Case: K.S. Varghese &amp; Others Vs. St. Peter's &amp; Paul's Syrian Orth. &amp; Others

this aspect even though there is a strong protest which has led to repeated round of litigations before the courts up to the Honble Apex Court. The underlying object or the purpose even if it assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law of land." 30.After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the change report(s), CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution." The decision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUIT : 180. It was also submitted by Shri Mohan Parasaran, learned senior counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 CPC, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse, speculation and waste. Reliance was also placed on Ram Dularey v. Ram Lal AIR 1946 PC 34 in which it has been laid down thus: "Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, if their Lordships found it necessary to reconsider the scheme; but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by the judge met of this Board, delivered by Mr. Ameer Ali, in Mahomed Ismail Ariff and others v. Ahmed MoollaDawood and another [43 IA 127: 43 Cal. 1085: 4 LW 269 (P.C.).]" (Emphasis supplied) 182. In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUE : 183. Lastly, it was submitted by Shri K. Parasaran, learned senior counsel, that as reconciliation does not appear to be possible between both factions, as such the religious services in the St. Marys Orthodox Church, Varikoli may be permitted to be conducted by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination. The submission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected.

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

Explanation:
1[ds]In our opinion, the submission is wholly untenable. The representative suit was decided in 1995 and the judgment is binding even on those who were not parties to the case. All the Parishioners are bound by the judgment to the extent it has decided the matter. There is no conflict in the decree as well as the aforesaid observations that have been made by this Court. The majority opinion has left open the question that the property whether it is held by the Parish Churches or vested in the Catholicos and Para 155(8) deals with other rights and nature of the Church to be episcopal and with respect to the applicability of the 1934 Constitution the judgment is final, conclusive and binding in these cases.Though on the basis of Bhikhi Lal v. Tribeni AIR 1965 SC 1935 it was submitted that the decree has to be in accordance with the judgment, we find that the decree is wholly in tune with the judgment and the issues which were effectively decided by this Court and what was left open is absolutely in no conflict with the findings recorded in the judgment and in the decree. The decree is in accordance with the aforesaid dictum of thissubmission that declaration under section 35 of the Specific Relief Act since in personam and the 1995 judgment has to be considered in that spirit, cannot be accepted in view of the aforesaidour opinion, the Parishioners were parties in the previous suit decided in 1958 and 1995 earlier thereto. The question cannot be reopened again and again by them on the ground that they were not parties individually, otherwise the representative suit and issues as well as the right of suing in representative capacity, would lose entire significance. No doubt it is true as held in Deoki Nandan v. Muralidhar 1956 SCR 756  that the true beneficiaries of religious endowments are not the idols but the worshippers. This principle has also been reiterated in Veruareddi Ramaraghava Reddy v. Konduru Seshu Reddy 1966 Supp SCR 270 and Bishwanath v. Shri Thakur Radhaballabhji (1967) 2 SCR 618. There is no dispute with the proposition that the persons who go in only for the purpose of devotion have a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage. The decisions are based on Hindu religion. However, the principle is one of law applicable to all religious institutions including the churches having a public character.The submission cannot be made successfully as it ignores and overlooks the mandate of Explanation 6 to section 11 and provision of Order 1 Rule 8(6) CPC. The previous suit was a representative suit and the present appellants/churches are deemed to be parties in the representative suit as they could have applied for defending their rights or to sue as the case may be in the previous suits which had been decided by this Court. Thus there is no question of violation of the principle of natural justice in the case infind that the aforesaid submission is of no use to the present appellants. On one hand, they have submitted that the previous 1995 judgment has left certain issues open as to properties of Parish Church, and on the other hand, they are raising the aforesaid submission. However, the aforesaid submission does not affect the declaration so granted in the instantare unable to accept the submission. The finding of this Court which operates as res judicata is about the binding nature of the 1934 Constitution on the Parishioners and Parish Churches. This Court has made an exception under the aforesaid judgment with respect to Knanaya Church. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The 1995 judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934submission is attractive but is not acceptable as what is the meaning of spiritual supremacy, what is, inter alia, the effect of establishment of Catholicos and what is the delegation of power as per Kalpana made by the Patriarch, what he has accepted subsequently in 1958 andhe respective rights of management of Parish Church would have to be decided. In our opinion, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management, and the spiritual aspect which has been claimed under the guise of spiritual supremacy in the instant case, is an effort to illegally take over the management of the Churches by rival factions in derogation of delegation of powers, as would be apparent from the discussion to be made hereinafter with reference to the provisions of the Constitution and Kalpanas. The power with respect to Orthodox Syrian Church of the East is the Primate i.e. Catholicos. Though the Primate of the Orthodox Syrian Church is the Patriarch of Antioch. Certain spiritual powers have also been vested in Malankara Metropolitan, as per section 94 of the 1934 Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the churches and to render religious services under the guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 Constitution which has been accepted and is binding, a parallel system of governance of churches would not be in the interest of the church and would destroy it. It is not the fight for spiritual gains but for other purposes as is apparent from the discussion made hereinafter.77. Shri K. Parasaran, learned senior counsel is right in his submission that the declaration sought in the form that the Church is governed by the 1934 Constitution as upheld by the Supreme Court, should not have been prayed in the form as if this Court had declared it as it could be a ground and a legal aspect. The declaration ought to have been sought that the Church is governed by the 1934 Constitution only and not adding prayer as upheld by this Court. He is right that the declaration in such form ought not to have been sought but in our opinion further submission is not correct that the declaration so sought, has adversely affected the decision of the trial court as well as the High Court. We have gone through the decision and have found that we have not been influenced by the declaration caused in the aforesaid form and no prejudice has been caused to the appellants.IN RE: ABANDONMENT OF PLEAS/OBJECTIONS TO THE REVIVAL OF THE CATHOLICATE, THE VALIDITY OF THE 1934we are unable to accept the aforesaid submission. When the Church is a Parish Church and since time immemorial it is a Parish Church and is a part of Malankara Church, it has to perpetually remain as such. Under the garb of pursuing their faith of the Patriarch being superior, they cannot create a parallel system of appointing a Vicar for performing spiritual/religious ceremonies conforming to that faith, as an appointment of Vicar is not a spiritual matter. It is a secular matter. Thus the submission so as to dilute the finding at para155(6) and (7) of the 1995 judgment cannot befind no merit in the aforesaid submission as the decision in Sha Mulchand & Co. (supra), is that the question of waiver, acquiescence or laches may sometime not amount to an abandonment of the right or create an estoppel in certain circumstances. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches or by saying that he has abandoned his right, unless there is something more, namely inducement of another party by his words or conduct to believe the truth of that statement and so as to make him act upon it to his detriment. Then such a person would be bound by estoppel. It is not abandonment or waiver, which prevents him from asserting that the legal forms were not duly observed. In the instant case the discussion which has been made in the 1995 judgment is too elaborate and is based primarily on various historical facts and background which clearly indicate that the Patriarch at no point of time had exercised temporal control and it was considered necessary to establish the office of the Catholicos so as to manage the Malankara Church which is a division of the Orthodox Syrian Church. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Church is the Catholicos. It is apparent from Kalpanas, establishment of the office of Catholicos and other historical facts discussed in the judgments referred to in the 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once having done so, the Patriarch is bound by it and cannot wriggle out of it and make the entire Parish Church systemdge Bench decision in the 1995 judgment cannot be said to be contrary to theBench decision in Sha Mulchand (supra) but on a closer scrutiny, Sha Mulchand (supra) does not buttress the plea of the appellants but negotiates against it. Too much cannot be made out of the observations made by this Court that the Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church but the fact that remains is that it has reached a vanishing point and the Church is to be managed as per the historical background, in accordance with the 1934 Constitution which has also the force behind it of the Patriarch himself in the form of Kalpana. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 Constitution and cannot be permitted to commit regular breach and device ways to circumvent the judgment of this Court by one way or the other and under the garb of spiritual fight wrest the temporal control of the Churches. That the spiritual power of the Patriarch has reached to a vanishing point, has to be given the full meaning and it cannot mean that the powers can be exercised under the umbrella of spirituality to interfere in the administration of the Church and creating a parallel system of appointing Vicars and Priests etc. which will paralyze the functioning of the Churches for which they have been formed and it would be against the very spirit of creation of trust from time immemorial which inheres the concept that once a Trust always a Trust. No person under the guise of spiritual faith can be permitted to destroy a system which is prevailing for the management of such Churches and go on forming Constitution as per his will time and again. There is no need in case of any such Constitution as is framed in the year 2002. What is the guarantee that there would not be any other Constitution created by any other faction for the administration of same Churches any day hereafter or in future? Once any Parishioner wants to change the 1934 Constitution, it is open to them to amend it as per the procedure. It is right that it therefore is not a Bible or holy book of Quran or other holy books which cannot be amended. The 1934 Constitution has been amended in the form ofor regulations applicable for governance of Parish churches a number of times, as aforesaid, and it can still be amended to take care of the legitimate grievances, if any, but there appears to be none for which the fight has been going on unabated in the instant cases.IN RE: PARISHIONERS HAVE A RIGHT TO FOLLOW THEIR OWN FAITH UNDER ARTICLE 25 AND APPOINTMENT OF VICAR, PRIEST AND DEACONS ETC. AND MANAGE AFFAIRS UNDER ARTICLE 26 OF THE CONSTITUTION OFThus, we are unable to accept the submissions raised by Shri K. Parasaran, learned senior counsel for various reasons. The appointment of Vicar is not a spiritual matter but is a secular matter.The submission as to the violation of faith and violation of a right under Article 25 is to be rejected. No doubt about it that a religious denomination or organization enjoys a complete autonomy in the matter of deciding as to rites and ceremonies essential according to their tenets of religion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters. At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature as laid down in the Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005. Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan etc. Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or Priest. There is no violation of any right of Articles 25 or 26 of the Constitution of India. Neither any of the provisions relating to appointment of the Vicar can be said to be in violation of any of the rights under Articles 25 and 26 of the Constitution of India. The 1934 Constitution cannot be said to be in violation of Articles 25 and 26 of the Constitution of India. It was suggested that the faith involved in the present case refers to apostolic succession from Jesus Christ, viz., the blessings and grace of Christ descends through an apostle i.e. St. Peter or St. Thomas as the case may be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that arelike Catholicos, Malankara Metropolitan, and Diocesan Metropolitan etc. It is not necessary for the Pope and the Patriarch to appoint Vicar because management of a Church is not a religiousissue of Patriarch of Catholicos has been raisedIt is a Diocesan Metropolitan as per Section 40 of the Constitution who has the power to appoint Vicar, priests etc. and there is other hierarchy provided. Even Catholicos, Malankara Metropolitan has the spiritual powers. It is not that they have temporal powers only. They have spiritual status too that has to be respected equally. Shri C.V. Singh, learned counsel, is right in contending that no office is either superior or inferior in the matter of relationship between the two heads, the Catholicos and the Patriarch. Both are independent spiritual authorities. However, the Patriarch occupies the higher post in the hierarchy i.e. he has an honour or precedence if he is present that is in a sense he is the first among equals"primus inter parties". The Church functioning is based on division of responsibilities at various levels.The division of power is for the purpose of management and does not militate against the basic character of the church being Episcopal inhighest authority of Malankara church of the east is Catholicos being its primate as recognised in Section 2 of 1934 Constitution. What is sought for and intended is wholly uncalled for, wholly unnecessary and unpalatable. Community may divide but churches and places of worship cannot be divided. They have to be respected for the sake of religion and to exercise their coveted rights under Articles 25 and 26 and for preservation of such rights. We are not oblivious of the fact that still there may not be truce and peace in the church which cannot besubmission is not at all plausible. The properties would always remain to be Malankara Church properties. Only Office holders have to subscribe to the 1934 Constitution as held by this Court. The Parishioners can take no church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church.In our opinion, there is no force in the submission of Shri Vaidyanathan, learned senior counsel, that if services and ceremonies conducted by only those Vicars and priests who are appointed in accordance with the 1934 Constitution, would be violative of the basic object of the Parish Church. As already discussed we find no force in the submission. Diocesan Metropolitan appoints Vicar under the 1934 Constitution. It does not impinge upon the object of the Parish churches. The Catholicos or the Patriarch, as the case may be, are not supposed to deal with such matters which are reserved for Diocesan Metropolitan as apparent from various decisions and provisions in the 1934 Constitution. This is the position prevailing since long. As already discussed, Vicars or Priests can also be appointed by secular authorities of sovereign. The appointment made by Diocesan Metropolitan cannot be said to be suffering from any illegality or affecting the spiritual rights of the Parishioners. Deacons and Preist for ordination are required to undergo successfully, theological studies and principle has to certify as to their fitness. For ordination as Korooyo (Reader) successfully clearing of 3 years study is required. How Patriarch from abroad can exercise such powers is beyond comprehension and that would amount to unnecessary interference which is not supported by any Kalpana or historical document.129. The 1934 Constitution provides appointment of Vicar by Diocese in the area of its operation. Other provisions that we have discussed with respect to appointment detailed out in the 1934 Constitution. In the absence of anything having been provided in Udampady, the 1934 Constitution would hold the field.130. Faith is tried to be unnecessarily divided vis a vis the office of Catholicos and the Patriarch. Faith of church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an action just to gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infringement of the rights under article 25 and 26 of constitution of India in case the Diocesan Metropolitan appoints Vicar as provided in the Constitution and it is clear the Patriarch of Antioch has not reserved this power to himself. Why there is such dispute is most unfortunate and is for inexplicable reasons. There is no good or genuine cause for it. As a matter of fact the 1995 judgment settled such disputes, between the parties. This court has tried its best to take care of the prevailing situation while passing the decree. It was observed in utter breach during its execution itself. We are unable to accept and appreciate why for the Patriarch himself should appoint Vicar, Priest etc. The Diocesan Metropolitan as per the Constitution of 1934 appoints vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is running a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it can be done only in that manner and not otherwise. This Court in 1995 Judgment made it clear that the Patriarch has no such authority, he could not exercise any such spiritual power unilaterally as done in 1972 which became the cause of unrest in Church. The appointment of Vicar, Priest by the Patriarch or through delegate unilaterally was held to be not permissible in the decision of 1995 even if he has such powers. It appears he has no such power to interfere in the management of the church and now that question is agitated again and under the same guise of supremacy such an uncalled for attempt has to be thwarted and not to be countenanced for a moment. There is no violation of constitutional provisions or authority of Patriarch. Thus there is no question of violation of Parishnors rights and applicability of decisions in Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Basheshar Nath v. I.T. Commissioner AIR 1959 SCar Singh Paul v. Union of India 2000 (3) SCC 588. IN RE : REPUDIATION OF THE SPIRITUAL SUPREMACY OF THE PATRIARCH BY THE CATHOLICOSNone of the aforesaid submissions are acceptable for various reasons. It is apparent from M M B Catholicos v. T.Paulo Avira (supra) and the 1958 judgment rendered by this Court that similar issues with respect to repudiation of powers of the Patriarch by the Catholicos group were raised. As apparent from the aforesaid extractedthe instant case also we find that due to Patriarchs action in the year 1972 of appointment of Vicar and priests etc. unilaterally, created unrest in the church. It again happened in 2002 onwards. It is in that context writ petitions came to be filed when Patriarch faction was not following the decision of this Court of 1995 and did not participate in the election and in 2002 created a new Constitution of 2002 and a parallel administration. The aforesaid writ petitions came to be filed in the High Court. The patriarch and his faction ought to have accepted the judgment of this Court. At the same time Catholicos ought to have respected the authority of the Patriarch. However the level at which the differences reached in spite of the judgment of 1995 which was binding on all concerned, the action of the Catholicos faction cannot be said to be wholly illegal as an effort was made by Patriarch to divide the church, and therefore they cannot be said to have incurred any disqualification or can be termed as heretics. The writ petitions were ultimately dismissed but the unpleasant events which happened in the case after 1995 judgment were wholly unwarranted and ought not to have been resorted to by the Patriarch faction. When this Court had appointed Justice Malimath by consent to hold the elections, the decision of 1995 ought to have been respected by the parties. It was the bare minimum respect to the judgment that was expected of the rival factions. Both the factions ought to resolve their differences, if any, on a common platform and in case of necessity to amend the Constitution further, if it became necessary but they could not have taken at all a recourse to create the parallel system for administration of the very churches, creating law and order problem, resulting into closure of the church for substantial time and having two Vicars in the same church, serving in the church at different times each day as per the interim order. The situation where the church has reached is neither expected nor tolerable and church is not meant to be a place for such a masculine culture. The matter was decided in the Vattipanam suit, Samudayam suit and the 1995 judgment and the Patriarch faction ought not to have violated the judgment of this Court in the method and manner in which it has been done. In the 1958 judgment also this court has laid down by an elaborate reasoning process that the 1934 Constitution is binding on the Parish Churches. M.D. Seminary meeting was properly held in which the 1934 Constitution was adopted.The principle enunciated by this Court in respect of Knanaya Church is not at all applicable with respect to Parish Churches where the finding of this Court is otherwise to the effect that they are bound by the 1934 Constitution. The spiritual supremacy of the Patriarch has not been put into question by the Catholicos faction it was not pleaded that his appointment is not recognized by the Catholicos faction. The Universal Synod in accordance with the applicable Canon appoints the Patriarch. We are of the opinion that in the absence of any dispute as to the identity who is the Patriarch, there is no question of not recognizing Patriarch by the Malankara Church hence. Rightly it has not been pleaded, but that does not help the appellants with respect to appointment of Vicar and Priests etc. However, what is the extent of authority of the Patriarch has to be seen and gazed in the light of historical backgroundand what has been held in various representative suits from time to time which are binding to the extent the issues decided. We are of the considered opinion that once office of the Catholicos has beenPatriarch could not exercise the powers which have been dealt with in the 1934 Constitution, and conferred on various authorities in hierarchy of church, that too unilaterally to create another centre of power and thereby the Patriarch cannot be permitted to create parallel system of administration by appointing Vicars, Priests and Deacon or another authority of Church. He is bound to act within the four corners of the1934 constitution for the sake of peace in the church. In the temporal matters, Patriarch has no power and the spiritual power had also come to the vanishing point by his own acts as noticed by this Court in the 1995 and other judgments. Submission to the contrary on behalf of the appellants that he can exercise the powers after informing the Catholicos, cannot be accepted. The Malankara Metropolitan has to be of local area. Logically also for proper management of the affairs of Churches power cannot be exercised from abroad. Such a scenario is neither conceived nor feasible or permissible. The spiritual supremacy of one holy authority over the other, also cannot per se mean exclusion and subordination of the other religious authority. When there is delegation and delimitation of the territorial and other powers, concerned authorities however high they may be, spiritually or otherwise, have to follow the discipline and strictly act as per delimitation of zones and powers. It is absolutely necessary for survival of the Church and for properfind that the source of the entire problem is that the Patriarchs faction is not ready to accept Vicar and priests and the management which vests not only in Catholicos but also in Malankara Metropolitan, Diocesan Metropolitan. They want to have their own system of management by creating parallel managing groups as noted by this Court in the 1995 judgment also. In 1972 genesis of entire problem in the Churches was appointment of Vicar etc. made unilaterally on behalf of the Patriarch. Thereafter this Court had rendered the judgment and held that it was not open to the Patriarch to do it in the method and manner that it was done. Even assuming for a moment that Patriarch was having those powers, he could not exercise them unilaterally and the 1934 Constitution prevails in the churches, is a clear finding of this Court. Thus the Patriarch has also acted against the 1934 Constitution as well as the Canon by which Catholicos have beenin 1912 and after delimitation of areas. The Patriarch faction for no good cause is ready to accept the ecclesiastical and spiritual powers of the Catholicos and others as provided in the Constitution and Kalpanas and as held by this Court in the previous judgments. It was held in 1905 in the Arthat Suit that the Churches and their properties are subject to spiritual, temporal and ecclesiastical jurisdiction of Malankara Metropolitan. The Patriarchs claim of control over the temporal affairs of the Malankara Church was rejected. It was also rejected in the Seminary Suit filed in 1879. The effort made by the Patriarch faction appears to be for the temporal gains under the guise of supremacy of the Patriarch as the Vicar and priests have the power of management in addition to performing the religious duties. The submission that the 1934 Constitution has been breached by the Catholicos cannot be accepted. There is not only violation of binding judgment 1995 of this Court by the Patriarch faction but of other binding precedentsthe Church has been created and is for the benefit of beneficiaries, in our opinion, it is not open for beneficiaries even by majority to usurp its property ordoubt about it that the dispute in Samudayam Suit was with respect to community property but considering the rival claims, various issues which were raised, had been gone into and the findings had been recorded thereupon in order to decide the said controversy, are binding as suit was representative suit. Thus the issues which have been decided in the suit, cannot beincluding the question of adoption of the 1934 Constitution, its validity and binding nature. The applicability and legality of 1934 Constitution was questioned in the Samudayam suit. A ground was raised that by formation of the 1934 Constitution, supremacy of the Patriarch has been taken away. This Court in 1995 judgment construed Samudayam judgment and there is no scope to differ with theour opinion the High Court has rightly granted the declaration sought for in the facts and circumstances of the case, projected in the case. The declaration given that the Parish Churches are governed by the 1934 Constitution is just andfind that in the instant the Patriarch faction is more to be blamed for disorder in the churches than the Catholicos faction. They ought to have followed 1995 judgment and other decisions. That they have not done and have insisted upon their own system of management that is not permissible.IN RE: UDAMPADYENFORCEABILITY, OF BINDING NATURE AND 2002submission that the Udampady will prevail cannot be accepted in view of the provisions made in section 132 of the 1934 Constitution to the effect that all agreements which are not consistent with the provisions of this Constitution are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. The question cannot beand reopened under the guise of Udampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. Udampady cannot prevail over the Constitution that has been adopted for all the Malankara Churches and is holding the field. The registration of the Udampady cannot make it superior than the Constitution and the latter will prevail as found by this Court in earlier decisions. The finding is binding, conclusive and has to be respected. Even otherwise, in our opinion, Udampady cannot hold the field.We are unable to accept the arguments by Shri Mohan Parasaran, learned senior counsel for various reasons. Firstly, no one can deny the right under Article 20 of the Universal Declaration of Human Rights. In our opinion, counsel is right that no one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an Association but the question in the case is whether one can form another Association within the same Association and to run a parallel system of management of the same very church which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise than by the 1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution 2002 to appoint Vicars, Priests etc., giving a go by to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. The Malankara Church its properties and other matters are to be governed by the 1934 Constitution and even majority of parishioners has no right to take away and usurp the church itself or to create new system of management contrary to 1934 Constitution. It was a trust created as Malankara church that is supreme, for once a trust always a trust.As per the 1934 Constitution, it is clear that while individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the Church hierarchy.Various provisions of the Constitution make it clear that there is a hierarchy of control and Parish Church properties cannot be dealt with otherwise, the provisions contained in section 23 as to the written consent of the Diocesan Metropolitan and the detailed system of management, appointment of Vicar and the Kaisthani, Parish Assembly, as also the power to spend certain amounts as provided in section 22 of the Constitution. The accounts are supervised and to be signed by the Diocesan Metropolitan. Similarly the acquisition of any immovable property for the Diocese can be with the written consent of the Malankara Metropolitan. It is apparent from the aforesaid provisions that there is a hierarchy of control that is provided with respect to the Church properties also. The community trustees are also provided for the Vattipanam that is Trust Fund. Section 94 provides for the temporal, ecclesiastical and spiritual control of the Malankara Metropolitan. Catholicos can also hold the office of Malankara Metropolitan. The Episcopal Synod has the power to consecrate Cathlicos. Whatever autonomy is there, is provided in the Constitution for the Churches for necessary expenditure as provided in section 22, otherwise it is Episcopal nature of the Church and once the property vests in Malankara Church, it remains vested in it and cannot be taken away and in case there is any dispute with respect to faith etc. as is raised in the present case, it has to be decided by the Episcopal Synod and in case anyis to be changed, its remedy is available under the provisions of sections 126, 127 and 129. Faction of Parish cannot decide against Constitution. Byelaws must conform to Constitution. The income has to be distributed as per sections 120 to 123.164. The submission raised that by majority, decision can be taken to opt out of the 1934 Constitution by the Parish Assembly and to form a new church under a new name, as has been done in 2002. In our opinion Constitution prohibits such a course. Eventhat do not conform to Constitution cannot be framed and that has to be placed before Rule Committee under sections 126, 127 and 129. In existing system of Malankara Church, a Parish Church that is a part of Malankara Church cannot be usurped even by majority in Church under the guise of formation of new Church.The majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish churches. However it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as the Constitution provides for the same. In the absence of any further prayer made, suffice it to hold that the 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides and discussed by us. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail.166. In our opinion, otherwise also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decision or permitted to usurp Church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church.From the aforesaid it is apparent that the Parish Assembly by majority cannot take away the property and divert it to a separate and different church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of 1934. As the basic documents of creation of church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant.Thus, we have no hesitation to hold that the 2002 Constitution cannot hold the field to govern the appellant churches and the 1934 Constitution is binding. Finding recorded by the High Court that the Kolencherry Church was not administered by the 1913 Udampady and was administered in accordance with the 1934 Constitution, in our opinion, is correct at least after the Consitution was adopted. General body meeting of 8.3.1959 has adopted the 1934 Constitution. Udampady cannot hold the field by virtue of section 132 of the Constitution and there is other oral evidence that had been assessed by the High Court including the documentary evidence and the Udampady cannot be taken to govern. Moreover in view of the findings in the 1958 Samudayam suit and the 1995 judgment, the Constitution of 1934 is binding which has been held to be valid and Malankara Church has to be administered as per the provisions contained therein. Thus Udampady of 1913 cannot be set up or used as ploy to avoid the provisions of 1934 Constitution. Thus the main plank of submissions is also barred by the principle of res judicata.In our opinion, none of submission of Shri Divan is legally tenable. The church was created way back in the 7th century. The Udampady of 1913 is not a document of creation of the Trust. The thenperson executed it just for the management of the church in question. The 1934 Constitution after being adopted in 1959 by the Church is binding. The Udampady of 1913 has lost its efficacy and utility. The Udampady stands annulled by Section 132 of the Constitution. It cannot be revived. Thus it is not open to the church or parishioners by majority to wriggle out of 1934 Constitution. In view of the findings recorded in the Samudayam suit also by the 1995 judgment, the question operates, as res judicata and the administration on the basis of Udampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per section 132 of the 1934 Constitution.174. There are inconsistencies between the 1934 Constitution and 1913 Udampady as such the latter cannot prevail. In terms of Section 132, any Udampady (agreement) which is inconsistent with the provisions of 1932 constitution stands annulled and is ineffective. The following among others, are the important inconsistencies between the provisions of 1913 Udampady and the 1934 Constitution.In view of the above inconsistencies, as well as in light of the findings of the Supreme Court in 1959 judgment and the 1995 judgment regarding the validity and the binding character of the 1934 constitution, the 1913 Udampady would, in any event, no longer survive and Parish Church would be governed in accordance with the 1934 Constitution.176. Shri Anam, learned counsel, was right in submitting that educational institutions have to be run in accordance with the provisions of the Kerala Education Act. Educational institutions cannot be governed by the Udampady of 1913 as per sections 6 and 7 of the Kerala Education Act, 1959.IN RE: EFFECT OF NON REGISTRATION OF 1934 CONSTITUTION AND EFFECT OF REGISTERED UDAMPADY177. The Udampadies were for administration of the Church at the relevant time and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation of Trust/s, the Udampadies were not required to be registered. Udampady cannot prevail over the 1934 Constitution for various reasons discussed in theour opinion, the 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, in the Malankara church properties. It provides a system of administration as such and not required to be registered, and moreover the question of effect ofof the 1934 Constitution cannot be raised in view of the findings recorded in theand the 1995judgments. The question could, and ought to have been raised but was not raised at the time of authoritative pronouncement made by this Court. Otherwise also, facts have not been pleaded nor any provision of the constitution pointed out that may attract the provisions of section 17(1)(b) of the Registration Act. Thus, it is not open to question the validity of the 1934 Constitution on the ground that it cannot be looked into for want of its registration. Reliance was placed upon Kashinath Bhaskar Datar v. Bhaskar Vishweshwar 1952 SCR 491 in which it has been laid down that when a document restricting or expanding the interest in an immovable property requires compulsory registration, otherwise it cannot be admitted in evidence. Udampady itself is not a document of creation of Trust. It related to the management only. Thus, by its registration no legal superior right is acquired to prevail over the Constitution. Reliance was placed upon decision of this Court in Chandrakant Shankarrao Machale v. Parubai Bhairu Mohite (2008) 6 SCC 745  to contend that the terms of a registered document could be varied or altered only by another registered document. The court was dealing with the mortgage deed dated 28.2.1983. When there is such a deed of mortgage, its terms could not have been varied or altered by an unregistered document so as to change its status from that of a mortgage to that of a lease. The decision has no application as the Udampady pertained only to administration. No registered document was required for administration of the Church. Document of creation of a Trust may require registration and not a document like the 1934 Constitution. Reliance was also placed upon S. Saktivel (Dead) by LRs. v. M. Venugopal Pillai & Ors. (2000) 7 SCCTC Ltd. v. State of U.P. (2011) 7 SCC 493. The decision in S. Saktivel (supra) deals with the terms of the registered document whereas the decision in ITC Ltd. (supra) is also in a different context. S. Saktivel (supra) was a case where property itself was registered by a registered settlement deed dated 26.3.2015. It was held that it could not be modified or altered or substituted in 1941 by unregistered document. The decision has no application for the aforesaiddecision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUITare not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd.In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUEsubmission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected.184. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows :(i) Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail.(ii) The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree.(iii) The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.(iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in theexercise of right under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch.(v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.(vi) Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests) etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan etc.(vii) Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust.(viii) When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the Parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy.(ix) The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.(x) As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.(xi) This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment.(xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution.(xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.(xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned.(xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.(xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.(xvii) The Church and the Cemetry cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.(xviii) The faith of Church is unnecessarily sought to be dividedthe office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.(xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court.(xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even framein violation of the provisions of the 1934 Constitution.(xxi) The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.(xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in section 22 etc.(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.(xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order 1 Rule 8 CPC. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under section 92 of the CPC.(xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration.(xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.