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Full text of the historical Court Judgment
dt.29th Nov 2002, on the Kunnamkulam
Arthat Simhasana Church dispute
IN THE COURT OF DISTRICT JUDGE ERNAKULAM
Present:
Sri A. Hariprasad, B.Sc., LL.B., I Additional District Judge
O.S. No. 2/1983
Plaintiffs:
1. Moran Mar Ignatius Yakoob III, aged 49 the Patriarch of Antioch and all the East, residing at Damascus, in Syria by him Constituted Attorney Mar Julius Elias Metropolitan and delegate to the Throne of Antioch in India, residing at Mar Ignatius Dayara Manjanikara, Pathanamthitta Taluk, Quilon District. (died)
2. Mar Julius Elias, Metropolitan aged 80 residing at Mar Ignatius Dayara, Manjanikara, Pathanamthitta Taluk, Quilon District (Died)
3. Varkey Kuriakose Kathanar, aged 26 Kochupurakal, Velianad Village, Kuttanad Taluk.
4. Iyyavu Kurien, aged 53, Vadakkethalakal, Pimpiriam Bazar, Kunnamkulam Village, Talapilly Taluk.
5. Thanchu Ittiachan, aged 27, Panakkal House, Northern Bazar, Kunnamkulam, Talappally Taluk.
6. Cheru Ipe aged 36, Tholathu House, Kunnamkulam Village, Talapally.
7. Tharappan John aged 36, Chungathu House, Main Road, Kunnamkulam (died).
Addl. 8. Rev. Ephrain Poulose Ramban, residing at Mar Ignatius Dayare, Manganikara Village, Pathanamthitta Taluk (vide order dt. 23-8-62 on R. D. 264/62).
,, 9. Very Rev. Aphrein Aboodi Ramban, residing at Manignathios Sayara, Manjanikara Village, Pathanamthitta Taluk, Quilon District (Impleaded as per order on M.P. 1645/65 dt. 20-10-65).
,, 10. Moran Mar Ignatius Zabhia, Patriarch of Antioch and all the East, Damascus Syria, by his Power of Attorney holder the 3rd Plaintiff Varkey Kuriakose Kathanar aged, Vicar Arthat Simhasana Church, Kunnamkulam (Impleaded as per order on CMP 18022/80 dated 13-1-81 of our High Court).
,, 11. Pappachan, S/o Cheru, Arimboor House, Western Bazar Kunnamkulam, Thalappilly Taluk (Impleaded as per order on C.M.P. 14436/79 dt. 5-11-79 of Hon'ble High Court).
,, 12. Moran Mar Ignatius Zakka II, Patriarch of Antioch and All the East, Damascus by his Power of Attorney Holder Osthathios Benjamin Joseph, Metropolitan, residing at the Arthat Simhasana Church, Kunnamkulam.
(Addl. 12th plaintiff impleaded and substituted as power of attorney holder of the tenth plaintiff in the place of the 3rd plaintiff as per order dated 16-12-85 in EA 622/85)
,, 13. Fr. Mani Rajan, Vicar, Kannarayakal House, Arthat P.O., Kunnamkulam.
(Addl. 13th plaintiff is impleaded as per order in IA 78/98 dt. 29-10-95.
Plaintiffs 1 to 4, 7 to 10 removed from the party array as per order dt. 29-10-1998 in IA No. 1599/98. Accordingly plaintiffs 5, 6, 11 to 13 are renumbered as plaintiffs 1 to 5).
By Adv. Sri. P.J. Philip, P.K. Behenan
Defendants:
1. Poulose Mar Savarius Metropolitan aged 52 residing at Zion Seminary at Koratty, Trichur District.
2. Mathoo Joseph Kathanar, aged 42 years, Kakkassery Vadakke Angady, Kunnamkulam, Talappilly Taluk (died)
3. Ukru Mathoo Kathanar, aged 50, Cheruvathoor, Pimpiriam Angady, Kunnamkulam, Talappilly Taluk.
4. Ittiara Joseph Kathanar, aged 32 years, Pulikottil, Pimpiriam Angady, Kunnamkulam, Talappilly Taluk.
5. Iyyaku Mathoo, aged 60 years, Panackel, Pimpiriam Angady, Kunnamkulam, Talappilly Taluk.
6. Ittoop Ittoop, aged 67 years, Pulikottil, Puthenpetta angady, Kunnamkulam, Talappilly Taluk (died)
7. Ittiara Thavu, aged 40 years, Thekkekara, West Bazaar, Kunnamkulam, Talappilly Taluk.
8. Ittoop, alias Papachen aged 44 years, Pulikottil, Puthenpetta Angady, Kunnamkulam Talapilly Taluk.
9. Cherunni Cherapai aged 59 years, Cheeran Tharakan, North Bazaar, Kunnamkulam, Talapilly Taluk (died)
10. Mani Varghese, aged 67 years, Kananaikel, South Bazaar, Kunnamkulam, Talappilly Taluk (died)
11. Kakku Thechan aged 32 years, Kollanoor, Arthat desam, Arthat Village, Talappilly Taluk, residing in the southern building of the Kunnamkulam Simhasana Church.
12. Pathu Vareeth, aged 49 years, Cheruvathoor, Arthat Desom, -do- Village, Talappilly Taluk.
Addl. 13. Iyyu, Kunnamkulam West Bazaar, Kunnamkulam Village, Thalapilly Taluk (impleaded as per order on MP 1261/61 (died)
,, 14. Metropolitan of the Cochin Diocese, Sion Seminary, Koratty.
,, 15. The Malankara Metropolitan, Devalokam, Muttambalam, Kottayam (died)
,, 16. The Catholicos of the East, Devalokam, Muttambalam, Kottayam (died on 22.12.81) (Impleaded as per order on IA 332/73 dt. 29-5-73
,, 17. Ittiara Joseph Kathanar, Pulikottil Pimpiriam Angady, Kunnamkulam, Talappilly Taluk (died) (Impleaded as per order on CMP 9644/798 dt. 23-7-79 of Hon'ble High Court)
,, 18. George S/o Chacko Panakkal House, South Bazaar, Kunnamkulam Talappilly Taluk (died) (Impleaded as per order on CMP 24035/76 dt. 1-12-76.
,, 19. Thomas, S/o Varghese, Kannanaikal House, South Bazaar, Talappilly Taluk (Impleaded as per order on CMP 14437/99 dt. 5-11-79 of HC)
,, 20. Mar Baselius Paulose II Catholicos of the East, Catholicate Aramana, Muvattupuzha (Died) (Impleaded as per order on CMP 4693/76 dt 22-12-81 of HC)
,, 21. Mar Baselius Paulose II, Malankara Metropolitan Catholicate Aramana Muvattupuzha (died) (Impleaded as per order on CMP 4603/76 dt 22-12-81)
,, 22. Mar Baselius Marthoma Mathews claiming as Catholicos of the East MD Seminary Kottayam (died) (Impleaded as per order on CMP 4603/76 dt. 22-12-81)
,, 23. Mar Baselius Marthoma Mathews claiming as Malankara Metropolitan, MD Seminary, Kottayam (died) (Impleaded as per order on CMP 4603/76 dt. 22-12-81) (Amended as per order on IA 659/82 dt. 1-4-82)
,, 24. V. George Job, S/o Iyyavu, Vadakkethalakkal House, Rajeev Nagar, Kanipayyoor P.O. Kunnamkulam
,, 25. Moran Marthoma Mathews II claiming as Catholicos of the East, Devalokam, Muttambalam, Kottayam
,, 26. Moran Marthoma Mathews II, claiming as Malankara Metropolitan, Devalokam, Muttambalam, Kottayam
,, 27. Metropolitan of Kunnamkulam Diocese of Malankara Orthodox Syrian Church (Catholicos Group) Paulose Mar Milithios Metropolitan, Bishops House, Kunnamkulam)
,, 28. Metropolitan of Trichur Malankara Syrian Orthodox Church, (Patriarch Group), Yuhanon Mar Milithios Metropolitan, Gethesmen Aramana, Mannuthy P.O.
,, 29. Pappachan C.P., Cheruvathoor House, Kurukkanpara, Arthat P.O., Kunnamkulam.
,, 30. Baby S/o Pathu Vareed, Cheruvathoor House, Kurukkampara, Arthat P.O., Kunnamkulam
,, 31. Rev. Fr. John, Urumbel House, Near Poolakkal, Mattamabaram desom, Madakkathara Village, Trichur Taluk, Trichur District.
[Addl. Defendants 29 to 30 impleaded as per order on IA 78/98 dt. 29-10-98]
[Addl. Defendant 31 impleaded as per order on IA 380/98 dt. 29-10-98'
By Adv. Sri A.K. Chinnan, Biju Abraham,
K. Surendramohan, Giji Mathew,
K.K. Geetha, K.N. Viji,
T.N. Hareendran, P. Benjamin Paul
Seal
This suit having come up for hearing before me on 28-11-2002 in the presence of above advocates and the court on this day delivered the following:
Unrelenting legal battle fought for more than 4 decades is the long and short of this church case. During 1959, a suit was filed relating to the same church with the allegation that then Cochin Diocesan Metropolitan attempted to take over administration of the plaint church and to destroy the purpose of the trust by converting it into a parish church of Malankara Sabah. Consequently OS 67/1959 was filed before Sub Court, Thrissur relating to the management, control and administration of the properties of the church. But the suit was rejected on the ground that the plaint was not properly signed by a competent person. The suit that we are now handling was originally instituted before Subordinate Judge's Court, Thrissur as OS 47/61. It has a checkered career. When the suit was decreed by the trial court, defendants preferred appeal AS No. 111/67 before Hon'ble High Court of Kerala. The same was referred to Full Bench for hearing the questions then formulated. After hearing elaborately. Full Bench of Hon'ble High Court was pleased to set aside the trial court's judgment and remand the matter for effective adjudication. As per that direction, the suit was again tried by the learned Sub Judge. Trial court after allowing the parties to adduce evidence and after hearing them, dismissed the suit on 29-1-1974. Then the plaintiffs preferred an appeal AS 200/74 before Hon'ble High Court. Division bench of Hon'ble High Court heard the matter. The suit was once again remanded on 31-12-1981 to the trail court. Parties were allowed to lead evidence with respect to specified points. Thereafter, the case was transferred to this court and re-numbered as stated above.
2. The subject matter of the dispute is Kunnamkulam Simhasana church and its properties mentioned in the plaint schedule. Originally there were 9 plaintiffs and 13 defendants. Subsequent to first remand, additional defendants were impleaded.
3. Amended copy of the plaint shows that the suit, as it was pending before this court, had 5 plaintiffs and 31 defendants. Out of that plaintiffs 2 and 3 and defendants 1 to 13. 15 to 18, 20, 21 and 23 are no more.
4. The judgment passed by the Division bench of Hon'ble High Court on 31-12-1981 remanding the case to the trial court again gave direction regarding the points to be determined. It is opposite in this context to bear in mind the pronouncement of judgment by Hon'ble Supreme Court in PMA Metropolitan's case (AIR 1995 SC 2001). Subsequently, Apex Court passed two other judgments and various orders in PMA Metropolitan's case. All those aspects have a direct bearing on the question involved in this suit. Before delving into the real aspects in controversy, it will be profitable to understand contour of the pleadings.
5. Suit relates to the management, control and administration of the properties scheduled to the plaint. Plaint schedule properties consist inter-alia a church and chapel for religious worship of those Jacobite Syrian Christians who form a group by themselves and remain under the direct supremacy of the Patriarch of Antioch, whose legal representative is the delegate of the Throne of Antioch appointed from time to time. Entire Jacobite Syrian Christians, including those in Malankara, have through out the ages acknowledged and continue to acknowledge the Patriarch of Antioch and all the East as the supreme head of their church. It is alleged in the amended plaint that 4th plaintiff is the present Patriarch occupying the Throne.
6. It has been the practice of the Throne of Antioch to be represented in Malankara by a delegate or representative appointed from the Throne. Duties and functions of such delegates are to look after the interests of the Throne in this country and particularly to look after and administer such properties and assets belonging to or held by the Throne of Antioch. Original 2nd plaintiff was one so appointed as delegates. He has been holding office from 1927. He was the sole authority for the management of the plaint properties.
7. 5th plaintiff is a priest ordained and appointed for the plaint church and chapel by the 4th plaintiff. This appointment was effected by 4th plaintiff by virtue of his authority as delegate of the Patriarch and the administrator of the institution. Additional 13th plaintiff was renumbered as 5th plaintiff in the amended plaint. He is the successor in the office of the original 3rd plaintiff appointed to the plaint church by Benyamin Mar Osthathios Metropolitan, the power of attorney holder of Patriarch of Antioch.
8. Plaintiffs 1 to 3 were the worshippers in the plaint church and chapel and as such interested in the administration of the institutions. They were impleaded as representatives of the worshippers of the plaint church and chapel.
9. 1st defendant claimed to be the Metropolitan of Cochin Diocese of Malankara church. 2nd defendant is one of the priest of Kunnamkulam Arthat church and its subsidiary churches. He has been impleaded to represent himself and other priests and parishioners of the above mentioned churches. Defendants 3 to 8 belonged originally to the group or body of worshippers of the plaint church. They started associating with 1st and 2nd defendants and their partisans. They started making declarations and trying to act against the objects of the foundation of plaint church. 9th defendant is impleaded in his capacity as the 'kaikaran' for the offerings at the Tomb of Mar Osthathios in item No. 2 of plaint schedule. Defendant No. 10 is the secretary in charge of item Nos. 6 and 7 in the plaint schedule. Defendant No. 11 is the "Kapiar" (sexton) of the church and chapel. Defendant No. 12 is the lessee of item No. 8 in the plaint schedule. Defendant No. 24 is the successor in office of 18th defendant who died on 15-11-1988. Defendants 25 and 26 claimed to be the Catholicose of the East and Malankara Metropolitan of Malankara church. Defendant No. 27 is the Metropolitan of the Kunnamkulam Diocese of the Catholicose faction of Malankara church. Defendant No. 28 is the Metropolitan of Trichur Diocese of Patriarch's faction of Malankara church. Defendant No. 29 is the successor in office of 7th defendant. Defendant No. 30 is the son of deceased 12th defendant. He is in possession of item No. 8 in the plaint schedule. Defendant No. 31 is the successor in office of 3rd defendant. Defendant No. 9 is the successor in office of defendant No. 10. He is the secretary in charge of items 6 and 7 in the plaint schedule and Sunday school. Defendant No. 29 is also successor in office of defendant No. 5.
10. Owing to disputes prevailing in the Malankara Jacobite Syrian churches from about 1910, including in the Kunnamkulam Arthat church and other subsidiary churches, it had became difficult for the people who held on to their old beliefs and have their religious worship peacefully conducted in Arthat church and other churches. In order to provide for the needs felt by such people, it became necessary to have a church is connected with the Malankara Jacobite Syrian church and its Metropolitans and to remain for ever directly in the possession, control and management of the Patriarch of Antioch. It was also felt necessary to provide a proper place of residence for the delegates appointed by Patriarch where he could stay and look after his duties in peace. With a view to carry out these objects. 12 persons who owned the plot of land (item No. 1 in the plaint schedule) agreed to make a gift of it in favour of the Throne of Antioch.
11. Mar Osthathios, the then delegate of the Throne of Antioch, with the approval of the Patriarch consented to the request made by the owners of the property and agreed to carry out their objects. In pursuance to that agreement, a priest nominated by Mar Osthathios, having name Cheruvathoor Mathoo Kathanar and 12 owners of the property jointly applied to the then Government of Cochin in the prescribed form for sanction to erect a church at the place indicated. That petition for sanction was at first dismissed by the authorities on 17-7-1920. On 21-7-1920 a petition for review of the order of dismissal was filed by four of the 13 original petitioners including Cheruvathoor Mathoo Kathanar. Accordingly, order of dismissal was reviewed. Being satisfied about the necessity, sanction for erection of a church and cemetery was granted on 6-10-1920.
12. After obtaining sanction, the foundation stone for the church was laid on 9-10-1920 by the then delegate of Patriarch, Metropolitan Mar Osthathios. In pursuance to the original undertaking by the owners of property, a formal deed of gift was executed by them on 7-1-1921 and the church was constructed. After completing the construction, the church was consecrated by Metropolitan Mar Osthathios and he and the priest appointed by him alone performed divine services. The deed of gift clearly stated the occasion for the erection of a new church and the manner in which possession and control of the church should remain. This church was entirely distinct and separate from the various churches belonging to the Malankara Jacobite Syrian church. The Metropolitan for this church was and had to be always the delegate of the Throne of Anthioch or anyone specifically authorised by the Patriarch, irrespective of his nationality.
13. Mar Osthathios retired on account of old age in 1927. He was succeeded by the original 2nd plaintiff and now succeeded and replaced by 4th plaintiff. On 19-3-1930 Mar Osthathios expired while residing in the plaint church. His earthly remains was entombed in item No. 2 in the schedule. Mar Osthathios was a saintly person well-known in the area. Therefore, his tomb became an object of great reverence.
14. Item No. 2 and 3 in the plaint schedule are properties convened unconditionally to the Throne of Antioch by their original owners by deeds Nos. 1656 of 1098 ME and 1646 of 1098 ME respectively. Possession of those properties were handed over to Mar Osthathios. After retirement of Mar Osthathios the original 2nd plaintiff and now the 4th plaintiff continued to be in possession.
15. Items 4 and 6 are properties attached to the church. Item No. 4 is the cemetery. Item No. 5 property includes a chapel and other structures. Item No. 6 includes a hall called Mar Osthathios Hall. Item No. 7 includes another hall called Mar Julius hall and item No. 8 is a paddy field.
16. Original 2nd plaintiff by virtue of his power as administrator, ordained and appointed defendants 3 and 4 as priests and 11th defendant as sexton in the plaint church. In the place of priest by name Ipe Mathai Kathanar, the original 2nd plaintiff appointed original 3rd plaintiff. Defendants 5 to 10 are also appointed by the original 2nd plaintiff as office bearers. On subsequent occasions also the persons in administration have appointed competent persons for administering the church. Defendants 3 to 11 were employed on the definite understanding that they will vacate the properties on the termination of their services. The original 2nd plaintiff and now the 4th plaintiff retained the power of controlling the manner in which the priests and sexton have to do their work in the church. 5th defendant and some other office bearers were given the name "kaikaran", but really their relationship with the original 2nd plaintiff (now the 4th plaintiff) is that of a servant and master.
17. The plaint schedule properties have been peacefully managed and administrated by the delegate of the Throne of Antioch from the time of its establishment. Nobody questioned the rights of the delegate for about 40 years. In or about March 1959, defendants 3 to 8 colluded with defendants 1 and 2. Parishioners of Arthat Orthodox Syrian church and the said defendants who conspired together to put the 1st defendant in management of the plaint church in the place of, original 2nd plaintiff. This was fully backed by the parishioners of the aforesaid Arthat Orthodox Syrian church and its subsidiary churches, known as Kunnamkulam old church. When original 2nd plaintiff got information about such a conspiracy, he wrote a letter to the 1st defendant to ascertain the truth and to report. But 1st defendant in turn took an evasive stand. Registered notices were also caused to be exchanged between the parties. Defendants 1 to 8 tried to alter the designed objects of the institution, Tension mounted in the church and precincts. Ultimately proceedings under Section 144 Cr. P.C. was initiated. Receiver took custody of the church and articles. 2nd defendant is a priest of the neighbouring church. He pretended to be entitled to perform services in the plaint church.
18. In para 25 of the plaint, it is specifically stated that church mentioned in item No. 1 known as Kunnamkulam Simhasana church and its properties mentioned in the plaint schedule, including the chapel, are under the control, management and administration of the 2nd plaintiff (now the 4th plaintiff). The plaintiffs contended that purpose and objects of the establishment of the church are as indicated in the trust deed dated 7-1-1921 and those are enumerated in the 25th para of the plaint.
19. Defendants 14, 25 to 31 and their partisans contended that the plaint church is none other than a unit of the Malankara church. They opposed carrying out of the original purposes as stated in the plaint. Therefore, the plaintiffs filed a suit for declaring that the purpose and objects of establishment of the plaint church are those stated in para 25 of the plaint, 4th plaintiff has right to administer, manage and control as the affairs of the church, chapel and its properties and that the 4th plaintiff is entitled to withdraw the money, gold and silver in this custody of Executive Ist Class Magistrate's Court, Trichur and also for restraining defendants 14, 25 to 31, their agents, nominees or representatives by a perpetual injunction from interfering with the exercise of the 4th plaintiff's right to administer, manage and control all the affairs of the plaint church and its properties and for restraining the above said defendants from causing hindrance to the religious worship and such other reliefs.
20. 1st defendant filed a written statement raising following contentions. Power of attorney produced on behalf of the 1st plaintiff was not valid. The averments in para 2 of the plaint that the plaint church was established for the religious worship of Jacobite Syrian Christians, who remained under the direct supervision of the Patriarch was not true. The plaint church was founded and maintained as a Parish church in the Malankara Jacobite Syrian church. In the year 1910 Mar Gevarghese Dainacious, then Malankara Metropolitan, entitled to the spiritual, temporal and ecclesiastical control of churches in Malankara was purported to be appointed in his stead. Disputes that had arisen in the Malankara church made it impossible for peaceful worship to be conducted in several of the parish churches. In the Arthat Kunnamkulam church also, the congregation was divided into two parties. Catholicose party was in control and authority over the disputed church. Several attempts were made by the Patriarch's party in the parish to have its control. Those attempts were unsuccessful. In order to prevent possible faction fight and quarrels within the church, some members of the congregation in whose name the church site stood, brought into existence a deed. They were not certain about powers of the delegate of Patriarch till the disputes in the church was settled. The said deed cannot, in any way, destroy the nature of the church or in any way derogate from the terms of the grant made by the government. Church disputes were finally settled by decision of Hon'ble Supreme Court dated 12-9-1958. Subsequent to the decision, negotiations were made between the parties. 1st plaintiff and the supporters and the other parties settled the differences. During said negotiations, it was made clear to the 1st plaintiff by means of letters, telegrams and otherwise, that any settlement could only be subject to the constitution passed by the Malankara Association in 1934. 1st plaintiff accepted the said constitution of the Catholicate. All the differences that existed have been finally settled at rest by the said settlement. It is not open to the 1st plaintiff or anyone else to contend that the constitution is not binding on them. Plaint church and properties are constituted in the Malankara church and in the province under the jurisdiction of Catholicate. Plaint church is a parish church in the Cochin Diocese. Thus it remains under the authority of the 1st defendant as Metropolitan of the Diocese.
21. OS 67/59 was filed before the original court for the same reliefs as prayed in this suit. The said suit was dismissed with costs. Services in the church were and are being conducted peacefully under the authority of the 1st defendant. Suit is liable to be dismissed.
22. The 2nd defendant filed a written statement raising similar contentions as those raised by the 1st defendant. He further contended that he was one among the 10 priests who officiated in the plaint church, that defendants 1 to 8 are the rightful persons holding office and that there was no ground or occasion to prevent them functioning in the church.
23. Defendants 3, 4, 7 and 8 filed a joint written statement raising identical contentions as stated in the written statement of defendants 1 and 2. 3rd defendant was the Vicar Trustee of the plaint church. 5th defendant filed a voluminous written statement contending almost akin to that of other defendants. He supported the claim of 1st defendant that the latter was the Metropolitan. Defendants 2 to 4 were some of the 10 priests functioned in several churches at Kunnamkulam. 5th defendant had been a trustee of the plaint church from 1951 March.
24. 9th defendant filed written statement supporting the plaint allegations and maintaining that the plaint church and its properties and institutions are directly under the Patriarch. According to him, plaint church is not a parish church coming under the Malankara Metropolitan. 1st defendant had never been accepted as having any authority in the plaint church.
25. Defendants 10 and 11 also supported the plaint allegations. Defendants 6 and 12 supported the contentions raised by the other defendants.
26. While matter was pending in appeal before Hon'ble High Court and after remand when it was pending before the trial court, very many addl. parties were impleaded. Defendants 18 and 19 were impleaded as successors in office of defendants 9 and 10. They have adopted the contentions raised by their predecessors-in-office. 24th defendant was also impleaded as successor in office of a contesting defendant.
27. 27th defendant, after his impleadment, filed a written statement opposing the plaint claim. According to him, plaint church is a parish church which is a constituent unit of Malankara Orthodox Syrian church. It is interesting to note that this defendant filed a written statement on 29-10-98, ie. after pronouncement of decision by Hon'ble Supreme Court in PMA Metropolitan's case (AIR 1995 SC 2001) and subsequent decisions.
28. 29th defendant contended that 4th plaintiff (subsequently brought into the party array) is not a citizen of India. He is a foreigner residing in a foreign county. His claim for ownership, absolute right and management of the properties in India without getting permission from the Central Government is ab-initio illegal.
29. 30th defendant adopted the contentions raised by defendants 1, 2, 3, 5, 12 and 29. 31st defendant also opposed the suit. He also contended that 4th defendant has no right to institute the suit in violation of the provisions of Foreign Exchange Regulation Act.
30. Originally the trial court had framed as many as 33 issues for determination. After elaborate trial, the trial court decreed the suit. Defendants preferred appeal AS 111/67 before Hon’ble High Court. Matter was referred to Full Bench for hearing. Thereafter, Hon’ble High Court was pleased to remand the case on 13-12-1972 for effective adjudication. Again the trial court allowed the parties to adduce evidence. Originally Pws 1 to 16 and DW1 to 10 were examined. Exts. P1 to P112 and Exts. D1 to D182 were the initial documents marked. After first remand. Pw12 to 16 and DW11 to 13 were examined and DW2 was recalled and examined. Then again the matter was decided on merit by the trial court and the suit was dismissed. Against that the plaintiffs preferred appeal before Hon’ble High Court as AS 200/74. Matter was heard by Division Bench of Hon’ble High Court. After considering the evidence on record Hon’ble High Court was pleased to remand the matter again to the trial court on 31-12-1981. After 2nd remand, Pw10 was recalled and examined. On the side of the defendants DW1 was again examined and in addition to that Pw14 and Pw15 were examined. Exts. P123 to 133 were marked on the plaintiffs’ side. Exts. D 207 to 217 were the documents marked further on the defendants’ side. While the matter was pending before the original court after second remand, case was transferred to this court after second remand, case was transferred to this court for trial and disposal.
31. Essentially this court is bound to decide the matter on the basis of the remand order of Hon’ble High Court in AS 200/74. In addition to that the subsequent events transpired in the realm of Malankara church disputes assume great importance. Hon’ble Supreme Court had occasion to consider the scope and legal effect of various disputes erupted in the community. In PMA Metropolitan’s case (AIR 1995 SC 2001). The summary of the decision has been stated lucidly in para 142 of the above mentioned judgment. We will have to understand that the bone of contentions in this case is regarding the nature of the disputed church. Plaintiffs consistently contended that it is a Thronal Church coming directly under the administration of Patriarch of Antioch. Whereas contesting defendants would say that the plaint church is only a parish church coming within the fold of Malankara church and thereby subject to the spiritual and temporal supremacy of Malankara church Metropolitan cum Catholicose of the East. State shortly, the real nature of the church and its properties is the crux in the dispute. It cannot be disputed now that if the plaint church is found to be a Simhasana church (Thronal church), then it had to be treated as a separate entity not coming within the fold of Malankara church and therefore, none of the dignitaries described in 1934 Malankara Church constitution will have any spiritual or temporal right in the administration thereof. In the matter of resolution of dispute, decision of Hon’ble Supreme Court in PMA Metropolitan’s case reported in AIR 1995 SC 2001. AIR 1996 SC 3121 and AIR 1997 SC 1034 and subsequent orders thereon are also relevant. Therefore, issues raised originally have absolutely no application and relevance at present. After taking up the case for trial before this court, additional issues 46 to 50 were framed. But it can be seen from the page of the remand order of High Court that only additional issue relevant is regarding the right of 4th plaintiff to institute the suit claiming reliefs sought therein. Other additional issues are not germane at present and hence struck off. Considering the evidence, scope of the remand order and the subsequent events occurred narrowing down the amplitude of the controversy, following issues are raised for trial.
1. Whether the plaint church is a Simhasana church (Thronal church) established with the objects as mentioned in paragraph 25 of the plaint?
