Latin Archdiocese of Trivandrum v. Seline Fernandez and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 26TH DAY OF SEPTEMBER 2013/4TH ASWINA, 1935** ## **RP.No. 437 of 2013** **-------------------------[AGAINST THE JUDGMENT AND DECREE DATED 09-10-2012 IN R.S.A.NO.662/2003 OF THIS HON'BLE COURT]** **........................** ## **REVIEW PETITIONER/NOT A PARTY IN R.S.A.NO.662/2003:** **-----------------------------------------------------------------------------------** **LATIN ARCHDIOCESE OF TRIVANDRUM, REPRESENTED BY VICAR GENERAL VERY REV.MSGER.EUGENE PERIERRA, LATIN ARCH BISHOP'S HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 003.** **BY ADV. SRI.ROY CHACKO.** ## **RESPONDENTS/APPELLANTS 1 AND 2 AND RESPONDENTS 1 TO 39:** **--------------------------------------------------------------------------------------------------** ## **1. SELINE FERNANDEZ,** - **MANAGING PARTNER, CHOORAVILA OLIKKARA MARINE ENTERPRISES, KOLLAM, RESIDING AT KUTTIYIL BUNGALOW, KUREEPUZHA CHERRY, THIRKKADAVOOR VILLAGE, KOLLAM DISTRICT.** ## **2. SELINE FERNANDEZ,** **REPRESENTED BY HER POWER OF ATTORNEY HOLDER - GEORGE JOSEPH FERNANZEZ, AGED 70 YEARS, PROPRIETOR, ESMARIO EXPORT ENTERPIRSES, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT.** ## **3. BERNARD FRANCIS,** - **RESIDING AT MOONNUTHENGAZHIKATHU VEEDU, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM.** **4. S.JAMES, RESIDING AT PALLYTHUPPASSERIYIL, SAKTHIKULANGARA, KOLLAM. (DIED).** **Prv.** **R.P.NO.437/2013:** **5. ROMAN PETER, RESIDING AT THUNDU PARAMBIL VEEDU, MEENATHU CHERRY, KOLLAM.** ## **6. A.PETER,** ## **KOTTAPURATHU VEEDU, MEENATHU CHERRY, KOLLAM.** ## **7. S.JOHNSON,** ## **MOONNUTHENGAZHIKATHU VEEDU, MEENATHU CHERRY, KOLLAM.** ## **8. X.DASON,** ## **KANNADA VADAKKATHIL VEEDU, MEENATHU CHERRY, KOLLAM.** ## **9. M.MILLARY D'CRUZ,** ## **MULLASSERI BUNGALOW, MEENATHU CHERRY, KOLLAM.** ## **10.F.BEN,** **THAZHIRAZHIKATHU VEEDU, MEENATHU CHERRY, KOLLAM. (DIED).** ## **11.M.MILARY D' CRUZ,** ## **MULLASSERI BUNGALOW, MEENATHU CHERRY, KOLLAM.** ## **12.JOHN BRITTO, THURUTHIL BUNGALOW, MEENATHU CERRY, KOLLAM. (DIED).** ## **13.IGNETIOUS NAZARETH, MULLASSERI BUNGALOW, MEENATHU CHERRY, KOLLAM. (DIED).** ## **14.P.G.ANTONY,** **EMALDI COTTAGE, MULLASSERI BUNGALOW, MEENATHU CHERRY KOLLAM.** ## **15.G.FRANCIS, EMALDI COTTAGE, MEENATHU CHERRY, KOLLAM.(DIED).** ## **16.G.FRANCIS,** **MAMPALLIYIL VEEDU, MEENATHU CHERRY, KOLLAM. (DIED RECORDED).** ## **17.RT. REV.DR.JOSEPH G. FERNANDEZ, KOLLAM BISHOP, BISHOP PALACE, KOLLAM.** ## **18.REV.FR. KASMIR THOMAS,** **VICAR OF MUKKADU, THIRUKUDUMPA PALLY, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM. (DIED).** ## **19.LIGORIA,** - **W/O.AUGUSTINE, KAYALTHOPPE PURAYIDOM, MEENATHU CHERRY, KOLLAM.(DIED).** **Prv.** **R.P.NO.437/2013:** ## **20. NJANAMMA, KAYALTHOPPE PURAYIDOM, MEENATHU CHERRY, KOLLAM.(DIED).** **21. MARY, W/O.THOMAS NETTO, VADAKKATHU PASSERIL, KAYALTHOPPE PURAYIDOM, MEENATHU CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM.** **22. S.CHARLY, KAYALTHOPPIL PURAYIDOM, MEENATHU CHERRY, KOLLAM.** **23. AUGUSTINE FRANCIS, PALLIPURAYIDATHIL, NEENDAKARA, KOLLAM.** **24. AUGUSTINE ALOCIOUS, HOUSE NO.74, PALLITHARAYIL, KAZHAKOOTTAM, TRIVANDRUM.** **25. AUGUSTINE PHILIPOSE, MARIYAMMA MANDIRAM, 236, N.R.COLONY, BANGLORE-17, (A PAULOSE, MARIA MANDIRAM, CHAVARA, PUDUKAD, MUKUNDAPURAM P.O.).** ## **26. AUGUSTINE JOSEPH, MUKKATTU KAYALTHOPPPIL, SAKTHIKULANGARA, KOLLAM.** ## **27. AUGUSTINE MARGARET MUKKATTU KAYALTHOPPPIL, SAKTHIKULANGARA, KOLLAM.** **28. SELINE FRANCIS, VALIYAZHATHU VEEDU, MEENATHU CHERRY, SAKTHIKULANGARA, KOLLAM. (DIED).** **29. VICTORIA JAMES, PATTITHUPPASSERIL VEEDU, SAKTHIKULANGARA, KOLLAM (DIED).** **30. ALOCIOUS JAMES, PATTITHUPPASSERIL VEEDU, SAKTHIKULANGARA, KOLLAM.** **31. THANKACHAN JAMES, PATTITHUPPASSERIL VEEDU, SAKTHIKULANGARA, KOLLAM.** **32. MARY JAMES, PATTITHUPPASSERIL VEEDU, SAKTHIKULANGARA, KOLLAM.** **33. USHA JAMES, PATTITHUPPASSERIL VEEDU, SAKTHIKULANGARA, KOLLAM.** **34. PRASANNA FRANCIS, MAMBILIYIL VEEDU, MEENATHU CHERRY, KOLLAM.** **Prv.** **R.P.NO.437/2013:** ## **35. GRAHARI FRANCIS, MAMBILIYIL VEEDU, MEENATHU CHERRY, KOLLAM.** ## **36. JOSEPH FGRANCIS, MAMBILIYIL VEEDU, MEENATHU CHERRY, KOLLAM.** **37. HENTRY FERNANDEZ, KUZHIPPARAAMBIL VEEDU, MEENATHU CHERRY, KOLLAM. (DIED).** **38. ANTO FERNANDEZ, KUZHIPPARAAMBIL VEEDU, MEENATHU CHERRY, KOLLAM (DIED).** ## **39. PAPPACHAN @ EDWARD, KUZHIPPARAAMBIL VEEDU, MEENATHU CHERRY, KOLLAM.** - **BY ADVS. SRI.VARGHESE C.KURIAKOSE, SRI.P.R.VENKETESH.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **K. VINOD CHANDRAN, J** ## **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - R.P No. 437 of 2013 in RSA No.662 of 2003** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 26[th] day of September, 2013** ## **O R D E R** The above review has been filed by the Latin Archdiocese of Trivandrum, aggrieved by the interpretation of the Canon Law rendered by this Court in the judgment in Second Appeal. The review is filed on the apprehension that “the parishioners of various Churches in different Diocese will become emboldened to adopt a path of confrontation with the Bishops and the Parish priests, leading to unrest and stalemate in the Church administration both in temporal and spiritual matters”(sic.). The review petitioner, a stranger to the appeal, has filed the above review with an application for leave and an application to condone the delay in preferring such review. The suit being one filed under Order I Rule 8 of the Civil Procedure Code(CPC), from which the Second Appeal arose; leave was granted. The delay was condoned in view of the fact that the review petitioner was a stranger to the proceedings. RP No.437/2013 : 2 : 2. Before looking into the review petition it is to be stated that the subject matter of the appeal was a property dispute. The appellants were the defendants and the respondents were the plaintiffs. The plaintiffs were respectively two trustees, the convenor and the elected representatives of the Parish; constituting a committee and they sought to establish the right of the Church over plaint A, B and C schedule properties. As against the claim of title to the said properties set up by the defendants, the suit was filed for declaration of title and possession of the scheduled properties. As noted earlier, the suit was one filed in a representative capacity under Order I Rule 8 of CPC and the Bishop and the Vicar were impleaded as the defendants 3 and 4 respectively. No reliefs were sought against the Bishop or the Vicar nor was any claim made over the properties; in exclusion to the rights of the Bishop or the Vicar. Before this Court, inter alia, question of law with reference to the Canon Law was raised as under:- i. Whether the plaintiffs independently or together as a Committee or Administrators, are competent to represent the parish and claim RP No.437/2013 : 3 : rights over the property of the Church, as per the Canon Law; which vests the Church property in the hands of the Bishop or the Vicar and clearly mandates a consent from either of these two personalities for initiating a litigation? The interpretation of the Canon Law made by this Court in answering the said question has led to the filing of the above review. 3. Essentially, the review petitioner would contend that the suit being of the year 1980, Canon Law applicable would be the one promulgated in 1917, and this Court has referred to the Code of Canon Law for the Latin Church as revised in the year 1983. The learned counsel Sri Roy Chacko would specifically refer to the existence and recognition of only two persons as per the Canon Law of 1917, i.e., the physical person and the moral person; while the revised Canon of 1983 postulates and recognises the physical person, the moral person and the juridical person. Though the review petitioner does not wish to upset the findings on facts and also recognises the fact that the land is purchased in the name of RP No.437/2013 : 4 : the Church; their contention is that the committee comprised of the laity has only an advisory capacity and the parishioners being bound to follow the Canon law, the prescription for initiating a civil proceeding with the prior sanction of the “Ordinary” cannot at all be watered down. 4. The first contention is that this Court had considered the provisions of the Canon promulgated after the initiation of the suit, i.e, of the year 1983; which is inapplicable to the suit filed in 1980. Any apparent error in the application of the provisions of a Canon which was not in force at the time the suit was filed, would enure to the parties to the proceedings and none other, since it would have a direct bearing on the facts. If the contention is that the Canon of 1983 is not applicable to the proceedings initiated in 1980 and what is to be applied is the Canon of 1917, then a review can only be relevant to the proceedings which culminated in the second appeal. Such a review on the basis of Canon of 1917 can have no effect on third parties now, since admittedly what is applicable after 1983 is the Canon of 1983. Since the Canon of 1983 is admittedly in force at present, a review of the judgment looking at the Canon of 1917 cannot allay the RP No.437/2013 : 5 : apprehension of the review petitioner. It is also pertinent that the review petitioner admits that the provisions of both the Canons are similar; then, what the review petitioner attempts is a re-hearing and not a review as contemplated under Section 114 read with Order 47 Rule 1 of the CPC. 5. The review petitioner has proclaimed its disinterest to the facts of the case. The review petitioner is concerned only with the interpretation rendered in answering the first question of law framed by the Court, on the contentions raised in the Second Appeal. At the time of arguments the learned counsel for the review petitioner has further stressed on the absence of the concept of juridical person in the Canon of 1917; which according to him is significant in further fortifying their contention that the 'physical persons' cannot institute a civil litigation without sanction from their 'Ordinary'. 6. To briefly reiterate the findings of this Court in the judgment sought to be reviewed; on an examination of the Canon of 1983, the temporal goods were found to belong to the parish, which, by law, is a public juridic person. As per the Canon of 1983, the Catholic Church and the Apostolic See RP No.437/2013 : 6 : have the status of a moral person by divine disposition(Canon 113.1) and postulates the existence of juridical persons, besides 'physical persons'(Canon 113.2). Juridical persons are constituted by the law itself or by a decree of competent authority (Canon 114) and in the Church; are either aggregates of persons or aggregates of things. On a particular Church being lawfully erected or established by the supreme authority, it was found to possess juridic personality by the law itself as per Canon 373. The plaintiffs individually, being the parishioners of the Church, were having the capacity of 'physical persons' who were competent to represent the 'juridic person'; the latter of which is the committee of elected representatives, entrusted with the administration of the Church. Specifically referring to Canon 1284.1, it was held that the same binds all administrators to fulfill their functions “with the diligence of a good house holder”. Hence the administrators who were arrayed individually before the court below as plaintiffs were held to be competent to initiate civil proceedings before a recognised Civil Court for protection of the property belonging to the Church; even as per the Canon. 7. The learned counsel for the review petitioner RP No.437/2013 : 7 : vehemently contends that 'juridic person' was a concept introduced by the Canon of 1983 This Court has also looked at the contention raised in the review based on the provisions of the Canon of 1917. The Canon of 1917 deals with the “Persons And Clerics In General” in Chapter II of Part II titled 'Clerics' in the text “Canon Law a Text and Commentary” by T. Lincoln Bouscaren, S.J and Adam C. Ellis, S.J. published by the Bruce Publishing Company, Milwaukee (Third revised edition) (provided by the learned counsel for the review petitioner). The canons referred to hereunder are the translation provided in the said book and so are the commentaries; with reference to the page number in brackets. 