# MOST REV. P.M.A. METROPOLITAN AND ORS v. MORAN MAR MARTHOMA AND ANR

- **Citation:** [1995] Supp. 1 S.C.R. 542
- **Court:** Supreme Court of India
- **Decided:** 1995-06-20
- **Case number:** Civil Appeal Nos. 4958-60 of 1990
- **Bench:** R.M. Sahai, B.P. Jeevan Reddy, S.C. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/most-rev-p-m-a-metropolitan-and-ors-v-moran-mar-marthoma-and-anr-13433
- **Pages:** 150

## Headnote

Ecclesiastical and Canonical Law-Dispute between the Catholicos
group and the Patriarch group in the Malankara Sy1ian Christian community-Constitution recognising spiritual but not temporal supremacy of the
C Patriarch of Antioch over the Ma/ankara Church-Excommunication of
Catholicos of the East by the Pabiarch-Wliether valid-Held, per curiam, the
excon1munication was invalid.
Ecclesiastical and Canonica/ Law-Dispute between the Catho/icos
group and the Pafliarch group in the Ma/ankara Sy1ian Christian comD munity-Revival of Catho/icate of the East in 1912 with temporal powers over
Malankara Church-Wlzether Patriarch's power over the Malankara Church
reduced to a vanishing point-Held, per curia111, the Patriarch continues as
supreme head of the Sy1ian 01thodox Church of which the Malankara Church
is a division; he is spi1itually supe1ior to the Catholicos although he has no
E temporal power over the Malankara Church or its properties.
F
Code of Civil Procedure, 1908, s.9-Ecclesiastica/ Law-Constitution
of the Malankara Christian Association of 1934 -Whether Malankara
Church is episcopal in nature-Held, per curiam, it is episcopal to the extent
declared in the 1934 Constitution the validity of which cannot be questioned
now.
Code of Civil Procedure, 1908, s.9 r/w 0.1 Rule 3-Ecclesiastical
Law-Wlzether p01ish churches are congregational-Held, per majority, c011not be decided without impleading parish churches; per cwiam, all churches
G except those of Evangelistic Association, Simhasana or St. Mary are under
spiritual and temporal control of the Ma/ankara Association in accordance
with the 1934 Constitution-Words and Phrase;-'Episcopal',
'Congregational'.
Code of Civil Procedure, 1908, S.9-Ecc/esiastica/ and Canonica/
H Law-Dispute between the Catho/icos group and the Pamarch group in the
542
-,..
'
P.M.A. METROPOLITAN v. M.M. MARTIIOMA
543
Mala11kara Sy1ia11 Cluistian community-Patriarch group questioning the A
creation of the Catholicos of the East and the 1934 Constitution adopted by
the Catholicos group-Held, after issuing a Kalpana in 1958 accepting the
Catholicos and consecrating him in 1964 the Patliarch group deemed to have
abandoned all objectiom~Evidence Act, 1872 s.114Code of Civil Procedure, 1908, s.<)---Whether suit for declaration that
Malankara Church is episcopal is of a civil naatre and is maintainable-Held,
per Sahai, 1., yes; civil cozats have jurisdiction to entertain suits for violation
of fundamental 1ights-Constiattion of India, A1ticles 25, 26.
B
Places of W01ship (Special Provisions) Act, 1991-Whether bws a suit C
for declaration that Malankara Church is episcopal-Held, per Sahai, I., No.
Code of Civil Procedure, 1908, s. Jl-Res Judicata-Royal Cowt of
Travancore and Supreme Cowt upholding validity of the Constitution and
creation of Catholicos-Held, operates as res judicata between pa11ies and
binds the patriarch group.
D
Code of Civil Procedure, 1908, S.11, Jl4-Kerala High Cowt accepting
Hudaya canon produced by Patriarch group in the Vattipanam suit-Review
petition of Catholicos group enteJtained on condition that finding regarding
Patliarch 's power of exconununication under the canon will not be questionelf-High Cowt allowing review petition and invalidating excommunication of Malankara Metropolitan-Whether the acceptance of the canon still
operates as res judicata against the Catholicos group and negatives their claim
to validity of the 1934 Constitution-Held, per Sahai, !. No; with the review
being allowed, the decision on binding effect of canon does not operate as
res judicata between the pwties-Canonical law-Evidence Act, 1872-Ss.42,
43.
St. Thomas, one of the disciples of Jesus Christ came to India in 52
A.D. to spread his message. The first ecumenical council was convened in
E
F
325 A.D. at Nicea by the Roman emperor Constantine. Prelates from all
parts and representatives of all dioceses in the Christian world attended G
the synod. The ecclesiastical jurisdiction of the Christiandom was set

## Text

_Characters 0–39,952 of 375,869. This is a partial read: ask again with offset=39952 for what follows._

A
MOST REV. P.M.A. METROPOLITAN AND ORS.
v.
MORAN MAR MARTHOMA AND ANR.
JUNE 20, 1995
B
[R.M. SAHAI, B.P. JEEVAN REDDY AND S.C. SEN, JJ.]
Ecclesiastical and Canonical Law-Dispute between the Catholicos
group and the Patriarch group in the Malankara Sy1ian Christian community-Constitution recognising spiritual but not temporal supremacy of the
C Patriarch of Antioch over the Ma/ankara Church-Excommunication of
Catholicos of the East by the Pabiarch-Wliether valid-Held, per curiam, the
excon1munication was invalid.
Ecclesiastical and Canonica/ Law-Dispute between the Catho/icos
group and the Pafliarch group in the Ma/ankara Sy1ian Christian comD munity-Revival of Catho/icate of the East in 1912 with temporal powers over
Malankara Church-Wlzether Patriarch's power over the Malankara Church
reduced to a vanishing point-Held, per curia111, the Patriarch continues as
supreme head of the Sy1ian 01thodox Church of which the Malankara Church
is a division; he is spi1itually supe1ior to the Catholicos although he has no
E temporal power over the Malankara Church or its properties.
F
Code of Civil Procedure, 1908, s.9-Ecclesiastica/ Law-Constitution
of the Malankara Christian Association of 1934 -Whether Malankara
Church is episcopal in nature-Held, per curiam, it is episcopal to the extent
declared in the 1934 Constitution the validity of which cannot be questioned
now.
Code of Civil Procedure, 1908, s.9 r/w 0.1 Rule 3-Ecclesiastical
Law-Wlzether p01ish churches are congregational-Held, per majority, c011not be decided without impleading parish churches; per cwiam, all churches
G except those of Evangelistic Association, Simhasana or St. Mary are under
spiritual and temporal control of the Ma/ankara Association in accordance
with the 1934 Constitution-Words and Phrase;-'Episcopal',
'Congregational'.
Code of Civil Procedure, 1908, S.9-Ecc/esiastica/ and Canonica/
H Law-Dispute between the Catho/icos group and the Pamarch group in the
542
-,..
'
P.M.A. METROPOLITAN v. M.M. MARTIIOMA
543
Mala11kara Sy1ia11 Cluistian community-Patriarch group questioning the A
creation of the Catholicos of the East and the 1934 Constitution adopted by
the Catholicos group-Held, after issuing a Kalpana in 1958 accepting the
Catholicos and consecrating him in 1964 the Patliarch group deemed to have
abandoned all objectiom~Evidence Act, 1872 s.114Code of Civil Procedure, 1908, s.<)---Whether suit for declaration that
Malankara Church is episcopal is of a civil naatre and is maintainable-Held,
per Sahai, 1., yes; civil cozats have jurisdiction to entertain suits for violation
of fundamental 1ights-Constiattion of India, A1ticles 25, 26.
B
Places of W01ship (Special Provisions) Act, 1991-Whether bws a suit C
for declaration that Malankara Church is episcopal-Held, per Sahai, I., No.
Code of Civil Procedure, 1908, s. Jl-Res Judicata-Royal Cowt of
Travancore and Supreme Cowt upholding validity of the Constitution and
creation of Catholicos-Held, operates as res judicata between pa11ies and
binds the patriarch group.
D
Code of Civil Procedure, 1908, S.11, Jl4-Kerala High Cowt accepting
Hudaya canon produced by Patriarch group in the Vattipanam suit-Review
petition of Catholicos group enteJtained on condition that finding regarding
Patliarch 's power of exconununication under the canon will not be questionelf-High Cowt allowing review petition and invalidating excommunication of Malankara Metropolitan-Whether the acceptance of the canon still
operates as res judicata against the Catholicos group and negatives their claim
to validity of the 1934 Constitution-Held, per Sahai, !. No; with the review
being allowed, the decision on binding effect of canon does not operate as
res judicata between the pwties-Canonical law-Evidence Act, 1872-Ss.42,
43.
St. Thomas, one of the disciples of Jesus Christ came to India in 52
A.D. to spread his message. The first ecumenical council was convened in
E
F
325 A.D. at Nicea by the Roman emperor Constantine. Prelates from all
parts and representatives of all dioceses in the Christian world attended G
the synod. The ecclesiastical jurisdiction of the Christiandom was settled
under four ecclesiastical heads and four Patriarchs were appointed over
four Sees - Rome, Constantinople, Alexandria and Antioch. India was
placed under the Patriarch of Antioch. The great Metropolitan of the East
was proclaimed as the Catholicos of the East.
H
544
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A
By the 16th century, Christianity had gained a substantial foothold
in Kerala and the dominant faith was of the Syrian Orthodox Church.
Rebelling against the pressure from the Portugese to embrace the Roman
Catholic faith, the Christians of Malabar met at Mattancherry in 1664 and
affirmed their loyalty to the Syrian Orthodox Church headed by the
B Patriarch of Antioch by en masse taking the Koonan Cross Oath.
The advent of the British saw the Malankara Syrian Christian
Community dividing into two groups - one that embraced the Protestant
faith and the other that adhered to the Orthodox faith. Their dispute was
resolved by the Cochin Award rendered on April 4, 1840 whereby the
C Church properties were divided between the two groups and an amount of
3000 Star Pagodas was allotted to the Malankara Church.
1840 saw a tussle between Mathew Athanasius-(who claimed to have
been ordained as Malankara Metropolitan by the Patriarch of Antioch)
and Chepat Dionysius .. Mar Yayakim Koorilos who was sent by the
D Patriarch as his delegate to resolve the dispute, excommunicated Mathew
and ordained himself as the Malankara Metropolitan. With Mathew
Athanasius persisting in his claim, the Travancore Government constituted the Quilon Committee which decided in his favour. Thereafter, on
a request by the locals one Joseph Dionysius went to Syria and got himself
E ordained as the Malankara Metropolitan. However, Mathew refused to
hand over charge and instead ordained his brother Thomas Athanasins
as his successor.
