2017 Supreme(SC) 648

SUPREME COURT OF INDIA
ARUN MISHRA, AMITAVA ROY, JJ.
K.S. Varghese & Others - Petitioners
Versus
St. Peter's & Paul's Syrian Orth. & Others - Respondents
CIVIL APPEAL NO. 3674 OF 2015 WITH CIVIL APPEAL NO. 3681 OF 2015 CIVIL APPEAL NO. 3682 OF 2015 CIVIL APPEAL NO. 3683 OF 2015 CIVIL APPEAL NO. 8790 OF 2015 CIVIL APPEAL NO. 8789 OF 2015 CIVIL APPEAL NO. 5408 OF 2017 (Arising out of SLP(C) No. 35211/2015 ) CIVIL APPEAL NO. 5409 OF 2017 (Arising out of SLP(C) ...CC No. 22129/2015) CIVIL APPEAL NO. 5411 OF 2017 (Arising out of SLP(C) No. 35599 of 2015) CIVIL APPEAL NO. 5410 OF 2017 (Arising out of SLP(C) NO. 28797 OF 2015)
Decided On : 03-07-2017

IMPORTANT POINTS
The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail.
The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided. 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.
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.
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.
The appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc.has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan etc.
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 the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church.
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.
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.
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.
Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc.
The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. 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 frame bye-laws in violation of the provisions of the 1934 Constitution.
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.
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.

Headnote:(a) Code of Civil Procedure, 1908 – Order I, Rule 8 – Representative suit – Binding judgment – Judgment of 1995 deciding representative suit – Held all Parishioners, even though not parties to the suit, bound by the judgment to the extent it has decided the matter. (Para 65)

       (b) Practice and procedure – No conflict in judgment and decree vide 1995 – Decree in tune with the judgment covering the issues effectively decided and not those left out – No error. (Para 65)

       AIR 1965 SC 1935 – Relied upon

       (c) Code of Civil Procedure, 1908 – Section 92 r/w Order I, Rule 8 and section 35 of the Specific Relief Act, 1963 – Representative suit – Binds all – Instantly decisions in 1958 and 1995 held binding – Exception 6 of Section 11 applies to such a suit – Issue of the Parishioners being parties to the suits in 1958 and 1995 or not cannot be re-agitate time and again – Held, the suits being representative suits, all parishioners were parties to it.

        (Para 71, 72)

       (1989) Supp 2 SCC 356; AIR 1933 PC 183; 1956 SCR 756; 1966 Supp SCR 270; (1967) 2 SCR 618 – Relied upon

       1959 SCR 1111 – Referred

       (d) Constitution of India – Article 25 – Spiritual superiority of Catholicos or Patriarch – Not for the Court to say – It’s a question of faith – Church can be managed as individual faith or it can be separated from spiritual faith. (Para 73, 74)

       (e) Code of Civil Procedure, 1908 – Section 92 r/w Order I, Rule 8(6) and Explanation 6, section 11 – Representative suit – Absence of parties – Question of natural justice doe not arise. (Para 75)

       [1969] 2 AllER 274; (1983) 1 SCC 228; (1986) 4 SCC 537 – Referred

       (f) Interpretation of judgment – Code of Civil Procedure, 1908 – Section 92 and Order I, rule 8 – Indian Evidence Act, 1872 – Section 13 – Management of church – 1995 judgment clear, unequivocal and unambiguous with respect to binding nature of the 1934 Constitution – 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 – Mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. (Para

       AIR 1954 SC 606; 1955 1 SCR 1; (1998) 3 SCC 331 – Referred

       (g) Canon Law – Spiritual and secular matters – Distinction – Appointment of Vicar not a spiritual matter – When a Parish Church is part of Malankara Church, it has to perpetually remain as such – Legal rights cannot be extinguished by mere abandonment in absence of plea of estoppel – Instantly, Malankara Church founded by St. Thomas the Apostle and included in Orthodox Syrian Church of the East with the Catholicos as Primate of the Church – Patriarch never exercised temporal control over it – Therefore office of the Catholicos was established to manage the Malankara Church – Kalpana issued by the Patriarch in this regard binding upon him also – Accordingly the Church has to be managed in accordance with the 1934 Constitution – Parishioners can have faith in spiritual supremacy of the Patriarch, but not in all the matters – 1934 constitution could be and has been amended but it is not permissible to frame new constitution as desired by some faction – 1995 judgment. (Para 78, 79)

       1954 SCR 351; (2002) 1 SCC 538 – Distinguished

       (h) Constitution of India – Article 25 – Each Parishioner has a right to freedom of religion, subject to public order – An act may affect law and order but not public order just as an act may affect public order but not the security of the State. (Para 80)

       (1966) 1 SCR 709; 1954 SCR 1005; (1985) 3 SCC 545 – Referred

       (i) Canon Law – Syrian Orthodox Church of Malankara accepting and acknowledging theory of apostle succession – Eastern and other churches held Episcopal – The group of eparchies (dioceses) possess the right to settle all internal matters on their own authority and to elect their own bishops, including the head of the church. (Para 94)

       (j) Words and Phrases – Religion – A matter of faith with individuals or communities – Not necessarily theistic – Religions not believing in God or any intelligent first cause known – Not correct to say that religion is nothing else but a doctrine of belief – Similarly there are teaching which differs from religion like those of Shri Aurbindo which are only philosophy and not religion – Religion is a collection of cultural system, belief systems establishing symbols which relate humanity to spirituality and sometimes to moral values – Thus there are 19 major religious groupings in the world with a total of 10,000 distinct religions. (Para 99, 100

       AIR 1954 SC 282; AIR 1983 SC 1 – Referred

       (k) Words and Phrases – Spiritual and temporal – Word `spiritual' is frequently employed to describe the character of the man who has entered the Kingdom of God – Such a man has the Holy Spirit as the vital, determining principle of his life – Spirituality is more personal and private while religion tends to incorporate public rituals and organised doctrines – Temporal, on the other hand, means worldly, earthly – Word `temporal" means civil or political power as distinguished from ecclesiastical power. (Para 105)

       (l) Canon Law – Appointment of Vicar – Not a spiritual but secular matter – Constitution of India – Articles 25 and 26 – Word `religion' is personal to the person having faith and belief in the religion – Right to religion not an absolute or unfettered right – Distinction between religious service and the person performing the service – Hereditary right of priests not an integral part of the religious practice – It is only a source to secure services of a priest independent of it – ‘Religion’ under Article 25 and 26 – Has to be construed in its strict and etymological sense – Every aspect of religion not safeguarded – Abolition of hereditary right to appointment not violative of Articles 25 and 26 – Protection of Articles 25 and 26 not limited to the matters of doctrine – Extends to acts done in pursuance of religion and therefore contained a guarantee for rituals and observances, ceremonies and modes of worships which are integral parts of religion – But does not extend to appointment of Vicars/priests, deacons etc. – a (Para 106, 109, 110, 112,

       (1997) 2 SCC 745; (1996) 9 SCC 548; AIR 1996 SC 1023; (2004) 12 SCC 770 – Relied upon

       (1962) SCR Supp 2; (1983) 1 SCC 51 – Distinguished

       (2002) 8 SCC 106; (2016) 2 SCC 725 – Referred

       (m) Canon Law – 1934 constitution – Sections 1, 2, 9, 38 to 40, 43 – Enjoyment of all the temporal, ecclesiastical and spiritual administration powers by Malankara Metropolitan – Does not run counter to the concept of the spiritual authority of the Patriarch of Antioch – No violation of faith and violation of a right under Article 25 and 26, Constitution of India – Management of a Church not being a religious ritual, it is not necessary for the Pope and the Patriarch to appoint Vicar – Diocesan Metropolitan has the power to appoint Vicar, priests etc. – Catholicos, Malankara Metropolitan has spiritual powers and status as well as the temporal powers – The Catholicos and the Patriarch both are independent spiritual authorities the Patriarch being the first among equals "primus inter parties". (Para 121, 122, 123, 125)

       1954 SCR 1005 – Relied upon

       (1993) 2 SCC 199 – Distinguished

       (n) Canon Law – The dominant faith is common, Malankara church is one, and Orthodox Syrian Church is the same and Patriarch and Catholicos factions both are part of the Malankara Church – No valid and legal reasons for the unrest and ugly situation – a – 1934 constitution – Appointment of Vicar – Power reserved for Diocesan Metropolitan – Catholicos or the Patriarch not supposed to deal with such matters – In the absence of anything having been provided in Udampady, the 1934 Constitution would hold the field. (Para 127, 128, 129, 130)

       AIR 1986 SC 180; AIR 1959 SC 149; (2000) 3 SCC 588 – Distinguished

       (o) Canon Law – Judgments of 1889, 1905, 1928, 1958, 1995 – After re-establishment of office of the Catholicos, Patriarch could not exercise the powers dealt with in the 1934 Constitution – That too, unilaterally to create another centre of power and create parallel system of administration by appointing Vicars, Priests and Deacon or another authority of Church – Patriarch bound to act within the four corners of the1934 constitution – In temporal matters, Patriarch has no power and the spiritual power had also come to the vanishing point by his own acts (Para 140)

       AIR 1959 SC 31; (1974) 2 SCC 831; (2001) 3 SCC 170; (2013) 3 SCC 1 – Referred

       (p) Canon Law – 1934 constitution – Church created for benefit of beneficiaries – Not open evn to majority of beneficiaries to usurp the properties or management of the church. (Para 141)

       (q) Canon Law – Samudayam suit – High Court rightly granting the declaration that the Parish Churches are governed by the 1934 Constitution. (Para 142)

       Canon Law – 1934 constitution and 1995 judgment – Patriarch faction not following 1995 judgment and insisting upon their own system of management – Not permissible. (Para 143)

       (2008) 7 SCC 310 – Referred

       (r) Constitution 1934 – Section 132 – Invalidating all previous agreements inconsistent with the constiution – 1934 Constitution applicable to Parish Churches under the Malankara Church – 1958 judgment upholding validity and applicability of 1934 constitution – Udampady dis not establish curch – It is with respect to its management only – Hence, held, Udampady cannot prevail over the Constitution (Para 144)

       (s) Universal Declaration of Human Rights – Article 20 – No one may be compelled to belong to an association – One can opt not to be a part of an Association – At the same time no one can form another Association within the same Association and run a parallel system of management of the same very church – Doing so is not permissible – 1934 Constitution – 1995 judgment. (Para 146)

       (1983) 1 All ER 1130; (1971) 1 SCC 678; (1963) Supp 1 SCR 789; AIR 1951 All 674; AIR 1958 AP 78 – Referred

       (t) Canon Law – 1934 Constitution and bye-laws – 1934 Constitution creates a hierarchy of control – Parish Church properties cannot be dealt with otherwise – Constitution prohibits opting out of it and form a new church under a new name, as done in 2002 – Property of the church cannot be taken away even by the majority – It will remain in Trust for the sake of beneficiaries – No one can become owners by majority decision or permitted to usurp Church itself – Held, 2002 Constitution cannot hold the field to govern the appellant churches and the 1934 Constitution is binding. (Para 163, 164, 166, 169, 171)

       3 ER 561; (1817) 3 Mer 353; (1904) AC 515 – Referred

       (u) Canon Law – Udampady of 1913 and 1943 Constitution –Church created in7th century – Udampady of 1913 not creating the Trust – Executed just for management of the church – Udampady of 1913 annulled upon adoption of 1934 Constitution – Udampady of 1913 cannot be revived. (Para 173, 174, 175)

       (v) Kerala Education Act, 1959 – Section 6 and 7 and Udampady of 1913 – Held Educational institutions cannot be governed by the Udampady of 1913. (Para 176)

       (w) Registreation Act, 1908 – Section 17(1)(b) – 1934 Constitution – Providing a system of administration – As such not required to be registered – Question of effect of non-registration of the 1934 Constitution cannot now be raised in view of the findings recorded in the 1959 and the 1995 judgments – Validity of 1934 Constitution cannot now be challenged on ground of it being unregistered – No registered document was required for administration of the Church. (Para 178)

       1952 SCR 491 – Referred

       (2008) 6 SCC 745; (2000) 7 SCC 104; (2011) 7 SCC 493; (2013) 15 SCC 394 – Distinguished

       (x) Code of Civil Procedure, 1908 – Order I, rule 8 – Mannayhur suit – Suit representative in character and contested in that manner – Amended relief traceable from the main relief – No need to take leave of the court. (Para 180)

       (y) Code of Civil Procedure, 1908 – Section 92 – 1934 Constitution providing detailed wholesome provisions for managing the Malankara Church and its properties – nop need to frame scheme u/s 92. (Para 182)

       43 IA 127 (PC); 33 CWN 352 (PC); AIR 1946 PC 34 – Referred

       (z) Canin Law – Submission to permit conducting services in St. Mary's Orthodox Church, Varikoli by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination – It would tantamount to patronizing parallel system of administration – Not legally permissible. (Para 183)

       Facts of the case:

       These cases pertain to control of management of different Churches.

       The Patriarch faction and Catholicos faction are fighting for control of spiritual and temporal management of affairs of the Parish Church.

       Finding of the Court:

       Appeals are liable to be dismissed.

       Result: Appeals dismissed.