St. Mary's Chapel, Thammanimattom and N.M. Paily v. M.I. Babu, P.V. Varghese and Fr. Alias K.V. (RFA No. 131 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** **RFA.No.131 OF 2011** **AGAINST THE JUDGMENT IN OS 27/2001 DATED 14-02-2011 OF I ADDITIONAL DISTRICT COURT,ERNAKULAM** ## **APPELLANTS/DEFENDANTS 1 AND 2:** - **1 ST. MARY'S CHAPEL, THAMMANIMATTOM, THAMMANIMATTOM, AIKKARANADU SOUTH VILLAGE,, KUNNATHUNADU TALUK, REPRESENTED BY ITS TRUSTEE.** - **2 N.M.PAILY, NADUVILAMANADIL HOUSE THAMMANIMATTOM, AIKKARANADU SOUTH VILLAGE,, KUNNATHUNADU TALUK.** - ***3. FR.ALIAS VARGHESE, MARIYIL, S/O LATE VARGHESE, MARIYIL, CHENGARA,, PATTIMATTOM, VICAR, ST.MARY'S CHAPEL, THAMMANIMATTOM, DO.DO.DO** **(ADDITIONAL 3RD APPELLANT IS IMPLEADED AS PER ORDER IN I.A.NO.1509/2014 DATED 12.03.2020)** **BY ADVS. SRI.N.SUKUMARAN (SR.) SRI.BOBBY MATHEW KOOTHATTUKULAM SRI.S.SHYAM SRI.SAJI VARGHESE KAKKATTUMATTATHIL** ## **RESPONDENTS/PLAINTIFFS 1 TO 3 AND 3RD DEFENDANT:** - **1 M.I. BABU, S/O ISSAC, MANADIYIL HOUSE, THAMMANIMATTOM, AIKKARANADU SOUTH VILLAGE,, KUNNATHUNADU TALUK - 686663.** **2 P.V.VARGHESE, S/O VARKEY, PAZHAMTHANATHU, THAMMANIMATTOM,, AIKKARANADU SOUTH VILLAGE,, KUNNATHUNADU TALUK – 686663.** RFA 131/11 2 **3 FR.ALIAS K.V., S/O VARGHESE KUTTIPARICHEL HOUSE, KINGINIMATTOM KARA,, AIKKARANADU SOUTH VILLAGE,, KUNNATHUNADU TALUK - 686663.** **4 FR.PAULOSE VATTAVELIL, VATTAVELIL KIZHUMURI KARA, MUVATTUPUZHA – 686663. (DELETED AS PER ORDER IN I.A.NO.1509/2014 DATED 12.03.2020)** **R1-3 BY ADV. SRI.P.MARTIN JOSE R1 BY ADV. SRI.S.SREEKUMAR (SR) R1-3 BY ADV. SRI.P.PRIJITH R1-3 BY ADV. SRI.THOMAS P.KURUVILLA R1-3 BY ADV. SRI.MANJUNATH MENON R1-3 BY ADV. SRI.AJAY BEN JOSE R1-3 BY ADV. SRI.R.GITHESH R1-3 BY ADV. SMT.HANI P.NAIR R1-3 BY ADV. SHRI.HARIKRISHNAN S. R2-3 BY ADV. SRI.S.SREEKUMAR (SR.)** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA 131/11 3 ## **JUDGMENT** The first and second defendants in O.S.No.27/2001, on the files of the Additional District Court, Ernakulam, have filed this appeal impugning the judgment and decree of the said Court, as per which, it has declared that the 3[rd] respondent/3[rd] plaintiff is the vicar appointed under the 1934 Constitution of the Malankara Orthodox Syrian Church (hereinafter referred to as 'the Malankara Church' for short); and that only he or such other vicar/vicars appointed by the Diocesan Metropolitan of Kandanadu Diocese East, in accordance with the said Constitution, can perform the religious rites in the Chapel in question, namely the 1[st] appellant-St.Mary's Chapel, Thammanimattom. 2. The appellants assert that the Chapel involved in this case is not a Church; and, therefore, that it is not a constituent of the RFA 131/11 4 Malankara Church liable to be governed by its 1934 Constitution. They contend that, however, the Trial Court did not consider this aspect at all, but went on to decree the suit as prayed for, without even considering the materials and evidence on record which clearly demonstrates to the contrary. 3. In addition to the afore, Sri.N.Sukumaran, learned Senior Counsel instructed by Sri.S.Shyam, learned counsel for the appellants, submitted that, as is clear from Ext.A8 title document, the Chapel in question was consecrated in the year 1994 as a separate and individual Church by a group of parishioners who owed allegiance to the Patriarch of Antioch, but who were not part of the Malankara Church. He says that the covenants in Ext.A8 sale deed would clearly establish this because, as is manifest therefrom, the acquisition of land had been made in RFA 131/11 5 favour of the 'Malankara Yacobaya Suriyani Orthodox Sabha' which, he asserts, is not a part or constituent of the Malankara Church, but a completely different entity. The learned Senior Counsel, therefore, says that the assumption of the Trial Court that the Chapel in question is a Church and that it is a constituent of the Malankara Church cannot sustain to reason and thus prays that this appeal be allowed. 