2. What was the real intent and purport of Ext. P4?
3. Whether any trust has been created by Ext. P4, if so what is the nature of the trust?
4. Whether the 4th plaintiff and other plaintiffs are legally entitled to institute the suit and seek reliefs?
5. Whether the plaintiffs are entitled to get the declaratory reliefs prayed for?
6. Whether the plaintiffs are entitled to get permanent prohibitory injunction sought for?
7. Whether the plaintiffs are entitled to get the mandatory injunction prayed for?
8. Reliefs and costs:
32. Issues 1 to 3 :- Contentions in the plaint can be summarised in the following manner. The plaint church (plaintiffs call it Arthat Simhasana church) and properties have been peacefully managed and administered by the delegate of the Patriarch of Antioch, by name Mar Osthathiose Sleeba. He was the founder delegate from the Apostolic Throne of Antioch According to the plaintiffs, Mar Osthathiose administered and managed the plaint church and its properties from 1921 to 1927, in which year he retired. Subsequently, Mar Julius Elias was appointed as delegate by the Patriarch in place of Mar Ostathiose. Mar Osthathiose died in the year 1930. He is entombed inside the church. Plaintiffs would contend that subsequent to the acceptance of Catholicose by the Patriarch in 1958, in or about March 1959, those owing allegiance to the Metropolitan of Cochin Diocese, along with the trustees and office bearers, colluded and considered to replace the delegate Mar Julius Elias from the management of the Simhasana church and its properties. They acted against the object of the foundation of trust. Attempt made by then Metropolitan of Cochin Diocese and his partisans was to convert the plaint church into a Parish church of Malankara Sabha. Worshippers resisted it. Then delegate of Patriarch. Mar Julius Elias filed OS 67/59 before Sub Court. Thrissur, suit related to the management, control and administration of the church and properties. The claim was based on the gift deed (Ext. P4). But, the suit was rejected on the ground that the plaint was not properly signed. Subsequently, this suit was filed after rectifying the defect.
33. Contesting defendants maintained a stand through out that the plaint church is a parish church coming within the fold of Malankara Sabha, learned counsel for the plaintiffs drew attention of this court to paragraphs 2, 11, 13, 15 and 25 of the plaint. Ultimate contention of the plaintiffs that the plaint church is a thronal church has been clearly narrated in these paragraphs. Various paragraphs in the written statements, filed by the contesting defendants, were pointed out to contend that their final aim is to establish that the plaint church is a constituent unit of Malankara Sabha. Primarily, we will have to go by the directions contained in the judgment of Division Bench of Hon’ble High Court in AS 200/74. In para 20 of that judgment, following observation was made by the Hon’ble High Court.
The core of controversy in this case is whether the Thronal Church (Simhasana Pally), founded in Kunnamkulam in the background of a situation wherein the adherents of Patriarch of Antioch found it impossible to have their worship and other religious rites performed in the churches established earlier in the place, is a church outside the fold of Malankara church.”
34. It is interesting to note that in the remand order specific mention was made with respect to Ext. D183. It is an admission by the former Catholicose regarding the nature and status of Simhasana churches.
35. In para 29 of the judgment of the Division Bench of Hon’ble High Court, the following observations were made.
During the 40 years of the existence of the Thronal church, prior to the institution of the suit, it was uninterruptedly under the governance of the Patriarch’s delegate as contemplated in Ext. P4, a feature distinct to this church.”
36. Division Bench of Hon’ble High Court in paragraph 32 of its judgment considered the scope and legal effect of the admission made by then Catholicose regarding the nature and character of Simhasana churches. It is clear from the conscious admissions made by the spiritual head of Malankara church that Simhasana churches were directly under the administration of the Patriarch of Antioch. In other words, religious dignitaries in the Malankara church never exercised any spiritual or temporal powers over the Simhasana churches. We have to consider issues involved in this case on the basis of the aspects dealt with by Hon’ble High Court in the judgment in AS 200/74 and the directions made therein. It goes without saying that pronouncement of judgment by Hon’ble Supreme Court in PMA Metropolitan’s case (AIR 1995 SC 2001) and subsequent decisions therein have made ocean of changes in the scope amplitude and relevance of the church disputes. Findings therein will have to be considered in deciding the issues involved herein. In the remand order in AS 200/74, Hon’ble High Court took note of the large volume of documentary and oral evidence. It may be true that bulky oral evidence might have been relevant at that time, because the Division Bench of High Court pronounced the judgment well ahead of the decision in PMA Metropolitan’s case (supra) by Hon’ble Supreme Court. This court is bound to follow the principles of law enunciated by Hon’ble Supreme Court in PMA Metropolitan’s case (AIR 1995 SC 2001).
37. Proposition that Simhasana churches are not constituent units of Malankara church is an indisputable one. Plaintiffs relied on the admission of previous Catholicose mainly to contend this proposition. Ext. D183 is the relevant document. That shows admissions, relating to the nature, character and method of administration of Simhasana churches, made by the highest dignitary and religious head of the defendants, viz; the former Catholicose. He was giving evidence way back in 1942. Acceptability and evidenciary value of his admissions cannot be brushed aside. Following passage from the testimony of then Catholicose contained in Ext. D183 will be useful “….
38. Further in cross examination the same witness stated “……....
Division Bench of Hon’ble High Court considered the effect of admission made in Ext. D183 elaborately.
39. Attention of this court was invited to para 119 to 122 of the judgment of Hon’ble High Court in AS 359/80 pronounced by another Division Bench. This judgment was taken up before Hon’ble Supreme Court in PMA Metropolitan’s case. Division Bench of Hon’ble High Court considered other appeals along with AS 359/80 and a cross objection. After considering the learned Single Judge’s judgment, Division Bench confirmed the finding that Simhasana churches are not constituent units of Malankara church and Malankara Sabha has no sort of jurisdiction over them. It was further observed that Simhasana churches are to be treated as churches directly under the Patriarch. That being so, these churches are entitled to manage their affairs under the directions of the Patriarch.
40. The above said finding was confirmed by Hon’ble Supreme Court in PMA Metropolitan’s case (AIR 1995 SC 2001). This question, inter-alia others, was specifically answered by Hon’ble Supreme Court in para 147 of the said judgment. In so far as the findings of Division Bench of Hon’ble High court relating to Simhasana churches, Knanaya churches etc, Supreme Court found no ground to depart from the concurrent findings recorded by the learned Single Judge and the Division Bench. Hence, no one can dispute the proposition that if the plaint church is found to be a Simhasana church (Thronal Church), then neither 1934 Malankara Church Constitution nor the authorities thereunder have any right in the matter of administration and management of, the church.
41. Learned counsel for the plaintiffs, in addition to the above legal aspect, vehemently argued that the contesting defendants, their partisans and sympathisers are estopped from disputing the candid admissions made by their spiritual head in the year 1942 for the highest Courts have accepted the status, affairs, and nature of Simhasana Churches. Therefore, none of the defendants can be heard to say that the plaint church even if it was found to be a Simhasana Church, is coming within the Malankara church fold.
42. Another important aspect brought to the notice of this court is that disputed church is item No. 818 in the list of churches shown in OS 4/78, culminated before the Hon’ble Supreme Court as PMA Metropolitan’s Case (AIR 1995 SC 2001). For this reason also, it can be stated that finding of the Supreme Court with respect to the nature and character of Simhasana church is binding on both the groups, who fought the previous litigation.
43. It is the common case of the parties that during 1958 there was an attempt to settle the issues and some sort of harmony prevailed for a short while. That was mainly due to the rendering of decision by Hon’ble Supreme Court in the year 1958. Exts. P120, P124, P129 and D204 were brought to the notice of this court. Exts. P120 is a letter written by then Patriarch to the Ramban, vicars, trustees and worshippers of Simhasana churches. It was mentioned by the Patriarch in Ext. P120 that the Throne of Antioch was anxiously thinking of finding out ways and means for establishing lasting peace in Malankara church, where disputes and splits were prevailing for half a century. This letter is dated 29-12-1964. Patriarch had written in Ext. P120 that it was the desire of Throne of Antioch to see that all the Simhasana churches were taken directly under the Throne, excepting the Kunnamkulam Simhasana Church (plaint church) which was then under litigation. It was also wished that the churches should come under the respective dioceses within the boundaries of which they are situated. A period of two years was fixed from 1-1-1965 for the Simhasana Churches (except the plaint church) to come under the respective diocese. It is to be remembered that this letter was written by the Patriarch during the time when there was peace and harmony among the members of community. Ext. P129 is a letter written by Baselius Ougen – I, Catholicose of the East on 9-1-1965 to the Patriarch. Various Kalpanas and letters exchanged between the dignitaries were referred to in this letter. Ext. P120 and similar letters relating to the peaceful settlement of disputes regarding administration of Simhasana churches were mentioned in Ext. P129. Ultimately we find from Ext. P124, a letter dated 6-7-1982 issued by the Patriarch, that with “sincere hope of lasting peace in the church previous letters were exchanged between the Patriarch and the Catholicose relating to the administration of Simhasana churches”. It was made clear in Ext. P124 that Patriarch’s desire to delegate the administration of the Simhasana church to the Catholicose was an interim arrangement. By Ext. P124 letter Patriarch clarified that any such transfer of Simhasana Churches would be against the objects of the foundation of those institutions. Therefore, whatever powers and rights, that were given by earlier letters, were withdrawn by Ext. P124. It is to be remembered here that plaint church was specifically excluded from the arrangement mentioned in the said letters.
44. In the wake of those aspects, a question was mooted at the time of hearing. Has the Patriarch surrendered his jurisdiction over the Simhasana Churches to the Catholocose of the Malankara church? Further aspect arising for consideration is whether the Simhasana Churches had accepted the altered position.
45. In the judgment of Hon’ble High Court in AS 359/80 and other connected cases, this question was formulated as point No. 23. In paragraphs 119 to 122, those aspects were considered. Division Bench of Hon’ble High Court took note of the admission of then Catholicose mentioned above to find that Simhasana churches were never brought under the administrative umbrella of the Malankara church. Though Patriarch desired to bring Simhasana churches under the Malankara fold and took some preliminary steps in that behalf, his desire did not fructify and culminate in their becoming part of the Malankara church. Therefore, it cannot be argued that on account of the reconciliation and adjustments occurred between 1958 and 1971, the Simhasana churches became part of the Malanakara church. In so far as plaint church is concerned, it is evident from the letters exchanged between the Patriarch and Catholicose that this particular church was specifically excluded from the temporary administrative arrangement made between the parties. Hence, if at all there was any arrangement with respect to Simhasana churches, plaint church never formed part of that arrangement.
46. Now we shall consider the documents to determine the real nature and character of the plaint church. Earlier discussions would show that if the plaint church is found to be a Thronal church, then those claiming benefits under 1934 Malankara church Constitution and the Hierarchy mentioned therein, cannot claim any manner of, right in the matter of administration or management or spiritual supremacy in the plaint Church.
47. Ext. P90 is the document by which Kayapulackal Annamma, on her own and on behalf of her minor son, assigned the property to 12 persons named therein. This is the property on which the plaint church was established later. We will refer the documents in the chronological order. Ext. D101 is a petition submitted by Mathew Kathanar and others to Cochin Divan Peshkar. It is dated 9-9-1095 ME. It was specifically mentioned in the petition that the applicants belonged to Jacobite Syrian Christian community and directly came under the Patriarch of Antioch. A group called ‘Methran Kakshi’ caused perpetual nuisance to the applicants and their partisans. Therefore, they filed a petition before District Magistrate for redressal of their grievance. In that matter, petitioners and their supporters were restrained from entering into the churches. Hence they decided on 20th Meenam 1095 to establish a church and a cemetery and, therefore, sought the permission of Divan Peshkar of Erstwhile Cochin State. Ext. D 102 is a review petition filed by Mathu Kathanar and others to Divan of Cochin. That is dated 21-7-1920. Ext. D101 had been referred to in this application. In para 6 of Ext. D102, it was mentioned that Bava party, to which the review petitioners belonged, were then practically without a church for the performance of their service and ceremonies. They experienced considerable difficulties. Therefore, they prayed for review of the order passed earlier rejecting their petition. It is the common case of parties that subsequently petition to establish a church was allowed by the Government of erstwhile Cochin State. In this background, we will have to evaluate Ext. P4 document, which is the sheet anchor in determining the nature and character of the plaint church.
48. Ext. P4 is having nomenclature as gift deed
. It is dated 23-5-1096 ME
(7-1-1921). Careful reading of Ext. P4 would show that executants therein gifted
the property to fulfill certain objects of the donees. Fundamental faith of the
executants and their partisans described in Ext. P4 was that the supreme
spiritual head of Malankara Jacobite Syrian Church was the Patriarch of Antioch.
It is also mentioned in Ext. P4 that conscious attempts were made by some
persons to deny the authority of the Patriarch over Malankara Jacobite Church.
It can be seen from the document that some Metropolitans were also trying to
defy the supreme authority of the Patriarch. That ensured in quarrel among the
members of the community. Therefore, it was very difficult for the delegate of
Patriarch, sent to Malankara, to administer properties and reside in certain
churches. Hence they gifted the property purchased as per Ext. P90 in favour of
the Throne of Antioch. Ext. P4 shows a complete gift and delivery of possession.
Consistent case of the plaintiffs that Mar Osthathiose was the then delegate of
Patriarch derived full support from the recitals in Ext. P4. Property was handed
over to Mar Osthathiose as delegate and representative of the Patriarch of
Antioch. Words in Ext.P4 in the following lines”
The clause evidencing vesture of properties shows that the gift was made to the Throne of Antioch.
49. In Ext. P4 the scheme of administration of the property has been specifically mentioned in succeeding paragraphs. No right of alienation or creating encumbrance was conferred on anyone as per Ext. P4. Even the Throne of Antioch has no right to change the object of the endowment. Power has been conferred on the Patriarch of Antioch and his delegate to remove those priests and lay trustees who might act against the authority of the Patriarch or against the scheme stated in Ext. P4. Reading of Ext. P4 in a meticulous manner would show that the property had been gifted to the Throne of Antioch with definite objectives. Specific terms were made in Ext. P4 regarding the manner of administration.
50. Ext. D103 is the proceedings of the Government of Cochin. It was issued by the Local and Legislative Department on 6-10-1920. As per the proceedings, it can be seen that on 17-7-1920 the Government refused sanction for construction of a chapel or church in sy. No. 1189/4 of Kunnamkulam village and another church and cemetery in sy. No. 307/1 of Arthat village. As per Ext. D103, government was pleased to grant permission for the erection of a church and cemetery in sy.No. 307/1 of Arthat village. Admittedly, this permission led to the construction of the church in dispute. It can be seen that copy was issued to then Divan Peshkar and petitioners mentioned in Ext. D101. The recitals in Ext. D101 has been mentioned earlier. Therefore, it can be seen that Ext. P4, though a document executed after obtaining permission from the government, contained the same object as mentioned in Ext. D101. Therefore, contention of the contesting defendants that object mentioned in the application to the government for permission for erecting the church and that in Ext. P4 are different cannot be accepted.
51. Learned counsel for the defendants submitted that 12 persons named in Ext. P4 were the then members of the Parish Yogam (Parish assembly) and they only represented other parishioners. According to him, the document Ext. P4 is only a scheme for governance of the parish church. Without creating any trust in favour of the Throne of Antioch. This submission is fallacious. It cannot be accepted for many reasons. Firstly, in PMA Metropolitan’s case (AIR 1995 SC 2001) Hon’ble Supreme Court mentioned following matters in para 59 of the judgment:
“A Parish church, thus, is an ecclesiastical authority operating in a specified area. But they are of a religious order. Their autonomy, their financial powers, the administrative control have been thus different in different ages depending on the terms of creation of the trust, the purpose and objective of its establishment, the personality of, the person occupying it, the financial strength of it etc. The Syrian churches, as the history narrated earlier indicates, were established for religious worship and public charity and every church, small or big, claimed that its spiritual head was Patriarch of Antioch.”
52. It is worthy of remembrance that admission made by then Catholicose in Ext. D183 shows that the Simhasana churches were not treated as parish churches and they were not administered by hierarchy of Malankara church. Clear purpose and objective of establishment and consecration of the church as evidenced from Ext. D101 and Ext. P4 would show that certain named persons made gift of property to the Throne of Antioch with a definite object of perpetuating the faith that Patriarch of Antioch seated in the Throne was the spiritual head of Malankara Jacobite Syrian Christian community. Hence, even if it is accepted that persons named in Ext. P4 as donors were the members of the parish assembly, it cannot be stated that no religious trust of a public nature was established by Ext. P4.
53. Another reason for repelling the above said contention of the contesting defendants is that in the remand order, it was specified by the Division Bench of Hon’ble High Court that mere fact that the Simhasana Pally is also referred to as a church having an Edavaka, it might be of no significance in this case. Following words are quote from the remand order with profit. “The mere fact that Simhasana Pally is also referred to as a church having an edavaka may be of no significance in this case. Edavaka means only a congregation. That may be a Pally Edavaka, a congregation of the church; a Methran Edavaka or congregation of Metropolitans; a Malankara Sabha Maha Edavaka, the congregation of the Malankara Sabha, terms referred to in Ext. D151 constitution. Admittedly, the Simhasana Pally has also parishioners and those reference to the term Simhasana Pally Edavaka is of no significance”.
54. It is brought to the notice of this court that though members attending the church for worship and services and other sacraments were designated as Edavakakars (parishioners), it has to be found on evidence that they never enjoyed the rights conferred on parishioners coming within the scope of 1934 Malankara church constitution. Therefore, case of the contesting defendants that mention of Edavaka, with respect, to the plaint church, would determine the character of the plaint church cannot be accepted.
55. There are sufficient number of observations made by the Division Bench of Hon’ble High Court in the remand order to find that Ext. P4 evidenced creation of a public trust with definite object. Para 28 of the judgment is excerpted to appreciate the point in controversy. “Under Ext. P90 the land for erecting the church was acquired in the name of 12 persons in 1919. But it is not in controversy now that they did not purchase it for themselves. Sanction for erecting a church was sought and the church came into existence. There is no case for either side that the statements in Ext. P4 as to the circumstances under which that document was brought into existence, the founding of a church was decided upon and that decision was carried out are in any way wrong. Hence the question whether a trust came into existence by Ext. P4 or earlier is only academic. We read Ext. P4 to understand the circumstances under which the Kunnamkulam Thronal Church was born.”
56. Hence absolutely no dispute can be legally raised now against Ext. P4 to establish that object of the founders was to establish a regular parish church in the Malankara church fold.
57. Learned counsel for the defendants argued that principles stated in various provisions of Indian Trust Act 1882 are applicable in the matter of governance of the church. Initial fact to be considered is that the Indian Trust Act was enacted to define and amend the law relating to private trusts and trustees. Going by the objects of foundation of church evidenced from Ext. P4 and other documents earlier, it can be seen that founders never thought of creating a trust for their benefit or for the benefit of ascertained number of persons. Definite aspect revealed from the evidence is that by Ext. P4 a religious trust with a public character was established. To circumvent the difficulty that may arise in applying Indian Trust Act, learned counsel for the defendants relied on the principles of law stated in State of UP v. Bansi Dhar and others (AIR 1974 SC 1084). Apex Court considered the applicability of “doctrine of Cy Pres”. Facts dealt with by the Apex Court in that case have absolutely no similarity with those in this case. Hon’ble Supreme Court, though took note of the fact that Trust Act relates only to private trusts and public charitable trusts having been expressly excluded from its ambit, observed that certainly there is a common area of legal principles which covers all trusts – private and public and merely because they find a place in the Trust Act, they cannot become untouchable where the public trusts are involved. This principle has absolutely no application here. It was argued that in, at all property vested with the Throne of Antioch, it could not further delegate the power of administration of the church. This argument is not acceptable because Ext. P4 itself conferred the right of delegation on the Throne of Antioch. Not only Ext. P4, but also the application made by the persons to establish a church (Ext. D5) and Ext. D101 would show that the definite object of foundation was to keep the property permanently tied up with the Throne of Antioch and for the spiritual and temporal benefit of the followers of faith that Patriarch seated in the Throne of Antioch was the spiritual head of Malankara Jacobite Christian community. Therefore, no question of creating a private trust or applying Trust Act ever arises in this case.
58. Scott on Trusts (Vol. I 2nd edition pages 171 – 181) was cited at the bar to contend the following proposition of law:
An express trust, unlike a constructive trust, is created only if the settler properly manifests an intention to create a trust. It is not enough that he secretly intends to create a trust; there must be an outward expression of his intention”.
Ext. P4 speaks volumes about the outward expression of intention of settlers as to how the property has to be administered. It is clear from the document that the intention of the settlors could be properly read and understood. Another quotation from the same text book is also relevant in this context.
“Although a trust is created only if the settlor properly manifests an intention to create a trust, it is immaterial whether or not, he knows that the relationship which he intends to create is called a trust, and whether or not he knows the precise characteristics of the relationship which is called a trust.
59. It is settled law that Generally subsequent conduct of the parties or successors are not relevant for interpretation of the document. Basic rule of interpretation of a document is that if the words employed in the document are clear and unambiguous, then the meaning of the terms and object of the transaction has to be gathered from within the document itself. No extraneous matter can be imported to interpret the document in the above situation. If only the terms of the disposition are vague or capable of having two interpretations, the conduct of the parties contemporaneous to execution of the document can be looked into. Subsequent events and conduct assures only further less probative value. In the case on Ext. P4, terms of the disposition are very clear and give no room for two interpretations. In addition to that conduct of the parties prior to and nearly 4 decades after the execution of Ext. P4 have real consistency. Therefore, there is no difficulty in finding out the real object of the endowment spelt out by Exst. P4.
60. In the remand order, Hon’ble High Court had considered the applicability of decision reported in AIR 1959 SC 942 to hold, that the purpose of establishment of, a church cannot be diverted. Reliance was placed by the Division Bench of Hon’ble High Court on 1904 Appeal Cases 617 to hold that original purpose of the trust is to be ascertained by the court from what founders have said or written. Earlier mentioned principle that when the language of the document creating the trust is clear, exterior evidence need not be relied on is also stated in the remand order. Going by the recitals in Ext. P4 and those in Ext. D5 and Ext. D101 and also other documents executed in favour of then delegate Mar Osthathios, it can be seen that the settlors intended to create a trust in perpetuity to be administered and managed by the Throne of Antioch by appointing delegates or other competent persons. For a long time this object was adhered to without any breach or hindrance. Therefore, there is no hesitation to find that Ext. P4 is a trust deed by which a religious trust of a public nature has been created with the objects and aims mentioned therein.
61. Before this court DW15 testified. His testimony coupled with the documents admitted by him also show the existence of a Simhasana Church as established by virtue of Ext. P4. In the remand order in para 33, the Hon’ble High Court has considered the fact that numerous witnesses examined in the case made admissions at the time of cross examination having devastating effect in their contentions. But in the light of settled legal propositions and the clinching documentary evidence, it may not be necessary at present to ponder in the voluminous oral evidence to find out admissions made by witnesses on both sides. Going by the documents and its terms, it can be seen that plaint church is a Simhasana church (Thronal church) established with the objects mentioned in Ext. P4. Ext. P4 was executed by the settlors with the definite idea of creating a trust for the believers in the Jacobite Syrian Christian community who had a strong faith that the spiritual grace emanated from the Throne of Antioch and the Patriarch of Antioch was the Supreme head of their church. The nature of trust created in Ext. P4 is a religious trust, ofcourse with the character of a public trust. Hence all these issues are decided accordingly.
62. Issue No. 4:- Legality and propriety of the suit has been disputed by learned counsel for the contesting defendants for the below mentioned reasons. First dispute is that the 4th plaintiff being a foreign national is not entitled to institute a suit with respect to a property in a court in India without the previous sanction of Central Government. Section 83 and 84 of the CPC 1908 were pressed into service to contend the said proposition. I am afraid, on reading the above provisions, this court is not able to accept the case of the contesting defendants that those provisions are relevant in this subject and context. Section 83 CPC deals with a situation when aliens can sue. The section opens with the wording that alien enemies residing in India with the permission of the Central Government and alien friends may sue in any court, otherwise competent to try the suit, as if they were citizens of India. There is absolutely no evidence on record to find that 4th plaintiff is either an alien enemy or an alien friend coming within the operation of Section 83 CPC. Section 84 CPC deals with suits filed by foreign States. That section is totally inapplicable in this case. It has to be remembered here that the suit was instituted as a representative suit with due permission obtained from the court under Order 1 Rule 8 CPC. Ext. P55 is the publication dated 21-6-1961 in Express Daily as contemplated under Order 1 Rule 8 CPC: In the plaint itself, we find averments to the effect that plaintiffs 1 to 3 were the worshippers in the plaint church and chapel and as such they were interested in the administration of the institutions. They were impleaded as representative of the worshippers of the plaint church and chapel. Similarly defendants were also impleaded in the suit in their personal capacity and also in the capacity of representatives of those person who opposed the reliefs sought in the plaint. Therefore, the fact that other plaintiffs also joined with the cause with 4th plaintiff makes the suit perfectly legal. No provision in the CPC 1908 was brought to the notice of this court to contend that a foreigner, who is not proved to be a person mentioned in Section 83 or 84 CPC, could not institute a suit.
63. Another important contention raised by the contesting defendants is the application of Foreign Exchange Regulation Act 1973. It has to be remembered that this Act has been now replaced by Foreign Exchange Maintenance Act. However, defendants have no case that FEMA has any application in this case. As per Section 81 of the Foreign Exchange Regulation Act, the predecessor of that enactment, viz., Foreign Exchange Regulation Act 1947 was repealed. It can be easily seen that neither the 1947 Act nor the 1973 Act, mentioned above, has application because the property was gifted in the year 1921, by Ext. P4 to the Throne of Antioch and it was being administered for about 4 decades as per the scheme provided in Ext. P4. Section 31 of the Foreign Exchange Regulation Act 1973 was attempted to be projected in this case. It deals with restriction on acquisition, holding etc of immovable property in India by a person who is not a citizen of India, except with the previous or general permission of the Reserve Bank. Crucial aspect to be noted here is that endowment has already been created in the year 1921 by Ext. P4 in favour of the Throne of Antioch. As per Ext. P4 authority has been given to appoint and depute a delegate from the Throne of Antioch for administering the property. The delegate was holding the property and managing the affairs as per the guidelines in Ext. P4. First of all prohibition in Section 31 of FERA 1973 is not applicable. If at all it applies, it is only against holding property after commencement of that enactment. Therefore, those contentions of the defendants cannot be countenanced.
64. Feeble attempt was made to contend that the plaint is defective for want of proper verification. Order 6 rule 15 CPC says that every pleading shall be verified by the party or by one of the parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. Legal requirement is very elastic in the matter of verification of pleadings. Therefore, suit cannot be defeated for this reason. Absolutely no reason was established to find that neither the 4th plaintiff nor any other plaintiffs were incompetent to file the suit and the suit is not in the proper form. Besides, the defendant cannot raise such a contention for the first time during the third round of trial, because no such case was argued either before the trial court or before the appellate court on any previous occasion. Hence this issue is decided in favour of the plaintiffs.
65. Issues 5, 6 and 7:- In the foregoing paragraphs it had been found that the suit was properly instituted with respect to the plaint church and its properties. Plaint church is a Simhasana Church established with the objects primarily mentioned in Ext. P4. They have been reiterated in para 25 of the plaint. The defendants are strongly opposing the contentions of the plaintiffs as to nature and character of the plaint church and its assets. More over, defendants contended that it is a constituent parish church of the Malankara church. Hence these are sufficient reasons to grant a decree for permanent prohibitory injunction in favour of the plaintiffs on establishment of the aforementioned aspects by clear, acceptable and legally valid evidence. Claim for mandatory injunction sought in the relief (g) has not been properly established. It appears that between both parties there had been a scramble for management. Hence granting declaration and prohibitory injunction would be sufficient in this case. The plaintiffs are entitled to get a decree in the following terms, since they have established their legal right. Therefore, these issues decided partly in favour of the plaintiffs.
66. Issue No. : 8: - See decretal portion.
In the result, the suit is decreed in the following terms:-
Following decree of declaration is hereby granted in favour of the plaintiffs and against the contesting defendants:-
(a) that it is hereby declared that by virtue of Ext. P4, gift deed, a religious trust has been created with the object of (i) conducting divine service by the delegate of the Patriarch of Antioch seated in the Throne of St. Peter or his nominees.
(ii) the residence of such delegates
(iii) performing holy sacraments and other religious ceremonies necessary for the original owners of property and their descendants by the delegate or his nominees.
(iv) using only moran (holy oil) consecrated by the Patriarch of Antioch in the sacraments and ceremonies in the church.
(v) vesting the management, control and administration of all the affairs of the church in the Patriarch of Antioch or his delegate in this country or in any person specifically authorised by him subject to the laws in force in India and
(vi) keeping the plaint church and properties out side the Malankara church and its temporal, ecclesiastical and spiritual authority
(b) that the 4th plaintiff shall administer, manage and control the affairs of the church, chapel and its properties including the movable properties including the movable properties and the 4th plaintiff is entitled to withdraw money and silver articles, if any in deposit before the Executive Magistrate’s Court, Trichur.
2. Decree of permanent prohibitory injunction is granted against defendants 14, 25 to 31, their agents and representatives from interfering with the exercise of the 4th plaintiff’s right to administer, manage and control the affairs of the plaint church and its properties and from trespassing into the plaint items and the above mentioned defendants their agents and representatives are further restrained by a permanent prohibitory injunction from putting up any obstruction or causing any hindrance to the worshippers in entering into the church and conducting prayers in it and at the tomb in the church.
3. Considering the longitude of the duel between the parties and the circumstances in this case, this court directs that both the parties shall suffer their respective costs.
Dictated to the confdl. asst., transcribed and typed by her, corrected and pronounced by me in open court on 29th day of November, 2002.
Sd/-
Hariprasad,
I Addl. District Judge.
APPENDIX - Not Included (the Plaintiff's & Defence Exhibits)