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 11TH OCTOBER 2011 / 19TH ASWINA 1933 AS.No. 136 of 2001(D) ------------------------ OS.162/1977 of I ADDL.DISTRICT COURT, ERNAKULAM .................... APPELLANT(S): -------------- 1. ST.PETER'S ORTHODOX SYRIAN CHURCH, PUTHENCRUZ, REPRESENTED BY THE 2ND PLAINTIFF THE VICAR OF THE CHURCH. 2. ITTAN PILLAI, KANNETH HOUSE, PUTHENCRUZ, CHEMMANAD VILLAGE. 3. KURIAKOSE, KUZHIVELI, PUTHUMMANNOOR KARA, CHEMMANAD VILLAGE. 4. ABRAHAM KATHANAR, VALAYIL HOUSE, AIKKARANADU SOUTH VILLAGE, NOW VICAR REPRESENTING THE 1ST PLAINTIFF CHURCH VIZ. ST.PETER'S ORTHODOX SYRIAN CHURCH, PUTHENCRUZ. BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENT(S): ------------------- 1. FR.ABRAHAM MATHEWS, CHENAKOTTIL, VARIKOLI KARA, PUTHENCRUZ. 2. THOMAS DIONYSIUS METROPOLITAN, VALIYAPALLI CHURCH, KOTHAMANGALAM. 3. DEACON C.K.SAJU, CHERUVATHIL VADAYAMPADI KARA, AIKKARANADU VILLAGE, VADAYAMPADI P.O, AS.No. 136 of 2001(D) 2 4. DEACON ELIAS, ERAMATTUR VEEDU, VADAYAMPADI KARA, AIKKARANADU VILLAGE, VADAYAMPADI P.O. 5. DEACON THOMAS, KANNETHU VEEDU, VADAYAMPADI KARA, AIKKARANADU VILLAGE, VADAYAMPADI P.O. 6. T.K.GEORGE, THELAKKATTU, PUTHENCRUZ P.O. 7. K.T.MATHAI, KUNNAPPILLY, PUTHENCRUZ P.O. ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R SRI.C.X.ANTONY BENEDICT-ADV.COMMR. SRI.P.J.PHILIP FOR R THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON 11/10/2011 DELIVERED THE FOLLOWING: V. RAMKUMAR & P. Q. BARKATH ALI, JJ. .................................................... A.S. No. 136 of 2001 ................................................... Dated this the 11 th day of October, 2011 INNER TITLES IN THE JUDGMENT Sl.No. Inner titles Paragraph Nos. 1 The POINT for decision para 3 2 Argument of the plaintiffs/appellants Para 5 3 JUDICIAL RESOLOUTION paras 6 to 25 i) Scope and applicability of Sec.92 C.P.C. Paras 9 to 13 ii) Trust and Endowment Paras 14 and 15 iii) Charity - Indian Philosophy Paras 16 and 17 iv) What is religion Para 18 v) Applying the above criteria, whether the Ist plaintiff church is a public trust of a charitable or religions nature Paras 19 to 23 a) The relevant plaint averments Para 20 b)Whether Sec. 92 C.P.C. is applicable to the Church in question ? Paras 21 to 24 i) Is the church a private religious trust under the 1934 constitution Para 24 vi Our conclusion Para 25 4 A warning to the warring factions Para 26 to 29 5 Annexure - A - Brief origin and hierarchy of Malankara Church 6 Annexure - B - Meaning of certain words of common usage in Church Cases A.S. No. 136 of 2001 2 CR V. RAMKUMAR & P. Q. BARKATH ALI, JJ. .................................................... A.S. No. 136 of 2001 ................................................... Dated this the 11 th day of October, 2011 JUDGMENT V.Ramkumar J. The appellants in this first appeal are the plaintiffs in the suit, O.S. No. 162 of 1977 on the file of the Church Court (I Addl. District Court, Ernakulam). The said suit was one filed by the Catholicos (Orthodox) faction of the Syrian Christians for a declaration that all religious worship and administration of the assets of the Ist plaintiff- plaint schedule church (St. Peters Orthodox Syrian Church, Puthencruz, together with the church building and cemetery comprised in Survey Nos. 390/3, 392/1/78, 392/1/77/2, 382/3B and 392/1/77 in Pannikuzhi Kara, Chemmanad Village, Kunnathunad Taluk) are to be carried on under the authority of the Catholicos and in accordance with the constitution of the Malankara A.S. No. 136 of 2001 3 Orthodox Syrian Church and for a perpetual injunction restraining defendants 2 to 11, members of the Jacobite (patriarch) faction of Syrian Christians from interfering with the religious worship or administration of the plaint schedule church or from obstructing the 2nd plaintiff (the vicar) or the Catholicos from conducting worship or from carrying on the administration of the Ist plaintiff church, namely the St. Peters Orthodox Syrian Church, Puthencruz. 2. The suit was resisted by the defendants on various grounds. The trial Court originally framed 19 issues for trial. Subsequently, some of the defendants raised an additional objection that the suit was bad for want of leave under Section 92 C.P.C. Thereupon, one more issue was framed as Additional Issue No. 20 as follows:- “Whether the suit is maintainable for want of leave to institute the same as contemplated under Sec. 92 C.P.C. ? The trial Judge then heard both sides and as per the impugned Judgment dated 28-11-2000 upheld the above objection of the defendants and dismissed the suit as not maintainable due to non- compliance of Sec. 92 C.P.C. Hence, this appeal by the plaintiffs. A.S. No. 136 of 2001 4 3. The only point which arises for consideration in this appeal is as to whether the St. Peters Orthodox Syrian Church, Puthencruz, is a public religious trust and whether the impugned Judgment holding that the suit was not maintainable due to the non-compliance of Sec. 92 C.P.C., is unsustainable or not ? THE POINT:- 4. We heard Advocates M/s. B.G. Bhaskar and Biju Abraham, the learned counsel appearing for the appellants and Sr. Advocate Sri. K. Ramakumar and Advocate Sri. P.J. Philip the learned counsel appearing for the respondents. ARGUMENT OF THE PLAINTIFFS/APPELLANTS 5. Assailing the judgment of the Church Court, Advocate Sri. B.G. Bhaskar, appearing for the plaintiff/appellants made the following submissions before us: The Ist plaintiff Church, namely, the St.Peter's Orthodox Syrian Church, Puthencruz is not a public religious or charitable trust as was wrongly assumed by the lower court. The said Church is a purely private trust in which the beneficiaries are not the general A.S. No. 136 of 2001 5 public, but the persons belonging to the particular denomination and who are ascertainable. Unlike the Orthodox group according to whom churches are episcopal i.e. the right to govern the Church is vested in the Bishop, the Patriarch group believes that the Churches are congregational i.e. belonging to the congregation. Most of the American churches are congregational and they have no Vicar (who is an agent of the Bishop) but only a Pastor who has no religious power but has only secular powers. The vicar on the other hand has both secular as well as religious powers. The final verdict of the Apex Court in P.M.A. Metropolitan's v. Moran Mar Marthoma and Others - (AIR 1995 SC 2001) is that the Churches are neither episcopal nor congregational but are episcopal only to the extent to which the constitution says so. In the Jacobite Syrian Churches the Bishops have only a power of approval unlike the purely episcopal churches where the Bishop is the owner who has all the powers. A Church becomes a church only when it is consecrated by the Bishop. If the Church is consecrated by the Bishop of a particular denomination, the Church will be of that denomination only and not of the entire Christian public. Merely A.S. No. 136 of 2001 6 because the public have been freely admitted to the religious institution it does not mean that Courts should readily infer therefrom a dedication to the public. (Vide Bihar State Board of Religious Trust, Patna v. Mahant Sri. Biseshwar Das - AIR 1971 SC 2057). A Christian church cannot be compared to Muslim Mosques or Hindu temples. Even among Hindus, a smaller group of Gowdasaraswathas have been entitled to a private religious trust of their own. (Vide Gurpur Guni Venkataraya Narasimha Prabhu and Others v. B.C. Achia, Asst. Commissioner, Hindu Religious and Charitable Endowment - AIR 1977SC 1192). Likewise, in the case of a private family trust for the propagation of Jain religion, the Supreme Court has held that it is not a public trust. (Vide State of Kerala v. M.P. Shanti Verma Jain - 1998 KHC 963). There are intrinsic circumstances afforded by the 1934 constitution itself to suggest that the church is a private trust and the beneficiaries are only the members of the particular denomination. Section 43 provides for the maintenance of a Parish Register containing the names and other particulars of all men and women of the Parish. Section 9,10 and 12 recognise the concept of membership. Thus, A.S. No. 136 of 2001 7 every member of the Parish is capable of ascertainment although it may be a fluctuating body depending on deaths, births and marriages. Section 23 provides for acquisition and sale of immovable properties. A public trust does not admit of any sale of its immovable property by private individuals. The court below relied on certain observations in the minority judgment of Justice R.M. Sahai in P.M.A. Metropolitan's Case (AIR 1995 SC 2001) to hold that these churches are “public trusts” falling under the purview of Sec. 92 C.P.C. As a matter of fact, paragraphs 1 to 82 in that judgment of the Apex Court constitute the minority view. The verdict of the majority is from paragraph 83 onwards. The majority decision does not say whether these churches are private or public trusts; nor does it approve the view taken by Justice Sahai that these churches are public religious institutions. In a subsequent decision of the Supreme court which arose from the State of Tamil Nadu in A.V.G.P. Chettiar and Sons v. T.Palanisamy Gounder - AIR 2002 SC 2171 it has been held in paragraph 35 thereof that the decision in paragraph 55 of P.M.A. Metropolitan's case holding that these churches are public trusts is a minority A.S. No. 136 of 2001 8 view. The following are the comments offered by the appellants to the judicial pronouncements relied on by the Patriarch faction:- A. Mathevan Pillai Vanniaperumal Pillai v. Muthia Pillai Sivasubramonia Pillai and Others - AIR 1952 Travancore Cochin 323. There the trust was to conduct a feast in the village temple on the day of the annual “kuta” festival. All those who came on that day could participate in the feast as of right. Since the number of the persons who would attend the festival was unascertainable, it was held to be a public trust. B. Geevarghese Koshy v, Chacko thomas - 1962 KLT 662 = AIR 1963 Kerala 191. There the Patriarch group filed a regular suit before the Munsiff's Court for framing a scheme alleging that the church is a public trust. The Orthodox group opposed it contending that leave under Sec.92 C.P.C. was not obtained. The plaintiff then wanted to amend the plaint so as to delete the prayer. This Court said that the plaintiff, having asserted that the Church is a public trust cannot be permitted to evade Sec. 92 C.P.C. by an amendment at a later stage. A.S. No. 136 of 2001 9 C. Amrithakumari v. Ramanathan - 1998 (2) KLT 305 Appellants do not dispute that merely because the suit contains a declaratory relief it will not take the suit out of Sec. 92 C.P.C., provided the suit relates to a public trust. D. St. John's Jacobite Syrian Church v. Fr. John Moolamattom - 2005 (1) KLT 307. That was a suit filed by a Vicar for vindication of his personal right and hence it was held that such a suit would not fall under the ambit of Sec. 92 C.P.C. requiring leave. There was no finding by the Court that the Church was a public trust even though both sides admitted that the church was a public trust. E. Surya Bibi v. Haji Kammu - AIR 1969 SC 784 This was not a church case. It was a wakf. In addition to family benefit the object consisted of substantial charitable purpose to the public (so unascertainable) and therefore held to be a public trust. Removal of the Muthavally was sought by a beneficiary. F. Syed Mohd. Sahi Labbai v. Mohd Hanifa - AIR 1976SC 1569 Here a shop building was attempted to be constructed in a public graveyard. Held that eventhough A.S. No. 136 of 2001 10 there was no allegation of breach of trust, since the defendants were trustees de son tort and their conduct called for a direction of the Court, it was a case for formulating a scheme under Sec. 92 Cr.P.C. G. Charan Singh v. Darshan Singh - AIR 1975 SC 371 There it was a suit to enforce the terms of the trust by a trustee in respect of a Gurudwara and that case is, therefore, clearly distinguishable. H. In the Judgment dated 14-10-2009 of the Single Judge of this Court in A.S. No. 844 of 1998 in the matter of the St. Thomas Orthodox Syrian Church, Nechoor, the counsel appearing for the Orthodox faction had conceded that the said church was a public trust. (Vide paragraphs 11 and 18 of the Judgment). A wrong concession by the counsel on a point of law is not binding on the parties. Moreover, the said case is pending in appeal before the Supreme Court. JUDICIAL RESOLUTION 6. We are afraid that we find ourselves unable to accept the argument advanced on behalf of the appellants who belong to the Orthodox faction. In this appeal we are not called upon to decide A.S. No. 136 of 2001 11 any issue as to whether it is the 1934 constitution which governs the churches of the Malankara Association. According to the appellants, after the trilogy of verdicts by the Apex Court starting with P.M.A. Metropotitan's case, it is no more open to anybody to contend that any of the parish churches under the Malankara Association is governed by a constitution other than the 1934 constitution. Well, as already mentioned, that is not an issue germane for consideration before us at present. 7. We now proceed to consider the core issue, namely, whether the Church in question i.e. the St. Peters Orthodox Syrian Church, Puthencruz is a public trust of a religious or charitable nature and whether the Court below was justified in dismissing the suit as not maintainable due to the non-compliance of Sec. 92 C.P.C. 8. The present suit was instituted on 19-2-1976 before the Munsiff's court, Ernakulam where it was numbered as O.S. No. 147 of 1976. There were several suits relating to the Malankara Church disputes pending before various Courts in the State of Kerala. On the recommendations of the High Court of Kerala, the Government A.S. No. 136 of 2001 12 of Kerala had issued G.O. Rt.1532/76/Home dated 30-6-1976 giving sanction for establishing an Additional District Court at Ernakulam exclusively for the trial of such cases. Accordingly, the Ist Addl. District Court, Ernakulam was established as the “Church Court “ for the said purpose. Thereupon the present suit was also transferred to the Church Court where it was re-numbered as O.S. No. 162 of 1977. SCOPE AND APPLICABILITY OF SECTION 92 C.P.C. 9. Since the present suit was instituted on 19-02-1976 it is the C.P.C. prior to the 1976 amendment (which came into force with effect from 1-2-1977) that is applicable in this case. Sub-section (1) of Section 92 C.P.C. prior to the amendment is also substantially the same except that the consent in writing which was to be obtained by 2 or more persons interested in the trust concerned was from the Advocate General and not from the Court. After amendment, such consent is to be obtained from the Principal Civil Court of original jurisdiction. A.S. No. 136 of 2001 13 Section 92 as per the pre-amended C.P.C. read as follows:- “92. Public charities :- (1) In the case of any alleged breach of any express or constructive 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 persons having an interest in the trust and having obtained the consent in writing of the Advocate- General, 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 subject- matter 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; f) authorising the whole or any part of the trust- property to be let, sold, mortgaged or exchanged; A.S. No. 136 of 2001 14 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, [or by any corresponding law in force in [the territories which immediately before the Ist 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. Sec. 92 C.P.C. after the 1976 amendment reads as follows:- 92. Public charities:- (1) In the case of any alleged breach of any express or constructive 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 persons 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 subject-matter of the trust is situate to obtain a decree- A.S. No. 136 of 2001 15 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; f) authorising the whole 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 Ist 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 A.S. No. 136 of 2001 16 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 as may be, fulfilled or 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 A.S. No. 136 of 2001 17 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 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”. 10. Thus, leave of the Court is not necessary if it is the Advocate General who has instituted the suit which is of the nature referred to in Section 92 C.P.C. Leave of the Court is insisted upon only if the suit is one falling under Sec. 92 C.P.C. A.S. No. 136 of 2001 18 and is instituted by 2 or more persons having an interest in the public trust concerned. The usage of the words “having obtained the leave of the Court, may institute a suit” occurring in Section 92 (1) C.P.C. is a clear indication that leave of the Court is a condition precedent to the very institution of the suit and such leave cannot be given subsequent to the institution of the suit. If the case is one falling under Section 92 C.P.C. and the suit is instituted for any of the reliefs enumerated under clauses (a) to (h) of Section 92 (1) C.P.C, failure to obtain the leave of the Court before the institution of the suit, will go to the root of the matter and is a jurisdictional defect or infirmity which cannot be cured by a post- institutional leave granted by the Court. (See for instance, paragraph 17 of R.M. Narayana Chettiar v. .Lakshmanan Chettiar – AIR 1991 SC 221). The rigid requirement of law is that the leave petition itself should contain all the necessary facts such as the nature of the public trust concerned, the alleged breach of trust or the circumstances under which the direction of the Court is considered necessary for the administration of the trust and the main reliefs prayed for in the proposed suit. It is only after the A.S. No. 136 of 2001 19 leave of the Court is obtained can the plaintiffs institute the suit as provided under Order IV Rule 1 C.P.C. (See Amrithakumari v. Ramanathan – 1998 (2) KLT 305). Grant of leave being a jurisdictional pre-condition, any consent, waiver or acquiescence on the part of the opposite party either in the pleadings or otherwise, will not cloth the Court with the jurisdiction to entertain the suit, much less, try and dispose of such suit. Conversely, if the suit has been instituted after obtaining the leave of the Court, that by itself will not preclude the Court from revoking the leave already granted if the Court is thereafter convinced that the suit is not one falling under Section 92 C.P.C. (Vide St. Mary's Church v. Saju - 2001 (2) KLT 6). In such an event, the suit will have to be filed before the proper Court having jurisdiction to try such suit. Eventhough the Court is not bound to give notice to the proposed defendants before granting leave under Sec. 92 C.P.C as a rule of caution, Court should normally give notice to the defendants. (Vide R.M. Narayana Chettiar's Case - Supra). It is important to remember that a suit under Sec. 92 C.P.C. is a representative suit and the decision in the suit will bind not only the parties to the suit but also A.S. No. 136 of 2001 20 all persons interested in the public trust concerned. (Vide P. Venugopala Naidu v. Venkita Raghulu Naidu Charities -