8. Canons 87 to 98 deals with the persons in general classified into 'physical persons' and 'moral persons'. They deal with incorporation into the Church of Christ with the ritual of Baptism, the juridical effects of domicile and quasi domicile and who by virtue of such domicile may be considered as one's 'parish priest' and 'Ordinary' and so on and so forth. The 'moral person' by Canon 99 is defined as “a juridical entity, a subject of rights, distinct from all physical or natural persons”(sic) and as in the Canon of 1983 recognises RP No.437/2013 : 8 : the Catholic Church established on earth by Jesus Christ and the Apostolic See as the two moral persons that exist by divine institution(Canon 100). Canon 100 also speaks of inferior moral persons constituted by Ecclesiastical Law for religious charitable purposes by provision of law or by special decree. The learned authors also further dilate on this issue as under: “Division. a. A moral person is called collegiate if it is made up of a “college” or group of natural physical persons. Thus a religious order is made up of its members, a chapter of its canons, a board or committee of its individual members. These are collegiate moral persons. It must be noted that even in these cases the moral person is a legal entity distinct from the physical persons who compose it. A religious order has rights distinct from the sum of the individual rights of its members. It is a distinct legal entity.”(page No.86) 9. All moral persons collegiate and non collegiate are declared to be in the same class as minors - minoribus aequiparantur (equivalent to minors) by Canon 100.3. Such RP No.437/2013 : 9 : moral persons since by nature is incapable of acting for themselves, it is declared that they must, of necessity, act through physical persons; either through individuals endowed with authority to act for them, or through a group as such, similarly authorized.(Page 87) This, in fact, belies the contention that the Canon of 1917 did not visualise the concept of a juridic person. Further support to negate the said contention is available in Canon 687 found in page 346 and extracted hereunder:- **Juridic personality.** In accordance with canon 100, associations of the faithful acquire juridical personality in the Church only when they have obtained from the legitimate ecclesiastical Superior a formal decree of erection” 10. In the present case, there is absolutely no dispute that the Church has been consecrated. The prerequisite of a formal decree of erection for the existence of a ecclesiastical association as a 'moral person' is not at all in dispute. Hence it cannot be gainsaid that the concept of juridical person was totally alien to the Canon of 1917. The Canon of 1917 also RP No.437/2013 : 10 : recognises a juridical personality but define the same under a “moral person” while the Canon of 1983 specifically defined a “juridical person” as distinct from a “moral person”. 11. The review petitioner has also placed reliance on certain decisions, the principles of which are encapsulated hereunder : (i) **1962 KLT 240 James Chinnamma v. Joseph Abraham** was concerned with a question as to whether the Catholic Church can claim to be “an agriculturist” under the Agriculturists Debt Relief Act (1958, Kerala). The learned Single Judge referred to three ways of looking at the question, one, to treat the Church as a voluntary association as distinguished from an established church and second, to treat the head of the Church, namely, the Vicar, the Bishop or the Ordinary as a corporation sole. The learned judge however favoured the third method in treating the institution or Church as a legal entity or the person capable of holding property but, of course, acting through human agency. In fact, the finding in paragraph 6 as extracted hereunder is perfectly in consonance with the finding of this Court in the judgment sought to be reviewed. RP No.437/2013 : 11 : From this it is clear that the conception of the church or the institution itself being constituted into a legal or juristic person or corporation and its existence as an entity capable of holding property irrespective of and distinct from its head is only in consonance with the Ecclesiastical law. therefore, there is no legal impediment in treating the church as a person, who can claim to be an agriculturist, if it otherwise satisfies the definition of “agriculturist”. (ii) **Volume 23 TLJ 928 Rev.Father Pathrose Fernandez and others v. Swamiyadian Gnanaprakasam** relates to a dispute with respect to the drawing of water from a well belonging to the Church. While upholding the principle that, in disputes relating to spiritual or temporal affairs of a Roman Catholic Church, the parties should be presumed to be governed by the general law relating to