The Patriarch of Antioch, Peter III, came to Malabar in 1976 and
convened the Mulunthuruthy Synod where the Malankara Syrian Chrisp tian Association was formed to manage the affairs of the Church and the
Community. The Patriarch was its patron and the Malankara
Metropolitan its ex-officio President. Malabar was divided into seven
Dioceses each headed by a Metropolitan. One among them was to be
designated as Malankara Metropolitan exercising spiritnal and temporal
G powers over all Dioceses.
Despite Joseph Dionysius being accepted as the Malankara
Metropolitan, Thomas Anthanasius refused to hand over charge and this
led to the filing of a suit (known as Seminary Suit) by Joseph Dionysius
which came to be disposed of in 1889 by a judgment of the Travancore
H Royal Court of Appeal. The Court found that the ecclesiastical supremacy
.--
'
,
P.M.A. ME1ROPOLITAN v. M.M. MAR THOMA
545
of the Patriarch of Antioch over the Malankara Syrian Christian Church A
had all along been recognised and acknowledged by the Jacobite Syrian
Christian community and their MetropoHtans; that this supreme power
included ordaining metropolitans to manage spiritual matters of the local
church; in sending Morone (sanctified oil used for baptismal purposes),
in receiving Ressissa (tribute). from the community and general control B
over the spiritual government of the church. However, the Court rules that
the authority of the Patriarch never extended to temporal affairs of the
church. The Court further declared that the Malankara Metropolitan
should be native of Malabar consecrated by the Patriarch or by his duly
authorised delegate and accepted by the people as their Metropolitan.
Joseph Dionysius was accordingly found entitled to be declared as the C
Malankara Metropolitan and as the trustee of the church properties.
The Patriarch of Antioch again approached the court in an Arthat
Suit in 1877. This resulted in a judgment in 1905 of the Cochin Court of
Appeal re.affirming the judgment of the Royal Court and declaring that D
while the Patriarch was the spiritual head, the churches and their properties were subject to the spiritual, temporal and ecclesiastical control of the
Malankara Metropolitan.
The Sultan of Turkey withdrew the recognition given to Abdulla
Messiah and in his place recognised Abdulla II as the Patriarch. Mar E
Geevarghese Dionysius who was ordained by Abdulla II as Malankara
Metropolitan was excommunicated by the latter due to certain differences
and in his place Poulose Mar Kurilos was appointed. In 1912 Abdul
Messiah came to Malankara and declared the excommunication of Mar
Geevarghese Dionysius invalid and purported to revive and re-establish p
the Catholicate by consecrating one Mar Ivanios as Catholicos.
A dispute arose as to which of the groups - one owing allegiance to
the Catholicos and the other to the Patriarch - was entitled to receive the
amount of interest on the 3,000 Star Pagodas. In the ensuing interpleader G
suit, known as Vattipanam Suit, the District Judge, Trivandrum held that
the excommunication of Mar Geevarghese Dionysius, the validly appointed
Malankara Metropolitan, by Abdulla II was invalid and that the
Catholicos group ,,;as entitled to the interest amount. The appeal of the
Patriarch group was allowed by the Full Bench of the High Court (41 TLR
1). It held that the version of the canon law produced by the Patriarch H
546
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A group (Ex.18) was the one recognised and accepted by the Malankara
Church and binding on it and that under Ex.18 the Patriarch could in his
own right excommunicate the Metropolitans. However, a review petition
was admitted on condition that the Catholicos group would not l(Uestion
three findings - the binding nature of the Canon law as produced by the
B Patriarch grou1J; the power of the Patriarch to excommunicate without
intervention of the Synod; the absence of an indirect motive on the part of
the Patriarch which induced him to exercise his power of excommunication. The review petition was allowed ( 45 TLR 116) and the trial court
judgment was restored. The excommunication of Mar Geevarghese
Dionysius was held invalid not on account of lack of power in the Patriarch
C but because he had not observed the principles of natural justice.
On December 26, 1934 the Catholicos group adopted a draft constitution which inter alia recognised that the Patriarch was the primate of
the Orthodox Syrian Church and the supremacy in the Orthodox Syrian
D Church of the East and the primate of the Orthodox Syrian Church is with
the Catholicos. In response the Patriarch group at a meeting in 1935
elected Mar Poulose Athanasius as the Malankara Metropolitan. They
then instituted in 1938 the Samudayam Suit for a declaration of their title
as trustees of the church properties and that the Catholicos group who
were heretics and had separated from the Syrian Christian Church were
E not lawful trustees. This suit was dismissed in 1943. The appeal of the
Patriarch group was allowed in 1946. The further appeal of the Catholicos
group was allowed by this court in Moran Mar Basselios Catho/icos v.
Thukalan Paulo Avira, AIR (1959) SC 31. This court held that the findings
in favour of the Catholicos group in the Vattipanam Suit constituted res
p judicata and they could not now be declared heretics. It invalidated the
meeting of the Patriarch group and the decisions taken then and upheld
the adoption of the draft constitution in 1934 by the Catholic<is group. The
Samudayam Suit of the Patriarch group was dismissed.
The Patriarch Yakub who was in India during the Samudayam Suit
G issued a Kalpana (Ex.Al9) on December 9, 1958 expressing the desire for
peace and unity and accepting Mar Basselius Geeverghese as Catholicos.
