R.F.A. No. 590 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933** **RFA.No. 590 of 2007 ( )** **--------------------------------** **OS.44/1999 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM.** - **.................** ## **APPELLANTS/PLAINTIFFS 2 & 4:** **------------------------------------------------** **1. V.I. SUNNY, S/O. ITTAN, AGED 47 YEARS, VATTAKKATTU HOUSE, SOUTH MARADI, MUVATTUPUZHA.** **2. FR. N.D. DANIEL, S/O. LATE FR.VARKEY DANIEL, NEDUMPURATH HOUSE, SOUTH MAZHUVANNOOR, MUVATTUPUZHA.** - **BY SRI.S.SREEKUMAR, SENIOR ADVOCATE,** - **ADV. SRI.PEEYUS A.KOTTAM.** ## **RESPONDENTS/DEFENDANTS & 3RD PLAINTIFF:** **-------------------------------------------------------------------------** **1. FR. ISSAC, S/O. JOSEPH, AGED 43, PUNNASSERIYIL HOUSE, MAZHUVANNOOR P.O., KUNNATHUNADU TALUK.** **2. K.K. YOHANNAN, S/O. KORAH, AGED ABOUT 50 YEARS, KIZHAKKECHIRAKKATTU (KUNJULLIL), EAST MARADI, MUVATTUPUZHA.** **3. BIJU (KURIAKOSE), S/O. IPE, AGED 35 YEARS, ANIPRAYIL HOUSE, EAST MARADI, MUVATTUPUZHA.** **RFA.No. 590 of 2007** **4. BABU ISSAC, S/O. ISSAC, OLIKKAL PUTHENPURAYIL, EAST MARADI, MUVATTUPUZHA.** **BY SRI.N.SUKUMARAN, SENIOR ADVOCATE. SRI.R.D.SHENOY, SENIOR ADVOCATE. ADV. SRI.BOBBYMATHEW KOOTHATTUKULAM. SRI.SAJI VARGHESE KAKKATTUMATTATHIL. ADV. SMT.SIKHA.S.NAIR, ADVOCATE COMMISSIONER, SRI.S.VINOD BHAT, SRI.SAJI VARGHESE KAKKATTUMATTATHIL, SRI.S.SHYAM.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2011, THE COURT ON 04/01/2012 DELIVERED THE FOLLOWING:** **rs** ## **RFA.No. 590 of 2007** ## **APPENDIX** **APPELLANT'S ANNEXURES:NIL.** ## **RESPONDENT'S ANNEXURES:-** **ANNEXURE RI COPY OF THE MINUTES OF THE GENERAL BODY OF THE ST.MARY'S YAKOBAYA SURIYANI CHURCH AT MARADY DATED 21/11/2004.** **ANNEXURE RII COPY OF THE PERMIT ISSUED FROM THE MARADY GRAMA PANCHAYATH DATED 16/08/2007.** ## **ADVOCATE COMMISSIONER'S ANNEXURES:** **ANNEXURE C1-12: COPY OF THE PHOTOGRAPHS WITH NEGATIVE.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 590 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2012. ## **JUDGMENT** Plaintiffs 2 and 4, who were non-suited along with the other plaintiffs by the District court, Ernakulam in O.S.44 of 1999 are the appellants. 2. The suit was one for a declaration to the effect that Fr.N.Daniel is the lawful Vicar of the Church and the Managing Committee headed by the said Vicar is entitled in law to administer the affairs of St. Mary's Orthodox Syrian Church and for other consequential reliefs. 3. According to the plaintiffs, St. Mary's Orthodox Syrian Church, Marady is one of the 1064 churches coming under the unbrella of Malankara Orthodox Syrian Church governed by the 1934 Constitution. The Church is included in the Angamaly Diocese. The Metropolitan of Angamaly Diocese was R.F.A.590/2007. 2 H.G. Philipose Mar Theophilos. He passed away on 28.9.1997. Thereafter H.G.Moran Mar Baselios Marthoma Mathews II became the next Diocesan Metropolitan. Plaintiffs 1 to 4 claimed to be the parishners of the said Church and the fourth plaintiff is the duly appointed Vicar of the Church. A Managing Committee was elected on 20.4.1997 by the General Body meeting of the parishners lawfully convened by the Vicar. The said election was duly approved by the Metropolitan and plaintiffs 1 and 2 were appointed as trustees. The fourth plaintiff, who is appointed as the Vicar and plaintiffs 1 and 2, who are appointed as trustees alone are competent to manage the affairs of the Church and its properties. The first defendant has set up a claim that he is the lawful Vicar of the Church. He belongs to patriarch faction. According to the plaintiffs, the first defendant is an imposter, who claims to have been appointed by the so-called Bishop, who according to the plaintiffs have no authority to do so. Thomas Mar Dionysius is not a Bishop. He is not duly elected by the Malankara R.F.A.590/2007. 3 Association, nor he is approved by the Malankara Episcopal Synod and he has no such powers. Defendants 2 and 3 are active partisans of Patriarch faction and they proclaimed that 1934 Constitution is not applicable to the Church. They are intermidling with the affairs of the Church even though they have no right to do so. Therefore the suit was laid. 4. The defendants resisted the suit. It is pointed out by them that the plaintiffs have infact no cause of action for seeking intervention of the court with regard to the administration of the Church, which is a public religious and charitable institution and hence the suit falls under section 92 of the Code of Civil Procedure. Therefore, the plaintiffs can institute the suit only with the leave of the court. They disputed that there exists a Church by name St.Mary's Orthodox Syrian Church, Marady. The Church is infact, according to them, known as Marady Vishudha Marthamariam Yacobaya Suriyani pally. It is the Malankara Jacobite Syrian Orthodox Church included in the Angamaly Diocese of Patriarch faction. It is governed by the 1934 R.F.A.590/2007. 4 Constitution subject to the decision reported in **P.M.A. Metropolitan v. Moran Mar Marthoma (** AIR 1995 SC 2001). It is contended that HG Philipose Mar Theophilos was the Metropolitan of the Catholicose faction and HG Thomas Mar Dionycious is the Metropolitan of Angamaly diocese of Patriarch faction. Currently the Catholicose faction has no Metropolitan. The plaintiffs are the parishioners of the Church known as Marady Mar Gregorious Catholicate Centre belonging to the Catholicose faction. They have no right to represent the Catholicose faction. The fourth plaintiff is not a duly appointed Vicar. They contended that no general body was conducted on 20.4.1997 and they disputed the status of plaintiffs 1 and 2 as trustees. On the other hand, they would contend that the first defendant was duly elected by the General Body as the Vicar of the church on 29.1.1995 and he continued to be a Vicar till 31.5.1998. From 1.6.1998 Fr. Mathai Keeppanasseril became the Vicar of the church. They claimed that HG Thomas Mar Dionysius is the Metropolitan R.F.A.590/2007. 5 of Angamaly Diocese of patriarch faction and he is not pretending to be a Bishop. He was ordained by the Partriarch of Antioch, the supreme Head of Syrian Orthodox Churches. Pointing out that the plaintiffs are not entitled to any relief, they prayed for a dismissal of the suit. 5. Based on the above pleadings, issues were raised. Issue Nos. 1 and 2 were as follows: - _“1) Whether the suit is maintainable,_ - _2) Whether the suit is barred by Section 92 of C.P.C.”_ 6. By the order in W.P.(C) 26211 of 2003 dated 11.1.2007 the trial court was directed to consider the question of maintainability of the suit, if it can be done so without evidence, first. It appears that before the court below both sides conceded that issue Nos.1 and 2 can be decided without taking evidence in the case. Accordingly, the trial court went on to consider the issues and found that the suit is not maintainable for want of leave under section R.F.A.590/2007. 6 92 CPC. It is the said finding of the lower court that is assailed in this appeal. 7. Learned counsel appearing for the appellants pointed out that the court below was not justified in holding that the suit is bad for want of leave under Section 92 C.P.C. Learned counsel did not dispute that the Church is a public trust, but went on to point out that the allegations and the relief sought for in the plaint did not fall within the ambit of Section 92 and therefore the court below was not justified in holding that just because the Church is a public trust, Section 92 is attracted. It is not enough, according to learned counsel that the body involved in the litigation is a public trust. But it must further be shown that the relief sought for in the plaint falls withing the four corners of Section 92 or in other words any one of the reliefs made mention of in Section 92. Learned counsel pointed out that after the decision reported in **P.M.A. Metropolitan v. Moran Mar Marthoma** (AIR 1995 SC 2001) the defendants cannot be heard to say that the Church in question is not R.F.A.590/2007. 7 covered by 1934 Constitution and that the said Constitution has been modified by some other means. It is clear from the records, according to learned counsel, that the fourth plaintiff was the duly appointed Vicar of the Church by the acknowledged Metropolitan and plaintiffs 1 and 2 are elected as trustees of the Church in a duly convened meeting of the parishners on 20.4.1997. The defendants cannot be heard to say, according to learned counsel, that the fourth plaintiff is not a Vicar and the Metropolitan who ordained him is incompetent to do so. According to the learned counsel, the defendants, who belong to patriarch faction in the light of the decision in **P.M.A. Metropolitan v. Moran Mar Marthoma (** AIR 1995 SC 2001) cannot be heard to say that plaintiffs 1 and 2 and the fourth plaintiff cannot be at the helm of affairs of the Church. 8. Learned counsel for the appellants also drew the attention of this court to the relief sought for in the plaint and pointed out that the relief is one for declaration which fall outside the ambit of Section 92 of the C.P.C. The R.F.A.590/2007. 8 averments in the plaint only go to show that assistance of the court was sought for only to ensure that the persons who are competent, duly elected and appointed are able to function in their respective offices and the reliefs thus sought for do not fall within the ambit of Section 92. In support of his contention, learned counsel relied on the decisions reported in **S.P. Saraswathi v. Ramji Tripathi** ((1974) 2 SCC 695) and **St.John's Jacobite Syrian Church v. Fr. John Mookamattom** (2005(1) K.L.T. 307). Based on the above decisions, it was contended that it was in fact individual rights that were agitated in the suit and since no public right was asserted or sought to be established, the suit cannot fall within the ambit of Section 92. 9. Countering the above arguments of the learned counsel for the appellants, learned counsel for the respondents, Sri. R.D.Shenoy, contended that though the contention is to the effect that the suit is one vindicative of the private right, on a reading of the plaint, it can be seen that it cannot be so. Both the plaintiffs and the defendants R.F.A.590/2007. 9 have been shown in a representative capacity which means that it is a public right that was being agitated. The claim therefore that it was to vindicate the case of a private right which was established duly in pursuance to the decision reported in **P.M.A. Metropolitan v. Moran Mar Marthoma** (AIR 1995 SC 2001) therefore cannot be countenanced. Merely because a declaration prayer is included, that could not take the suit out of the ambit of Section 92. If on a reading of the plaint, it is revealed that what was agitated is a public right in respect of a public trust and the reliefs sought for infact fall within the ambit of section 92, then the suit has to fail. It is well settled, according to learned counsel that it is not the nature of the allegations or the relief sought for that should determine whether the suit falls within the ambit of Section 92, but what was the purpose and object for which the suit was laid and the intention of the persons who have instituted the suit. If it is shown that under the guise of a declaratory prayer, what was intended was to seek aid of court to R.F.A.590/2007. 10 administer a public right and then infact the relief sought for actually falls within the ambit of section 92, then, merely since a declaratory prayer has been sought for, will not take the suit out of the ambit of Section 92. In support of the said proposition learned counsel relied on the decisions reported in **Vidyodaya Trust v. Mohan Prasad** (2007(1) K.L.T. 538) and **Vidyodaya Trust v. Mohan Prasad** (2008(2) K.L.T. 68). 10. Fortunately, it is not in dispute that the Church in question is a public trust. The contention of the plaintiff appears to be that what is being agitated in the suit is a private right and no public right is involved. They would try to point out that it was only permitting the lawfully elected trustees and Vicar to function in accordance with the 1934 Constitution, which has been adopted by the Church and further relief is only to restrain the defendants from interfering with the fourth plaintiff acting as Vicar and the first and second plaintiffs managing the affairs of the Church. The tone of the argument seems to be that the R.F.A.590/2007. 11 reliefs as such do not contemplate the ones made mention of Section 92 and it is the vindication of a private right which is agitated in the suit. 11. On the other hand, what is contended by the defendants is that under the guise of the present suit, what is sought to be achieved is removal of one of the trustees as the defendants have specifically contended that the present Vicar is not the fourth plaintiff but somebody else. Learned counsel contended that in fact what is sought to be gained is removal of a trustee, vesting of property in a trustee and also seeking orders of the court for the administration of the church. According to them, the suit squarely falls within the ambit of section 92 and therefore the court below was justified in holding that the suit is bad for want of leave under Section 92. 12. It will be useful to refer to Section 92. It reads as follows: _“92. Public charities.- (1) In the case of any alleged breach of any express or constructive_ R.F.A.590/2007. 12 _trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more person having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subjectmatter of the trust is situate to obtain a decree-_ _(a) removing any trustee;_ _(b) appointing a new trustee;_ _(c) vesting any property in a trustee;_ _(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;_ _(d) directing accounts and inquiries;_ _(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;_ R.F.A.590/2007. 13 _(f) authorizing the while or any part of the trust property to be let, sold, mortgaged or exchanged;_ _(g) settling a scheme; or_ _(h) granting such further or other relief as the nature of the case may require._ _(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any corresponding law in force in the territories which, immediately before the 1[st] November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section._ _(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied Cypres in one or more of the following circumstances, namely:-_ _(a) where the original purposes of the trust, in whole or in part,-_ _(i) have been, as far a may be, fulfilled; or_ R.F.A.590/2007. 14 _(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or_ _(b) where the original purpose of the trust provide a use for a part only of the property available by virtue of the trust; or_ _(c) where the property available by virtue of the trust of other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or_ _(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or_ _(e) where the original purposes, in whole or in part, have, since they were laid down,-_ _(i) been adequately provided for by other means, or_ _(ii) ceased, as being useless or harmful to the community, or_ R.F.A.590/2007. 15 _(iii) ceased to be, in law, charitable, or_ _(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.”_ 13. In order to attract Section 92, the following conditions must be satisfied: _“(a) There is a trust created for public purposes of a charitable or generous nature;_ _(b) There is a breach alleged of such trust, or the direction of the Court is necessary for the administration of such trust;_ _(c) The suit must be a representative one on behalf of the public and is not by individuals for their own interest; and_ _(d) the relief claimed in the suit is the one or other reliefs mentioned in the section.”_ 14. As already noticed, condition No.(a) is satisfied in the case and since the suit is in a representative capacity condition No.(c) is also satisfied. R.F.A.590/2007. 16 15. In the decisions relied on by the learned counsel for the appellant, namely, **Swami Paramatmanand Saraswati v. Ramji Tripathi** ((1974) 2 SCC 695), it was held as follows: _“A suit under Section 92 is a suit of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are_ R.F.A.590/2007. 17 _interested, then the suit should be outside the scope of Section 92. ...... A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the relies specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92.”_ R.F.A.590/2007. 18 16. In the decision reported in **St. John's Jacobite Syrian Church v. Fr. John Moolamattom** (2005 ## (1) K.L.T. 307) it was held as follows: _“In G.Koshy's case, this court held that for S.92 to apply all the three conditions enumerated under S.2(1) must co-exist; or religious nature; there must be an allegation of breach of trust or the direction of the court should be deemed necessary for the administration of such trust, and the suit should have a prayer for anyone of the reliefs mentioned in sub-cls.(a) to (h) in Cl.(1) of S.92. On a perusal of the above decisions, and considering the plaint allegations and relief sought for, the following conclusions are reached:_ _1. That the first defendant is a public trust, but there is no allegation of any breach o trust, or any direction of the court is deemed necessary for the administration of the trust,_ _2. That the suit does not contain a prayer for any of the reliefs mentioned in sub-clauses (a) to (h) of Cl.(1) of S.92.”_ R.F.A.590/2007. 19 17. One can have no quarrel with the above propositions. But it must be noticed that the decision in **Swami Paramatmanand Saraswati's case** was rendered after the evidence was adduced. There can also be no dispute regarding the fact that if as a matter of fact what is sought for is only a declaration of the personal rights, then the suit though relates to a public trust, it will not fall within the ambit of section 92. However, it needs to be noticed that in paragraph 11 of the judgment, it is observed that it is the object and purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of third persons. 18. In the decision reported in **St. John's Jacobite Syrian Church v. Fr. John Moolamattom** (2005 (1) K.L.T. 307) it was found on facts that none of the reliefs sought for fall within the ambit of section 92. It could be seen from a reading of the decision that the appellants in the said case sought the aid of section 92(1)(h). Construing the said provisions and going by the facts of the said case, it R.F.A.590/2007. 20 could not be said that the reliefs sought for in the said suit fall within the ambit of Section 92. 19. In the decision reported in **Vidyodaya Trust** **v. Mohan Prasad** (2008(2)K.L.T. 68), it was held as follows: _“As was observed by this Court in Swamy Paramatmanand's case, (supra) to gauge whether the suit was for vindicating public rights, the public has to go beyond the relief and to focus on the purpose for which the suit is filed. To put it differently, it is the object or the purpose for filing the suit and not essentially the relief which is of paramount importance. There cannot be any hard and fast rule to find out whether the purpose of the suit was vindicating public right or the object was vindication of some personal rights. For this purpose the focus has to be on personal grievances.”_ 20. A reading of the above decisions would make it clear that it is not merely the nature or the nomenclature of the reliefs that are to be looked into, but the object and the purpose of the suit as well as the consequences of R.F.A.590/2007. 21 granting the relief sought for that will determine whether a suit falls within the ambit of Section 92. 21. As already noticed, the suit has been laid in a representative capacity. The plaintiffs represent Catholicos faction and the defendants represent patriarch faction. There can be no dispute regarding the fact that the Church is governed by the 1934 constitution and the affairs of the Church will have to be carried out in the light of the decision reported in **P.M.A. Metropolitan's case** . The defendants also lay claim that the Vicar projected by them is appointed by a duly authorised authority and they disputed the status of plaintiffs 1 and 2 and the fourth plaintiff. One may now have a look at the reliefs sought for in the plaint. It reads as follows: _“The plaintiffs therefore pray for a decree declaring that Fr. N.D.Daniel is the lawful vicar of the Church, that the Managing Committee headed by the said Vicar is the committee entitled in law to administer the St.Mary's Orthodox Syrian Church and for a consequential injunction_ R.F.A.590/2007. 22 _restraining the defendants and their supporters from interfering in any manner with the administration of the plaint church by the said Vicar and the committee headed by him.”_ 22. A plain reading of the plaint leaves one in no doubt that the status of the Vicar has to be determined _vis-a-vis_ the claim made by the defendants and further it would also indicate that the relief would include that the Managing Committee headed by the Vicar has to manage the affairs of the Church. As already noticed, condition Nos. 2 and 3 stand satisfied. On taking a just and fair view, it would appear that what is intended to be achieved is removing a trustee and vesting of property in a trustee. It appears to be so because the defendants have a case that the fourth plaintiff cannot be treated as the duly appointed vicar and infact they have projected some other person as the vicar. 23. The trial court has adverted to these aspects in considerable detail. It appears that before the trial court R.F.A.590/2007. 23 both the nature of the trust as well as the relief sought for were agitated. As already noticed, before this court it is not in dispute that the Church is a public trust. The court below on a consideration of the plaint has come to the conclusion that there are allegations of breach of trust and direction of the court are sought for the administration of the affairs of the Church. The lower court has also noticed that the claim of plaintiffs 1 and 2 is that they are the parishners as well as the trustees of the church and the fourth plaintiff is the Vicar which are opposed by the defendants. As rightly noticed by the lower court, the suit is laid in a representative capacity, it could not be said that the suit is one for agitating private rights of the plaintiffs in their capacity as parishners of the church. The lower court has also observed that the plaint claims amount to preventing breach of trust and may also include a direction for the administration of the Church. 24. Even though the lower court might have erred in observing that prayers similar to the one for framing R.F.A.590/2007. 24 a scheme is sought for, it is certainly justified in coming to the conclusion that the nature of the reliefs are such that the direction is sought for the administration of the trust. 25. The view taken by the lower court appears to be just and reasonable. It is not shown to be perverse at all. If that be so, the view taken by the lower court that the suit is bad for want of leave under Section 92 is fully justified. This appeal is without any merits and it is accordingly dismissed. Parties will suffer their respective costs. **P. BHAVADASAN, JUDGE** sb.