Dr. Thomas Mar Athanasius v. Mathews Mar Ivanios and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 17TH DAY OF JULY 2020 / 26TH ASHADHA, 1942** ## **RFA.No.741 OF 2015** **AGAINST THE JUDGMENT AND DECREE DATED 12.06.2015 IN OS 110/2010 OF SUB COURT,THODUPUZHA** ## **APPELLANT/PLAINTIFF:** **DR.THOMAS MAR ATHANASIOS AGED 58 YEARS, DIOCESAN METROPOLITAN, KANDANADU EAST DIOCESE, BISHOP'S (H) MUVATTUPUZHA.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.PRIJITH P. SRI.P.MARTIN JOSE SRI.THOMAS P.KURUVILLA** ## **RESPONDENTS/DEFENDANTS:** |**1**|**MATHEWS MAR IVANIOS, S/O ABRAHAM,**| |---|---| ||**RESIDING AT BISHOP'S (H), KADACKANADU,**| ||**KADAMATTOM P.O. ERNAKULAM DIST, PIN -682 311.**| |**2**|**A.C. SHIBU, S/O.CHACKO,**| ||**MAMALAKUNNATH (H), THODUPUZHA KARA,**| ||**THODUPUZHA VILLAGE IDUKKI DIST. -685 584.**| |**3**|**BENNY ELIAS, S/O.ELIAS**| ||**APPOZHATHU (H) MUTTOM KARA, MUTTOM VILLAGE,**| ||**THODUPUZHA TALUK IDUKKI DIST, PIN - 685 587.**| ||**R1 TO R 3 BY ADVS.**| ||**SRI.K.J.KURIACHAN**| ||**SRI.SUNIL JACOB**| **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 741/15 2 ## **JUDGMENT** The plaintiff in O.S.No.110/2010 on the files of the Sub Court, Thodupuzha, is the appellant before this Court. 2. The appellant instituted the afore suit before the Trial Court seeking that the title over the plaint schedule property, in his capacity as the diocesan of the Malankara Orthodox Syrian Church Metropolitan of the Kandanadu East Diocese be declared and that an earlier gift deed, executed by the 1[st] respondent herein/1[st] defendant in favour of respondents 2 and 3 - a copy of which has been marked on record as Ext.A2 - be set aside and declared null and void. 3. The constitutive facts as stated by the appellant, which are necessary for the consideration of this appeal, are that the plaint schedule properties are owned by the RFA 741/15 3 St.Mary's Church, Thodupuzha, which is a constituent church of the Malankara Orthodox Syrian Church (hereinafter referred to as the 'Malankara Church' for short); and therefore, that Ext.A2 gift deed executed by the 1[st] defendant, who claims to be the earlier Metropolitan of the patriarch faction of the Malankara Church, in favour of respondents 2 and 3, who claim to be the former trustees of the Church, is not binding on any of the parishioners or on the Malankara Church. 4. The appellant reinforces his plea contending that, consequent to the judgment of the Honorable Supreme Court in **P.M.A. Metropolitan v. Moran Mar Marthoma [AIR 1995 SC 2001]** and **K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and** **Others [2017 (3) KLT 261 SC],** the position is now crystally clear that the plaint schedule RFA 741/15 4 properties can only be construed to be that of the Malankara Church, thus capable of only being governed by its 1934 Constitution; and therefore, that he is entitled to be declared as the title owner of the same in his capacity as the diocesan Metropolitan of the Kandanadu East of the said Church. The appellant says that, however, the Trial Court has dismissed the suit on various unsustainable grounds, but primarily finding that it is not maintainable in the absence of leave, having been sought for by the appellant or having been granted by it, under Section 92 of the Code of Civil Procedure (CPC for short). The appellant argues that this finding is contrary to the declarations of law made by the Honourable Supreme Court in **K.S.Varghes** (supra) and thus prays that the impugned judgment and decree of the Trial RFA 741/15 5 Court be set aside. 5. I have heard Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Martin Jose, learned counsel appearing for the appellant and Sri.Sunil Jacob, learned counsel appearing for the respondents. 6. When the hearing of this appeal commenced, it was gratifying that the learned Senior Counsel, Sri.S.Sreekumar and Sri.Sunil Jacob submitted that after **K.S.Varghese** (supra) had been delivered by the Honourable Supreme Court, factionalism in the Malankara Church is not open for consideration of this Court, nor can it be impelled by any party. In fact, Sri.Sunil Jacob expressly admitted that the Church in question - being a constituent of the Malankara Church - will have to be governed only under its 1934 Constitution; however, contending that the RFA 741/15 6 plaint schedule properties cannot be declared to be that of the appellant/plaintiff, it being owned by all the parishioners of the Church. He says that therefore, the prayer of the appellant, to declare this title over the plaint schedule properties, be not countenanced in any manner whatsoever. 7. In response, Sri.S.Sreekumar, learned senior counsel, also affirms that the plaint schedule properties belong to the Church, but asserted that it can only be governed as per the 1934 Constitution, thereby to mean that its control will vest on his client in his capacity as the Diocesan Metropolitan of Kandanadu East of the Malankara Church. He then explained that the declaration sought, regarding the title of the plaint schedule properties, was only in the capacity of the appellant as the Metropolitan and in no RFA 741/15 7 other; and therefore, that he does not intend nor want the declaration to be in his personal name. 8. When I hear the learned counsel for the parties as afore, it is indubitable that after the Hon'ble Supreme Court declared the law regarding the control and governance of the Churches under the Malankara Church, all the properties belonging to them will have to be administered and controlled as per the stipulations in the 1934 Constitution of the said Church. There can be no doubt about this; and consequently, it does not require me to say anything further more so, since, this is expressly conceded by both sides. 9. Axiomatically, the germane questions before this Court are whether the suit was deserving to be dismissed merely because the appellant/plaintiff had not sought leave of RFA 741/15 8 the Trial Court under Section 92 of the CPC and whether this Court can issue resultant declaration in tune with the declaration of law of the Hon'ble Supreme Court in the afore cited binding precedents. 10. The answers to the afore are not very hard to obtain, since in **K.S.Varghese** (supra), the Hon'ble Supreme Court has already declared that all the Churches, which are constituents of the Malankara Church, can only be governed by its 1934 Constitution; and therefore, a further leave under Section 92, to prepare a Scheme for such Church, is not necessary. Obviously, therefore, the findings of the Trial Court that the suit is bad for want of leave under Section 92 of the CPC, cannot obtain favour of this Court now. 11. That said, once it is conceded before this Court and it is ineluctable from the RFA 741/15 9 judgments of the Hon'ble Supreme Court that the plaint schedule properties - which are the properties of the Church in question - deserve to be governed only as per the 1934 Constitution of the Malankara Church, the corollary issue is as to the reliefs to be granted in the suit. Since even Sri.Sunil Jacob does not have a case that the plaint schedule properties are owned exclusively by the defendants and since he concedes that they are owned by the Church, thereby to mean its Parishioners, I am certain that this Court will be justified in allowing this appeal and in declaring that the plaint schedule properties are only to be governed as per the stipulations of the 1934 Constitution of the Malankara Church and nothing else. I am, therefore, certain that this Court will be justified in invoking RFA 741/15 10 Order XLI Rule 33 of the CPC and in disposing of the suit in the manner that I propose hereinafter, particularly since Sri.S.Sreekumar, learned senior counsel for the appellant, submits that his client does not seek a personal declaration of title over the plaint schedule properties. In the result and for the reasons above, I allow this appeal and set aside the decree and judgment of the Trial Court; and declare that the plaint schedule properties are exclusively owned by the St.Mary's Orthodox Syrian Church, Thodupuzha and that it will be governed strictly under the stipulations of the 1934 Constitution of the Malankara Orthodox Syrian Church. Consequently, Ext.A2 document, namely, Gift Deed No.3964/2004 of the SRO, Thodupuzha, is hereby declared to be null and void and not binding on the plaint RFA 741/15 11 schedule properties, thus leading to its governance to be carried on solely in terms of the 1934 Constitution of the Malankara Orthodox Syrian Church . In view of the singular circumstances seen in this appeal, I deem it appropriate not to make any order as to costs and direct the parties to suffer their respective costs. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE**