) 8 SCC 470 10

K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian  Orthodox Church and others (2017) 15 SCC 333 11

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 12

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

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submissions on both sides, in the light of  Thukalan Paula Avira13

and  P.M.A.  Metropolitan14 judgments  and  after  such  elaborate

consideration, this Court in K.S. Varghese case15 summarised the

conclusions inter alia as under:-

“228. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows: 228.1. Malankara Church is episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the parish churches and shall prevail. 228.2. The decree in the  Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 is completely in tune with the judgment.  There  is  no  conflict  between  the  judgment  and  the decree. 228.3. The Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 arising out of the representative suit is binding and  operates  as  res  judicata  with  respect  to  the  matters  it  has decided,  in  the  wake  of  the  provisions  of  Order  1  Rule  8  and Explanation 6 to Section 11 CPC. The same binds not  only  the parties named in the suit  but  all  those who have interest  in the Malankara  Church.  Findings  in  earlier  representative  suit  i.e. Samudayam suit are also binding on parish churches/parishioners to the extent issues have been decided. 228.4. As the 1934 Constitution is valid and binding upon the parish churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in the so-called exercise of right under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the Churches under the guise of spiritual supremacy of the Patriarch. 228.5. The  Primate  of  Orthodox  Syrian  Church  of  the  East  is Catholicos. He enjoys spiritual powers as well,  as the Malankara Metropolitan.  Malankara  Metropolitan  has  the  prime  jurisdiction regarding  temporal,  ecclesiastical  and  spiritual  administration  of Malankara  Church  subject  to  the  riders  provided  in  the  1934 Constitution.

13  Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR  

1959 SC 31 14

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 15

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

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228.6. Full  effect has to be given to the finding that the spiritual power  of  the  Patriarch  has  reached  to  a  vanishing  point. Consequently,  he  cannot  interfere  in  the  governance  of  parish churches  by  appointing  Vicar,  priests,  Deacons,  Prelates  (High Priests),  etc.  and  thereby  cannot  create  a  parallel  system  of administration. The appointment has to be made as per the power conferred  under  the  1934  Constitution  on  the  Diocese, Metropolitan, etc. concerned. 228.7. Though  it  is  open  to  the  individual  member  to  leave  a Church  in  exercise  of  the  right  not  to  be  a  member  of  any association and as per Article 20 of the Universal  Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise  cannot  decide  to  move  Church  out  of  the  Malankara Church. Once a trust, is always a trust. 228.8. When the Church has been created and is for the benefit of the  beneficiaries,  it  is  not  open for  the  beneficiaries,  even by  a majority,  to  usurp  its  property  or  management.  The  Malankara Church is in the form of a trust in which, its properties have vested. As  per  the  1934  Constitution,  the  parishioners  though  may individually leave the Church, they are not  permitted to take the movable  or  immovable  properties  out  of  the  ambit  of  the  1934 Constitution without the approval of the Church hierarchy. 228.9. The  spiritual  power  of  Patriarch  has been set  up  by  the appellants clearly in order to violate the mandate of the Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286 of this  Court  which  is  binding  on  the  Patriarch,  Catholicos  and  all concerned. 228.10. As per the historical background and the practices which have  been  noted,  the  Patriarch  is  not  to  exercise  the  power  to appoint  Vicar,  priests,  Deacons,  Prelates,  etc.  Such  powers  are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.

228.11. This Court has held4 in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4)  286   that  even  if  he  has  such  power,  he  could  not  have exercised the same unilaterally  which we have explained in this judgment. 228.12. It  is  open  to  the  parishioners  to  believe  in  the  spiritual supremacy of the Patriarch or apostolic succession but it cannot be used  to  appoint  Vicars,  priests,  Deacons,  Prelates,  etc.  in contravention of the 1934 Constitution. 228.13. Malankara Church is episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.

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228.14. Appointment  of  Vicar  is  a  secular  matter.  There  is  no violation of any of the rights encompassed under Articles 25 and 26 of  the  Constitution  of  India,  if  the  appointment  of  Vicar,  priests, Deacons,  Prelates  (High  priests),  etc.  is  made as  per  the  1934 Constitution.  The  Patriarch  has  no  power  to  interfere  in  such matters  under  the  guise  of  spiritual  supremacy unless  the  1934 Constitution  is  amended  in  accordance  with  law.  The  same  is binding on all concerned. 228.15. Udampadies  do  not  provide  for  appointment  of  Vicar, priests,  Deacons,  Prelates,  etc.  Even  otherwise  once  the  1934 Constitution has been adopted, the appointment of Vicar, priests, Deacons,  Prelates  (High  priests),  etc.  is  to  be  as  per  the  1934 Constitution. It is not within the domain of the spiritual right of the Patriarch  to  appoint  Vicar,  priests,  etc.  The  spiritual  power  also vests in the other functionaries of the Malankara Church. 228.16. The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the Church being episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the parishioners who believe in the spiritual supremacy of the Patriarch. 228.17. The Church and the cemetery cannot be confiscated by anybody.  It  has  to  remain  with  the  parishioners  as  per  the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church.  The property  of  the  Malankara  Church in  which  is  also vested the property of the parish churches, would remain in trust as it has for time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties. 228.18. The faith of Church is unnecessarily sought to be divided vis-à-vis the office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised. 228.19. The  authority  of  Patriarch  had  never  extended  to  the government of  temporalities of the Churches. By questioning the action  of  the  Patriarch  and  his  undue  interference  in  the administration  of  Churches  in  violation  of  the  Most  Rev.  P.M.A. Metropolitan v. Moran Mar Marthoma 1995 Supp (4) 286, it cannot be  said  that  the  Catholicos  faction  is  guilty  of  repudiating  the spiritual supremacy of the Patriarch. The Patriarch faction is to be

14

blamed  for  the  situation  which  has  been  created  post  1995 judgment4. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 19954 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar, etc. in violation of the 1995 judgment4 of this Court. 228.20. The 1934 Constitution is enforceable at present and the plea of  its  frustration  or  breach is  not  available  to  the  Patriarch faction. Once there is Malankara Church, it has to remain as such including  the  property.  No group or  denomination  by  majority  or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and  illegal  usurpation  of  its  properties.  It  is  not  open  to  the beneficiaries even by majority to change the nature of the Church, its  property  and  management.  The  only  method  to  change management is to amend the Constitution of 1934 in accordance with law. It is not open to the parish churches to even frame bye- laws in violation of the provisions of the 1934 Constitution. 228.21. The Udampadies of  1890 and 1913 are  with  respect  to administration of churches and are not documents of the creation of the trust and are not of utility at present and even otherwise cannot hold  the  field  containing  provisions  inconsistent  with  the  1934 Constitution,  as  per  Section  132  thereof.  The  Udampady  also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution. 228.22. The 1934 Constitution  does not  create,  declare,  assign, limit  or extinguish, whether in present or future any right, title or interest,  whether  vested  or  contingent  in  the  Malankara  Church properties  and  only  provides  a  system of  administration  and  as such is not required to be registered. In any case, the Udampadies for  the  reasons  already  cited,  cannot  supersede  the  1934 Constitution only because these are claimed to be registered. 228.23. In  otherwise  episcopal  Church,  whatever  autonomy  is provided in the Constitution for the Churches is for management and necessary expenditure as provided in Section 22, etc. 228.24. The formation of the 2002 Constitution is the result of illegal and void exercise. It cannot be recognised and the parallel system created  thereunder  for  administration  of  parish  churches  of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution. 228.25. It  was  not  necessary,  after  amendment  of  the  plaint  in Mannathoor Church matter, to adopt the procedure once again of representative  suit  under  Order  1  Rule  8  CPC.  It  remained  a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.

15

228.26. The  1934  Constitution  is  appropriate  and  adequate  for management of the parish churches, as such there is no necessity of framing a scheme under Section 92 CPC. 228.27. The plea that in face of the prevailing dissension between the  two  factions  and  the  remote  possibility  of  reconciliation,  the religious services may be permitted to be conducted by two Vicars of  each  faith  cannot  be  accepted  as  that  would  amount  to patronising parallel systems of administration. 228.28. Both the factions, for the sake of the sacred religion they profess  and  to  pre-empt  further  bickering  and  unpleasantness precipitating avoidable institutional degeneration, ought to resolve their  differences  if  any,  on  a  common  platform  if  necessary  by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.”

15. Though various arguments were advanced by learned senior

counsel Mr.  Shyam Divan to urge that  the conclusions arrived in

K.S. Varghese case16 is not in consonance with the judgment in

P.M.A. Metropolitan17,  the same do not merit acceptance.  Having

carefully  gone through the conclusions in  para (228) of  the  K.S.

Varghese  case18,  in  our  view,  the  conclusions  are  well  in

consonance  with  the Thukalan  Paula  Avira19 and  P.M.A.

Metropolitan20 judgments.   The  detailed  discussions  and

16  K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian

Orthodox Church and others (2017) 15 SCC 333 17

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 18

K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian Orthodox Church and others (2017) 15 SCC 333 19

Moram Mar Basselios Catholicos v. Thukalan Paulo Avira AIR 1959 SC 31 20

16

conclusions arrived at in K.S. Varghese case21 settles the disputes

between the appellant Patriarch and the respondents Malankara.   

16. As  per  the  consistent  view  taken  in  the  above  judgments,

1934 Constitution is valid and binding upon the Parishioners.  The

Parish Church has to be managed as per  the powers conferred

under the 1934 Constitution. It is not open to any individual church

to have a parallel system of management in the churches under the

guise of spiritual supremacy in the Patriarch. As per the consistent

findings in the above judgments, the prime jurisdiction with respect

to  the  temporal,  ecclesiastical  and  spiritual  administration  of  the

Malankara Church is vested with Malankara Metropolitan and other

authorities  appointed  by  Malankara  Metropolitan.   Malankara

Metropolitan  enjoys  all  the  temporal,  ecclesiastical  and  spiritual

administrative  powers  (Para  (145)  of  K.S.  Varghese case22).  As

held in  K.S. Varghese case23,  “Full effect has to be given to the

finding that the spiritual power of the Patriarch has reached to a

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 21

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

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

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

17

vanishing  point.  Consequently,  he  cannot  interfere  in  the

governance  of  parish  churches  by  appointing  Vicar,  priests,

Deacons, Prelates (High Priests), etc. and thereby cannot create a

parallel system of administration. …….”.   

17. The present  matter  relates to the Parish Church-St.  Mary’s

Church, Kattachira.  The plaint Church was listed as Serial No.41-

among 1064 Parish Churches included in the plaint Schedule in the

representative suit in OS No.4 of 1979.  Ext.-A3-Sale-cum-Gift Deed

was executed by C.K.  Koshy in  favour  of  Metropolitan of  Quilon

Diocese.   The  recitals  in  Ext.-A3  make it  clear  that  C.K.  Koshy

executed the Sale-cum-Gift Deed in favour of Metropolitan of Quilon

Diocese  intending  that  it  may  be  treated  as  Bhadrasanam

properties.   Ext.-A3  provided  that  the  Metropolitan  may  directly

administer the said properties or through his representatives.  Ext.-

A3  further  provided  that  the  Parishioners  and  the  Managing

Committee should abide by the dictates of  the Metropolitan from

time to time.  The recitals in Ext.-A3 make it clear that St. Mary’s

Orthodox Syrian Church, Kattachira and the properties have been

gifted in favour of first plaintiff-Metropolitan Malankara to be treated

as  Bhadrasanam  properties  subject  to  the  control  of  the

Metropolitan in appointing Vicar, Priests etc.  As per recitals in Ext.-

18

A3, the plaint church and the properties come under the spiritual

and the temporal control of the Malankara Metropolitan.

18. As per the decision of the Supreme Court in the Constitution

Bench in  Thukalan Paula Avira24 and  P.M.A. Metropolitan25,  St.

Mary’s Church is bound by Ext.-A1 Constitution and the control of

the Metropolitan.  Having held that the 1934 Constitution is binding

upon the Parish Church and its Parishioners, the Division Bench

was  not  right  in  holding  that  the  Metropolitan  had  no  power  to

appoint Vicar, Priests etc.  The conclusion of the Division Bench that

the Parishioners have the right to make all such appointments and

to manage the affairs of St. Mary’s Church is directly contrary to the

express provisions of the 1934 Constitution and the findings of the

Supreme Court in  P.M.A. Metropolitan26.  Considering the recitals

in Ext.-A3 and the judgments of the Supreme Court in  Thukalan

Paula Avira27 and  P.M.A.  Metropolitan28,  the trial  court  and the

24  Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR  

1959 SC 31 25

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 26

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 27

Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR  1959 SC 31 28

19

Single Judge rightly held that the St. Mary’s Church is a constituent

of Malankara and the power to appoint Vicar, Priests etc. is vested

with the first plaintiff-Malankara Metropolitan or his representatives.

19. Metropolitan of Quilon Diocese was exercising control over St.

Mary’s Church is also evident from various document adduced in

evidence referred to in detail in the judgment of the trial court as

under:-

“18. …….Ever since the reproachment was made between the patriarch group and the  Catholicose group after  the  judgment  of  the  Supreme Court in the above case in 1958, the plaint church has paid dues both to the Diocesan Metropolitan and the Catholicose in  recognition of  their spiritual control over the church.  Exts. A4 and A6 would show that the plaint  church  was  sending  its  delegates  for  representing  it  in  the Malankara Syrian Christian association.  The priests are appointed in the church by the first plaintiff and the church was sending to him the salary due to the priests regularly.  Exts. A14 to A17 and A23 to A32 will bear this out.  Several other dues payable to the Metropolitan and Catholicose are  also  seen to  have been sent  by  the  plaint  church  accepting  the spiritual supremacy of the Catholicose and the Metropolitan under him. Exts. A18 is the printed annual report of the Quilon Bhadrasanam for the year 1974 showing the contributions made by the Bhadrasanam for the building of the plaint church.  Exts. A7 and A8 are Kalpanas issued by the first plaintiff appointing priests to the plaint church…..”

20. The above exhibits referred to in the judgment of the trial court

namely  appointment  of  the  Priests  to  the  plaint  church  by  the

Metropolitan and the regular  payment of  salary to the Priests so

appointed and the church sending its delegates for representing it in

the  Malankara  Church  Association  and  other  documents  would

amply  show  that  the  plaint  church  has  been  a  constituent  of

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

20

Metropolitan Malankara and the churches and its properties come

under the spiritual and temporal control of Catholicos.

21. DW-1 has spoken about the pothuyogam of the plaint church

which has taken the decision that Ext.-A1-1934 Constitution is not

suitable  to  the  church  and  the  sabha  and  that  as  per  the  said

Resolution, the pothuyogam had decided to request the authorities

of  the  Malankara  Church  or  Sabha  to  repudiate  the  1934

Constitution (Ext.-A1) which was then in force. As rightly observed

by  the  trial  court,  once  1934  Constitution  (Ext.-A1)  had  been

adopted by the plaint  church and was in  force,  there can be no

question of requesting the authorities to repudiate it.  This is also an

indication to  show that  the plaint  church has accepted the 1934

Constitution and the spiritual authority of the Catholicos.  The finding

of  the  Division  Bench  that  the  Metropolitan  had  no  authority  to

appoint  a Vicar is directly opposed to the provisions of the 1934

Constitution  and  also  recitals  in  Ext.-A3-Sale-cum-Gift  Deed  and

number of other documents adduced by the appellants.  The finding

of  the  Division  Bench  that  the  Metropolitan  had  no  authority  to

appoint  Vicar  and  Priests  is  directly  in  contradiction  to  the

21

Constitution Bench judgment in Thukalan Paula Avira29 and P.M.A.

Metropolitan30.

22. Contention of the respondent is that the issue regarding the

interpretation of Articles 25 and 26 of the Constitution of India ought

to be determined by a Bench comprising at least five Judges of the

Supreme Court under Article 145 (3) of the Constitution of India is

not tenable.  The contention of Patriarch that the Parishioners have

a right  of  freedom of  religion  and  the  question  of  law regarding

fundamental rights under Articles 25 and 26 of the Constitution of

India had already been raised and elaborately argued by different

senior counsels in  K.S. Varghese case31 (vide paras 57.2, 57.2.1,

57.2.2, 57.4, 59.2, 60, 62 etc.).  Contention relating to violation of

Articles 25 and 26 of the Constitution of India has been elaborately

considered  in  K.S.  Varghese  case32 under  sub-heading  “In  re:

parishioners have a right to follow their faith under Article 25 and

appointment of Vicar, priest and deacons, etc. and manage affairs

29  Moram Mar Basselios Catholicos v. Thukalan Paulo Avira & Ors. AIR  

1959 SC 31 30

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 31

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

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

22

under  Article  26 of  the Constitution of  India”.    After  referring to

various  judgments  rejecting  the  contention  of  the  Patriarch  of

Antioch as to the violation of the right under Articles 25 and 26 of

the Constitution of India.  In para (146) of the judgment, it was held

as under:-

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

We endorse the above view taken in K.S. Varghese case33 that  the

1934 Constitution cannot be said to be in violation of Articles 25 and

26 of the Constitution of India.  

23. The  impugned  judgment  of  the  Division  Bench  is  in

contradiction to the judgments of the Supreme Court in  Thukalan

33  K.S. Varghese and others v. Saint Peter’s and Saint Paul’s Syrian

Orthodox Church and others (2017) 15 SCC 333

23

Paula  Avira34,  P.M.A.  Metropolitan35 and K.S.  Varghese case36

and the same cannot be sustained.  In the result,  the impugned

judgment is set aside and these appeals are allowed.  

.…….…………...………J. [RANJAN GOGOI]

…………….……………J.  [R. BANUMATHI]

…………….……………J.    [NAVIN SINHA]

New Delhi; August 28, 2018

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

1959 SC 31 35

Most Rev.  P.M.A.  Metropolitan and others v.  Moran Mar Marthoma and another 1995 Supp (4) SCC 286 36

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

24