# 9 S.C.R. 1 K. S. VARGHESE & ORS v. ST. PETER'S & PAUL'S SYRIAN ORTH. & ORS

- **Citation:** [2017] 9 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal No. 3674 of2015
- **Bench:** Arun Mishra, Amitava Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/9-s-c-r-1-k-s-varghese-ors-v-st-peter-s-paul-s-syrian-orth-ors-32298
- **Pages:** 211

## Headnote

Constitution of India:
Arts.25 and 26 - Malankara church - Management of affairs
of Malankara church - Perpetual fight between Patriarch faction
and Catho/icos faction - Historical background discussed in *Most
Rev. P.M.A. Metropolitan case popularly known as *1995 judgment
A
B
c
- Whether the 1995 Judgment is binding oil the appellants -
Jn the
1995 judgment, the Supreme Court referring to the Year 1654 events,
observed that the authority of the Patriarch extended only to spiritual D
affairs but not to the temporal affairs of the Malankara Church -
The Court also observed that the Patriarch in the year 1972 could
not have exercised the power of appointment of getting ordaining
the priests and deacons through his delegate - The Court clearly
held that even if it is held that by Kalpana 's A-13 and A-14, the
Patriarch is not denuded of the powers delegated by him to the
E
Catholicos, he could not have unilateral(v exercised those po-Wiers
which were delegated and he could have exercised those powers
thereafter in' consultation with the Catholicos and the Malankara
Sabha (Association) and of course in accordance with the 1934
Constitution -
The Court also found that it was not open to the
Patriarch or his followers to contend that 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 and that the revival of Catholicate
reduced the power of Patriarch to a vanishing point - The power
and authority of the Catholicos as per Kalpanas A-13 and A-14
G
were affirmed, re-enforced and enlarged in the 1934 Constitution -
F
The said findings and the declaration in the decree that was passed
in the 1995 judgment, in a representative suit, is binding - As per
the mandate of the Or.I r.8(6), CP(~ the finding that was recorded
in the earlier suit that was decided in 1958 as well as in 1995 is
H
2
SUPREME COURT REPORTS
[2017] 9 S.C.R .
.
!
A binding insofai" as the questions were decided in a representative
character - This Court has decided the issue in 1995 suit to the
extent that the parties were having the common interest as
contemplated in Or.I r.8 and left open issues with respect to temporal
matters in the absence of Parish Churches - The decree in the 1995
B judgment is completely in tune with the judgment - There is no
conflict between the judgment and the decree - Code of Civil
Procedure, 1908 - Or.I r.8.
Arts.25 and 26. - Chur'ch - Parish church - Appointment of
Vicar - Whether Parishioners have a right to follow their own faith
under Art.25 and appointment of Vicar, priest and Deacons and
C manage affairs under Art.26 - When the Church is a Parish Church
and since time immemorial it is a Parish Church and is a part of
Malankara Church, it has to perpetually remain as such - Under
the garb of pursuing their faith of the Patriarch being superior,
they cannot create a parallel system of appointing a Vicar for
D performing spiritual/religious ceremonies conforming to that faith,
as an appointm~nt of Vicar is not a spiritual matter - It is a secular
matter - It is open to any Parishioner to have faith in the spiritual
superiority of the Patriarch - Church.
Arts.19, 25 and 26 - Right to freedom of religion -A right to
E freedom of professing one's faith and religion is enshrined in Art.25
of the Constitution which gives freedom of faith and worship, subject
to public order, morality and health and other provisions of Part Ill
of the Constitution - The freedom is guaranteed to 'persons' as
opposed to 'cititens' as in Art.19 -
Therefore, each Parishioner
F
has a right to freedom of religion - The 1934 Constitution cannot
be said to be in violation of Arts.25 and 26 of the Constitution of
India.
Church:
1934 Constitution - Power of Diocesan Metropolitan - Held:
G The Diocesan Metropolitan has the authority to appoint, remove or
transfer the Vicar and other priests - He has been given the authori~y
to appoint a Vic

## Text

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[2017) 9 S.C.R. 1
K. S. VARGHESE & ORS.
v.
ST. PETER'S & PAUL'S SYRIAN ORTH. & ORS.
(Civil Appeal No. 3674 of2015)
JULY 03,2017
[ARUN MISHRA AND AMITAVA ROY, JJ.]
Constitution of India:
Arts.25 and 26 - Malankara church - Management of affairs
of Malankara church - Perpetual fight between Patriarch faction
and Catho/icos faction - Historical background discussed in *Most
Rev. P.M.A. Metropolitan case popularly known as *1995 judgment
A
B
c
- Whether the 1995 Judgment is binding oil the appellants -
Jn the
1995 judgment, the Supreme Court referring to the Year 1654 events,
observed that the authority of the Patriarch extended only to spiritual D
affairs but not to the temporal affairs of the Malankara Church -
The Court also observed that the Patriarch in the year 1972 could
not have exercised the power of appointment of getting ordaining
the priests and deacons through his delegate - The Court clearly
held that even if it is held that by Kalpana 's A-13 and A-14, the
Patriarch is not denuded of the powers delegated by him to the
E
Catholicos, he could not have unilateral(v exercised those po-Wiers
which were delegated and he could have exercised those powers
thereafter in' consultation with the Catholicos and the Malankara
Sabha (Association) and of course in accordance with the 1934
Constitution -
The Court also found that it was not open to the
Patriarch or his followers to contend that 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 and that the revival of Catholicate
reduced the power of Patriarch to a vanishing point - The power
and authority of the Catholicos as per Kalpanas A-13 and A-14
G
were affirmed, re-enforced and enlarged in the 1934 Constitution -
F
The said findings and the declaration in the decree that was passed
in the 1995 judgment, in a representative suit, is binding - As per
the mandate of the Or.I r.8(6), CP(~ the finding that was recorded
in the earlier suit that was decided in 1958 as well as in 1995 is
H
2
SUPREME COURT REPORTS
[2017] 9 S.C.R .
.
!
A binding insofai" as the questions were decided in a representative
character - This Court has decided the issue in 1995 suit to the
extent that the parties were having the common interest as
contemplated in Or.I r.8 and left open issues with respect to temporal
matters in the absence of Parish Churches - The decree in the 1995
B judgment is completely in tune with the judgment - There is no
conflict between the judgment and the decree - Code of Civil
Procedure, 1908 - Or.I r.8.
Arts.25 and 26. - Chur'ch - Parish church - Appointment of
Vicar - Whether Parishioners have a right to follow their own faith
under Art.25 and appointment of Vicar, priest and Deacons and
C manage affairs under Art.26 - When the Church is a Parish Church
and since time immemorial it is a Parish Church and is a part of
Malankara Church, it has to perpetually remain as such - Under
the garb of pursuing their faith of the Patriarch being superior,
they cannot create a parallel system of appointing a Vicar for
D performing spiritual/religious ceremonies conforming to that faith,
as an appointm~nt of Vicar is not a spiritual matter - It is a secular
matter - It is open to any Parishioner to have faith in the spiritual
superiority of the Patriarch - Church.
Arts.19, 25 and 26 - Right to freedom of religion -A right to
E freedom of professing one's faith and religion is enshrined in Art.25
of the Constitution which gives freedom of faith and worship, subject
to public order, morality and health and other provisions of Part Ill
of the Constitution - The freedom is guaranteed to 'persons' as
opposed to 'cititens' as in Art.19 -
Therefore, each Parishioner
F
has a right to freedom of religion - The 1934 Constitution cannot
be said to be in violation of Arts.25 and 26 of the Constitution of
India.
Church:
1934 Constitution - Power of Diocesan Metropolitan - Held:
G The Diocesan Metropolitan has the authority to appoint, remove or
transfer the Vicar and other priests - He has been given the authori~y
to appoint a Vicar for a wholesome purpose in the 1934 Constitution
as the Patriarch of Antioch abroad cannot exercise the deep and
pervasive control over the management of churches such as the ,
appointment of Vicar which is a secular matter and not a spiritual
H
one.
·'
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
3
ORTR& ORS.
1934 Constitution - Power ofthe Patriarch of Antioch or his
A
delegate - Malankara Metropolitan enjoys all the temporal,
ecclesiastical and spiritual administration powers - Thus .,the power .
of the Patriarch of Antioch has reached a vanishing point and he
cannot exercise those powers which are lying with various authorities
under the Constitution as per the historical background noted in
B
the 1995 judgment since time immemorial - Obviously, the Patriarch
of Antioch cannot manage the day to day affairs in India sitting
abroad - It is not contemplated nor he is supposed to do so in view
of his Kalpana s - The powers of appointment of Vicar and priests
etc. to the local Malankara church, have rightly been given to the
concerned authorities in the 1934 Constitution on the basis of C
prevalent practices - A religious denomination or organization
enjoys a complete autonomy in the matter of deciding as to rites
and ceremonies essential according to their tenets of religion they
hold and no outside authority has any jurisdiction to interfere with
their decisions in such matters - At the same time, secular matters
D
can be controlled by the secular authorities in accordance with the
law laid down by the competent legislature - 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 appoi1it a Vicar or Priest - The
spiritual power of Patriarch has been set up by the appellants clearly
E
in order to violate the mandate of the 1995'judgment of this Court
which is binding on the Patriarch, Catho/icos and all concerned.
Art.25 - Spiritual power - The spiritual power cannot be the
. monopoly of any particular individual howsoever high he may be -
Appointment of Vicar and Priests is a secular matter and there can
F
· be legislation also in this regard by sovereigns· and can be dealt
with by secular authorities also - There is rlo question of blessings
of Jesus Christ not flowing to a person who confesses before a
Vicar not appointed by the Patriarcll - The spiritual competence of
Vicar depends on his own attainments - The dispute appears to be
for fulfillment of desire to manage Church for the reasons which
G
are not related to spiri1,,;a/ism.
1934 Constitution - It is a Dioc~san Metropolitan as per s.40
of the Constitution who has the power to appoint Vicar, priests etc.
and there is other hierarchy provided - Even Catholicos, Malankara
H
4
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A Metropolitan has the spiritual powers - It is not that they have
temporal powers only - They have spiritual status too that has to be
respected equally - No office is either superior or inferior in the
matter of relationship between the two heads, the Catholicos a11d
the Patriarch - Both are independwt spiritual authorities - However.
B the Patriarch occupies the higher post in the hierarchy i.e. he has,
an honour or precedence if he is present that is in a sense he is the
first among equals - "primus inter parties".
Properties of Parish church - Ownership rights - Held: The
Parish properties would always remain to be Malankara Church
properties - Only Office holders have to subscribe to the 1934
C Constitution - The Parishioners can take no church property away,
neither Catholicos faction by majority - Neither the Church nor the
cemetery can be confiscated by anybody - When the Church has
been created and is for the benefit of the 6eneficiaries, it is not
open for the beneficiaries, even by a majority. to usurp its property
D or management - The Malankara Church is in the form of a trust in
which, its properties have vested - As per the 1934 Constitution,
the Parisliioners though may individually leave the Church, they
are not per111itted to take the movable or immovable properties out
of the ambit of 1934 Constitution without the approval of the Church
hierarchy.
E
F
1934 Constitution - Power of the Patriarch of Antioch or his
delegate - Once office of the Catholicos has been re-established,
Patriarch could not exercise the powers which have been dealt with
in the 1934 Constitution, and conferred on various authorities in
hierarchy of church, that too unilaterally to create another centre
of power and thereby the Patriarch cannot be per111itted to create
parallel system of admi11istration by appointing Vicars, Priests and
Deacon or another authority of Church - He is bound to act within
the four corners of the 1934 cqnstitution for the sake of peace in
the church -
In the temporal matters, Patriarch has 110 power and
G the spiritual power had also come to the vanishing point by his own
acts as noticed by this Court in the 1995 and other judgments -
Submission to the contrary on behalf of the appellants that he can
exercise the powers after informing the Catholicos, cannot be
accepted - The Malankara Metropolitan has to be of local area -
Logically also for proper management of the affairs of Churches
H
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
5
ORTH. & ORS.
power cannot be exercised from abroad - Such a scenario is neither A
conceived nor feasible or permissible - The spiritual supremacy of
one holy authority over the other, also cannot per se mean exclusion
and subordination of the other religious authority - When there is
delegation a11d delimitation of the territorial and other powers,
concerned authorities however high they may be, spiritually or B
otherwise, have to follow the discipline a11d strictly act as per
delimitation of zones and powers :._ It is ab.~olutely necessary for
survival of the Church and for proper administration.
1934 Constitution - Unilateral exercise of power by the
Patriarch of Antioch or his delegate - Permissibility - Held: As per
the historical background and the practices which have been noted,
C
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 - This Court has held in 1995
judgment that the unilateral exercise of .mch power by the Patriarch
was illegal - The said decision has also been violated - It was only
in the altemative this Court held i11 the 1995judgment that even if
he has such power, he could not have exercised the same unilaterally.
1934 Constitution - The declaration given that the Parish
Churches are governed by the 1934 Constitution is just and proper
- Jn the instant case, the Patriarch faction is more to be blamed for
disorder in the churches than the Catholicos factio11 - They ought
D
E
to have followed 1995 judgment and other decisions - That they
have not done and have insisted upon their ow11 system of F
management that is not permissible.
Udampady - 1934 and 2002 Constitution - Enforceability
and binding nah1re of Udampady - Held: The submission that the
Udampady will prevail over 1934 Constitution cannot be accepted
in view of the provisions made in s.132 of the 1934 Constitution
G
that all agreements wMch are not consistent with the provisions of
1934 Constitution are made ineffective and annulled and also in
view of the finding in the 1958 Samudayam matter that the
Constitution had been validly adopted and is applicable - The
question cannot be re-agitated and reopened under the guise of H
6
SUPREME COURT REPORTS
[2017) 9 S.C.R.
A
Udampady - Udampady cannot hold the field for administration of
such Parish Churches - Udampady is not a document by which the
Church came to be established - It is with respect to its management
only - Udampady cannot prevail over the Constitution that has been
adopted for all the Malankara Churches and is holding the field.
B
Udampady - Registration of - 1934 Constitution - Would
registration of Udampady make it a superior document over 1~34
Constitution - Held: The registration of the Udampady cannot make
it superior than the Constitution and the latter will prevail.
1934 Constitution - Binding effect of - Held: If the effort of
c certain group of Patriarch otherwise is to form a new Constitution
2002 to appoint Vicars, Priests etc., giving a go by to the 1934
Constitution and to form a new Church under the guise of same
Malankara Church, it is not peri11issible - The Malankara Church,
its properties and other matters are to he governed by the 1934
Constitution and even majority of parishioners has no right to take
D away and usurp the church itself or to create new system of
management contrary to 1934 Constitution - As per the 1934
Constitution, it is clear that while individual Parishioners may choose
to leave the Church, there is 110 question of even a majority of the
Parishioners in the Parish Assembly by themselves being able to
E take the movable or immovable properties out of the ambit of the
1934 Constitution, without the approval of the Church hierarchy.
1934 Constitution - 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
F 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
Malankara Church - Formation of new church by majority -
Permissibility - Held: Jn existing system of Malankara Church, a
G Parish Church that is a part of Malankara Church cannot be usurped
even by majority in Church under the guise of formation of new
Church - The Malankara Church is Episcopal to the extent it is so
declared in the 1934 Constitution as held in the 1995 judgment -
The 1934 Constitution governs the affairs of Parish Malankara
Churches and shall prevail - Otherwise also, property cannot be
H
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
7
ORTH. & ORS.
taken away by the majority or othenvise and it will remain. in Tn1st
A
as it has been for the time immemorial for the sake of beneficiaries
- It is for the benefit of beneficiaries - No one can become owners .
by majority decision or permitted to usurp Church itself- It has to
remain in perpetual succession for the purpose it has been created
· a Malankara Church - Though it is open to the individual member
B
to leave a Church in exercise of the right not to be q member of any
Association and as per Art.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 Malaitkara ·
Church - Once a trust, is always a trust.
Mannathur Church - It was not necessary, after amendment.
of the plaint in Mannathur Church matte1; to adopt the procedure
once again of representative suit under Or.I r.8 CPC - It remained
a represe1itative suit and proper procedure was followed - It was
not necessary to obtain fresh leave.
c
2002 Constitution - Binding effect of - Held: .The Parish
D
Assembly by majority cannot take away the property and divert it to
a, separate and different church that is not a Ma/ankara Church
administered as per the 1934 Constitution, though it is open to amend
the 1934 Co11stituti911 - The 2002 Constitution cannot hold the field
to govern the appellant churches and the 1934 Constitution is
binding - 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 Arts.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.
E
F
Udampady of 1913 - Effect of - Held: The Udampady of
1913 is not a document of creation of the Trust - The then in-charge
person executed it just for the management of the church - The
1934 Constitution after being adopted in 1959 by the Church is
G
binding - The Udampady of 1913 has lost its efficacy and utility -'-
The Udampady stands annulled by s.132 of the Constitution - It
cannot be revived.
'
1934 Constitution - Purport of - Effect of non-registration
of 1934 Constitution and effect of registered Udampady - Held:
H
8
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A
The I934 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 prope1:ties
- It provides a system of administration as such and not required to
be registered, and moreover the question of effect of non-registration
8
of the I934 Constitution cannot be raised in view of the findings
recorded in the I959 and the I995 judgments - It is not open to
question the validity of the I934 Constitution on the ground that it
cannot be looked into for want of its registration -
Udampady
itself is not a document of creation of Trust - It related to the
management only - Tims, by its registration no legal superior right
C
is acquired to prevail over the Constitution - No registered document
was required for administration of the Church - Document of
creation of a Trust may require registration and not a document like
the I 934 Constitution.
Two factions - The plea that in face of the prevailing dissension
D 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 patronizing
parallel systems of administration - Both the factions, for the sake
of the sacred religion they profess and to pre-empt further bickering
and unpleasantness precipitating avoidable institutional
E 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 situatiom leading to even closure of the Churches can
F be accepted - Constitution of India - Arts.25, 26.
Code of Civil Procedure, I 908:
s. 92 - Framing of scheme under - Management of the Parish
Churches - Held: The 1934 Constitution is appropriate and
adequate for management of the Parish Churches - There is no
G necessity of framing any scheme under s.92 - Constitution of India
- Arts.25, 26.
Or. I r.8- Object of- Exception to general rule that all persons
interested in the suit are to be made parties thereto - The object of
Or.I r.8 is to provide an exception to the ordinary procedure in a
H case where common rights of community or members of such
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
9
ORTH. & ORS.
association or large section are involved -
The rule entitles one A
party to represent many and the action is maintainable without
joinder of other parties - Or. 1 r.8 pre-supposes that there are
numerous persons having the same interest - One or more such
persons with permission of the court may sue or be sued or may
defend such suit on behalf of the persons so interested- It is provided B
in Or.I r.8(6) that the decree in a suit under this rule shall be binding
on all the persons on whose behalf or for whose benefit the suit is
instituted or defended, as the case may be - Suit - Representative
suit - Party.
Words and Phrases:
"spiritual" and "spirituality" - Meaning of - HeM· The
word 'spiritual' has been defined to mean in Black's Law Dictionary
as of or relating to ecclesiastical rather than secular matters -
Spiritualism is alien to temporalism - One whose desire is for
temporal gains, cannot be said to be on the spiritual path - They
c
are aliens to each other - One who is really spiritual is far away D
from the temporal desires - it can also be said that spirituality is a
form oJ)relig_ion but a private and personal form of religion -
Spirituality is more personal and private while religion tendY to
incorporate public rituals and organised doctrines.
Concept of denomination in religion - Connotation of -
E
Discussed.
"congregationalism" and "episcopal" - Meaning of -
Discussed.
Dismissing the appeals, the Court
HELD: 1. IN RE: WHETHER THE 1995 JUDGMENT IS
F
BINDING ON THE APPELLANTS? JF YES; TO WHAT
EXTENT?
1.1 The representative suit was decided in 1995 and the
judgment is binding even on those who were not parties to the
case. All the Parishioners are bound by the judgment to the extent
G
it has decided the matter. There is no conflict in the decree as
well as the observations that have been made by this Court. The
majority opinion has left open the question that the property
whether it is held by the Parish Churches or vested in the
Catholicos and Para 155(8) deals with other rights and nature of H
10
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A the Church to be episcopal and with respect to the applicability
of the 1934 Constitution the judgment is final, conclusive and
binding in these cases. The decree is wholly in tune with the
judgment and the issues which were effectively decided by this
Court and what was left open is absolutely in no conflict with the
B findings recorded in the judgment and in the decree. The decree
is in accordance with the aforesaid dictum of this Court.
(Para 65)(101-H; 102-A-D]
c
D
*Most Rev. P.M.A. Metropolitan v. Moran Mar
Marthoma (1995) Supp. 4 SCC 286 : (1995) 1 Suppl.
SCR 542; Bhikhi Lal v. Triheni AIR 1965 SC 1935 -
relied on.
1.2 In the 1995 judgment, this Court referring to the Year
1654 events, observed that the authority of the Patriarch
extended only to spiritual affairs but not to the temporal affairs of
the Malankara Church. There was the revival of Catholicate in
1912 by Patriarch Abdul Messiah, and that brought a qualitative
change in the situation. A-14, the Kalpana was issued which fact
was not disputed by the Patriarch group, and A-13 which was
preceded by A-14 empowered the Catholicos to ordain
Metropolitans and other officials of the Church in accordance ·
E with the canons of the Church and also to consecrate holy Moron.
The powers of consecrating holy Moron that vested in Patriarch,
came to be vested in the Catholicos by the Patriarch himself.
The third Catholicos was elected as the Malankara Metropolitan
and thus the powers of both i.e. the spiritual and temporal powers
were concentrated in one person. This Court also observed that
F
the Patriarch in the year 1972 could not have exercised the power
of appointment of getting ordaining the priests and deacons
through his delegate as observed in Para No.134 of the 1995
judgment. This Court clearly held that even if it is held that by
Kalpana's A-13 and A-14 the Patriarch is not denuded of the
G powers delegated by him to the Catholicos, he could not have
unilaterally exercised those powers which were delegated and
he could have exercised those powers thereafter in consultation
with the Catholicos and the Malankara Sabha (Association) and
of course in accordance with the 1934 Constitution. This Court
also held that it was necessary for the reason (i) to avoid creating
H
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
11
ORTH. & ORS.
· parallel authorities leading to conflict and confusion and (ii) the A
·. acceptance by the local people. This Court also held that when
. the Patriarch had recognized the Catholicos, he did so with the
full knowledge. It was also held that Kalpana's A-19 and A-20
were not issued in an abrupt fashion. Under Kalpana Ex. A-20
the Catholicos accepted the Patriarch subjeet to the Constitution 8
passed by the Malankara Association. The members.of the
Patriarch group sw~re loyalty to the 1934 Constitution. The
Patriarch abandoned whatever objection he had by his acts and
declarations in the year 1964 when he came to India on invitation
from the Malankara Synod and consecrated and duly installed
the new Catholicos who was elected by the Malankara Association · C
in ac.cordance with the 1934 Constitution. Before that, the
Patriarch also took care to define the territorial jurisdictions of
the Patriarchate and the Catholicate. The Middle East that was
supposed to be under the jurisdiction of. the Catholicos was
excluded from his jurisdiction confining his authority to Imlia and
0
East alone. This defining of the territorial jurisdiction also
recognized the power of the Catholicos both in spiritual as well
as temporal matters. This Court had also found that it was not
open to the Patriarch. or his followers to contend that revival of
Catholicate was not in accordance with the religious tenets and
faith of the Syrian Jacobite Christian Church; that the Constitution
E .
of 1934 was not duly and validly passed. This Court also found
that the revival of Catholicate reduced the power of Patriarch to
a vanishing point. The power and authority of the Catholicos as
per Kalpanas A-13 and A-14 were affirmed, re-enforced and
enlarged in the 1934 Constitution. This Court has clearly held
that the Patriarch could not have unilaterally appointed priests
etc. through his delegate. 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 and over the protestations of the Catholicos,
F
was certainly not the right thing to do since it purported to create G
a parallel administrative mechanism for the church in spiritual/
temporal matters. The said findings and the declaration in the
said decree that was passed in the 1995 judgment, in a
representative suit, is binding . .[Paras 66-70][103-A-H; 104-A- ·
F)
H
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A
R. Venugopala Naidu & Ors. v. Venkatarayulu Naidu
Charities & Ors. (1989) Suppl. 2 SCC 356 : (1989) 1
Suppl. SCR 760 - relied on.
B
c
1.3 Order l Rule 8 is an exception to the general rule that
all persons interested in the suit are to be made parties thereto.
The object for which the provision is enacted is to provide an
exception to the ordinary procedure in a case where common
rights of community or members of such association or large
section are involved. It will be practically difficult to institute the
suit under the ordinary procedure by impleading every person in
which every individual has to maintain account by a separate suit
and to avoid numerous suits being filed for a decision on the
common question. Order 1 Rule 8 had been enacted so as to
simplify the procedure. The rule entitles one party to represent
many and the action is maintainable without joinder of other
parties. Order I Rule 8 pre-supposes that there are numerous
o persons having the same interest. One or more such persons
with permission of the court may sue or be sued or may defend
such suit on behalf of the persons so interested. In such a case
notice has to be given as per Order I Rule 8(2) by way of public
E
F
. advertisement and then any person on whose behalf or whose
benefit the suit is instituted or defended has a right to apply to
the court to be .made a party to such a suit. It is provided in
Order I Rule 8(6) that the decree in a suit under this rule shall
be binding on all the persons on whose behalf or for whose benefit
the suit is instituted or defended, as the case may be. As per the
mandate of the Order 1 Rule 8(6), the finding that was recorded
in the earlier suit that was decided in 1958 as well as in 1995 is
binding insofar as the questions decided in a representative
character. This Court has decided the issue in 1995 suit to the
extent that the parties were having the common interest as
contemplated in Order I Rule 8 and left open issues with respect
to temporal matters in the absence of Parish Churches.
G Moreover, in the suit culminating into 1995 judgment the relief
was not sought inter parties, it was not in persmiam. The reliefs
that were sought were common to Malankara Church. Thus the
provisions of section 35 cannot come to the rescue of the
appellants so as to prevent the bar of res judicata. The
H
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
13
ORTH. & ORS.
Parishioners were parties in the previous suit decided in 1958 A
and 1995 and earlier thereto. The question cannot be reopened
again and again by them on the ground that they were not parties
individually, otherwise the representative suit and issues as well
as the right of suing in representative capacity, would lose entire
significance. [Paras 71-72)[105-E-H; 106-A-C, E, G]
Kumaravelu v. Ramaswami AIR 1933 PC 183; Deoki
Nandan v. Muralidhar (1956) SCR 756; Veruareddi
Ramaraghava Reddy v. Konduru Seshu Reddy (1966]
Suppl. SCR 270; Bishwanath v. Slzri Thakur
Radhabal/abhji (1967) 2 SCR 618 - relied on.
1.4 It was submitted that in case the declaration in the
1995 judgment that the 1934 Constitution is binding on the Parish
Churches even in their absence as parties, it would amount to
the violation of the principle of natural justice. The submission
cannot be made successfully as it ignores and overlooks the
mandate of Explanation 6 to section 11 and provision .of Order 1
Rule 8(6) CPC. The previous suit was a representative suit and
B
c
o·
the present appellants/churches are .deemed to be parties in the
representative suit as they could have applied for defending their
rights or to sue as the case may be in the previous suits which
had been decided by this Court. Thus there is no question of E
violation of the principle of natural justice in the case in band.
(Paras 74-75)[107-H; 108-A-C]
National Textile Workers v. PR. Ramkrishnan (1983) 1
SCC 228 : (1983] 1 SCR 922; Institute of Chartered
Accounta/lfs v. L.K. Ratna (1986) 4 SCC 537 : (1986]
F
3 SCR 1048 - referred to.
John v. Rees (1969) 2 AER 274 - referred to.
