St. Mary's Orthodox Syrian (Jacobite) Church, Mullaringad, v. George Palouse and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941** ## **RFA.No.135 OF 2019** **AGAINST THE DECREE AND JUDGMENT IN OS 1/2008 DATED 28-02-2019 OF I ADDITIONAL DISTRICT COURT, ERNAKULAM** ## **APPELLANTS/DEFENDANTS:** - **1 ST.MARY'S ORTHODOX SYRIAN (JACOBITE) CHURCH, MULLARINGAD, VANNAPPURAM VILLAGE, REPRESENTED BY ITS TRUSTEE, ST.MARY'S ORTHODOX SYRIAN (JACOBITE) CHURCH, MULLARINGAD, VANNAPPURAM VILLAGE, THODUPUZHA TALUK** - **2 FR.KURIAKOSE PUTHUSSERIL, AGED 49 YEARS, PRIEST, PUTHUSSERIL HOUSE, KARIMATTOM KARA, MUVATTUPUZHA, ERNAKULAM DISTRICT.** - **3 VARGHESE PARAYIL, AGED 57, S/O.KURIAKOSE, PARAYIL HOUSE, CHULLIKANDAM KARA, OONNUKAL P.O., KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** - **4 ELDHOSE, AGED 42 YEARS, S/O.VARKEY, MANGATTU HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **5 ELDHOSE NOONOOTTIL, AGED 44 YEARS, S/O.MATHAI, NOONOOTTIL HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **6 FR.K.P.ABRAHAM, AGED 44 YEARS, S/O.PAILY, KICHARIKUNNATH HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **7 GEORGE, AGED 57 YEARS, S/O.VARGHESE, CHRISITIAN, PRIEST, KICHARIKUNNATH HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **8 YELDHOSE, AGED 35 YEARS, S/O.CHERIAN, NAMBANANIYIL HOUSE, KICHARIKUNNATH** **RFA.No.135 OF 2019 2** ## **HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **9 SAJI PAULOSE, AGED 41 YEARS, S/O.PAULOSE, NOONUTTIL HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **10 JOY MATHEW, AGED 57,** **S/O.MATHAI, PUTHUSSERIYIL HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.K.J.KURIACHAN** ## **RESPONDENTS/PLAINTIFFS:** - **1 GEORGE PAULOSE, S/O.PAULOSE, AGED 52, RESIDING AT KIZHAKKEKKARA HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE.** - **2 MATHAI @ M.M.BINOY, S/O.MARKOSE, AGED 49, MADATHIKUDIYIL HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **3 M.P.RAJESH @ RAJESH PAILY, S/O.PAILY, AGED 46, MANNARAPRAYIL HOUSE, MULLARINGAD KARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT NOW RESIDING AT 18/677, MANNARAPRAYIL HOUSE, ORAVATHUR, KORANCHIRA P.O., KIZHAKKANCHERY, PALAKKAD DISTRICT, PIN- 678 684, NOW AT ERNAKULAM.** **4 FR.THOMAS PAUL MARACHERIL, S/O.PAULOSE, AGED 36, RESIDING AT MARACHERIL HOUSE, KOTHAMANGALAM. R1, R4 BY ADV. SRI.S.SREEKUMAR (SR.) R1, R4 BY ADV. SRI.P.MARTIN JOSE R1, R4 BY ADV. SRI.P.PRIJITH R1, R4 BY ADV. SRI.THOMAS P.KURUVILLA R2-3 BY ADV. SRI.C.A.NAVAS R2-3 BY ADV. SRI.K.I.SAGEER R2-3 BY ADV. SMT.PRAISHEEL PRAKASAM R4 BY ADV. SRI.AJAY BEN JOSE R4 BY ADV. SRI.MANJUNATH MENON R4 BY ADV. SMT.HANI P.NAIR R4 BY ADV. SRI.R.GITHESH R4 BY ADV. SHRI.HARIKRISHNAN S.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RFA.No.135 OF 2019 3** ## **JUDGMENT** The defendants in O.S.No.1/2008 on the files of the District Court, Ernakulam are the appellants herein. According to them, the judgment and decree of the District Court declaring the 1[st] appellant/1[st] defendant-Church to be a constituent of the Malankara Orthodox Syrian Church (hereinafter referred to as 'the Malankara Church' for short) is in error; and therefore, that the further declarations therein- that the said Church is liable to be governed by the 1934 Constitution of the Malankara Church-is untenable and thus, liable to be interfered by this Court. 2. I have heard Sri.K.J.Kuriachan, learned counsel appearing for the appellant; Sri.S.Sreekumar, learned Senior Counsel instructed by Sri.Martin Jose, learned counsel appearing for respondents 1 and 4 and Sri.C.A.Navas, learned counsel appearing for respondents 2 and 3. ## **RFA.No.135 OF 2019 4** 3. Even though Sri.K.J.Kuriachan, learned counsel for the appellant, asserts that the 1[st] appellant-Church is not a constituent of the Malankara Church and that it is, therefore, not liable to be governed by the 1934 Constitution, the written statement filed by them before the Trial Court, which has been extracted in the impugned judgment, would belay this contention. The specific averments of the appellants before the Trial Court is available in paragraph 3 of the impugned judgment, which is extracted as below for ease of reference: “It is incorrect to say that the defendant church is a parish church coming under the Malankara Sabha. The church is a parish church under the Angamaly Diocese of Jacobite Syrian Church. Its Parishioners believe in the spiritual supremacy of the Patriarch of Antioch and accept only those religious dignitaries who are loyal to him. The Church was established by the people of locality in the year 1942 for the conduct of religious services in accordance with the fundamental faith of Jacobite christians. The church and its parishioners believe that the spiritual grace emnating from the Patriarch of Antioch seated at the Throne of St.Peter. The religious dignitaries under the 1934 Constitution are not loyal and obedient tot he Patriarch and therefore, they are not ## **RFA.No.135 OF 2019 5** acceptable to the parishioners. The defendant church is represented by two trustees elected as per its own constitution adopted and approved on 27.03.1994 which is in consonance with the basic faith stated above. The church is situated in an extent of 1 acre donated by Vattakkavil family for conduct of religious services in accordance with the Jacobite Syrian faith. The Church was consecrated by H.G.Thomas Mar Dionysious on 10.02.1999 with the participation and involvement of other Metropolitans of Jacobite church. In the PMA Metropolitans case, the Apex Court has not decided the rights of individual parish churches. It is incorrect to say that defendant church is liable to be managed and administered under the 1934 Constitution of Malankara Sabha. The plaintiff who was deviated from the approved faith, canon and custom of the church is not entitled to be a parishioner of it. The plaintiff was expelled from the membership of the Parish in compliance with the procedure under the 1994 Constitution of the church. Since the plaintiff has been expelled from the church membership, he is not entitled to receive any holy sacraments or benefits from the church. In the light of the same, the reliefs prayed by the plaintiff cannot be allowed.” 4. As is ineluctable from the afore averments, the appellant/defendant unequivocally concede that the 1[st] appellant-Church was established in the year 1942 and that they affirm the spiritual grace emanating from the Patriarch of Antioch, to be their driving faith. They further say that the religious dignitaries under the 1934 Constitution, being not loyal ## **RFA.No.135 OF 2019 6** and obedient to the Patriarch, are not acceptable to them and therefore, that they adopted a new Constitution for themselves on 27.03.1994, which, according to them, is in consonance with their basic faith. Therefore, it is indisputable that the Church in question was consecrated as early as in the year 1942 and was certainly a part of the Malankara Church, but the appellant maintains that since the 'religious dignitaries' did not abide by the grace of the Patriarch of Antioch, they decided not to follow the 1934 Constitution but to adopt a new Constitution in the year 1994. . 5. It is inevitable from the afore averments that the appellants cannot maintain these contentions any further, since the Hon'ble Supreme Court has, in _**K.S.Varghese and Others v. St.Peter's and St.Paul's Syrian Orthodox and Others [2017**_ _**(3) KLT 261 SC],**_ declared the law affirmatively that every constituent church ## **RFA.No.135 OF 2019 7** of the Malankara Orthodox Syrian Church will have to be governed only by its 1934 constitution and not by any other constitution or byelaws. Since the Church in question, namely the 1[st] appellant, is certainly a church which is a constituent to the Malankara Church, going by _**K.S.Varghese (Supra)**_ it can only be governed and managed under the 1934 Constitution. 6. That said, Shri.C.A.Navas, learned counsel appearing for respondents 2 and 3, raises a technical objection in entertaining this appeal by saying that his clients, who are plaintiffs 2 and 3 before the Trial Court, had withdrawn from the suit, but were neither transposed as respondents not deleted from the party array. He says that, however, his clients have been arrayed as respondents 2 and 3 in this appeal and thus contends that the Trial Court could not have decreed the suit in the matter it has now done. ## **RFA.No.135 OF 2019 8** 7. In response to the above, Shri.S.Sreekumar, learned Senior Counsel appearing for the respondents 1 and 4, submits that the afore contentions of Shri.C.A.Navas and that of Shri.C.J.Kuriachan are wholly untenable after the declaration of law by the Hon'ble Supreme Court in _**K.S.Varghese (Supra).**_ He says that the fact of the church being a constituent of the Malankara Orthodox Syrian Church being expressly conceded in the pleadings and evidence, it can only be governed by the 1934 Constitution; and consequently that even if respondents 2 & 3/plaintiff Nos.2 and 3 had withdrawn from the suit, it would make no consequence because the declaration by the Hon'ble Supreme Court operates under Article 141 of the Constitution of India. He adds to the above by saying that the Trial Court has only decreed the suit making it clear that the 1[st] appellant-church will be governed by ## **RFA.No.135 OF 2019 9** the 1934 Constitution and that the 4[th] respondent herein/4[th] plaintiff, being the Vicar appointed under the said Constitution, will be entitled to lead the religious services therein. He says that, therefore, the issues raised in this appeal are now irrelevant and cannot be considered by this Court, consequent to the above judgments of the Hon'ble Supreme Court. 8. I find substantial force in the submissions of the learned Senior Counsel, Shri.S.Sreekumar, as recorded above. This is because, after _**K.S.Varghese**_ **(Supra),** it is beyond doubt that all constituent churches of the Malankara Church can be governed by the 1934 Constitution. Even though Shri.K.J.Kuriachan makes a valiant effort in trying to impress upon me that the 1[st] appellant Church is an independent one and not a constituent of the Malankara Church the afore extracted averments in the written statement clearly speaks to the contrary. ## **RFA.No.135 OF 2019 10** 9. Pertinently, the written statement of the appellants before Trial Court appears to have been settled and filed before the Hon'ble Supreme Court delivered judgment in _**K.S.Varghese**_ **(Supra)** and obviously, therefore, they were under the impression that the individual churches are to be governed as per the wishes of the parishioners, being guided by the earlier views of the Supreme Court in ## _**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].**_ However, once this issue has been answered against them in _**K.S.Varghese**_ **(Supra)** affirmatively by the Hon'ble Supreme Court, it cannot be now heard from them that the church is no longer a constituent of the Malankara Church or that it cannot be governed by the 1934 Constitution. 10. In the afore perspective, the ## **RFA.No.135 OF 2019 11** submissions of Shri.C.A.Navas, pale into insignificance because, even if the respondents 2 & 3/plaintiffs 2 & 3 has withdrawn from the suit, the Trial Court was justified in decreeing it in the manner it has done following _**K.S.Varghese**_ **(Supra).** In the afore circumstances, since I find no reason to interfere with the judgment and decree in question, I dismiss this appeal and confirm the same; however, without making any order as to costs, taking note of the peculiar circumstances involved herein. It is so ordered. After I dictated this judgment, Shri.S.Sreekumar, learned Senior Counsel, brought to my notice that an interim order had been issued by this Court on the 4[th] of November, 2019, in I.A.No.8 of 2019, wherein the appellants have been injuncted from removing any articles from the 1[st] appellant-Church or from widening the ## **RFA.No.135 OF 2019 12** pathway in the plaint schedule property. He prayed that this order be confirmed, so that his clients will be in a position to obtain the full fruits of the decree. I notice that the interim injunction granted by this Court in I.A.No.8 of 2019 is to the following effect: “ An order of temporary injunction is granted against the respondents / appellants from demolishing the church building, removing any articles from the 1[st] respondent Church and from widening the pathway already formed in the plaint schedule property and from using or taking any vehicles through the said pathway and from committing any act of waste in the plaint schedule properties for a period of one week from 04.11.2019.” **==> picture [335 x 10] intentionally omitted <==** been extended from time to time and that it is still in force. Obviously, therefore, I am of the view that since the administration of the 1[st] appellant-Church can be done only as per the provisions of 1934 Constitution of the Malankara Church any further action with respect to the issues touched upon in the afore order will also have to be decided by the persons in charge of the Church under ## **RFA.No.135 OF 2019 13** the sanction of the said constitution and in no other manner. The afore interim order is, therefore, confirmed. At this time, Shri.K.J.Kuriachan, learned counsel for the appellants, interjected to say that even if the 1934 Constitution is to be applied to the Church, his clients' rights as a parishioners under it, including to participate and take part in the elections, cannot be impeded by the respondents 1 and 4. This certainly is something which is undisputed and I do not think it requires any specific clarification to such effect from this Court; and I, therefore, leave open all such rights to the appellants, to be pursued by them as and when the situation arises. ## **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** ## **RR/MC**