4. In response to the afore submissions, Sri.S.Sreekumar, learned Senior Counsel, instructed by Sri.Martin Jose, learned counsel appearing for the respondents/plaintiffs, submits that the afore contention of the appellants cannot hold water when one goes through Exts.B1 and B2 - which are the gift deed with respect to another property gifted to the Chapel and the minutes of the meeting of the General Body of the members of the RFA 131/11 6 Chapel respectively - which would ineluctably show that the Chapel is a constituent of the Malankara Church and that the appellants owe allegiance to the Patriarch of Antioch, being its primate. The learned Senior Counsel points out that, as is evidenced from Ext.B2 minutes of the meeting, the parishioners appear to have taken a resolution to adopt the 2002 Constitution of the break-away fraction of the Malankara Church and then asserts that, going by the judgment of the Hon'ble Supreme Court in **K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and Others [2017 (3)** **KLT 261 SC]** , the said Constitution has no validity and the Chapel can, therefore, only be governed under the 1934 Constitution. He thus prays that this appeal be dismissed. 5. I have considered the afore submissions and have also examined the pleadings and evidence available on record. RFA 131/11 7 6. It is without doubt that the specific assertion of the appellants is that the Chapel in question is not a Church and that it is consecrated by the aforementioned 'Malankara Yacobaya Suriyani Orthodox Sabha', which is not a part of the Malankara Church. However, as rightly pointed out by Sri.S.Sreekumar, learned Senior Counsel, the statements in Ext.B2 minutes of the General Body of the members of the 1[st] appellant Chapel would demonstrate without doubt that they had adopted the 2002 Constitution in the said meeting, affirming themselves to be a breakaway fraction from the Malankara Church, owing final allegiance to the Patriarch of Antioch. This is further affirmed by the fact that in Ext.B1 gift deed the beneficiary-Chapel has been shown to be a part of the Malankara Church and the officers mentioned therein are undoubtedly owing allegiance to the Patriarch RFA 131/11 8 of Antioch, though being in dissonance with the 'Orthodox fraction' of the Malankara Church. In fact, on a close look through Ext.A8, it is rendered indubitable that even the persons mentioned therein were originally part of the Malankara Church but who subsequently decided to break away and constitute a separate fraction adopting a new constitution for themselves in the year 2002. 7. The afore narration draws me to the declaration of law by the Hon'ble Supreme Court in **K.S.Varghese** (supra) - in particular those contained in paragraphs 164 and 171 thereof wherein their Lordships have luculently declared that the 2002 Constitution obtains no legal validity and that the Churches which are constituents of the Malankara Church can be governed only under its 1934 Constitution. Obviously, therefore, the statement in Ext.B2 would clearly show RFA 131/11 9 that the faction in question decided to adopt the 2002 Constitution, so as to to move away from the rigour of the 1934 Constitution; but going by the affirmative declaration in **K.S.Varghese** (supra), this can only mean that they continue to be with the Malankara Church governed by the 1934 Constitution, with the 2002 Constitution being rendered otiose. 8. That said, I am also fully cognizant of the submissions of Sri.M.Sukumaran, learned Senior Counsel, that the 1[st] defendant is only a Chapel and not a Church and therefore, that it cannot be a part of the Malankara Church. I am afraid that I cannot accede to this contention because, going by the semantic meaning of the word Chapel, it is a place of religious worship attached to a larger Church and a Chapel generally does not stand alone, but only in conjunction with a Church or a larger congregation. RFA 131/11 10 9. In the case at hand, it is without doubt that even though the 1[st] defendant is called a Chapel, there is a vicar appointed to it and that full religious rites are admittedly being performed therein; and therefore, merely because it is called a 'Chapel', it certainly has all the attributes of a Church, even if it is not attached to another Church, as is normally in the case of a Chapel. Therefore, merely because it is called a Chapel, it will be difficult to accede to the contention that it should not be treated as a Church and therefore, not part of the Malankara Church; and I, consequently, repel these contentions as being without any merit, particularly in view of the specific admissions made by the appellants in the written statement to which I will refer presently. 10. The records show that the appellants RFA 131/11 11 filed a written statement urging a contention that the 1[st] appellant is not a Parish Church but a Chapel and then went on to aver as under: The defendants 1 to 3 filed written statement raising the following contentions. The first defendant is not a parish church but it is a Chapel. The first defendant has associated to the Jacobite Syrian Christian Association by unanimous decision taken in its duly constituted general body meeting on 16.02.2002. The previous meeting held on 13.05.2001 expressed their faith in the spiritual and religious authority of the then His Grace Thomas Mar Dionysus Metropolitan and others functioning under the spiritual Headship of His Holiness the Patriarch of Antioch and All the East. His Grace Kuriakose Mar Discorus Metropolitan of Jacobite Syrian Christian Church issued kalpana No.61/03 appointing Rev.Fr.Paul Kassessa, Padinjareyil as vicar and Fr.Joy Paul, Manayath as assistant Vicar. Being a Chapel associated with Jacobite Syrian Christian Association, the 3[rd] plaintiff has no status with respect to the first defendant. 11. The afore averments in the written statement makes it very clear that the appellants express their unequivocal faith in RFA 131/11 12 the authority of His Grace Thomas Mar Dionysus Metropolitan and others functioning under the spiritual headship of the Patriarch of Antioch. These assertions render it certain that they are part of the Malankara Church, since the 1934 Constitution begins by declaring the Patriarch of Antioch as being its Primate and its ultimate spiritual head. Therefore, the contentions now raised in this appeal are virtually antagonistic to the averments in the written statement and can only be thus seen to be a way adopted by the appellants to get over the declarations of law by the Hon'ble Supreme Court in **K.S.Varghese** (supra). Ineluctably, this Court cannot countenance this and can only repel it as being without having any sanction in law. 12. In the afore circumstances and since I notice that the impugned judgment and decree of the Trial Court has been issued strictly in RFA 131/11 13 accordance with the declarations of the Hon'ble Supreme Court in **P.M.A. Metropolitan** **v. Moran Mar Marthoma [AIR 1995 SC 2001]** and in **K.S.Varghese** (supra), I have no hesitation in dismissing this appeal; however, without making any order as to costs in view of the singular facts and circumstances noticed herein. Resultantly, this appeal will stand dismissed; however, without any order as to costs and thus directing the parties to suffer their respective costs. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE**