St. Peter's Orthodox Syrian Church, Puthencruz and others v. Fr. Abraham Mathews and others (Review Petition No. 805 of 2011 in A.S. No. 136 of 2001)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 RP.No. 805 of 2011() -------------------AGAINST THE JUDGEMENT/ORDER IN AS.136/2001 .................... REVIEW PETITIONER(S): APPELLANTS -------------------------------- 1. THE ST.PETER'S ORTHODOX SYRIAN CHURCH, PUTHENCRUZ, REPRESENTED BY THE 2ND PLAINTIFF THE VICAR OF THE CHURCH. 2. ITTAN PILLAI, KUNNETH HOUSE, PUTHENCRUZ, CHEMMANADU VILLAGE (DIED). 3. KURIAKOSE, KUZHIVELI, PUTHUMMANNOOR KARA, CHEMMANADU VILLAGE. 4. ABRAHAM KATHANAR, VALAYIL HOUSE, AIKKARANADU SOUTH VILLAGE, NOW VICAR REPRESENTING THE IST PLAINTIFF CHURCH VIZ., ST.PETER'S ORTHODOX SYRIAN CHURCH, PUTHENCRUZ. BY ADVs. M/S. BIJU ABRAHAM & B.G.BHASKAR RESPONDENT(S): - --------------- 1. FR.ABRAHAM MATHEWS, CHENAKOTTIL, VARIKOLI KARA, PUTHENCRUZ-682308. RP.No. 805 of 2011() -2- 2. THOMAS DIONYSIUS METROPOLITAN, VALIYAPALLI CHURCH, KOTHAMANGALAM-686691. ## 3. DEACON C.K.SAJU, CHERUVATHILVADYAMPADI KARA, AIKKARANADU VILLAGE, VADAYAMPADI P.O., PIN-682308. 4. DEACON ELIAS, ERMATTUR VEEDU, VADAYAMPADI KARA, AIKKARANADU VILLAGE, VADAYAMPADI P.O., PIN-682308. 5. DEACON THOMAS, KANNETH VEEDU, VADAYAMPADI KARA, AIKKARANADU VILLAGE, VADAYAMPADI P.O., PIN-682308. 6. T.K.GEORGE, THELAKKATTU, PUTHENCRUZ P.O., (DIED), PIN-682308. 7. K.T.MATHAI, KUNNAPPILLY, PUTHENCRUZ P.O., PIN-682308. ADV. SRI.P.J.PHILIP THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22/11/2011, THE COURT ON 29-11-2011 PASSED THE FOLLOWING: ## V. RAMKUMAR & ## P.Q. BQRKATH ALI, J J. ........................................................ Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 ......................................................... Dated: 29-11-2011 ## ORDER The petitioners herein who were the appellants in the above appeal seek a review of the Judgment dated 11-10-2011 passed in the above appeal. As per the judgment this Court had dismissed the petitioners' appeal confirming the judgment and decree passed by the “church court” (trial court) holding that the first plaintiff church namely, St. Peter's Orthodox Syrian Church, Puthencruz is a public religious trust and that the suit filed without complying with the formalities under Sec. 92 C.P.C. and before a Court not authorised in that behalf, was not maintainable. 2. We heard Advocate Sri. B.G. Bhaskar appearing for the review petitioners. He made the following submissions before us in Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:2:- support of the review:- The impugned judgment does not say who are the beneficiaries of the alleged public trust. The trial court had disposed of the suit without taking evidence. If the parties were allowed to adduce evidence, then the question as to who are the real beneficiaries could have been decided. For that purpose this Court should have remanded the case to the trial Court. If the entire Malankara Orthodox Syrian Christians are to be treated as the beneficiaries, as has been attempted to be done in the Judgment, then there is no need for parish churches. There are more than 1400 parish churches under the Malankara Association . All parish churches are believed to have been established by Saint Thomas and both the Orthodox group and the Patriarch group are followers of Saint Thomas. While the entire Malankara Orthodox Syrian Christians of the world may be entitled, as of right, to worship in each and every parish church, the privilege of holy sacraments and services and the right to vote in every parish church is available only to the parishioners and not to the christians outside the parish. It was in this context that the petitioners who belong to the orthodox faction Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:3:- contended that from the Parish Register maintained in the parish church the total number of parishioners is ascertainable and, therefore, applying the litmus test laid down in AIR 1957 SC 133 the church was only a private trust. The concept of membership and the fact that a handful of members could sell away the properties etc. which are anathema to a public trust, were not properly assimilated by this Court. Instead of Tudor on charities, it was Levin on Trusts as adverted to in AIR 1952 TC 323 which was relevant for deciding the question. The Orthodox group which is presently called the Malankara Sabha does not admit of any right in the Patriarch of Antioch to create Bishops or allot dioceses. According to this group the only privilege of the Patriarch under the 1934 Constitution is to be invited at the meeting when a new Catholicos is to be consecrated and if in pursuance of such invitation the Patriarch arrives he shall preside over the meeting as indicated by Sec. 114 of the 1934 Constitution. In sharp contrast, the Patriarch group which is presently called the Jacobite Sabha, concede a right in the Patriarch also to create Bishops and allot dioceses. The Dionisius group of the Patriarch faction declared in the year 2002 that they Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:4:- will not abide by the 1934 Constitution. With that, they have forfeited their rights over the Parish Church. In 1962 KLT 662 the question as to whether the parish church in question was a public trust or not was not decided. There was no admission by the opposite party in 1962 KLT 662 that the parish church in that case was a public trust. For these and the other grounds raised in the review petition, the judgment which contains errors apparent on the face of the record may be reviewed. 3. We are afraid that we find ourselves unable to accept the above submissions. Even the learned counsel appearing for the review petitioners fairly conceded that the right of worship in a parish church is not confined to the parishioners alone. He only stressed that the parishioners have the special privileges of holy sacraments and other services. 4. This Court had inter alia adverted to the observations in paragraph 7 of the four Judges' Bench decision of the Apex Court in Deoki Nandan v. Muralidhar - AIR 1957 SC 133, the observations in Kapur Chand v. Ganesh Datt - AIR 1993 SC 1145 to hold that the true beneficiaries of religious Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:5:- endowments are the general body of worshipers. This Court also inter alia relied on paragraphs 59, 69 and 74 of P.M.A. Metropolitan's Case - AIR 1995 SC 2001 to hold that a parish church is a public religious trust. The crucial test for deciding whether the church in question is a public trust is the unrestricted right of the Christian public to have worship in the church regardless of the fact that they are members of the parish or not. Merely because the parishioners have got the privilege of certain special ceremonies, it cannot convert the public trust into a private trust. This aspect of the matter which derives sustenance from the 1934 Constitution itself and adverted to in the judgment outweighs the less important sections of the constitution relied on by the petitioners. The learned counsel for the petitioners is not quite right in his submission that there was no admission by the opposite party in Gheevarghese Koshy v. Chacko Thomas - 1962 KLT 662 that the parish church in that case was a public trust. Paragraph 3 of that decision specifically mentions that the main contention of the Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:6:- defendants in that case was that the Church in question (Kadeesa Church, Kayakulam) was a public charitable trust and that the suit was hit by Sec. 92 C.P.C. Paragraph 6 of that decision refers to the plaint allegation in that case to the effect that the said church belongs to the Jacobite Syrian Community subject to the spiritual supremacy of the Patriarch of Antioch. 5. The area of differences between the two warring factions of Syrian Christians and the question as to whether it is the 1934 Constitution which should govern the church in question in preference to the rival document of the year 2002 put forward by the patriarch group were all matters which were not germane for consideration in these proceedings where the only issue was whether the suit as laid without complying with Sec. 92 C.P.C. was competent or not. If according to the petitioners, after the trilogy of the verdicts of the Supreme Court including the one rendered in P.M.A. Metropolitan, no parish church under the Malankara Association can have an organisational set up different from or at variants to the 1934 Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:7:- Constitution which was approved by the Supreme Court, we fail to see as to why the petitioners are diffident in instituting the appropriate representative suit under Sec. 92 C.P.C. and seek to exclude the patriarch faction from the special services of the parish church in question other than worship or from participating in the temporal, administrative matters pertaining to the church. The fact that, if the church is a public trust, then the reliefs prayed for in the suit attract Sec. 92 C.P.C. is not disputed by the petitioners also. We do not find any error apparent on the face of the record to justify a review of the impugned judgment. On the contrary, a perusal of the review petition suggests that this is really an SLP in disguise. This Review Petition is accordingly, dismissed in limine. Dated this the 29[th] day of November, 2011. Sd/-V. RAMKUMAR, JUDGE. Sd/-P.Q. BQRKATH ALI, JUDGE /true copy/ ani/ P.S. to Judge Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:8:- ani/ Review Petition No. 805 of 2011 in A.S. No. 136 of 2001 -:9:-