1.5. It is not open to the Parishioners to contend that they
can have their independent Constitution and not bound by the
1934 Constitution. The 1995 judgment cannot be misconstrued G
so as to confer the aforesaid right upon the Parishioners. The
judgment is clear, unequivocal and unambiguous with respect to
binding nature of the 1934 Constitution. It would not be open to
any faction or group to adopt any particular system of management
of Churches and to have a parallel system of managing authorities H
14
SUPREME COURT REPORTS
[2017] 9 S.C.R.
A under the guise of spiritual supremacy. The mismanagement of
Church and chaos cannot be permitted to be created for temporal
gains or otherwise. There is a system of management, and the
spiritual aspect which has been claimed under the guise of spiritual
supremacy in the instant case, is an effort to illegally take over
B the management of the Churches by rival factions in derogation
of delegation of powers. The power with respect to· Orthodox
Syrian Church of the East is the Primate ie. Catholicos. Though
the Primate of the Orthodox Syrian Church is the Patriarch of
Antioch. Certain spiritual powers have also been vested in
Malankara Metropolitan, as per section 94 of the l 934
C Constitution. The prime jurisdiction regarding the temporal,
ecclesiastical and spiritual administration of the Malanka ra Church
is vested with the Malankara Metropolitan subject to provisions
of the Constitution and under the guise of spiritual supremacy an
effort is being made to obtain the appointments of Vicars and
0
Priests as parallel authorities so as to manage the churches and
to render religious services under the guise of Patriarch. On the
other hand, there are already Vicars and other authorities
appointed as per the 1934 Constitution. Thus under the garb of
spiritual supremacy which had reached a vanishing point due to
the establishment of Catholicos and Kalpana, and the 1934
E Constitution which has been accepted and is binding, a parallel
system of governance of churches would not be in the interest of
the church and would destroy it.(Para 76)(108-G-H; 109-C-HJ
Sita/ Das v. Sant Ram Das AIR 1954 SC 606; Shrinivas
Krishnarao Kango v. Narayan Devji Kango (1955) 1
F
SCR 1; Tirumala Tirupati Devasthanams v. K.M.
Krishnaiah (1998) 3 SCC 331 : (1998) 2 SCR 9 -
referred to.
2. IN RE: ABANDONMENT OF PLEAS/OBJECTIONS
AS TO THE REVIVAL OF THE CATHOLICATE, THE
G VALIDITY OF THE 1934 CONSTITUTION.
2.1 When the Church is a Parish Church and since time
immemorial it is a Parish Church and is a part of Malankara
Church, it has to perpetually remain as such. Under the garb of
pursuing their faith of the Patriarch being superior, they cannot.
H create a parallel system of appointing a Vicar for performing
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
15
ORTH. & ORS.
spiritual/religious ceremonies conforming to that faith, as an A
appointment of Vicar is not a spiritual matter. It is a secular matter.
(Para 78](110-G]
Sha Mulchand & Co. Ltd. v. Jawahar Mills (1954] SCR
351; S.H. Rangappa v. State of Karnataka & Ors.
(2002) 1 SCC 538 : [2001] 3 Suppl. SCR 545 - referred
B
to.
2.2 A man who has a vested interest and in whom the legal
title lies does not, and cannot, lose that title by mere laches or by
saying that he has abandoned his right, unless there is something
more, namely inducement of another party by his words or conduct c
to believe the truth of that statement and so as to make him act
upon it to his detriment. Then such a person would be bound by
estoppel.- It is not abandonment or waiver, which prevents him
from asserting that the legal forms were not duly observed. In
the instant case, the discussion which has been made in the 1995
judgment is too elaborate and is based primarily on various D
historical facts and background which clearly indicate that the
Patriarch at no point of time had exercised temporal control and
it was considered necessary to establish the office of the
Catholicos so as to manage the Malankara Church which is a
division of the Orthodox Syrian Church. The Malankara Church E
was founded by St. Thomas the Apostle and is included in the
Orthodox Syrian Church of the East and the Primate of the Church
is the Catholicos. It is apparent from Kalpana '.s, establishment of
· the office of Catholicos and other historical fa'cts discussed in the
judgments referred to in the 1995 judgment that once having
created the office, it is not the plea of waiver or abandonment but F
the Kalpana issued by the Patriarch is binding upon him also.
Thus it is a positive act and once having done so, the Patriarch is _.
bound by it and cannot wriggle out of it and make the entire Parish
Church system topsy-turvy. The Parishioners can have faith in
the spiritual supremacy of the Patriarch but not in all the matters. G
They have to give equal importance in the matter of management
of the 1934 Constitution and cannot be permitted to commit
regular breach and device ways to circumvent the judgment of
.this Court by one way or the other and under the garb of spiritual
fight wrest the temporal control of the Churches. That the spiritual
H
. __ r
'
_.,.
16
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[2017] 9 S.C.R.
A power of the Patriarch has reached to a vanishing point, has to be
given the full meaning and it cannot mean that the powers can be
exercised under the umbrella of spirituality to interfere in the
administration of the Church and creating a parallel system of
appointing Vicars and Priests etc. which will paralyze the
8
functioning of the Churches for which they have been formed
and it would be against the very spirit of creation of trust from
time immemorial which inheres the concept that once a Trust
always a Trust. Once any Parishioner wants to change the 1934
Constitution, it is open to them to amend it as per the procedure.
It is right that it therefore is not a Bible or holy book of Quran or
C other holy books which cannot be amended. The 1934
Constitution has been amended in the form of bye-laws or
regulations applicable for governance of Parish churches a
number of times, and it can still be amended to take care of the
legitimate grievances, if any, but there appears to be none for
0
which the fight has been going on unabated in the instant cases.
[Para 79][112-G-H; 113-A-D, F-H; 114-B-C)
E
3. IN RE: PARISHIONERSHAVEARIGHTTO FOLLOW
THEIR OWN FAITH UNDER ARTICLE
25
AND
APPOINTMENT OF VICAR, PRIEST AND DEACONS ETC.
AND MANAGE AFFAIRS UNDER ARTICLE 26 OF THE
CONSTITUTION OF INDIA:
3.1 It is apparent that the Syrian Orthodox Church of
Malankara accept and acknowledge the theory of apostate's
succession. The Church of Rome is Episcopalian in its
constitution, and acknowledges the Pope as Universal Bishop,
F
to whom all the various orders of clergy, cardinals, primates, and
patriarchs, archbishops 11pfl bishops are subordinate. The
Armenian Church is similar in government. [Para 90)(121-C-D)
Ram Manohar Lohia v. State of Bihar [1966] 1 SCR
709; S.P. Mittal v. Union of India, AIR 1983 SC 1:
G
f1983] 1 SCR 729 - referred to.
H
Halsbury's Laws of England, s•h Edn., vol. 34; "The
Encyclopedia of Religion", edited by Mircea Eliade, vol. 3,
"Church Polity"; 'The Encyclopedia of Religion' by
K. S. VARGHESE & ORS. v. ST. PETER'S & PAUL'S SYRIAN
17
ORTH. & ORS.
Macmillan Publishing Co., New York, Vol. 3; Black Law
A
Dictionary - referred to.
3.2 A spiritual person is one who seeks to value and
connect himself to higher power or simply his higher self. The
word 'spiritual' has been defined to mean as of or relating to
ecclesiastical rather than secular matters. Spiritualism is alien
B
to temporalism. One whose desire is for temporal gains, cannot
be said to be on the spiritual path. Same are aliens to each other.
One who is really spiritual is far away from the temporal desires.
Mere spiritual knowledge (gyan) is not enough. Religion is a
manifestation. of the flesh. But spirituality as defined by the God
C
as manifestation of his nature. True spirituality is something which
is found deep within oneself. It can also be said that spirituality
is a form of religion but a private and personal form of religion.
Spirituality is more personal and private while religion tends to
incorporate public rituals and organised doctrines. A twilight zone.
Reiigion and spirituality are two distinct terms associated with
D
· faith. Spirituality is more abstract than religion. Religion usually
promote a creed and define code of ethics. Spirituality exists in
the nebulous realm of the undefinable. Spirituality is a supernatural
form of transformation.[Paras 100-102][132-E-G; 133-A-C]
Bhuri Nath & Ors. v. State of J&K & Ors. (1997) 2
E
SCC 745 : (1997) 1 SCR 138 - relied on.
Pannalal Bansilal Patil & Ors. Etc. v. State of Andhra
Pradesh & ;tnr. AIR 1996 SC 1023 : (1996) 1 SCR
603; Commissioner of Police & Ors. v. Acharya
Jagadishwarananda Avadhuta & Am: (2004) 12 SCC
p
770 : (2004) 2 SCR 1019; Sardar Syedna Taher
Saiffudin Saheb v. State of Bombay (1962) SCR Suppl.
496; N. Adithayan v. Travancore Devaswom Board &
Ors. (2002) 8 SCC 106 : (2002) 3 Suppl. SCR 76; A.S.
Narayana Deekshitulu v. State of A.P. & Ors. (1996) 9
SCC 548 : (1996) 3 SCR 543; Adi Saiva
G
Sivachariyargal Na/a Sangam & Ors. v. Government
of Tamil Nadu & Anr. (2016) 2 SCC 725 : [20151 11
SCR 1110 - referred to.
H
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A
Black Law Dictionary; "Encyclopaedia of Religion and
Ethics" by James Hastings - referred to.
3.3 The Patriarch of Antioch has not exercised the power
earlier with respect to the appointment of priests etc. Be that as
it may.