# [1988] 2 S.C.R. 737

- **Citation:** [1988] 2 S.C.R. 737
- **Court:** Supreme Court of India
- **Decided:** 1988
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1988-2-s-c-r-737-9849
- **Pages:** 22

## Headnote

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DISTI. COUNCIL OF UNITED BASEL MISSION
CHURCH & ORS.
v . .
•.et·,;.~. \·1 .V ADOR NICHOLAS MATHIAS & ORS .
• ,.ff~ ''' -~~·
JANUARY 20,' 1988
[MURARI MOHON DU'IT AND M.H. KANIA, JJ.I
Challenging resolution proposing merger of United Basel Mission
Church (UBMC) of South Kanara and Coorg with the Church of South
India (C.S.I.), as void, illegal and ultra vires the provisions of Religious
Societies Act, !880. ·
The respondents, members of the United Basel Mission Church
(U.B.M.C.) of South Kanara and Coorg, instituted a suit in the Court·
A
B
c
of Munsif, Mangalore, praying for a declaration that the resolution
dated May 9, 1961, passed hi the extraordinary meeting of the District
D
Church Council of UBMC of South Kanara and Coorg, proposing the
merger of UB~IC of South Kanara and Coorg with the Church of South
India (C.S.I.). was v·oid, illegal and ultra vires the constitution of the
UBM C and also the provisions of the Religious Societies Act, 1880, and
not' binding on the respondents/plaintiffs or other members of the
UBMC of South Kanara and Coorg • .The suit was .contested by the
E
appellants defendants. The trial Court dismissed the suit, holding that
(i) the suit was maintainable but the respondents were not entitled to file
the suit in a representative character, representing the UBMC ofSoutb
Kanara & Coorg, (ii) there was no fundamental difference between the
UBMC and CSI, and (iii) the impugned resolution was legal and valid._
The respondents filed appeal against the judgrnent of the .trial court ... F
which was dismissed hy the Additional Civil Judge, who,. however. held
that the respondents were entitled to file the suit In a representative
character. The respondents preferred a second· appeal to the High
Court against the judgment and decree of the Additional Civil Judge.
The High Court (Single Judge) took'· a contrary view and allowed the
appeal, holding that there were fundamental differences in doctrine.
G
faith, tradition, heritage and practices between UBMC and CSI; and
the resolution impugned was illegal and void. Aggrieved by the decision
of .the High Court, the appellants moved this Court for relief by special
leave.
Allowing the appeal. the Court
737
H
738
SUPREME COURT REPORTS
11988] 2 S.C.R.
A
HELD: It was well-established that the dispute as to the right of
worship was one of a civil nature within the meaning of section 9 of the
Code of Civil Procedure and a suit was maintainable for the vindication
or determination of such a right. It must he made clear that maintainability of the suit would not permit a Court to consider the soundness or
B
c
pq1priety of any religious doctrine, faith or rituals. The scope of
enquiry in such a suit was limited to those aspects only that had a direct
hearing on the question of right of worship, and with a view to considering such a question, the Court might examine the doctrines, faith,
rituals and practices for the purpose of ascertaining whether the same
interfered with the right of worship of the aggrieved parties. In view of
section 9 of the Code of Civil Procedure, the enquiry should he confined
to the disputes of a civil nature. Any dispute, which was not of a civil
nature should he excluded from consideration. l745B, D-F]
Both the churches were Protestant Churches. The fundamental
doctrines, faith and belief appeared to he the same. Both UBMC and
CSI believed in Jesus Christ, the Incarnate Son of God the Redeamer of
D
the World. Both also believed that man was saved from sin through
grace in Jesus Christ. Both believed in the Holy Spirit and in the
Supreme Power of' Holy Spirit and .that there should he free access of
man to God. l745G-H; 746AJ
U.B.M.C. was a Presbyterian Church and the respondents did
E
not believe in the concept of Episcopacy or apostolic succession,
associated with historic Episcopacy. UBMC was opposed to Episcopacy, but Episcopacy, adopted by the CSI was not that historic EpiscoF
pacy, but historic Epi

## Text

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DISTI. COUNCIL OF UNITED BASEL MISSION
CHURCH & ORS.
v . .
•.et·,;.~. \·1 .V ADOR NICHOLAS MATHIAS & ORS .
• ,.ff~ ''' -~~·
JANUARY 20,' 1988
[MURARI MOHON DU'IT AND M.H. KANIA, JJ.I
Challenging resolution proposing merger of United Basel Mission
Church (UBMC) of South Kanara and Coorg with the Church of South
India (C.S.I.), as void, illegal and ultra vires the provisions of Religious
Societies Act, !880. ·
The respondents, members of the United Basel Mission Church
(U.B.M.C.) of South Kanara and Coorg, instituted a suit in the Court·
A
B
c
of Munsif, Mangalore, praying for a declaration that the resolution
dated May 9, 1961, passed hi the extraordinary meeting of the District
D
Church Council of UBMC of South Kanara and Coorg, proposing the
merger of UB~IC of South Kanara and Coorg with the Church of South
India (C.S.I.). was v·oid, illegal and ultra vires the constitution of the
UBM C and also the provisions of the Religious Societies Act, 1880, and
not' binding on the respondents/plaintiffs or other members of the
UBMC of South Kanara and Coorg • .The suit was .contested by the
E
appellants defendants. The trial Court dismissed the suit, holding that
(i) the suit was maintainable but the respondents were not entitled to file
the suit in a representative character, representing the UBMC ofSoutb
Kanara & Coorg, (ii) there was no fundamental difference between the
UBMC and CSI, and (iii) the impugned resolution was legal and valid._
The respondents filed appeal against the judgrnent of the .trial court ... F
which was dismissed hy the Additional Civil Judge, who,. however. held
that the respondents were entitled to file the suit In a representative
character. The respondents preferred a second· appeal to the High
Court against the judgment and decree of the Additional Civil Judge.
The High Court (Single Judge) took'· a contrary view and allowed the
appeal, holding that there were fundamental differences in doctrine.
G
faith, tradition, heritage and practices between UBMC and CSI; and
the resolution impugned was illegal and void. Aggrieved by the decision
of .the High Court, the appellants moved this Court for relief by special
leave.
Allowing the appeal. the Court
737
H
738
SUPREME COURT REPORTS
11988] 2 S.C.R.
A
HELD: It was well-established that the dispute as to the right of
worship was one of a civil nature within the meaning of section 9 of the
Code of Civil Procedure and a suit was maintainable for the vindication
or determination of such a right. It must he made clear that maintainability of the suit would not permit a Court to consider the soundness or
B
c
pq1priety of any religious doctrine, faith or rituals. The scope of
enquiry in such a suit was limited to those aspects only that had a direct
hearing on the question of right of worship, and with a view to considering such a question, the Court might examine the doctrines, faith,
rituals and practices for the purpose of ascertaining whether the same
interfered with the right of worship of the aggrieved parties. In view of
section 9 of the Code of Civil Procedure, the enquiry should he confined
to the disputes of a civil nature. Any dispute, which was not of a civil
nature should he excluded from consideration. l745B, D-F]
Both the churches were Protestant Churches. The fundamental
doctrines, faith and belief appeared to he the same. Both UBMC and
CSI believed in Jesus Christ, the Incarnate Son of God the Redeamer of
D
the World. Both also believed that man was saved from sin through
grace in Jesus Christ. Both believed in the Holy Spirit and in the
Supreme Power of' Holy Spirit and .that there should he free access of
man to God. l745G-H; 746AJ
U.B.M.C. was a Presbyterian Church and the respondents did
E
not believe in the concept of Episcopacy or apostolic succession,
associated with historic Episcopacy. UBMC was opposed to Episcopacy, but Episcopacy, adopted by the CSI was not that historic EpiscoF
pacy, but historic Episcopacy in a constitutional form. The CSI believed
;.
that in all ordinations and consecrationsthe true ordainer and consecrater was God. From all this, the irresisti~le conclusion was that there~·
was neither apostolic succession nor historical Episcopacy in CSI as
:..';
contended on behalf of the respondents. l746B-C, E-FJ
The respondents placed much reliance on the universal prie-
. sthood. That was said to be prevalent in UBMC. The submission
in this regard, however, did not find support from the constitution
G
of UBMC. The universal priesthood, which was said to he prevalent
in UBMC, did not permit lay preachers· and Evangelists to administer the sacraments.1747C, GJ
In the CSI, Presbyters had the authority to administer the sacraments and in the UBMC, the Pastors, who were ordained ministers,
H
were authorised to administer the sacraments. There was, therefore, no
DISIT. COUNCIL OF U.B.M.C. v. S.N. MATIIIAS
739
-{ distinction between a pastor in the UBMC and a Presbyter in the CSI.
As the functions and duties of Presbyters and Pastors were the same and
as both of them were ordained ministers, no exception could be taken by
the respondents if the sacraments were administered by Pastors instead
of the Presbyters. No objection could also be taken to the Bishops
administering the sacraments, for they did not emerge from the
apostolic succession which was the main characteristic of historical
t episcopacy. If the respondents or any members of the UBMC had any
objection to the administering of sacraments by the Bishops, the sacra1
ments could be administered by the Presbyters. The Malabar and
Bombay·Karnataka Units of UBMC had already joined the CSI. The
A
B
,
CSI had accepted already the form of worship followed in the UBMC
before the Union of the two nnits with the CSI, and such acceptance was
C
indicated in Rule 12 of Chapter II of the Constitution of the CSI, and in
view of this it was difficult to accept the contention of the respondents
that in case of merger or implementation of the impugned resolution,
the right of worship of the impugned resolution, the right of worship of
the members of the UBMC would be affected. 1[748A·FI
After a person was appointed a Bishop or a Presbyter in the CSI
D
or a Pastor in UBMC, he had to be ordained in almost the same manner. The Court did not think it was within the purview of the enquiry in
thisUtigation whether such ordination in the CSI had a spiritual signifi·
cance of a transfer of grace or whether it was only a symbol of confer·
ment of authority, so far as UBMC was concerned. The mode or manE
ner of ordination or the underlying object of such ordination had, in the
Court's opinion, nothing to do with the right of worship of the
respondents. [749B-C]
Both UBMC and CSI believed in Apostles Creed and Nicene
~reed. If shorter Catechism, as stated by D. W. 1 consisted of the
' ... Creeds in the form of questions and answers, the Court did not think
that merely because there was no mention about Shorter Catechism in
the Constitution of the CSI, it could be said that there was a difference
in the faith and doctrine of the two Churches, as held by the High
Court. [749F·GI
' ...
There was no cause for apprehension of the respondents that in
Y
case of merger, the Apocrypha would be imposed upon them which was
repugnant to their religious faith, in the liturgy of the CSI, the prayer
from Apocrypha had been made optional which showed that there was no
scope for the imposition of Apocrypha on the respondents in the case of
Union ofUBMC and CSI. [751A·B)
F
G
H
740
SUPREME COURT REPORTS
[1988) 2 S.C.R.
A
As regards the properties of the UBMC, even though there
was merger, the properties or the income thereof would he utilised
only for the benefit of the members of the UBMC of the South
Kanara and Coorg. It was difficult to accept the contention of the
respondents that in the case of merger, there would be diversion of
the properties in the hands of the UBMC Trust Association to the
B CSI in breach of trust. [7S2B-CJ
There was little or no difference between the doctrines, faith and.
religious views of UBMC and the CSI. The objection of the respondents
c
to historical Episcopacy had no solid foundation inasmuch as historical
Episcopacy was not in existence in the true sense of the term in the CSI, ~
and it was none in a constitutional form. In other words, the Bishops
were elected and Apostolic succession which was associated with historical Episcopacy, was totally absent. The observations made in General
Assembly of Free Church of S.cotland v. Lord Overtoun, [1904) AC
D
E
SIS, could not in any event be applicable to the facts of this case, which
are different from the said Free Church C/lSe. [7S3F·HI
As regards the question whether the District Church Council had
the authority to 1~ass the impugned resolution, it was true that the
District Church Council had only the power of amendment of the Con·
stitution and no power had been conferred on it to pass a resolution
relating to the union of the UBM C of South Kanara and Coorg with the
CSI, but the Synod was the highest authority and the Synod of UBMC
had the power to sanction merger of any unit of UBMC in the CSI, and
the Synod passed a resolution, permitting the District Church Council
of South Kanara and Coorg to join the Church of South India-CSL As
F
the Synod was a representative body of the units, it stood dissolved after
passing the said resolution, but until such a resolution was passed, it~
existed as the hi1:hest authoritative and administrative body of the
\
UBMC. !7S7 A·B, E-FI
The challenge to the validity of the resolution impugned on the
ground of violation of the provisions of section 6 of the Religious
Societies Act, 1880, was misconceived and without any substance. The
G
section dealt with the dissolution of societies and adjustment of their
affairs. There was no question of dissolution of UBMC of South Kanara
and Coorg and disposal of settlement of its property, claims and
liabilities, etc., and as such the provision of section 6 was not at all
applicable to this case. [7S8C-D I
H
The Court disagreed with the Hi~h Court that the impugned
' ..
DISIT. COUNCIL OF U.B.M.C. v. S.N. MATHIAS (DUIT, J.J
741
resolution violated the provision of section 6 of the Religious Societies
Act, and in view of the fact that the Synod had unanimously accorded
jl_ermission for the merger, the High Court was not justified in striking
down the said resolution. On the ground that it was beyond the authority of the District Church Council to pass such a resolution. The
impugned resolution was legal and valid. [758E-F)
Ugamsingh and Mishrimal v. Kesrimal, [1971) 2 S.C.R. 836;
Thiru-venkata Ramanuja Pedda Jiyyangarlu Valu v. Prathivathi
Bhayan Karam Venkatacharlu, A.I.R. 1947 PC 53; General Assembly
of Free Church of Scotland v. Lord Overtoun, [1904) AC 515 and N.P.
Barwellv.JohnJackson, A.I.R.1943All.146.
A
B
-1
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 84 of C
1975.
From the Judgment and Order dated 19.4.1974 of the Karnataka
High Court in R.S.A. No. 741of1971.
·
'
"-'
T.S. Krishnamurthy Iyers, ATM Sampath and Srinivasa Anand
(_
for_ the Appellants.
B.P. Halda, S.S. ~veli and Ranjit Kumar for the Respondents.
The Judgment of the Court was delivered by
DUTT, J. This appeal by special leave at the instance of the
defendants is directed- against the judgment and decree of a learned
Single Judge of the Karnataka High Court whereby the learned Judge
reversed the judgment and decree of the Additional Civil Judge, Mangalore, affirming those of the Munsif, Mangalore, dismissing the suit
filed by the plaintiff-respondents.
D
E
F
The respondents, whq are the members of the United Basel Mission Church (for short 'UBMC') of South Kanara and Coorg, instituted a suit in the court of the Munsif, Mangalore, praying for a declaration that the resolution dated May 9, ,1961 ·passed in the extraordinary ineeting of the District Church Council of UBMC of South G
Kanara and Coorg proposing the merger of UBMC of South Kanara
and Coorg with the Church of South India was void, illegal and ultra
vires the Constitution of UBMC and also the provisions of the Religious Societies Act, 1880 and not binding on the respondents or other
members of UBMC of South Kanara and Coorg. The respondents also
prayed for a permanent in junction restraining the defendants-appelH
742
SUPREME COURT REPORTS
(1988] 2 S.C.R.
A !ants from implementing the said resolution.
c
The Evangelical Missionary Society in Base. \.t>asel Ml.sion),
which, is a religious Society, consisting of missionaries of different
denominational churches of Switzerland and Germany constituted
UBMC in South Kanara, Coorg, Malabar and North Kamataka for the
purpose of ,spreading the Gospel. The UBMC has a written constitution (Ex. A-1). Under the Constitution, the UBMC is divided in three
Ecclesiastical Districts, namely, the South Kanara and Coorg,
Bombay-Kamataka and Malabar. Each District had its own representative "body known as the District Church Council to supervise the
work of the churches. The District Church Board was the Executive
body consisting of a few members of the District Church Council. The
highest authority of UBMC is a body known as Synod which is constituted with the representatives of the District Church Councils, the
· Basel Mission and certain e.x; officio members.
In 1905, a number of Congregational Churches under the
D London Mission Society united with the Congregational Churches and
the Presbyterian Churches in South India and such union came to be
called the South Indian United Church. Subsequently, the South India
'United Church and the Anglican Church in South India came to be
united and this union brought into existence the Church of South India
(for short 'CSI') in 1941.
/
E
After the creation of CSI, there had been a move that the
. churches in the three Districts of UBMC should join the CSI. Indeed
·in 1943, the Malabar District Church of UBMC joined the CSI with
the approval of the Synod. Further, it appears that the BombayKamataka Unit of UBMC had also joined the CSI. The only Unit of
'··· .. F
UBMC that remained is the South Kanara and Coorg Unit. By the
· impugned resolution dated May 9, 1961, the majority of members of
the District Church Council of UBMC of the South Kanara and Coorg
.. decided to join the CSI. Being aggrieved by the said resolution and to
g'et rid of the same, the respondents instituted the said suit in a representative character under Order 1;Rule 8 of the Code of Civil ProceG · dure .as representing the members of UBMC of South Kanara and
Coorg .
. ...._
The case of the respondents is inter alia that they are Protestant
Christians belonging to the Ecclesiastical Districts of South Kanara
and Coorg of UBMC. Every member of UBMC has a right vested in
H him unde·r its Constitution to be a member of a District Church Board
r
/
_,,
DISIT. COUNCIL OF U.B.M.C. v. S.N. MAIBIAS IDUIT, J.]
743
and District Church Council and to administer the properties vested in
them and to manage their affairs. These rights guaranteed under the
Constitution cannot be altered or abridged except under Rule 14 of the
Constitution providing for amendment. According to the respondents,
the CSI is fundamentally different in doctrine, faith, worship, tradition, heritage and practices from UBMC of South Kanara and Coorg.
A
~
An important distinguishing fundamental principle is the principle of
Episcopacy adopted by the CSI, but rejected by the UBMC, which
cherishes as a great treasure the principle that priesthood i& given to all
believers. It is the case of the r~spondents that the Union of UBMC
and CSI would be colourable one, since there can be no union of two
- ~-
bodies holding fundamentally different doctrines and believing in difB
, ferent declarations of faith. It is contended that the impugned resolution is ultra vires Rule 14 of the Constitution of UBMC. The resolution
is also bad, since it is beyond the power of the District Church Council
to dissolve the Constitution. It is alleged that the funds and properties
of UBMC are held in trust for the propagation and advancement t>f the
faith and doctrine of UBMC and, as such, they cannot be diverted to
different purposes. It is contended that the majority who disagree with
the doctrine and faith of UBMC cannot impose on the minority a
. ritual, a ministry, and a Constitution opposed to the doctrinal faith of
UBMC. Upon the said pleadings, the suit was instituted for the reliefs
aforesaid.
c
D
The suit was contested by the appellants by filing a written stateE
ment. It was contended that the. suit was not one of a civil nature
within the meaning of section 9 of the Code of Civil Proced~re and,
accordingly, it was not maintainable. Further, the contention of the
appellants was that the respondents did not represent the members of
-UBMC and so the respondents were not entitled to sue the appeila.'lts
in a representative capacity as representing the members of UBMC in
F
South Kanara and Coorg. It was denied by them that there was any
fundamental difference between UBMC and CSI in doctrine, faith,
worship, tradition, heritage and practices. It was averred that the Constitution of the CSI and the doctrinal faith, the ministry and the form
of worship adopted by the CSI were in no way fundamentally different
from those adopted and practised by the UBMC. The Protestant G
Churches were not committed: to any doctrine regarding historic
Episcopacy. The constitutional Episcopacy adopted by the CSI was
not contrary to the Presbyterian heritage and the ministers of UBMC
were also ordained. The freedom of interpretation given with regard
to the Creeds was not opposed to the union .. The contention of the
respondents that in case of merger, there would be diversion of the
H
744
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A properties of the UBMC was emphatically disputed by the appellants.
B
It was averred that as the impugned resolution was passed by an overwhelming majority of the members of UBMC it was binding upon the
respondents. They denied that the resolution was ultra vires Rule 14 of
the Constitution of UBMC. The appellants, accordingly, prayed that
the suit should be dismissed.
The respondents examined the 4th plaintiff as P. W. 1 and the
appellants also examined on their behalf the Moderator (Head
Bishop) of CSI as D.W. 1. Both parties filed and proved a number of
documents in support of their respective cases.
C
The learned Munsif, after considering the evidences and the submissions made on behalf of the parties, came to the findings that the
suit was maintainable but the respondents were not entitled to file the
suit in a representative character as representing the UBMC of South
Kanara and Coorg. Further, the learned Munsif found that there was
no fundamental difference between UBMC and CSI in matters of
D doctrine, faith, worship, tradition, heritage and practices. The
impugned resolution was held by the learned Munsif to be legal and
valid. Upon the said findings, the learned Munsif dismissed the suit.
On appeal by the respondents, the learned Additional Civil Judge
came to the same findings as that of the learned Munsif except that it
was held by him that the respondents were entitled to file the suit in a
E
representative character. The appeal preferred by the respondents
was, consequently, dismissed by the learned Additional Civil Judge.
i
'
j
1
)--
y
Being aggrieved by the judgment and decree of the learned
;-.
Additional Civil Judge, the respondents preferred a second appeal to
the High Court. A learned Single Judge of the High Court took.JI.A·
F
contrary view and held that there were fundamental differences in --\,
doctrine, faith, worship, tradition, heritage and practices between
I
UBMC and CSL The impugned resolution was held by the learned
Judge as illegal and void. The learned Judge, accordingly, allowed the
appeal of the respondents and set aside the judgments and decrees of
lii
"
•
;;..
t
•
the first appellate court and of the trial court and dismissed the suit.
;,,
~
G Hence this appeal.
The first point that has been urged by Mr. Krishnamurthy lyet,
learned Counsel appearing on behalf of the appellants, is that the
dispute between the parties is not one of a civil nature and, as such, the
suit was not maintainable. It has been already noticed that all the
H -courts below including the High Court have concurrently come to the
..
..
DISIT. COUNCIL OF U.B.M.C. v. S.N MATHIAS [DUIT, J.J
745
finding that the suit was of a civil nature within the meaning of section
9 of the Code of Civil Procedure and, accordingly, it was maintainable.
It is the case of the respondents that if the impugned resolution is
implemented or, in other words, UBMC of South Kanara and Coorg is
allowed to merge in CSI, the right of worship of the members of
UBMC will be affected. It is now well established that the dispute as to
right of worship is one of a civil nature within the meaning of section 9
of the Code of Civil Procedure and a suit is maintainable for the
vindication or determination of such a right. The question came up for
consideration before this Court in Ugamsingh & Mishrimal v. Kesrimal, [1971] 2 SCR 836 where this Court observed as follows:
"It is clear therefore that a right to worship is a civil right,
interference with which raises a dispute of a civil nature
though as noticed earlier disputes which are in respect of
rituals or ceremonies alone cannot be adjudicated by Civil
Courts if they are not essentially connected with Civil rights.
of an individual or a sect on behalf of whom a suit is filed."
In the instant case also, there is a question as to whether the right
of worship of the respondents will be affected in case of implementation of the impugned resolution. It must be made clear that maintainability of the suit will not permit a court to consider the soundness or
propriety of any religious doctrine, faith or rituals. The scope of the
enquiry in such a suit is limited to those aspects only that have direct
bearing on the question ofright of worship and with a view to considering such question the court may examine the doctrines, faith, rituals
and practices for the purpose of ascertaining whether the same
·"-
interfere with the right of worship of the aggrieved parties. In view of
_
section 9 of the Code of Civil Procedure, the enquiry of the court
~hould be confined to the disputes of a civil nature. Any dispute which
.,.
is not of a civil nature should be excluded from consideration.
A
B
c
D
E
F
It is the case of the respondents that there is a fundamental
difference in doctrine, faith, worship tradition, heritage and practices
between UBMC of South Kanara and Coorg and the CSI and in case of
implementation of the impugned resolution leading to the merger of G
UBMC with CSI, the right of worship of the respondents would be
greatly affected. Both the Churches are Protestant Churches. The
fundamental doctrines, faith and belief appear to be the same. Both
UBMC and CSI believe in Jesus Christ, the Incarnate Son of God and
Redeemer of the World. Both also believe that man is saved from sin
through Grace in Jesus Christ, the Son of God. Both the Churches
H
;/
746
SUPREME COURT REPORTS
[19881 2 S.C.R.
A believe in The Holy Spirit and in the Supreme power of the Holy Spirit
and that there should be free-access of man to God.
One of the principal objections of the respondents to the merger
of UBMC with CSI is that CSI believes in Episcopacy which is said to
have been rejected by the UBMC. The High Court had devoted sevf
'
B era! pages .relating to the origin, growth and other aspects of Episcopacy. It is not necessary for us to consider the origin or growth of
Episcopacy and suffice it to say that Episcopacy means Church ruled
by Bishops. UBMC is a Presbyterian Church and according to the
respondents they do not believe in the concept of Episcopacy or
apostolic succession which is associated with historic Episcopacy. Rule
1r- '
C
11 of the Constitution of CS! (Ex. B-39) provides, inter alia, that CS!
accepts and will maintain the historic·Episcopacy in a constitutional
form. Rule 11 further provides that as Episcopacy has been accepted in
the Church from early times, it may in this sense fitly be called historic
and that it is needed for the shepherding and extension of the Church
in South India and any additional interpretations, though held by indiD viduals, are not binding on the CSL
It is true UBMC is opposed to Episcopacy, but Episcopacy which
has been adopted by the CS!, is not that historic Episcopacy, but
historic Episcopacy in a constitutional form. In other words, the
Bishop will be one of the officials of the Church under its Constitution
E performing certain duties and functions. The Bishops are appointed by
election and there are provisions for the retirement of Bishops at the
age of 65 years, and also for their removal. It is significant to notice
that CSI believes that in all ordinations and consecrations the true
ordainer and consecrator is God. From all this, the irresistible conclur--
sion is that there is neither apostolic succession nor historical EpiscoF pacy in CSI as contended on behalf of the respondents.
-~~~.
The grievance of the respondents is that universal priesthood
that is recognised in UBMC is not there in the CSL In view of such
universal priesthood, a layman can administer sacraments in UBMC.
It is not disputed that there are two sacraments, namely (1) Lord's
G Supper and (2) Baptism. It is urged that in the CSI a layman cannot
administer these sacraments, and it is only the ordained minister who
can administer the sacraments. It is contended that the absence of
universal priesthood in the CSI is due to the fact that Episcopacy is still
maintained there. The learned Judge of the High Court observes that
Presbyters under the CSI are ordained persons whereas Presbyters in
H UBMC are all unordained elders. In the CSI, only the Bishops and the
.
/
DISTI. COUNCIL OF U.B.M.C. v. S.N. MATHIAS [DUTI, J.J
747
l
Presbyters who are ordained ministers can administer sacraments of
A
Lord's Supper. But in UBMC, the sacraments can be administered by
.
~.
a layman. It is submitted on behalf of the respondents that in case of
union of UBMC with the CSI, the form of worship willchange and that
the person doing the service of Holy Communion, that is Lord's Supper, will be changed and only ordained persons will do the service.
This, it is submitted, will affect the right of worship of the respondents.
B
Much reliance has been placed on behalf of the respondents on
·'
~
the universal priesthood that is said to be prevalent in UBMC. The
submission in this regard, however, does not find support from the
Constitution of UBMC. Under the heading "The Local Church",
·'(paragraph 4 of the Constitution of UBMC (Ex. A-1) provides as
' follows:
"Church workers are those either paid or honorary
ordained or lay, who are appointed by the church for a
definite piece of work under the supervision of the church.
c
It is the duty of the Pastors appointed to shepherd the
D
churches to teach the Word of God, to administer the sacraments and to propagate the Gospel among those who
have not yet come to the saving knowledge of Christ.
· Evangelists and lay preachers appointed to the charge of
churches shall have no authority to administer the sacraments. In places where it is impossible for the pastor to
E
administer the sacraments regularly, the District Church
Board may give evangelists in pastoral charge authority to
fulfil this duty."
It is apparent from paragraph 4 that Evangelists and lay pre-
-. ~hers have no authority to administer the sacraments. It is only in
F
1
exceptional cases where it is impossible for the Pastor to administer
the sacraments regularly, the District Church Board may give
Evangelists in pastoral charge authority to fulfil this duty. Thus, the
universal priesthood which is said to be prevalent in-UBMC, does not
permit lay preachers and Evangelists to administer the sacraments.
'
.;
G
It is true that in the CSI the Presbyters are ordained persons, but
in UBMC they are unordained, as has been noticed by the learned
Judge. But nothing turns out on that distinction. In UBMC the Pastor
is an ordained minister and paragraph 4 (Ex. A-1), extracted above,
provides that it is the duty of the Pastors to shepherd the churches to
teach the Word of God, to administer the sacraments and to propagate
H
748
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A the Gospel among those who have not yet come to the saving 'rknowledge of Christ. While a Presbyter in the CSI is an ordained
minister, in UBMC the ordained minister is a Pastor. In the CSI Prer
sbyters have the authority to administer the sacraments and in UBMC
the Pastors, who are ordained ministers, are authorised to administer
the sacraments. There is, therefore, no distinction between a Pastor in
B UBMC and a Presbyter in the CSL As the functions and duties of
Presbyters and Pastors are the same and as both of them are ordained 1
ministers, no exception can be taken by the respondents if the sacraments are administered by Pastors instead of by the Presbyters. No
~
objection can also be taken to the Bishops administering the sacraments, for they do not emerge from the apostolic successsion which is
__
C the main characteristic of historical episcopacy. If the respondents or j
any of the members of UBMC have or has any objection to the '
administering of sacraments by the Bishops, the sacraments can be
)'-
administered by the Presbyters. It may be recalled that units of
UBMC, namely, Malabar and Bombay-Karnataka units have already
joined the CSL The CSI has accepted the form of worship which used
D to be followed in UBMC before the union of the two units with CSI,
and such acceptance has been indicated in Rule 12 of Chapter II of the
Constitution of CSI (Ex. B-39). Rule 12 specifically provides that no
forms of worship, which before the union have been in use in any of
the united churches, have been forbidden in the CSI, nor shall any
wonted forms be changed or new forms be introduced into the worship
E of any congregation without the agreement of the Pastor and the congregation arrived at in accordance with the conditions laid down in
Chapter X of the Constitution. Thus, the CSI has already accepted the
form of worship which the members of UBMC used to follow before
the union of UBMC with the CSL In view of this specific provision in
""
Ex. B-39, it is difficult tJ accept the contention of the respondents that
F in case of merger or the implementation of the impugned resolutiorr;'lthe right of worship of the members of UBMC will be affected.
'
The learned Judge of the High Court has referred to the manner
of consecration and ordination in the CSL Clause (iv) of Rule 11,
Chapter II of Ex. B-39, inter alia, provides that every ordination of
G Presbyters shall be performed by the laying on of hands by the
Bishops and Presbyters, and all consecrations of Bishops shall be
performed by the laying on of hands at least of three Bishops. Clause (iv)
further provides that the CSI believes that "in all ordinations and
consecrations the Ordainer and Consecrator is God who in response to
the prayers of His Church, and through the words and acts of its
H representatives, commissions and empowers for the office and work to
-
t
l'.
-~
t
i
-\
~~
DISTI. COUNCIL OF U.B'.M.C. v. S.N. MATillAS [DUTI, J.J
749
which they are called the persons whom it has selected". It may be
A
mentioned here that in UBMC the method of consecration and ordination is also the same as in the CSL After an elaborate discussion, the
learned Judge of the High Court has come to the conclusion that the
laying of hands on the person to be ordained in the case of Episcopal
Church, meaning thereby the CSI, has a spiritual significance of a
transfer of Grace, whereas it has no such spiritual significance in
B
UBMC, but is a symbol of conferment of authority only. After a
person is appointed a Bishop' or a Presbyter in the CSI or a Pastor in
UBMC, he has to be ordained in almost the same manner as indicated
above. We do not think it is within the purview of the enquiry in this
litigation whether such ordination in the CSI has a spiritual significance
of a transfer of Grace or whether it is only a symbol of conferment of c
authority, so far as UBMC is concerned. The mode or manner of
ordination or the underlying of such ordination has, in our opinion,
nothing to do with the right of worship of the respondents.
UBMC believes in Apostle's Creed and Nicene Creed. Creeds
are biographical sketches of Lord Jesus and they are the main items of D
all Church Services. Under its Constitution (Ex. B-39), the CSI also
accepts the Apostle's Creed and the Nicene Creed. The complaint of
the respondents is that while the Shorter Catechism of Luther is placed
on the same footing as the Apostle's Creed and the Nicene Creed in
UBMC, there is no reference to this in Constitution (Ex. B-39) of the
CSI. The Shorter Catechism of Luther is the instruction in the form of
E
a series of questions and answers to be learnt by every person before
he is baptised. According to D.W. 1, the Shorter Catechism of Luther
is a statement of faith in the form of questions and answers based upon
-"
Scriptures and Creeds intended to be used in instructing those who are
.
to be baptised. That statement of D.W. 1 has not been challenged in
-,~·cross-examination on behalf of the respondents. Both UBMC and the F
~
CSI believe in Apostle's Creed and Nicene Creed. If Shorter Catech-
'
ism, as stated by D.W. 1, consists of the Creeds in the form of questions and answers, we do not think that merely because there is no
mention about Shorter Catechism in the Constitution of the CSI (Ex.
B-39), it can be said that there, is a difference in the faith and doctrine
of the two Churches as held by the learned Judge. Moreover, this has G
nothing to do with the right of worship of the respondents and, accordingly, we do not think we are called upon to consider the effect of
non-mention of Shorter Catechism in Ex. B-39.
It is, however, urged on behalf of the respondents that the right
of worship of the respondents will be greatly affected in case of union H
A
B
c
D
E
F
G
H
750
SUPREME COURT REPORTS
[1988] 2 S.C.R.
of the two Churches, as the CSI uses in prayers Apocrypha, the meaning of which will be indicated presently. The Bible consists of 66 'Cannonical Books'-39 books of the Old Testament and 27 books of the
New Testament. Later on 14 additional books were added to the Old
Testament. These 14 additional books are together named 'Apocrypha'. The Bible that CSI uses contains not only "Canonical Books",
but also those 14 books known as 'Apocrypha'. It is apprehended by
the respondents that in case of merger, there is a possibility of their
being subjected to accept Apocrypha in their prayers stated to be.
prevalent in the CSL It is submitted by the learned Counsel for the
respondents that as Apocrypha has been eschewed completely and not
at all used in Church Service by UBMC, it would affect the right of
worship of the respondents by reason of merger, as Apocrypha would
be imposed on them.
In support of the contention, much reliance has been placed by
the learned Counsel for the respondents on a decision of the Privy
Council in Thiruvenkata Ramanuja Pedda Jiyyangar/u Valu v. Prathivathi Bhayankaram Venkatacharlu, AIR 1947 PC 53. In that case,
there was a dispute between two sections of the Vaishnavites, one
known as Vadagalais and the other as Tengalais. The question that
came up for consideration by the Privy Council was whether in the
Vaishnavite temples, situate in Trimulai and in Tripatti, worship
would be conducted exclusively in Tengalai order or the Vadagalai
ritual would form part of the worship in these temples. The Privy
Council came to the conclusion that Vadagalai community was not
entitled to interfere with Tengalai ritual in the worship in those temples by insisting on reciting their own "Manthram" simultaneously
with the Tengalai "Manthram". The suit instituted by the High-Priest
of the Tengalai community was decreed and the Vedagalai community
was restrained from interfering with the Tengalai ritual in worship in
those temples conducted by the appellant or his deputy by insisting on
reciting their own "Manthram" simultaneously with the Tengalai
''Manthram".
The above decision of the Privy Council only Jays down that if
the right of worship is interfered with, the persons responsible for such
interference can be restrained by an order of injunction. Even if
Apocrypha is followed in the CSI that would not interfere with the
right of worship of the respondents. We have already referred to Rule
12, Chapter II of the Constitution of the CSI (Ex. B-39), inter alia,
providing that no forms of worship, which before the union have been
in use in any of the united churches, shall be forbidden in the CSI, nor
.lr
DISIT. COUNCIL OF U.B.M.C. v. S.N. MATiilAS (DUIT, J.J
751
-1,-
shall any wonted forms be changed or new forms introduced into the
worship of any congregation; There is, therefore, no cause for
A
apprehension of the respondehts that in case of merger, the Apocrypha will be imposed upon th~m which is repugnant to their religious
faith. Moreover, in the liturgy qf the CSI, the prayer from Apocrypha
has been made optional which shows that there is no scope for the
imposition of Apocrypha on the respondents in case of union of B
UBMC and CSL
It is vehemently urged on .behalf of the respondents that in case
of merger, the property _held in trust by the United Basel Mission
Church in India Trust Association, hereinafter referred to as 'UBMC
-~- Trust Association", for UBMC of South Kanara and Coorg will be
diverted to the CSI and such diversion will be in complete breach of
C
-i
trust and the court should not allow such breach of trust taking place
by the merger of UBMC of South Kanara and Coorg in the CSL
It is the case of the respondents in the plaint that the properties
of UBMC have been vested by the Evenglical Missionary Societies in
D
-
Basel (Basel Mission) in the UBMC Trust Association by a declaration
of trust. It appears that by a deed dated September 18, 1934 (Ex.
A-146), the Evenglical Missionary Society in Basel (Basel Missibfi)
declared itself as the trustee seized of or entitled to the lands and
premises mentioned in the schedule to the said deed, holding the same
~ in trust, inter alia, for the benefit of the members of the Church E
founded by the Society in the districts of South Kanara, Bombay,
Karnataka and Malabar known as UBMC in India. Further, it appears
that the said Society appointed the UBMC Trust Association, a Com-
"'
pany incorporated under theindian Companies Act, 1913, the managers of the trust properties, which belong to the Society and not to the
,
~UBMC Trust Association. Indeed, it has been noticed that in the F
plaint the respondents also admit that the properties belong to the
Society and the Society holds the ~ame as the trustee for the benefit of
UBMC in India. In case of merger, there cannot be any diversion of
the properties held in trust by the Society and managed by the UBMC
Trust Association. The properties will remain the properties of the
"
Society which holds them only fot the purposes as mentioned in the G
said deed (Ex. A-146). In other words, even though there is merger,
r
the properties or the income thereof will be utilised only for the
'
benefit of the members of the UBMC of South Kanara and Coorg.
Although the UBMC Trust Association and the Society have
been made parties in the suit as defendants Nos. 9 & 10 respectively, H
752
SUPREME COURT REPORTS
[1988] 2 S.C.R.
A
no relief has been claimed against either of them and there is no prayer
for restraining them from diverting the property upon merger.