the administration of churches, namely the Canon law, it was also held that those RP No.437/2013 : 12 : who assert the contrary should establish their contentions by affirmative proof. (iii) Judgment dated 1.11.1981 in O.P NO.5236/1981 in **K.B Mathai v. State of Kerala** and others also reiterated the principle that the concerned Bishop is the ecclesiastical head of the Parish Church and the right of administration of the Church and its temporalities is vested in him, when dealing with an issue of appointment of a manager of an aided school; which arose under the Kerala Education Act and Rules framed thereunder. (iv) The decision of the High Court of Madras in **C.S Robert and another v. M. Kanagappan 2003 (2) CTC 577** is already referred to in the judgment sought to be reviewed (referred to as 2003(2)KLT SN 73(case No. 97)). The facts reveal that therein the parishioners where up against the episcopate and the local parish priests; with respect to the temporal and administrative power over the church and the exercise of such administrative powers. The plaintiffs therein sought right over the properties in a representative capacity of the entire catholic public of the village and sought an injunction restraining the parish priest and the Bishop from RP No.437/2013 : 13 : interfering with the management and administration of the Church and its properties; while conceding their ecclesiastical authority. 12. It is to be noticed immediately that all the above referred cases except (i) above, were instances where the parishioners turned against the episcopate and claimed some right over the church or its properties and the administration thereof; in exclusion to the Ordinary. It has to be noticed that there is a clear distinction in the instant case. The parishioners who are the plaintiffs, constituted the committee of the elected representatives, duly approved by the 'Ordinary'. The plaintiffs did not seek any individual rights over the properties scheduled in the plaint or collective right of the parishioners; nor did they seek any rights of administration over such properties; in exclusion to that of the Bishop or the Vicar. 13. The suit was for protecting the church properties specifically seeking a declaration of title and prayer for uninterrupted possession as against the third party defendants and not against the Bishop or the Vicar. The third parties; though were also parishioners of the very same Church, by the RP No.437/2013 : 14 : nature of the claim set up by them, as against the Church, with reference to the property; stood as rival claimants with the Church. This was the context in which, referring to Canon 1284 of the Canon of 1983, that, this Court found that every administrator is bound to protect the properties of the Church with the diligence of a good house holder. The very same sentiment is reflected in Canon 1523(page 806) of the Canon Law of 1917. 14. In the context of there being no claim set up as against the authority of the Bishop or the parish priest with respect to the the administration of the temporal properties and the suit having been initiated and prosecuted with the ultimate aim of protecting the Church properties; this Court found that the sanction of the ordinary is not necessary; by reading the Canon as a whole. The said principle is applicable as per the Canon of 1917 and the newly promulgated one of 1983. This Court is of the opinion that the judgment does not warrant a review. The principles enunciated by this Court; on the basis of the provisions of the Canon law of 1983 do not brook any review based on the provisions of the Canon of 1917. The review petitioner too admits that the provisions are RP No.437/2013 : 15 : similar. The attempt of the review petitioner is to re-hear the matter and that would be an overreach of the jurisdiction of review as held in **State of West Bengal and others v. Kamal Sengupta and another[(2008) 8 SCC 612]** . In the context of there being no mistake or error on the face of the record or any new material produced which would warrant a review of the judgment, nor any other sufficient reason, no notice is issued to the parties to the Second Appeal and the review petition is dismissed in limine. Sd/- ## **(K. VINOD CHANDRAN, JUDGE)** jma ## **//true copy//** ## **P. A to Judge**