IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/04/2003 CORAM THE HONOURABLE MR.JUSTICE R.JAYASIMHA BABU and THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN L.P.A.No.80 of 1998 and Cross Objection and C.M.P.Nos.10403 & 11741 of 1998 & 1434 of 2003 1. C.S.Robert 2. A.S.Arokiaraj Trustees and representatives of Catholic public of Vakampatti. ... Appellants. -Vs- 1. M.Kanagappan 2. Parish Priest of St.Sacred Heart Church, N.Panchampatti, Dindigul taluk. 3. Parish Priest of St.Joseph Church, Main Road, Dindigul. 4. The Arch Bishop of Trichy Diocese, Melapudur, Trichy Town. 5. M.John Stephen. 6. A.Vimala 7. Jeevamani 8. Jayaseelan 9. P.Xavier ... Respondents. L.P.A. filed against the judgment and decree dated 15.7.1998 in A.S.No.1174 of 1994 of this Court reversing the judgment and decree dated 31.8.1994 in O.S.No.396 of 1993 on the file of Addl. Sub Judge, Dindigul. !For appellants :: Mr.T.R.Mani, Sr.counsel for Mr.K.Srinivasan. ^For respondents :: Mr.P.Peppin Fernando for R1 to R4. Mr.D.Saravanan for R5 to R9. :JUDGMENT N.V.BALASUBRAMANIAN,J. The question regarding administration of a church, to be precise, a Catholic Church, by name, St.Mary Magdalin Church situate in a village called, Vakkampatti in Dindigul taluk is the subject matter of the appeal. There is no dispute regarding the exercise of spiritual power of the church by Papacy through its local representatives, the Episcopate and the local Parish Priest as the plaintiffs have conceded that the spiritual power should be exercised by the Parish Priest of the Church. The question is only with reference to the temporal or administrative power over the Church and the exercise of the said administrative power. 2. The plaintiffs, who are the appellants in the Letters Patent Appeal, have instituted the suit for declaration that the suit Church and the suit properties belong to the entire Catholic public of Vakkampatti village with consequential injunction restraining the defendants 2 to 4 from interfering with the management and administration of the suit Church and its properties by the plaintiffs as trustees and for removal of the first defendant from trusteeship and for directing the first defendant to deliver the management of the Church and its properties to the plaintiffs and also for certain other reliefs. The suit was instituted by the plaintiffs as trustees of the church and as representatives of the Catholic Public of Vakkampatti village. Though a point was raised whether the suit is maintainable without obtaining the leave under section 92 of the Code of Civil Procedure, we find that necessary prior permission to institute the suit has been obtained by the plaintiffs in the trial Court itself before the institution of the suit. 3. The case of the plaintiffs is that the suit Church was constructed in a Village Natham more than 200 years prior to the institution of the suit by the Catholic public of Vakkampatti by collecting donations and taxes from the public and by contributing their physical labour and on this fact, there is no dispute between the parties. It is pleaded that the Church was constructed by the entire Catholic public under the supervision of Nattanmais and Periyathanams of the said village. It is stated in the plaint that for the proper administration of the church and its properties, a Committee of five members headed by the Nattanmai, C.Savarimuthu, father of the first plaintiff was formed 90 years prior to the institution of the suit. It is also stated that though a Parish Priest was there, he never exercised any right, ownership or control over the Church at any point of time. It is further stated that for the administration and management of the church and its properties, out of the five members of the Committee, three were appointed by public and the office of trusteeship has been made hereditary. (However, the plaint does not disclose how those three persons elected by the public can hold the office hereditarily. The plaint does not also disclose how the other two members were appointed. The evidence of P.W.1 also does not disclose anything about the mode of appointment of other two members of the Committee). It is the case of the plaintiffs that during the long and continuous usage of the institution, the management vested in the trustees of the Committee and the period of management of the Managing Trustee is stated to be one year and the change in management of the Managing Trustee was coincident to the Church festival held in the month of June, every year. It is stated that at the end of the Festival, the amount collected for the festival would be shown to the public in a General Body Meeting and accounts would be approved and the balance amount would be shared by the trustees. It is stated that the two plaintiffs and the first defendant are the three trustees and they are in management of the Church and its properties. It is their case that the first plaintiff has spent a sum of Rs.40,000/- for the construction of a portion of the Church and he has to get reimbursement of the said sum and the first defendant also agreed for the same. According to the plaintiffs, the first defendant who is one of the trustees, is not maintaining a true and correct account of the income and expenditure of the Church and its properties and he is misappropriating the income from the Church and its properties. The case of the plaintiffs is that the first defendant has been making arrangements to transfer the Church and its properties to the Arch Bishop of Trichy Diocese, the fourth defendant in the suit. It is stated that the fourth defendant is superior to the defendants 2 and 3 and the defendants 2 and 3 have been, in the ordinary course, acting on the instructions of the fourth defendant. It is stated that the first defendant has no right to execute any document transferring the right or title of the Church and its properties to anybody as they belong to the entire Catholic public of Vakkampatti village, nor he has the power or authority to make any encumbrance over the properties without the consent and permission of other trustees and the Catholic public of Vakkampatti village. It is stated that the management has been throughout with the trustees by inheritance and by rotation among themselves. It is stated that the defendants 2 to 4 have no right to conduct the festival of the Church. Hence, the plaintiffs, as trustees of the Church as well as representatives of the Catholic public of Vakkampatti village, have filed the suit for necessary declaration and injunction as set out earlier. 4. The first defendant has filed a written statement denying all the averments and the case of the first defendant is that the plaintiffs are not the trustees and after the consecration of the Church by the Arch Bishop of Trichy Diocese in the year 1902, the Church, its properties and the management of the Church were left to the control of the Bishop and the first defendant has been in the management of the Church only as a Manager and the plaintiffs has only acted as his Secretaries sometimes. According to the first defendant, he was only the manager of the Church and its properties and no trustees have been appointed. It is his specific case that the control, management and maintenance of the Church have been under the control of the defendants 2 to 4. It is stated that the festival would be conducted under the control of the Bishop in the month of July every year and the plaintiffs are not trustees. It is the case of the defendants that the property described as item No.2 in A-schedule belonged to the first defendant and he sold the same to the fourth defendant and it is not a property of the Church. It is stated that the plaintiffs have no right over the properties. His case is that he is only in management of the Church and the defendants 2 and 3 are having the legal rights to manage the Church and to perform the festivals. It is stated that the plaintiffs are not entitled to any decree directing the first defendant to hand over the management of the Church and its properties and call for its accounts. He also denied that the plaintiffs are entitled to other reliefs. 5. The second defendant has filed a separate written statement stating that the Church was consecrated and dedicated to worship of the general public. It is his case that the ancestors of the first defendant were allowed to manage the affairs of the Church by the Church authorities. It is stated that the representatives of the Arch Bishop of Trichy Diocese used to perform the religious part of the festivals and ceremonies and holy masses. It is stated that the festivals were celebrated with the moneys collected from the public and if any surplus money was available, that would be credited to the second defendant and the surplus money was never shared by anybody. It is his case that the entire Catholic community people of Vakkampatti village admit and acknowledge the rights of the defendants 2 to 4 over the Church. It is stated that the second defendant is in management and control of the Church. According to the second defendant, the religious part of the festival must be performed only by an ordained Priest and the suit Church belongs to the defendants 2 to 4 and the people of Vakkampatti are entitled to the right of worship. 6. It is, on the above pleadings necessary issues were framed and evidence has been let in, and the trial Court decreed the suit as prayed for. An appeal was preferred against the judgment and decree of the trial Court. A learned Single Judge of this Court, by an elaborate judgment, held that the first defendant was carrying on the secular administration of the Church as Manager, assisted by the plaintiffs, who are called, Nattanmaidars and the plaintiffs have no right in the secular administration either as Kariasthars or Nattanmaidars and hence, the plaintiffs are not entitled to the declaration that the suit Church and its properties belong to the entire Catholic public of Vakkampatty village. Learned Single Judge also considered other matters and held that the plaintiffs are not entitled to other reliefs, and allowed the appeal preferred by the defendants. It is against the judgment and decree of the learned Single Judge, the present appeal has been preferred. 7. There is no dispute and it is seen from the evidence of P.Ws.1 and 2 that the suit church was constructed 200 years ago with the funds raised from the public and some additional construction has also been made by getting contributions not only from the Catholic public of the village, but also from the Hindus and one Chinnasami Nadar had donated stones and borne the expenditure for laying the stones in the church premises. It is also not in dispute that the church is situate in Government Poramboke land. The first defendant, in his evidence, has also admitted that the church was constructed by collecting donations from the general public of the village and there is no difficulty in holding that the church has been constructed in Government Poramboke land with the funds raised from the general public and mostly from the catholics belonging to the village. 8. The appellants filed C.M.P.No.1434 of 2003 to receive the document, namely, copy of the order of the Bishop of Trichy showing that the church was consecrated in the year 1902 itself. There are no serious objections to receive the document, and by taking the document on file, no new point is sought to be introduced, but, on the other hand, the document is taken on file in proof of an already existing fact. The petition in C.M.P.No.1434 of 2003 is ordered and the document is marked as Ex.B-16 on the defendants' side. The additional document filed by the defendants in this appeal, Ex.B-16 also shows that the church was consecrated by the Arch Bishop of Trichy Diocese on 4 .3.1902 and the Parish Priest signed the declaration and as such, it is a consecrated church. 9. We have already noted that in so far as ecclesiastical jurisdiction or religious functions and ceremonies to be performed in the church in question are concerned, there is no dispute that they are looked after by the Parish Priest who is under the control and supervision of the Arch Bishop of Trichy Diocese. The first plaintiff in his evidence as P.W.1 admitted that in so far as ecclesiastical jurisdiction of the church is concerned, it is vested with the defendants 2 and 3, and in view of his own categorical admission, the plaintiffs have no right to have a declaration regarding the ecclesiastical or religious functions of the church. 10. As far as secular administration of the church is concerned, it is necessary to notice the relevant provisions of the Canon Law. Can.1214 defines the term, 'church' to mean a sacred building intended for divine worship, to which the faithful have right of access for the exercise, especially the public exercise, of divine worship. Can.1215 provides that no church is to be built without the express and written consent of the diocesan Bishop and before granting the permission, the diocesan Bishop is required to consult the council of priests and the rectors of neighbouring churches and then, he is to decide that the new church can serve the good of souls and that necessary means will be available to build the church and to provide for divine worship. Can.1217 provides that as soon as possible after completion of the building the new church is to be dedicated or at least blessed following the laws of the sacred liturgy and churches, especially cathedrals and parish churches are to be dedicated by a solemn rite. Can.1218 provides that each church is to have its own title and once the church has been dedicated this title cannot be changed. Can.12 1 9 provides that all acts of divine worship may be carried on in a church which has been lawfully dedicated or blessed, without prejudice to parochial rights. 11. The Supreme Court in MOST REV. P.M.A. METROPOLITAN v. MORAN MAR MARTHOMA ( 1995 Supp. (4) SCC 286) held as under:- " A church is formed by the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual basis - their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognised. Therefore, all religious bodies are regarded by courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organisations." The Supreme Court held that the canons are principles of scriptural bases for the religious practice to be observed in a church. 12. We have gone through the Canon Law and also the Commentaries on the Canon Law. Can.1214 makes it clear that the faithful have the right of access to the church for divine worship. The submission of Mr.T.R. Mani, learned senior counsel is that the administrative control of the church remains with the Roman Catholic public of Vakkampatti village and we are of the view that the effect of accepting the said submission would be that there will be a possibility of dual authority in the administration of the church one on the religious matters and another on administrative matters and the vesting of dual authority in a Roman Catholic Church would be contrary to the Canon Law. Further, we have seen the effect of consecration. A sacred building would not become fit for worship immediately after its construction and only after the sacred building is dedicated or blessed following the laws of the sacred liturgy, it would become fit for divine worship. If the dual authority is recognised, then a situation may arise that the church and its properties may be put to use by the person who constructed the church, not for the objects intended to be carried on in the church. It may also lead to a situation that there may be transfer of property to third parties thereby endangering the very existence of the church itself. Can.1222 provides that if the church cannot be used for divine worship and there is no possibility of its being restored, the diocesan Bishop may allow it to be used for some secular, but not unbecoming purpose. 13. A reading of various provisions of the Canon Law postulates that a detailed procedure has been made for the administration of the church and its properties and so long as the church retains the status of a Roman Catholic church, in our view, the diocesan Bishop alone would have the right in both the spiritual and the temporal matters in respect of the church and its properties. The church in question, by its very nature, has been constructed only from the donations made mostly by the members following Christian religion and from the fact of contribution for the construction of the church by the public, it does not mean that the properties should be transferred to the public or held by the public. When a building is constructed for the purpose of divine worship, it would become a church only after the fulfilment of certain formalities prescribed in the Canon Law and there must be an express and written consent of the diocesan Bishop and there must be dedication or blessing following the law of sacred liturgy. Once a sacred building becomes a church under the Canon Law, the faithful will have a right of access for divine worship. The Canon Law contemplates the complete existence of a church. 14. The submission of Mr.T.R.Mani, learned senior counsel for the appellants is that the above canons do not touch the matters relating to the administrative control. Learned senior counsel referred to can.1254 which says that a catholic church has the inherent right, independently of any secular power, to acquire, retain, administer and alienate temporal goods, in pursuit of its proper objectives. Learned senior counsel also referred to can.1257 which provides that all temporal goods belonging to the universal church, to the Apostolic See or to other public juridical persons in the church, are ecclesiastical goods and are regulated by the canons which follow, as well as by their own statutes. He referred to sub-clause (2) of can.1257 and submitted that the sub-clause provides that unless it is otherwise expressly provided, temporal goods belonging to a private juridical person are regulated by its own statutes, not by these canons, and therefore since the church has the goods belonging to private juridical persons, namely, the public of Vakkampatti village, the Canon Law cannot prevail. 15. Chapter II of Title VI of the Canon Law deals with juridical persons and can.116 provides that public juridical persons are aggregates of persons or of things which are established by the competent ecclesiastical authority so that, within the limits allotted to them in the name of the church, and in accordance with the provisions of law, they might fulfil the specific task entrusted to them for the public good and other juridical persons are private. Sub-clause (2) of can.116 provides that public juridical persons are given this personality either by the law itself or by a special decree of the competent authority expressly granting it and the private juridical persons are given this personality only by a special decree of the competent authority expressly granting it. In other words, private juridical persons are given the juridical personality not by law, but only by a special decree of the competent authority expressly granting it. Subclause (3) of Can.114 provides that the competent ecclesiastical authority is not to confer juridical personality except on those aggregates of persons or of things which aim at a genuinely useful purpose and which, all things considered, have the means which are foreseen to be sufficient to achieve the purpose in view. Therefore, the submission of the learned senior counsel, Mr.T.R.Mani that with regard to the temporal goods belonging to private juridical persons, the Canon Law cannot prevail is not acceptable, as the expression, 'private juridical person' in Canon Law has a significant meaning and to regard a group of persons as private juridical persons, the juridical personality should be given that status by a special decree of the competent authority expressly granting it. Learned senior counsel also referred to other provisions of the Canon Law. 16. Before considering the effect of the Canon Law, it is necessary to refer to the decision of the Supreme Court in MOST REV. P.M.A. METROPOLITAN v. MORAN MAR MARTHOMA (1995 Supp. (4) S.C.C. 286) wherein the Supreme Court explained the Canon law. After considering the Black's Law Dictionary and the Encyclopaedia of Religion, it held as under:- " Canon is explained in Black's Law Dictionary as under: 'A law, rule or ordinance in general, and of the church in particular. An ecclesiastical law or statute. A rule of doctrine or discipline. A criterion or standard of judgment. A body of principles, standards, rules, or norms'. Canon means both a norm and attribute of the scripture. The term ' canon law' is explained in the Encyclopaedia of Religion, Vol.3, as under: 'The term canon is based on the Greek word Kanon. Originally signifying a straight rod or bar, especially one used to keep something else straight, canon came to mean something that is fixed, a rule or norm. The term has several applications in church usage: the canon of scripture, or that fixed list of books that are determined to belong a sacred scripture; the canon of the Mass, the fixed portion of the eucharistic prayer; the process of declaring a deceased person to be among the fixed list of saints in heaven, or canonisation. From the third century, directives for church living and norms for church structures and procedures have been issued as canons. Canon law refers to the law internal to the church. In the early centuries of Christianity, canon was used for internal church norms, to distinguish them from the imperial nomos (leges in Latin) or laws. Church norms have also been known as sacred or divine, to distinguish them from civil or human laws. At times they are referred to as the 'sacred canons' or the 'canonical order'. The term ecclesiastical law is used synonymously with canon law, although at times ecclesiastical law also refers to the civil law adopted in various nations to regulate church affairs. The term canon law is used in the Roman Catholic, Anglican, and Orthodox communions. Canon law is drawn from sources in scripture, custom, and various decisions of church bodies and individual church authorities. Over the centuries these have been gathered in a variety of collections that serve as the law books for various churches.' 55. Canons are thus the principal scriptural bases for the religious practices observed in a Church." 17. The Supreme Court in the same case considered the well-marked distinction between the episcopal church and congregational church and held as under:- "A Church is either episcopal or congregational. It cannot be episcopal in spiritual matters and congregational in temporal matters. That would be against the basic characteristic of such a Church. It would be against specific provisions in the Constitution. The temporal matters or administration of churches flows from its establishment for religious purposes, namely, 'the cure of souls'. Where a building is consecrated as a Church, 'it continues to exist in the eye of law as a church and the body corporate which had been endowed in respect of it remains in possession of the endowment even though the material building is destroyed'. Every Parish Church of Malankara acknowledges the Patriarch of Antioch as the spiritual head. They have been paying Ressissa to Patriarch. The ordination, consecration and every spiritual or temporal power