AS.No.865 OF 1998 (Appellants: K.C. Daniel; N.M. Varghese Trustee; Jose P.G. P.M. George; Salomon D.; N.M. Thankachan; Respondents: John Kathanar (deceased); Fr. Roy Mathew)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **AS.No.865 OF 1998(A)** **AGAINST THE JUDGMENT & DECREE IN OS 59/1977 DATED 29-08-1998 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS:** - **1 K.C.DANIEL, NADUVILA MURI, PADIYARA KALLELIKUZHI, KOTTAYAM MURI.** - **2* SRI.N.M.VARGHESE TRUSTEE, S/O.LATE P.G.MATHAI, PANACHAKKAL, NEDIYAMANNIL, V.KOTTAYAM P.O., PATHANAMTHITTA.** - **3* SRI.JOSE P.G. P.M.GEORGE, PANACHAKKAL KALLELIKUZHIYIL, V.KOTTAYAM P.O., PATHANAMTHITTA.** - **4* SALOMAN D. S/O.THOMAS DANIEL, KULATHINKAROTTU VEEDU, V.KOTTAYAM P.O., PATHANAMTHITTA.** - **5* N.M.THANKACHAN S/O.MATHAI C., ROSE VILLA, V.KOTTAYAM P.O., PATHANAMTHITTA. * (ADDL.APPELLANTS 2 TO 5 ARE IMPLEADED VIDE ORDER DATED 11.07.2018 IN IA 1381/17.)** - **BY ADVS. SRI.P.R.VENKATESH SRI.G.KEERTHIVAS** ## **RESPONDENTS:** - **1 JOHN KATHANAR (DIED) S/O.THOMAS, PADIYARA VEETTIL, KOTTAYAM MURI, PRAMADOM VILLAGE.** - **2 FR.ROY MATHEW S/O.LATE T.M.MATHEW, AGED 41 YEARS, THYKKOOTTATHIL HOUSE, MAKKAMKUNNU, SANTHOSH JUNCTION, PATHANAMTHITTA P.O., THE VICAR, ST.MARY'S CHURCH, VALLICOT - KOTTAYAM.** - **(ADDL. 2ND RESPONDENT IMPLEADED VIDE ORDER DATED 27.07.2017 IN IA 3636/11.)** **AS.No.865 OF 1998 2** **R1 BY ADV. SRI.BIJU ABRAHAM R1 BY ADV. SRI.B.G.BHASKAR R2 BY ADV. SRI.K.S.BHARATHAN R2 BY ADV. SRI.ABEL ANTONY** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 17.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AS.No.865 OF 1998 3** ## **JUDGMENT** The 4[th] defendant in O.S.No.59 of 1977 on the file of the I Additional District Court, Ernakulam, has filed this appeal impugning the judgment and decree of the said Court, as per which, it has declared that St.Mary's Church, Vallicot, Kottayam, to be a constituent of the Malankara Orthodox Syrian Church; and consequently, that it can only be governed and managed under the 1934 Constitution of the said Church. Subsequently, appellants 2 to 5 were impleaded on the application of the original appellant for the reason that they are now in charge of the affairs of the Church. 2. The appellants say that this declaration of law is contrary to the facts and that the further direction in the decreethat the plaintiff/1st respondent herein (who is now no more) is entitled to function as a Vicar of the said Church - is also without basis, since there is nothing on record to show that he was so appointed by the members ## **AS.No.865 OF 1998 4** of the Parish or that he was at any time accepted as such by them. The appellants thus pray that this appeal be dismissed. 3. I have heard Shri.G.Keerthivas, learned counsel appearing for the appellants and Shri.Biju Abraham, learned counsel appearing for the respondents. 4. When I hear Shri.G.Keerthivas on the afore lines, it must be born in mind that the issues relating to the management and control of all churches under the Malankara Orthodox Syrian Church has now been settled by the Hon'ble Supreme Court through _**P.M.A.Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]** and_ _**Varghese v. St.Peter's and Paul's Syrian Orthodox Church [2017 (3) KLT 261 SC]**_ . The Hon'ble Supreme Court has declared it affirmatively that the Churches which are constituents of the Malankara Orthodox Syrian Church will have to be managed and controlled only by the 1934 Constitution. 5. In the afore context, when I examine ## **AS.No.865 OF 1998 5** the facts involved in this case, it is without doubt that the plaintiff/1st respondent (who is now more) claims to be the Vicar appointed under the 1934 Constitution and he sought a decree to injunct the defendants from entering into the plaint schedule property or to cause obstructions to him in conducting the religious services in the Church. In opposition to this, the written statement of the defendants, as has been noticed by the Trial Court, avers as under: “Plaintiff is not entitled to institute the suit representing the Malankara Orthodox Syrian Church. Plaint church was established by 11 persons in the year 1084 M.E. It was established for the conduct of religious services by religious dignitaries who possess the spiritual grace transmitted from the Patriarch or Antioch. The priests appointed in church were ordained by the Metropolitan under the Patriarch of Antioch. The allegation that after the decision of Supreme Court in 1958 all the parishioners attorned with the Catholicos and they follow the Catholicos and the Metropolitan appointed by him is false. The plaint schedule properties absolutely belongs to the parishioners of the plaint church and that church is an autonomous one. Those parishioners who defy the authority of Patriarch of Antioch are not liable to be the members of the plaint church. The catholifos or ## **AS.No.865 OF 1998 6** Malankara Metropolitan was never accepted as the head of the church. Since the Catholicos and Daniel Mar Pheliaxinos deviated from the fundamental rites of the church, the patriarch of Antioch declared them as apostates. That decision was taken on the basis of the resolution passed by the Episcopal synod of the Universal Syrian church. Malankara Orthodox Syrian church is a part of the Universal Orthodox Syrian church. Plaintiff is an associate of Daniel Mar Phelaxionos, who was declared apostate. Therefore the plaintiff was removed from the vicarship of the church by a resolution passed by the general body of the plaint church. Plaintiff is not entitled to the reliefs sought for and the suit is to be dismissed with costs.” 6. In the factual scenario of the afore extracted written statement, the submissions of Shri.G.Keerthivas, that the Church cannot be seem to be a constituent of the Malankara Orthodox Syrian Church, becomes completely untenable, since the averments therein clearly concede that it is a constituent of the said Church, but only that there are disputes between the “Orthodox faction” and the “Patriarch faction”. The specific allegation of the appellants herein is that the 1[st] defendant has been declared to be an apostate by the Patriarch of Antioch and therefore, ## **AS.No.865 OF 1998 7** that he is not entitled to function as a Vicar. 7. However, as I have already indicated above, the conclusive declarations of law by the Hon'ble Supreme court in _**P.M.A.Metropolitan** and_ _**Varghese v. (Supra)**_ make these submissions now unavailable to the appellants, when the fact that the Church is a constituent of the Malankara Orthodox Syrian Church is found unassailable. 8. The evidence on record and the materials available cannot lead to any other conclusion than that the Church is a constituent of the Malankara Orthodox Syrian Church this being virtually admitted by the appellants also their only contention being that the same will have to be governed, not under the 1934 Constitution, but under the Authority of the Patriarch of Antioch. Since these contentions are no longer available to the appellants, I am afraid that I cannot countenance the same and therefore, that they deserve to be only repelled, as being without ## **AS.No.865 OF 1998 8** any merit. 9. That said, as is evident from the impugned judgment and decree, the Trial Court has only declared that the Church in question will be governed by the 1934 Constitution and that the Vicar, who was the 1[st] defendant, appointed under the said Constitution alone will be entitled to function as such. Since these directions and conclusions in the impugned judgment and decree are in full conformity with the declarations of law by the Hon'ble Supreme Court, I see no valid reason to disturb the same or to intervene with it, in any manner, what so ever. 10. Further it is also seen from the records that the plaintiff/1[st] respondent is now no more and that the 2[nd] respondent is stated to be the Vicar now in charge. If he is a person who has been appointed under the 1934 Constitution, certainly, he can continue to be in such office, but this is not a matter that this Court can conclusively say at this stage. ## **AS.No.865 OF 1998 9** 11. I, however, make it clear that as long as the 2[nd] respondent is found to be the Vicar appointed under the 1934 Constitution, he will certainly be entitled to the benefit of the impugned judgment and decree, to the extent to which it protects such rights in favour of the plaintiff. This appeal is thus dismissed; however, without making any order as to costs and thus directing the parties to suffer their respective costs, taking note of the peculiar circumstances involved. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **MC/18.2.2020**