St. Thomas Evangelical Fellowship of India vs St. Thomas Evangelical Church of India (Fellowship) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **FRIDAY ,THE 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940** **FAO.No. 154 of 2016** **AGAINST THE ORDER DATED 07-01-2016 IN OP 68/2008 (I.A NO.866/2008) PASSSED BY FIRST ADDITIONAL DISTRICT COURT, ALAPPUZHA.** ## **APPELLANTS/PETITIONERS/PLAINTIFFS 1 TO 6 :** - **1 ST.THOMAS EVANGELICAL FELLOWSHIP OF INDIA OFFICE AT DYE MUKKU, KADAPRA, KOIPRAM VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. RREPRESENTED BY ITS SECRETARY THE RESPONDENT NO.3/PLAINTIFF NO.3** - **2 ST. THOMAS EVANGELICAL CHURCH OF INDIA (FELLOWSHIP) FOR SHORT STECI(F)-DO-RREPRESENTED BY THE SABHA SECRETARY,3RD PETITIONER AND 4TH PETITIONER.** - **3 REV. GEORGE EAPEN,AGED 45, S/O. EAPEN, KADIYAMKUNNIL HOUSE,AYIROOR NORTH P.O., AYIROOR VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, NOW RESIDING AT ST. THOMAS EVANGELICAL CHURCH OF INDIA(FELLOWSHIP), CHEMBUR, OTTASEKHARAMANGALAM P.O, THIRUVANANTHAPURAM. THE SECRETARY OF THE PETITIONERS 1 AND 2/PLAINTIFFS 1 AND 2 (PARISH MEMBER OF AYIROOR EDAVAKA OF STECI(F))** - **4 K.REJI, AGED 45, S/O. M.KUNJUKUNJU, PUTHENVEEDU, KALAYPURAM P.O., KALAYPURAM MURI AND VILLAGE (PRATHINIDHI SABHA MEMBER FROM KUZHIMAV PARISH IN KOTTAYAM DISTRICT AND COUNCIL MEMBER OF STECI(F)** - **5 T. SUNIL, AGED 43, S/O. THANKAPPAN, SUNIL BHAVAN, KARIMPUMANNADY, VALLARADA, KUDAPPANAMOOD P.O., THIRUVANANTHAPURAM 695505.PRATHINIDHI SABHA & COUNCIL MEMBER OF KARINGAL PARISH IN THIRUVANANTHAPURAM DISTRICT AND COUNCIL MEMBER OF STECI(F)** - **6 KUNJUKUNJU JOSEPH, AGED 83 S/O. LATE JOSEPH, MUDANKUZHIYIL HOUSE, PUTHUSSERY P.O., KALLOOPARA VILLAGE, MALLAPPALLY TALUK PATHANAMTHITTA DISTRICT689 602.(PRATHINIDHI SABHA MEMBER FROM THURUTHICADU PARISH & COUNCIL MEMBER OF STECI (F)** **BY ADVS.SRI.V.PHILIP MATHEW, SRI. BIJU K MATHEW & SRI.GIBI.C.GEORGE** **FAO.No. 154 of 2016 - 2 -** ## **RESPONDENTS/RESPONDENTS 1 TO 6 AND 7TH PETITIONER/7TH PLAINTIFF :** - **1 ST.THOMAS EVANGELICAL CHURCH OF INDIA, FOR SHORT STECI, MANJADI P.O., THIRUVALLA, REPRESENTED BY SABHA SECRETARY,OFFICE OF ST. THOMAS EVANJALICKAL CHURCH OF INDIA, MANJADI P.O., KUTTAPUZHA VILLAGE, THIRUVALLA-689 105.** - **2 MOST REV. T.C. CHERIAN OF STECI, PRESIDING BISHOP OF ST. THOMAS EVANJALICKAL CHURCH OF INDIA, MANJADI P.O., KUTTAPUZHA VILLAGE, THIRUVALLA-689 105.** - **3 MOST REV. M.K.KOSHY BISHOP OF STECI, ST. THOMAS EVANJALICKAL CHURCH OF INDIA,MALAYIL MADACKAL HOUSE, PUTHENCAVU P.O.,CHEGANNUR VILLAGE, ALAPPUZHA DISTRICT-689 123.** - **4 MOST . REV. A.I. ALEXANDER, BISHOP, (PRESIDING OF THE 1ST PETITIONER/ 1ST PLAINTIFF AND THE PRESIDING BISHOP OF THE 2ND PETITIONER/2ND PLAINTIFF, ARAYAKARA HOUSE,PUNNAVELI P.O., ANICKADU VILLAGE, MALLAPALLY TALUK, PATHANAMTHITTA DISTRICT-689 589.** **5 REV. JOY MATHEW, AGED 66, S/O. MATHEW, VELIMKODIYATHU HOUSE, AYIROOR SOUTH P.O., AYIROOR VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT-689 611. 6 M.J MATHEW, AGED 76, S/O. JOSEPH, MUDANAKUZHIYIL HOUSE, PUTHUSSERY SOUTH P.O., KALLOOPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT-689 602.(TREASURER OF THE PETITIONERS 1 AND 2 / PLAINTIFFS 1 AND 2)** **7 K.M. PHILIP, AGED 83, S/O. LATE MATHAI, KULANGARA HOUSE, MULAVANA P.O., KUNDARA, KOLLAM DISTRICT-691 503.(PRATHINIDHI SABHA MEMBER FROM MULAVANA PARISH AND COUNCIL MEMBER OF STECI (F)** **BY ADVS. R1 & R5 BY SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN & MS.SANTHI.K.S.** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 14.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO.No. 154 of 2016 - 3 -** ## A.HARIPRASAD, J. -------------------------------------- F.A.O No.154 of 2016 -------------------------------------- Dated this the 14th day of September, 2018 ## J U D G M E N T Heard the learned counsel for the appellants and the learned Senior counsel appearing for the respondents 1 and 5. 2. The appeal is against an order passed by the Additional District Judge- I, Alappuzha, in O.P No.68 of 2008. It is seen from the caption to the impugned order, that it is a petition under Section 25 of the Travancore - Cochin Literary Scientific and Charitable Societies Registration Act, 1955 ( in short 'the Act') and Section 92 of the Code of Civil Procedure, 1908( in short 'C.P.C'). It was dismissed finding that leave under Section 92 of the C.P.C cannot be granted to the appellants. **FAO.No. 154 of 2016 - 4 -** 3. Relevant facts for disposal of the case are as follows : First respondent (St.Thomas Evangelical Church of India (STECI)) was formed in 1961 headed by the second respondent as the Secretary. He is also the Bishop of the first respondent. First respondent has many churches and numerous members, who were formerly members of Mar Thoma Church. While so, dispute arose between members of the first respondent and two factions had been developed among them. Numerous litigations erupted between the parties. According to the averments in the petition, minority faction raised funds from among them and established their own means of worship and then constituted St. Thomas Evangelical Fellowship of India, a registered society under the provisions of the Act. In culmination of the dispute between the two factions, a compromise was reached. At that time, the matter was pending before this Court in S.A No.851 of 1990. Thereafter, the first petitioner constituted a separate church as St.Thomas Evangelical **FAO.No. 154 of 2016 - 5 -** Church of India (Fellowship). They also formed a memorandum of association. First petitioner owns properties as shown in the second schedule. It is alleged that the first petitioner is governed by a Memorandum of Association, Rules and Regulations formed in accordance with the provisions in the Act. The suit is instituted by invoking provisions under Rule 8 Order 1 of the C.P.C. It is averred in the petition that the second petitioner is a trust of a public nature and of a religious character, functioning under the first petitioner. Therefore, for grant of reliefs claimed in the Original petition, leave under Section 92 of the C.P.C, is necessary. 4. The respondents opposed the application. According to them, the petition itself is a misconceived action and legally not maintainable. 5. Learned counsel for the appellants submitted that the court below erred on two counts. Firstly, the provisional leave granted at the **FAO.No. 154 of 2016 - 6 -** time of institution of the petition on 26-08-2008 was not revoked, instead by the impugned order, the leave was refused. It is clear from the settled legal principles that a grant of provisional leave under Section 92 of the C.P.C is not contemplated by the provision. The court empowered to grant leave under Section 92 of the C.P.C, can only grant the leave or refuse it. Provisional leave is not a remedy conceived under Section 92 of the C.P.C. In explicit terms, in the impugned order it has been stated that the petitioners are not entitled to get leave. Therefore, this contention may not lie. 6. Learned counsel for the appellants contended that the observations in the impugned order cannot be sustained in the light of the principles in Kesava Panicker v. Damodara Panicker and others (1975 K.L.T 797 (F.B) ) and ( Thanthi Trust v. Income Tax Officer) . (1973 ) Volume 91 I.T.R 261 7. The full bench of this Court in Kesava Panicker's case **FAO.No. 154 of 2016 - 7 -** (supra) considered a question whether formation of a society subsequent to the creation of a charitable trust will affect the character of a trust already created. In clear terms, it has been held that the effect of the Societies Registration Act is not to invest properties of a society with the character of a trust property. Even if the purpose for which the society was formed was a charitable purpose, the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated. 8. In Thanthi Trust's case (supra), it has been held that the subsequent acts and conduct of the founder of the trust cannot affect the trust, if there has already been a complete dedication. These propositions are unchallengeable. However, the facts in this case would show that the impugned order is legally justifiable for many reasons. 9. It is brought to my notice that the first plaintiff before the court below is a society registered under the Societies Registration Act. **FAO.No. 154 of 2016 - 8 -** Along with a registered society, some individuals also joined as the petitioners. Second petitioner is the church and certain individuals are also impleaded as plaintiffs. It is pointed out by the learned Senior counsel for the contesting respondents that in paragraph 8, following observations have been made by the petitioners themselves : “ It is submitted that the Ist petitioner/Ist plaintiff is governed by its own memorandum of Association and Rules & Regulations framed under the T.C Act 12 of 1955 as such the transfer of its assets, dissolution and/or merger can only be under the provisions of that act and none other.” 10. Legal proposition that for considering grant or refusal of a leave under Section 92 of the Code, the plaint averments shall alone be looked into cannot be disputed. On going through various averments in the plaint, it can be seen that a registered society, which is governed by its own bye law, seek certain reliefs, which do not strictly fall within **FAO.No. 154 of 2016 - 9 -** Section 92 of the C.P.C. On a reading of Section 92 of the C.P.C, it is clear that apart from the Advocate General, two or more persons having an interest in the trust and having obtained leave of the court may institute a suit. At any rate, petitioners 1 and 2 cannot be said to be “persons” within the scope of Section 92 of the C.P.C. There is no principle shown by the appellants to hold that a society can approach a principal civil court of original jurisdiction under Section 92 of the C.P.C, to frame a scheme in respect of the assets owned by them. The Act is a self contained code in itself. Reading the original petition in its entirety, it can be seen that the provisions of the Act and the stipulations in Section 92 of the C.P.C have been mixed up heterogeneously. Even though some of the reliefs in the original petition may fall within Section 92(1)(a) to (h), that by itself will not cloathe the petitioners with a right to file an original petition. 11. It is contended by the learned Senior counsel for the **FAO.No. 154 of 2016 - 10 -** contesting respondents that the warring factions in the church had amicably settled the disputes and there was a merger of factions in the year 2007. Subsequent to that, the persons under the aegis of the third petitioner and other petitioners formed a registered trust in the year 2008, in the name and style as "Evangelical Fellowship Missions of India” (EFM), religious charitable trust with the office of trust and church in Thiruvananthapuram District. It is contended by the learned Senior counsel for the respondents that subsequent to the formation of this trust on 17-03-2018, this original petition was filed. It is also pointed out that the term of office bearers as per the bye law of the first petitioner society is only two years. By efflux of ten years of time, the persons now sought to be removed from the affairs of the society/trust have gone out of office as per the prescriptions in the bye law. It is therefore contended that the petition has become infructuous. Having regard to the submissions at Bar and going through the **FAO.No. 154 of 2016 - 11 -** averments in the original petition and the impugned order, I find no reason to disagree with the learned Additional District Judge. Therefore, the appeal fails and hence it is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk