Case: District Council of United Basel Mission Church and Others Vs. Salvador Nicholas Mathias and Others

UBMC having permitted the District Church Council of South Kanara and Coorg to join the CSI, the validity of the resolution is beyond and challenge. Our attention has been drawn on behalf of the appellants to Rule 13(2) of the Constitution of UBMC (Ex. A-1) which deals with the functions of the Synod. Rule 13(2) reads as follows: "13(2) Its functions shall not be(a) to hear the reports of church and mission work of each District;(b) to suggest such measures of uniformity as may be necessary for the mission and church work in the three districts;(c) to give suggestions on problems pertaining to (1) the spiritual life and work of the different churches (2) the common evangelical activities of church and mission (3) the church union and (4) the administration of church property, funds, etc.;(d) to decide finally all questions of faith an order in the United Basel Mission Church of India, provided that all such decisions are arrived at by a majority of three-fourths of its total strength." 36. One of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of south Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On June 24, 1968, the Synod of UBMC passed the following resolutionResolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease to exist. 37. The learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on June 24, 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, unit such a resolution was passed, it did exist as the highest authoritative and administrative body of UBMC. 38. Another ground challenging the validity of the resolution that has been urged on behalf of the respondents is that it violates the provision of Section 6 of the Religious Societies Act, 1880. Section 6 provides as follows: "6. Provision for dissolution of societies and adjustment of their affairs - Any number not less than three-fifths of the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all necessary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determineProvided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal court of original civil jurisdiction of the district in which the chief building of such body is situate; and the court shall make such order in the matter as it deems fit." 39. This challenges is misconceived. Section 6 deals with dissolution of societies and adjustment of their affairs. It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc., consequent upon such dissolution as provided in Section 6 and, as such, the provision of Section 6 is not at all applicable to the facts and circumstances of the instant case. The contention made on behalf of the respondents is without any substance. 40. We are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of Section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the impugned resolution on the ground that it was beyond the authority of the District Church Council to pass such a resolution. In our opinion, the impugned resolution is legal and valid.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]39. This challenges is misconceived. Section 6 deals with dissolution of societies and adjustment of their affairs. It has been already observed by us that there is no question of dissolution of UBMC of South Kanara and Coorg and the disposal and settlement of its property and claims and liabilities etc., consequent upon such dissolution as provided in Section 6 and, as such, the provision of Section 6 is not at all applicable to the facts and circumstances of the instant case. The contention made on behalf of the respondents is without anyWe are unable to agree with the finding of the learned Judge of the High Court that the impugned resolution violates the provision of Section 6 of the Religious Societies Act and in view of the fact that the Synod had unanimously accorded permission for the merger, the High Court was not justified in striking down the impugned resolution on the ground that it was beyond the authority of the District Church Council to pass such a resolution. In our opinion, the impugned resolution is legal andhas been already noticed that all the courts below including the High Court have concurrently come to the finding that the suit was of a civil nature within the meaning of Section 9 of theCode of Civil Procedure and, accordingly, it was maintainable. It is the case of the respondents that if the impugned resolution is implemented or, in other words, UBMC of South Kanara and Coorg is allowed to merge in CSI, the right of worship of the members of UBMC will be affected. It is now well established that the dispute as to right of worship is one of a civil nature within the meaning of Section 9 of theCode of Civil Procedure and a suit is maintainable for the vindication or determination of such a right.The question came up for consideration before this Court in Ugamsingh and Mishrimal v. Kesrimal [(1971) 2 SCR 836 : (1970) 3 SCC 831 : AIR 1971 SC 2540 ] where this Court observed as follows(SCC p. 837, paras clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by civil courts if they are not essentially connected with civil rights of an individual or a sect on behalf of whom a suit isIn this instant case also, there is a question as to whether the right of worship of the respondents will be affected in case of implementation of the impugned resolution. It must be made clear that maintainability of the suit will not permit a court to consider the soundness or propriety of any religious doctrine, faith or rituals. The scope of the enquiry in such a suit is limited to those aspects only that have direct bearing on the question of right of worship and with a view to considering such question the court may examine the doctrines, faith, rituals and practices for the purpose of ascertaining whether the same interfere with the right of worship of the aggrieved parties. In view of Section 9 of theCode of Civil Procedure, the enquiry of the court should be confined to the disputes of of a civil nature Any dispute which is not of a civil nature should be excluded fromHigh Court had devoted several pages relating to the origin, growth and other aspects of Episcopacy. It is not necessary for us to consider the origin or growth of Episcopacy and suffice it to say that Episcopacy means Church ruled by Bishops. UBMC is a Presbyterian Church and according to the respondents they do not believe in the concept of Episcopacy or apostolic succession which is associated with historic Episcopacy Rule 11 of the Constitution of CSI (Ex.provides, inter alia, that CSI accepts and will maintain the historic Episcopacy in a constitutional form. Rule 11 further provides that as Episcopacy has been accepted in the Church from early times, it may in this sense fitly be called historic and that it is needed for the shepherding and extension of the Church in South India and any additional interpretation, though held by individuals, are not binding on theIt is true UBMC is opposed to Episcopacy, but Episcopacy which has been adopted by the CSI, is not that historic Episcopacy, but historic Episcopacy in a constitutional form. In other words, the Bishop will be one of the officials of the Church under its Constitution performing certain duties and functions. The Bishops are appointed by election and there are provisions for the retirement of Bishops at the age of 65 years, and also for their removal. It is significant to notice that CSI believes that in all ordinations and consecrations the true ordainer and consecrator is God. From all this, the irresistible conclusion is that there is neither apostolic succession nor historical Episcopacy in CSI as contended on behalf of thesubmission in this regard, however, does not find support from the Constitution of UBMC. Under the heading "The Local Church", paragraph 4 of the Constitution of UBMC (Ex.rch workers are those either paid or honorary, ordained or lay, who are appointed by the church for a definite piece of work under the supervision of the church. It is the duty of the Pastors appointed to shepherd the churches to teach the Word of God, to administer the sacraments and to propagate the Gospel among those who have not yet come to the saving knowledge of Christ. Evangelists and lay preachers appointed to the charge of churches shall have no authority to administer the sacraments regularly, the District Church Board may give evangelists in pastoral charge authority to fulfil thisIt is apparent from paragraph 4 that evangelists and lay preachers have no authority to administer the sacraments. It is only in exceptional cases where it is impossible for the Pastor to administer the sacraments regularly, the District Church Board may give evangelists in pastoral charge authority to fulfil this duty. Thus, the universal priesthood which is said to be prevalent in UBMC, does not permit lay preachers and evangelists to administer theIt is true that in the CSI the Presbyters are ordained persons, but in UBMC they are unordained, as has been noticed by the learned Judge. But nothing turns out on that distinction. In UBMC the Pastor is an ordained minister and paragraph 4 (Ex.extracted above, provides that it is the duty of the Pastors to shepherd the churches to teach the Word of God, to administer the sacraments and to propagate the Gospel among those who have not yet come to the saving knowledge of Christ. While a Presbyter in the CSI is an ordained minister, in UBMC the ordained minister is a Pastor. In the CSI Presbyters have the authority to administer the sacraments and in UBMC the Pastors, who are ordained ministers, are authorised to administer the sacraments. There is, therefore, no distinction between a Pastor in UBMC and a Presbyter in the CSI. As the functions and duties of Presbyters and Pastors are the same and as both of them are ordained ministers, no exception can be taken by the respondents if the sacraments are administered by Pastors instead of by the Presbyters. No objection can also be taken to the Bishops administering the sacraments, for they do not merge from the apostolic succession which is the main characteristic of historical Episcopacy. If the respondents or any of the members of UBMC have or has any objection to the administering of sacraments by the Bishops, the sacraments can be administered by the Presbyters. It may be recalled that units of UBMC, namely, Malabar andunits have already joined the CSI. The CSI has accepted the form of worship which used to be followed in UBMC before the union of the two units with CSI, and such acceptance has been indicated in Rule 12 of Chapter II of the Constitution of CSI (Ex.Rule 12 specifically provides that no form of worship, which before the union have been in use in any of the united churches, have been forbidden in the CSI, nor shall any wonted forms be changed or new forms be introduced into the worship of any congregation without the agreement of the Pastor and the congregation arrived at in accordance with the conditions laid down in Chapter X of the Constitution. Thus, the CSI has already accepted the from of worship which the members of UBMC used to follow before the union of UBMC with the CSI. In view of this specific provision in Ex.it is difficult to accept the contention of the respondents that in case of merger or the implementation of the impugned resolution, the right of worship of the members of UBMC will beThe learned Judge of the High Court has referred to the manner of consecration and ordination in the CSI. Clause (iv) of Rule 11, Chapter II of Ex.inter alia, provides that every ordination of presbyters shall be performed by the laying on of hands by the Bishops and Presbyters, and all consecrations of Bishops shall be performed by the laying on of hands at least of three Bishops. Clause (iv) further provides that the CSI believes that "in all ordinations and consecrations the Ordainer and Consecrator is God who in response to the prayers of His Church, and through the words and acts of its representatives, commission and empowers for the office and work to which they are called the persons whom it has selected". It may be mentioned here that in UBMC the method of consecration and ordination is also the same as in the CSI. After an elaborate discussion, the learned Judge of the High Court has come to the conclusion that the laying or hands on the person to be ordained in the case of Episcopal Church, meaning thereby the CSI, has a spiritual significance of a transfer of Grace, whereas it has no such spiritual significance in UBMC, but is a symbol of conferment of authority only. After a person is appointed a Bishop or a Presbyter in the CSI or a Pastor in UBMC, he has to be ordained in almost the same manner as indicated above. We do not think it is within the purview of the enquiry in this litigation whether such ordination in the CSI has a spiritual significance of a transfer of Grade or whether it is only a symbol of conferment of authority, so far as UBMC is concerned. The mode or manner of ordination or the underlying object of such ordination has, in our opinion, nothing to do with the right of worship of theUBMC believes in Apostles Creed and Nicene Creed. Creeds are biographical sketches of Lord Jesus and they are the main items of all Church Services. Under its Constitution (Ex.the CSI also accepts the Apostles Creed and the Nicene Creed. The complainant of the respondents is that while the Shorter Catechism of Luther is placed on the same footing as the Apostles Creed and the Nicene Creed in UBMC, there is no reference to this in the Constitution (Ex.of the CSI. The Shorter Catechism of Luther is the instruction in the form of a series of questions and answers to be learned by every person before he is baptised. According to DW 1, Shorter Catechism of Luther is a statement of faith in the form of question and answers based upon Scriptures and Creeds intended to be used in instructing those who are to be baptised. That statement of DW 1 has not been challenged inon behalf of the respondents. Both UBMC and the CSI believe in Apostles Creed and Nicene Creed. IF Shorter Catechism of Luther, as stated by DW 1, consists of the Creeds in the form of questions and answers, we do not think that merely because there is no mention about Shorter Catechism in the Constitution of the CSI (Ex.it can be said that there is a difference in the faith and doctrine of the two Churches as held by the learned Judge. Moreover, this has nothing to do with the right of worship of the respondents and, accordingly, we do not think we are called upon to consider the effect ofof Shorter Catechism in Ex.question that came up for consideration by the Privy Council was whether in the Vaishnavite temples, situate in Trimulai and in Tripati, worship would be conducted exclusively in Tengalai order or the Vadagalais ritual would form part of the worship in these temples. The Privy Council came to the conclusion that Vadagalai community was not entitled to interfere with Tengalai ritual in the worship in those temples by insisting on reciting their own "manthram" simultaneously with the Tengalai "manthram". The suit instituted by the High Priest of the Tengalai community was decreed and the Vadagalai community was restrained from interfering with the Tengalai ritual in worship in those temples conducted by the appellant or his deputy by insisting on reciting their own "manthram" simultaneously with the TengalaiThe above decision of the Privy Council only lays down that if the right of worship is interfered with, the persons responsible for such interference can be restrained by an order of injunction. Even if Apocrypha is followed in the CSI that would not interfere with the right of worship of the respondents. We have already referred to Rule 12, Chapter II of the Constitution of the CSI (Ex.inter alia, providing that no forms of worship, which before the union have been in use in any of the united churches, shall be forbidden in the CSI, nor shall any wonted forms changed or new forms introduced into the worship of any congregation. There is, therefore, no cause for apprehension of the respondents that in case of merger, the Apocrypha will be imposed upon them which is repugnant to their religious faith. Moreover, in the liturgy of the CSI, the prayer from Apocrypha has been made optional which shows that there is no scope for the imposition of Apocrypha on the respondents in case of union of UBMC andappears that by a deed dated September 18, 1934 (Ex.the Evangelical Missionary Society in Basel (Basel Mission) declared itself as the trustee seized of or entitled to the lands and premises mentioned in the schedule to the said deed, holding the same in trust, inter alia, for the benefit of the members of the Church founded by the Society in the districts of South Kanara, Bombay, Karnataka and Malabar Known as UBMC in India. Further, it appears that the said Society appointed the UBMC Trust Association, a Company incorporated under the Indian Companies Act, 1913, the mergers of the trust properties, which belong to the Society and not to the UBMC Trust Association. Indeed, it has been noticed that in the plaint the respondents also admit that the properties belong to the Society and the Society holds the same as the trustee for the benefit of UBMC in India. In case of merger, there cannot be any diversion of the properties held in trust by the Society and managed by the UBMC Trust Association. The properties will remain the properties of the Society which holds them only for the purposes as mentioned in the said deed (Ex.In other words, even though there is merger, the properties or the income thereof will be utilised only for the benefit of the members of the UBMC of South Kanara andAlthough the UBMC Trust Association and the Society have been made parties in the suit as defendant 9 and 10 respectively, no relief has been claimed against either or them and there is no prayer for restraining them from diverting the property upon merger. It may be inferred from the absence or such a prayer that it was known to the respondents that there would be no diversion of the properties upon such merger. It has been rightly observed by the learned Munsif that as the respondents have not prayed for any relief against the Society and the UBMC Trust Association, they cannot urged that UBMC of South Kanara and Coorg will lose their rights in the properties held by the UBMC Trust Association, if a merger is permitted with the CSI. There is no material to show that the UBMC Trust Association has agreed to transfer the properties to the CSI in case of merger. There is no allegation in that regard in the plaint. In the circumstances, it is difficult to accept the contention of the respondents that in case of merger there will be diversion of the properties in the hands of the UBMC Trust Association to the CSI in breach ofhappened in Free Church Case [1904 AC 515] was that majority of the members of the Free Church of Scotland united and used the funds, of which they claimed to be the beneficial owners, for the use of the new united body. It was contended on behalf of the minority, who chose to be out of such union, that the user of such funds constituted breach of trust. The enquiry in that decision was consequently directed to the question whether there was a breach of trust or not and it was held by majority of the Law Lords that there was such a breach of trust. As there is no question of such breach of trust in the instant case, Free Church Case [1904 AC 515] has no manner of application, even though the High Court had made elaborate discussions over the case and came to the finding that certain observations made by Lord Halsbury, L. C. were applicable. It appears that in considering the question as to whether there was a breach of trust or not, Lord Halsbury made the following incidental observationsMy Lords, I am bound to say that after the most careful examination of the various documents submitted to us, I cannot trace the least evidence of either of them having abandoned their original views. It is not the case of two associated bodies of Christians in complete harmony as to their doctrine agreeing to share their funds, but two bodies each agreeing to keep their separate religious views where they differagreeing to make their formularies so elastic as to admit those who accept them according as their respective consciences willas I do, that there are differences of belief between them, these differences are not got rid of by their agreeing to say nothing about them, nor are these essentially diverse views avoided by selecting so elastic a formulary as can be accepted by people who differ and say that they claim their liberty to retain their differences while purporting to join in one Christianbecomes but a colourable union, and no trust fund devoted to one form of faith can be shared by another communion simply because they say in effect there are some parts of this or that confession which we will agree not to discuss, and we will make our formularies such that either of us can acceptan agreement would not, in my view, constitute a Church at all, or it would be, to use Sir William Smiths phrase, a Church without a religion. Its formularies would be designed not to be a confession of faith, but a concealment of such part of the faith as constituted an impediment to theThe observations extracted above have been strongly relied upon by the learned counsel for the respondents. According to the observations, no objection can be taken, if there be complete harmony as to their doctrine. As discussed above, there is little or no difference between the doctrines, faith and religious views of UBMC and the CSI. The objection of the respondents to historical Episcopacy has no solid foundation inasmuch as historical Episcopacy is not in existence in the true sense of the term in the CSI, and it is now in a constitutional form. In other words, as earlier pointed out, the Bishops are elected and apostolic succession which is associated with historical Episcopacy, is totally absent. Moreover, the observations in the Free Church case [1904 AC 515] have been made in connection with the question whether there was breach of trust or not. Therefore, the said observations cannot, in any event, be applicable to the facts of the present case which are different from those in the Free Church Case [1904 AC 515]. We accordingly, reject the contention of the respondents that following the observations made by Lord Halsbury, the impugned resolution should be struck down and the appellants should be restrained from effecting anyThus, the District Church Council is the final authority in all matters relating to the Church except those of faith and order and the disciplining of Pastors, Evangelist and Elders. Rule 14 of the Constitution confers power on the District Church Council relating to the amendment of the Constitution. Rule 14 provides asthat case, the members of unregistered Members Club owning certain properties passed a resolution by a majority vote that the Club should be dissolved. It was held by the Special Bench that in the absence of any provision in the rules of the Club laying down the circumstances and the manner in which the dissolution of the Club could take place, the dissolution of the Club would not be brought about by a majority vote. The Club could be dissolved only if all the members unanimously agreed to such dissolution. We are afraid, this decision has no manner of application to the facts of the instant case. Here we are not concerned with the question of dissolution of UBMC of South Kanara an Coorg, but with the question of merger. Dissolution contemplates liquidation of the Club and distribution of all assets among the members, but in the case of merger, there is no question of liquidation or distribution of assets. Moreover, we have already discussed above that the properties held in trust for UBMC will not be diverted to the use of the CSI, but will continue to be held in trust by the UBMC Trust Association for the benefit of the members of UBMC of South Kanara and Coorg, even if a merger takesOne of the functions of the Synod, as contained in clause (c)(3), is to give suggestions on problems pertaining to the Church Union. Another function is that contained in clause (d), upon which much reliance has been placed on behalf of the appellants. Clause (c)(3) and clause (d) read together confer authority on the Synod to grant permission for union keeping in view the question of faith and order. It is the case of the appellants that Synod has accorded its permission for the merger of UBMC of South Kanara and Coorg in the CSI. It is also their case that the resolution has already been implemented. The learned Judge of the High Court has taken much pains in coming to the conclusion that there has been no such implementation as alleged by the appellants. The question before us is not whether there has been any implementation of the resolution or not, but the question is whether the District Church Council had the authority to pass such a resolution. It is true that the District Church Council has only the power of amendment of the Constitution. No power has been conferred on it to pass a resolution relating to the union of UBMC of south Kanara and Coorg with the CSI. But the Synod is the highest authority and there can be no doubt that the Synod has the power to sanction merger of any unit of UBMC in the CSI. On June 24, 1968, the Synod of UBMC passed the following resolutionResolved unanimously that this Synod of the United Basel Mission Church permit the District Church Council of South Kanara and Coorg to join the Church of South India and that with effect from the date of affiliation this Synod cease toThe learned Judge of the High Court has also noticed in paragraph 19 of his judgment that such a resolution of the Synod according permission for the union was passed on June 24, 1968. The resolution was passed unanimously by all the members present on that date. It is, however, faintly suggested by the learned counsel for the respondents that Synod was not in existence after the merger of Bombay, Karnataka and Malabar units of UBMC in the CSI. The suggestion is not correct, for the Synod that existed after the merger of the said two units in the CSI unanimously passed the resolution. As the Synod was a representative body of the units, it stood dissolved after passing the resolution sanctioning the merger of the only remaining unit of South Kanara and Coorg in the CSI. But, unit such a resolution was passed, it did exist as the highest authoritative and administrative body ofProvision for dissolution of societies and adjustment of their affairsAny number not less thanof the members of any such body as aforesaid may at a meeting convened for the purpose determine that such body shall be dissolved; and thereupon it shall be dissolved forthwith, or at the time when agreed upon; and all necessary steps shall be taken for the disposal and settlement of the property of such body, its claims and liabilities, according to the rules of such body applicable thereto, if any, and, if not, then as such body at such meeting may determineProvided that, in the event of any dispute arising among the members of such body, the adjustment of its affairs shall be referred to the principal court of original civil jurisdiction of the district in which the chief building of such body is situate; and the court shall make such order in the matter as it deems fit