The Catholicos on December 16, 1958 responded with his Kalpana (Ex.A
20) conveying the acceptance of Moran Yakub as the Patriarch of Antioch
subject to the 1934 Constitution. The Patriarch in his letter of April 8, 1959
H took exception to the use by the Catholicos of the expression 'holiness' with
P.MA METROPOLITAN v. M.M. MARTIIOMA
547
his name, to the assertion by the Catholicos that he was sitting on. the A
'Throne of St. Thomas'; to the assumption by the Catholicos that his was
the Church of the East and that he was the Catholicos of the East; to the
new arrangement of dioceses and to his assumption or the n1anage1nent of
the Simhasana churches. The Catholicos replied to the objections but the
Patriarch was not satisfied. The exchange of correspondence grew increasB
ingly accusatory.
The Malankara Association at a meeting in 1962 elected Ougen Mar
Timothious as Catholicos and this was approved by the Malankara Episcopal Synod. Upon invitation by the synod, the Patriarch came to India
and the new Catholicos was installed by him on May 22, 1964. It was C
decided that the jurisdiction of the Catholicos shall not be extended to
Arabian countries or Persia but include only countries situated to their
east.
In 1972 the Patriarch purported to nominate a delegate to the
Malankara Sabha and this was disliked by the Catholicos who conveyed D
'his displeasure in a letter to the Patriarch co-signed by nine
Metropolitans. Nevertheless the Patriarch's delegate Mar Timotheos came
to Malankara and started ordaining priests and deacons. When the
Catholicos protested, the Patriarch responded by sending him a list of
charges the principal one being that the Catholicos was repudiating the E
Patriarchal authority. While the Malankara Episcopal Synod stood by the
Catholicos, the Universal Synod at its deliberations at Damascus held him
guilty and an apostate to the Syrian Orthodox Church. Consequently the
Catholicos was excommunicated by the Patriarch.
Eight suits were filed in all by the Catholicos group. The main suit F
sought for a declaration that the Malankara Church is episcopal in
character and is not a union or federation of autonomous church units
and it is governed in its administration by the Constitution of the
Malankara Church. It sought to permanently injunct the Patriarch group
from ordaining priests or performing any other sacraments or service for G
the Malankara church. The suits which were consolidated were dismissed
by a Single Judge of the High Court. The Division Bench in appeal reversed
and upheld the claim of the Catholicos group. It held that :
(i) The Malankara Church is not an autocephalous church but is a
part of the World Orthodox Syrian Church of which the Patriarch of H
548
SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.
A Antioch is the head.
(ii) The Catholicos of the East is the head of the Malankara Church
and the relationship between the Patriarchate and the Malankara Church
is governed by the 1934 Constitution which is valid and binding on the
Malankara Association, community, Dioceses as well as parish churches
B and parishioners.
(iii) The Catholicate established by Abdul Messiah was valid and
although the spiritual power of the Patriarch has not been reduced to a
vanishing point, he could not be regarded as having active spiritual
C supremacy.
(iv) The decision in 41 TLR 1 about the binding nature of the Hudaya
Canons was not final and did not operate as res judicata between the
parties.
D
(v) The Malankara Church is not purely episcopal but has only some
episcipal characteristics.
(vi) Parish churches are not congregational or independent but are
constituent units of the Malankara Church; they have a fair degree of
autonomy subject to supervisory powers vesting in the Malankara Associa·
E lion, Catholicos and Malankara Metropolitan.
The Patriarch group appeals to this court.
Disposing of the appeals, this Court
F
HELD : Per Jeevan Reddy, J. (for himself and Sen, J. ):
1.1. The excommunication of Catbolicos was not valid and legal. The
charges on which the excommunication was based were not available as
grounds of excommunication and could not constitute valid grounds tbereG for. [679-FJ
1.2. Having revived the Catholicos and having accepted the Constitu·
lion of 1934 and having installed the Catholicos in 1964 notwithstanding
his objections raised in his letters written during the years 1959 to 1962,
it was not open to the Patriarch to seek to excommunicate the Catholicos
H on those very grounds. [678-E]
P.M.A. METROPOLITAN v. M.M. MAR THOMA
549
13. The use of the expression 'Holiness' or the assertion of being A
seated at the Throne of St. Thomas in the East or the claim that the
Malankara Church was an autocephalous Church could not be treated as
heresy when the very Constitution by which the Catholicos and his group
were swearing, affirmed in clear terms that the Patriarch was the supreme
head of the Malankara Church. [678-G]
2.1. The Patriarch remained the supreme head of the Syrian Church
of which theMalankara Church was a division. He was spiritually superior
to the Catbolicos though he did not, and indeed never did, enjoy and
temporal powers over the Malankara Church or its properties. [685-A)
2.2. Having conferred upon the Catholicos the powers of ordaining
B
c
the Metropolitans, the Patriarch could not exercise those powers
unilaterally, i.e., without reference to the Catholicos. He could exercise
those powers only in consultation with the Catholicos. Moreover, the
person to be appointed as Metropolitan or Malankara Metropolitan had D
to be accepted by the people as had been affirmed in the judgment in the
Seminary suit. The Patriarch's power to ordain the Metropolitans was
subject to the Constitution of 1934. [684-G]
3.1. The Malankara Church was episcopal to the extent it was so
declared in the 1934 Constitution. The said Constitution also governed the E
affairs of the Parish churches. [685-H, 686-AJ
3.2. 'J)ie common properties (Samudayam properties) held by the
Malankara church were vested in Malankara Metropolitan and others as
declared in the judgment of this Court in Moran Mar Basselios AIR (1959)
F
SC 31. [686-D]
33. In this suit no declaration could be granted affecting the rights
of Parish Churches in their absence nor could it be declared that the
properties held by Malankara Parish Churches vested in the Catholicos G
or the Malankara Metropolitan or the Metropolitan of the concerned
diocese, as the case may be. Without impleading the affected parties, no
declaration could be claimed by the plaintiffs that their church was episcopal in nature, if that declaration meant that it gave the Catholicos/
Malankara Metropolitan/the Metropolitan of the Diocese any title to or
any control over the properties held by the Parish Churches.
H
550
SUPREME CO!JRT REPORTS [1995] SUPP. 1 S.C.R.
A
3.4. The 1934 Constitution governed the affairs of the Parish Churches too insofar as it did. The power of the Malankara Metropolitan or
the Metropolitan in temporal affairs must be understood in these suits too
in the same manner as has been declared in the Samudayam judgment,
i.e., with respect to the common properties of the Malankara Church as
B such. (683-H, 684-A]
4.1. It was no longer open to the Patriarch or his followers to contend
that the revival of Catholicate was not in accordance with the religious
tenets and faith of the Syrian Jacobite Christian Church, that the Constitution of 1934 was not duly and validly passed or that the power and
C authority of the Patriarch as obtaining prior to 1912 remains and continues unaffected and undiminished. (676-F]
4.2. The 1934 Constitution was approved at a validly convened
meeting of Malankara Association, which Association was created by the
Patriarch himself under the Resolutions of the Mulanthuruthy Synod. The
D Patriarch group could not question its legality and validity in view of the
acts and conduct of the Patriarch and the members of his group subsequent to the judgment of this Court. (685-C]
4.3. The submissions of the Patriarch group that the 1934 ConstituE lion was not put forward by the Catholicos group as one of the bases of
their claim in Samudayam Suit or that no finding as such was recorded
by this Court in the said suit regarding the validity of the Constitution was
of little consequence. Having conceded, recognised and affirmed all the
above things, the Patriarch group could not make a legitimate grievance
of those very things. They must be deemed to have given up and abandoned
F all their objections to the aforesaid events and documents. [677-C-D]
G
S. It was unnecessary to go into the other questions viz., maintainability of the suit, the effect of the Places of Worship (Special
Provisions) Act, 1991, non-joinder of parties etc. The objection on the basis
of S.9 of the Civil Procedure Code was not urged by the defendants-appellants before the Division Bench and must be deemed to have been abandoned. The question whether the finding of the trial court in the
Vattipanam Suit regarding the authenticity of the canon produced by the
Patriarch Group had been restored by the judgment of this Court had lost
its significance on account of the subsequent developments and need not
H be gone into.
P.M.A. MElROPOLITANv. M.M. MARTHOMA
551
Per Sahai, J. ( concuning)
1.1. The ex-communication of the Catholicos by the Patriarch could
not be upheld canonically, traditionally or constitutionally. It was violative
of the norms which are mandatorily required to be observed conventionally. [617-A]
1.2. The 1934 Constitution upheld by this Court in Moran Mar
Basselious .was binding on the Syrian Christians. Any action taken against
A
B
the Catholicos contrary to it could not be upheld. The creation of the
Catholicos in 1912 was neither against the scriptures nor against faith.
Any person elected or nominated to such high spiritual office as CatholiC
cate of East could not be subjected to ex-communication. That is why the
Canons did not contain any provision. Even the meeting of the Universal
Synod summoned in Damascus being in violation of the 1934 Constitution
was invalid. The entire proceedings of exM communication, therefore, were
unsustainable. [616-B-C]
2.1. The relationship between the Patriarch of Antioch and
Catholicos of the East at Malankara was neither of superior nor subordinate but of two independent spiritual authorities with Patriarch at the
highest in the hierarchy. [645-D]
2.2. The effect of the two judgments rendered by the Royal Court of
Appeal and by this court in Moran Mar Basselios was that both the
Catholicos and Patriarch groups continued to be members of the Syrian
Orthodox Church. The Patriarch of Antioch had no temporal powers over
the churches. [643-D-E]
23. The effect of the creation of Catholicate at Malankara and the
1934 Constitution was that the Patriarch could exercise spiritual powers
subject to the Constitution. The spiritual powers of the Patriarch of
Antioch could be exercised by the Catholicos in accordance with the
Constitution. [643-F]
2.4. The personality of the Patriarch was not being split. His integrality was not being destroyed. He remained the spiritual head. The
dilTerence in degree of exercise of spirituality did not detract his status
from being a corporation sole. The fact that it had been reduced to a
D
E
F
G
'vanishing point' did not mean that he ceased to be so. [642-C]
H
552
SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.
A
Gmeral Assembly of Free Church of Scotland v. Lord Ovenoun, (1904)
AC 515, referred to.
Halsbury's Laws of England, Vol.9 paras 1207-08, referred to.
3.1. The parish churches were episcopal in character when they were
B found, they continue to be so at present. The character of public charities
from episcopal to congregational cannot be changed as it would be against
the basic purpose for which these churches were established. [632-G-H]
c
D
Attorney General v. Pearson, [1814] 23 All ER 60, referred to.
Halsbwy's Laws of England, Vol.14 paras 534, 562, relied to.
Encyclopedia Britannica, Voiume 5, Page 693;Faiths of the World by
James Garden, Vol. 1, p.516; The Encyclopaedia of Religion, Vol.3, p.348;
Religion in India by Dr. Karan Singh, referred to.
3.2. The claim that the parish churches were congregational could
not be, accepted. From the scheme unfolded by the Resolution passed in
the Mulunthuruthy Synod read with the Constitution it appears that every
Syrian Parish Church even thongh established independently had necessarily to have a relation with the Malankara Association. The Parishes
E were bound by the Constitution framed in 1934. [626-E]
F
G
3.3. The property vested in the endowment. That was the fundamental difference between the congregational and the episcopal. In the former
it vested in the parishioner, but in the latter in the endowment. Once it
was conceded that the Syrian Churches were episcopal in character then
the distinction between spiritual and temporal was of no consequence.
Therefore, the property of the Church vested in the endowment and not
the Parishioners. The right to manage snch property vested in the trustees
under the bye-laws subject to the control by the Catholicos and
Metropolitan in accordance with the Constitution. [637-C]
Hill: Law of Trnsts and Trnstees, relied on.
4. The following findings in Moran Mar Basselios became final and
operate as res judicata:-
H
(a) The Catholicate of the East was created in Malankara in 1912.
-
P.M.A METROPOLITAN v. M.M. MARTHOMA
553
(b) The Constitution framed in 1934 by Malankara Association was A
valid.
( c) The Catholicos were not heretics nor they had established
separate church.
(d) The meeting held by Patriarch group in 1935 was invalid.
B
[643·B·C]
The Most.Rev. Mar Poulose Athanasius v. Moran Mar Basse/ios
Catholicos, (1957) KL T 63; Benodeo Lal Chakravarthy v.Secretary of State for
India, AIR (1931) Ca1.239;Venkiteswantlu v. Venkitanarasimhem, AIR (1957)
AP 557; Narayanan Chetty v. Kannammai Achi, ILR (1905) 28 Mad. 338; C
Satyadhyan Ghosal v. Deorajin Debi, [1960] 3 SCR 590; Mysore State
Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd., [1963]
Supp. 2 SCR 127; Ampthil/ Peerage Case, [1976] 2 ALL E R 411; Bell v.
Monison, (1828) 1 Peters 351 and A'Court v. Cross, (1825) 3 Bing 329,
referred to.
D
5.1. The suit was maintainable. The injunction and prohibition
sought from interfering in administration of Church were matters which
pertained to the religious office. Even the declaration that the Church was
episcopal was covered in the expansive expression of 'religion'. The word
'episcopal' meant 'of or pertaining to bishops, having a government vested E
in bishop'. A suit for declaration of such a right would be maintainable
under s.9. [590-E]
New English Dictionary of Historical Principles by Sir John Murray, Vol.
III, Part I, page 245; Chambers Encyclopaedia, Vol. IV. page 13 and Black's
Law Dictionary, referred to.
F
5.2. Explanation I to s.9 was not restrictive of the right or matters
pertaining to religion. It only removed the doubt to enable the courts to
entertain suits where dispute about religious office was involved. The dis·
pute about the religious office was a civil dispute as it involves disputes G
relating to rights which may be religious in nature but were civil in conse-
. quence. [590-G]
Smt. Ganga Bai v. Vijay Kumar, AIR (1974) SC 1126; SA.L. Narayan
Row v. Ishwarlal Bhagwandas, AIR (1965) SC 1818; Arbind Kumar Singh v.
Nand Kishore Prasad, AIR (1968) SC 1227; Thintvenkata Ramanuja Pedda H
554
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A Jiyyangarly Valu v. Prathivathi Bliayankaram Venkatachmiu, AIR (1947) PC
53; M. Appadorai Ayyangar v. P.B. A1111a11garaclzmi01; AIR (1939) Mad
102;Kattalai Michael Pillai v.J.M. Bwthe, AIR (1917) Mad 431; £.C. Kent v.
E.E.L. Kent, AIR (1926) Mad 59; Hasanali v. Mamporali, AIR (1948) PC 66,
referred to.
B
Queen Empress v. Ramzan, !LR (1885) 7 All 461; Narasimma Chaliar
v. IVishna Tata Chazim; (1870-71) 6 Mad HCR 449;IVislmama v. IVishnasamy, ILR (1879) 2 Mad 62; S1inivasalu Naidu v. Kaval111a1i Munnuswami
Naidu, AIR (1967) Mad 451, approved.
Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR (1959)
C SC 31 and Moran Mar Basse/ios Catholicos v. Most Rev. Mar Poulose
Athanasius, AIR (1954) SC 526, referred to.
Law Commission 27th Rep01t on Civil Procedure Code, December
1954, p.91; Halsbury's Law of England, Vol. 14 paras 301, 304 and 315,
D referred to.
5.3. The right to religion having become fundamental right, it would
include the right to seek declaration that the Church was episcopal. But the
court may refrain from adjudicating upon purely religious matters as it
may be handicapped to enter into the hazardous, hemisphere of religion.
E Maintainability of the suit should not be confused with exercise of jurisdiction. (590-H]
His Holiness S1imad Pera1u/a/a Ethiraja Ramanuja Jeeyar Swami v.
17ie State of Tamil Nadu, AIR (1972) SC 1586; Rev. Stainislaus v. State of
Madhya Pradesh, AIR (1977) SC 908; S.P. Mittal v. Union of India, AIR
F
(1983) SC 1; Ugamsingh v. Kes1imal, (1971] 2 SCR 836, relied on.
5.4. A suit filed after coming into force of the Constitution for vindication of rights related to worship of status, office or property was maintainable in a civil court and it would be duty of the court to decide even
G purely religious questions if they had a material bearing on the right alleged
in the plaint regarding worship, status or office or property. (588-B]
Nagar Chandra Chatte1jee v. Kai/ash Chandra Monda!, AIR (1921) Cal
328; U. W. Baya v. U. Zaw Ta, AIR (1914) LB 178 1; Sinna Ramanuja Jeer v.
Ranga Ramanuja Jeer, (1962] 2 SCR 509; Ugamsingh v. Kes1imal, [1971] 2
H SCR 836; TA. Aiyangar Swamigal v. L.S. Aiyangar, 31 MW 758 andDevendra
-
-
P.M.A. METROPOLITAN v. M.M. MAR THOMA
555
Narain Sarkar v. Satya Charan Mukerji, AIR (1927) Cal 783, approved.
A
Long v. Bishop of Capetown, (1863) 1 Moore PCC NS 411; Dame
Hemiette Brown v.Les Cure Et Marguillien· De L 'Oeuvre Et Fab1igue De Notre
Dame De Motrea/, (1874-75) 6 PC 157; Anardrav Bhikaji Phadke v. Shankar
Daji Ch01ya, ILR 7 Born 323 and Sardar Syedna Toher Saifuddin Saheb v. The
State of Bombay, [1962] Supp. 2 SCR 496, referred to.
American Jwisp111dence Vol. 66, para 45, referred to.
B
6. Places of Worship (Special Provisions) Act, 1991 did not debar
those cases where declaration was sought for a period or for enforcement of
a right recognised prior to the Act coming into force. The respondents did C
not seek a declaration for conversion of the church or place ofworsh_ip.
7.1. The decision in the Vattipanam Suit that Ex.18 therein was the
version of Hudaya canon accepted as binding on the Church had not
become concluded and did not operate as res judicata between the parties. D
[610-G]
Abdullah Ashgar Ali Khan v. Ganesh Dass, AIR (1917) PC 201;
Sheosagar Singh v. Sitaram Singh, !LR (1897) 24 Cal 616, followed.
Midnapur ·zamindmi Company Ltd. v. Naresh Narayan Roy, AIR
(1922) PC 241; Mt. Mwmi Bibi v: Tirloki Nath, AIR (1931) PC 114; V.P.R V.
E
Chockalingam Chetty v. SeethaiAchi, AIR (1927) P.e 202; Sham Nath Madan
v. Mohammad Abdullah, AIR (1967) J&K 85 andArjun Singh v. Tara Das
Ghosh, AIR (1974) Patna 1, distinguished.
7.2. When a review petition was entertained and notice issued by a
court it was open to it to restrict the scope of hearing but once the petition
was heard and the court was satisfied that the order under review was
erroneous on the face of it then it was not precluded from allowing the
petition and setting aside the findings which were earlier not permitted to
be re-opened. [607-E]
7.3. The appellate judgment of this Court precluded the Patriarch
from claiming that the Hudaya Canon filed by them was authentic. [614-B]
7.4. For the finding on the authenticity of the canon to be relied on as
a precedent, it had to fall either under s.42 or 2.43 of the Indian Evidence
F
G
Act. [ 610-HJ
H
556
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
A
Ninan Daniel v. Most Rev. Uhanon Manhoma Metropolitan, Civil
Appeal No. 947 of 1964 decided on 7th January, 1965, relied on.
Kumar Gopika Raman Roy v. Atal Singh, AIR (1929) PC 99 and
Benode Lal v. Secretary of State, AIR (1931) Cal. 239, referred to.
B
Encyclopaedia of Religion, Vol. 3, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4958-60
of 1990 Etc. Etc.
From the Judgment and Order dated 1.6.90 of the Kerala High Court
C in AS.Nos. 331/80, 362/90 and 358 of 1980.
K. Parasaran, C.S. Vaidyanathan, T.L. Vishwanatha Iyer, F.S.
Nariman, R.F. Nariman, P.V. Thomas, Ranji Thomas, K.V. Mohan,
Abraham, Pratap, P.J. Philip, Jose Kuriakose, S. Prasad, M.KD. Namboodari, S. Balakrishnan, M.S.R. Shoba, V.P. Yohanuman, Sudesh Menon,
D C.T. Joseph, K. George, E.M.S. Anam, M.T. George, T.G.N. Nair and Ms.
Lilly Thomas for the appearing parties.
The Judgments of the Court were delivered by
R.M. SARAI, J. When Lord Jesus Christ was asked by a youngman
E who was possessed of property what was the road to heaven, the Holy Bible
records it in Chapter 19 of the New Testament - the Gospel According to
St. Mathew thus,
F
G
"16. And, behold, one came and said unto him, Good Master, what
good thing shall I do, that I may have eternal life?
17. And he said unto him, Why callest thou me good? there is
none good but one, that is, God: but if thou wilt enter into life,
keep the commandments.
18. He saith unto him, Which? Jesus said, Thou shalt do no murder,
Thou shalt not commit adultery, Thou shalt not steel, Thou shalt
not bear false witness,
19. Honour the father and thy mother: and, Thou shalt love thy
neighbour as thyself.
H
20. The young man saith unto him. All these things have I kept
I
P.M.A. METROPOLITAN v. M.M. MARTH OMA [RM. SARAI. J.]
557
from my youth up: what lack I yet?
21. Jesus. said unto him, if thou wilt be perfect, go and sell that
thou hast, and give to the poor, and thou shalt have treasure in
heaven; and come and follow me.
A
22. But when the young man heard that saying, he went away B
sorrowful: for he had great possessions".
Turning 'away sorrowful', is the long and short of this litigation between
two rival groups of Jacobite Christian Community of Malabar which has
been going on for more than hundred years apparently for religious and C
spiritual supremacy over the Church but really for administrative control
and temporal powers over vast assets which have accumulated out of 3000
star pagodas created in Trust in 1808 for charitable purposes by one Moran
Mar Marthoma VI popularly called 'Dionysius the Great'. This is the third
round between the parties in this Court, the two earlier being in 1954 and
1959. While deciding the appeal in 1959 this Court had observed that the D
dispute had been going on for a considerable length of time which has
brought in its train protracted litigation involving ruinous costs. The effect
of the decision was that for sometime both the parties resolved their
differences by mutual adjustmen~ but 'those who hoped - fondly, as events
have proved, that the decision of the Supreme Court in Moran Mar BasE
selios Catholicos v. Thukalan Paulo Avira & Others, (1958) KLT 721
=
AIR (1959) SC 31 and the reported reconciliation following upon that
decision would give the quietus to the litigation, prolific, prolonged and
ruinous, arising out of the faction in the Malankara Jacobite Syrian Church
between what is known as the Patriarch's Party on the one hand and what
is known as the Catholicos' Party on the other, counted without the
F
resourcefulness of those entrenched in and of those covetous of positions
of power, and we dare say, of profit, and of those who, for one reason or
another, have a vested interest in the continuance of the dispute.' [Raman
Nayar, J. in Appeal Suit No. 269 of 1960 decided on 3rd April 1964]
How the much negotiated peace and quiet arrived at by written G
adjustments worked out by issuing letters from both the groups was shaken
even before expiry of 15 years since the judgment was delivered by this
Court in September, 1958 and what led to filing of numerous suits eight of
which were consolidated by the Additional District Judge but were heard
and decided by a learned Single judge of the High Court, as they were H
558
SUPREME COURT REPORTS (1995] SUPP. 1 S.C.R.
A transferred under orders of this Court, and were ultimately decided in
appeal and cross objections by the Division Bench giving rise to these
appeals and various legal issues including whether the suit under Section
9 of the Code of Civil Procedure was maintainable, effect of Places of
Worship (Special Provisions) Act, 1991 and whether the decision in earlier
B suit filed by the appellants operated as res judicata can be, better, appreciated if the history how the Malankara Church came to be established,
what is its nature and how the two groups Patriarch of Antioch and
Catholicos came to be formed leading to internecine struggle and litigation
may be noticed in brief. The adversarial duel between the two rival groups
has assumed so much of publicity that it has found place even in the
C Encyclopedia of Religion. It may be prefaced with brief observations about
the Christian religion and the Church.
Religion is founded on faith and belief. Faith emanates from conscience and belief is result of teaching and learning. Christianity is 'a
D religion that traces its origins to Jesus of Nazareth, whom it affirms to be
the chosen one (Christ) of God' Encyclopedia Blitannica, Volume 5, Page
693. 'It is embodied both in its principles and precepts in the Scriptures of
the Old and New Testaments, which all denominations of Christians believe
to be a Divine revelation, and the only rule of faith and obedience' [Faiths
of the World by James Gardner, Volume 1, p 516]. It is 'a historical religion.
E It locates within the events of human history both the redemption it
promises, and the revelation to which it lays claim' /The Encyclopedia of
Religion, Volume 3, p. 348]. 'In its origin Christianity is Eastern rather than
Western. Jesus was a Palestinian Jew, and during the early, formative
centuries of the church's life the Greek and Syriac East was both numeriF
cally stronger and intellectually more creative than the Latin West. Christianity came to India many centuries before it reached Europe as it is
believed that St. Thomas, one of the original apostles of Jesus Christ,
visited India in 56 A.O. and found the first Christian settlement in the
South' [Religion in India by Dr. Karan Singh]. Jn A.O. 37 Apostolic See at
Antioch was established by St. Peter to whom the stewardship of Church
G was entrusted by Lord Jesus Christ. It took root in Kerala within 20 years
of the epoch making events in Jerusalem, the crucifixion, resurrection and
ascension of the Lord Jesus Christ. St. Thomas, one of the 12 apostles of
Jesus Christ visited [ndia in A.O. 51/52 and established 7 Churches in the
Malayalam speaking parts of South India. They are known as Malankara
H
Jacobite (or orthodox) Syrian Church, "Malankara" means "Malayalam
'
,
P.M.A. METROPOLITAN v~M.M. MAR1HOMA (R.M. SAHA!. J.I
559
speaking" 'The two Syrian Orthodox Churches in Syria and India, along A
with the Egyptian (Coptic), Ethiopian, and Armenian Churches, belong to
the group of Ancient, or Oriental Orthodox, Churches, wrongly called
"monophysite". Their Christology is essentially the same as that of the
Eastern Orthodox related to the patriarchate of Constantinople. They
affirm the perfect humanity as well as the perfect divinity of Christ, B
inseparably and unconfusedly united in the divine-human nature of the
person of Christ' [Encyclopedia of Religion, Volume 14, page 227].
Jacobite Church is, 'a name which the Syrian Church assumes to
itself. When the Syrian Churches are interrogated as to the reason of this
name they usually allege that they are the descendants of Jacob' [Faiths of C
the World by James Gardner, Volume II). 'Known to the West as Jacobites
(after Jacob Baradeus, c. 500-578, the reorganiser of the West Syrians and
Egyptians in the sixty century), the Syrian Orthodox Church is found mainly
in Syria, Lebanon, Jordan, Turkey, India, the United States, the Federal
Republic of Germany, and Sweden.