Ambalam Pakkiya Udayan vs Right Reverend J.M. Barthe S.J.D.D. and Others

The suit in this case was instituted by the Bishop of Trichinopoly and the Vicar of the Church of Three-kings in the Village of Pallithamam in the

District of Madura for a declaration that the church and its properties have been dedicated to, and stand impressed with trusts for the worship of

God in accordance with the doctrine and discipline of the Roman Catholic Church that the 2nd plaintiff is the trustee of the church and its

properties subject to the supervision and control of the 1st plaintiff and for possession of the same from the defendants, who unlawfully took

possession about the year 1902 or 1903. The defendants are Christians of the Village who according to the plaintiffs were formerly Roman

Catholics, but who seceded from their allegiance to the Roman Church about the year 1902 and became members of the Syro Chaldean Church.

The plaint alleges that the defendants never had any rights of management over the Church or its properties while they were in communion with the

Church of Rome. Leave was obtained to implead the defendants as representing all the Christians of the Pallithamam Village. The defendants

denied that the Church was ever ''dedicated to worship according to Roman Catholic doctrines, or that the villagers ever were followers of Roman

Catholicism, or that Romish priests ever officiated in the churdh. They also denied the plaintiff''s right of supervision and management and pleaded

that the villagers themselves were the trustees and managers. They admitted that they were using the incomes of certain lands set out in Schedule II

of the plaint for the expenses of the church, but denied that the lands themselves belonged to it. They contended that the claim for the recovery of

certain moveables mentioned in the plaint was barred by limitation. The Subordinate Judge who tried the suit found that the choir of the Church

was constructed under the directions of Father Bertrand, a Roman Catholic priest, about the year 1839 and that it was dedicated for Roman

Catholic worship. He held that the vicar was entitled to manage the Church and its properties - under the supervision of his ecclesiastical superiors

and passed a decree for possession as prayed for except of the lands which he held, were not proved to belong to the Church though the income

was utilised for the Church. He came to the conclusion that the defendant''s contention that they never were Roman Catholics, was absolutely false

and that they seceded from Romish allegiance about the year 1902. The District Judge confirmed the decree of the Subordinate Judge except with

regard to the moveables the claim to which he held to be barred. The 1st defendant preferred this second appeal and the plaintiffs have filed a

memorandum of objections with respect to the lands and the moveables. The case has been argued at great length for the appellant, but we have

come to the conclusion that the findings of the Lower Courts as to the nature of the trust to which the church and its properties were dedicated

must be upheld. We also accept the finding of the Lower Courts that the Christians of Pallithamam were not the only persons entitled to worship in

the Church, and that the Christians of other surrounding villages were also entitled to do so. On this finding it is not contended for the appellant that

the defendants would be entitled to have the trusts of the institution altered so as to convert the church into one for T carrying on worship

according to the tenets of the Syro Chaldean faith. The decision in Bishop Mellus v. The Vicar Apostalic of Malabar ILR (1879) M. 295 would

admittedly not be applicable to such a state of things. It is contended that the findings mentioned above are riot legally sustainable. The admission

of a number of documents, put in for the plaintiffs as evidence is impeached as contrary to the rules of evidence. It is argued that Exhibits A and G,

which are printed letters of the Jesuit Fathers, were admitted without any sort of legal proof and used as evidence of facts which are not matters of

public history. This argument is in part well founded. The Subordinate Judge observes that Exhibit A series consisting of printed letters of the

priests'' of the Jesuit Mission in the Madura District dated about 75 years ago are books of reference u/s 57 of the Evidence Act, and that they

may be relied on with reference to ""the matter of the history of Christianity and especially of the Roman Catholic Mission which is surely a matter

of public interest."" The rule of law as stated may not be open to exception but in applying it, he did not restrict himself strictly to their admission to

prove facts of public history. The letters of the Jesuits were regarded in the Ramnad partition case as evidence of the History of the Madura

District and of the Ramnad Zemindari, but it would be going too far to hold that they could be relied on to prove where certain particular

missionaries were living or when they died. The Court can dispense with evidence only of what may be regarded as notorious facts of public

history. See Taylor on Evidence (10th Edition) Vol. II paragraph 1785 and Wigmore on Evidence Vol. III Section 1699. With regard to B and C

series and some other documents the principal objection urged is that they should not have been received as there was no satisfactory explanation

for the non-production of their originals; but we are of opinion that this is a matter in which much weight should be attached to the opinion of the

Court trying the suit in the first instance, and we should be slow to reject evidence admitted by that Court after satisfying itself that the party

adducing secondary evidence was not in a position to produce the originals. There was evidence that the plaintiffs were not aware where the

originals of these documents were, if they were in existence at all. There was nothing to show that this statement was incorrect. We must hold that

the Subordinate Judge was not wrong in admitting them. Although we are of opinion that the letters A series were used to prove facts which they

could not legitimately be used to prove we do not think we should interfere with the findings of the Lower Courts on that account as they were

referred to only to prove that certain missionaries were living at Pallithamam when the Church was being built and interested themselves in its

construction. We do not think that the exclusion of these letters would have affected the conclusion arrived at by the lower courts. It is further

contended the evidence does not show that the church in question came into existence for the first time in 1839, that there is no evidence what

ritual was being fallowed before that year, and that therefore the use of it for worship according to the Syro Chaldean form cannot be condemned

as contrary to the original trusts of the institution. But, when it is found that for a period of more than 60 years before the defendant''s secession the

Roman Catholic form of worship prevailed, the onus is undoubtedly on the defendants to establish by satisfactory evidence that the Church was

Syro Chaldean at the inception and of this there is admittedly not a shred of evidence. We must therefore hold that the declaration that the Church

was dedicated to the worship of God according to Roman Catholic ritual and that it is subject to the jurisdiction of the Bishop of Trichinopoly was

rightly granted. We have now to deal with the question of the right to the management of the Church and its properties. Mr. Ramachandra Aiyar

for the appellant strongly contends that the decision of this question must depend upon the proof of the usage with reference to the particular

Church and that the Lower Courts have not rested their finding on the usage of the institution but upon the rights of the ecclesiastical authorities

according to the Canon law. The learned pleader in our opinion is not correct in the position taken up by him that the right of management could

not be established except by proof of usage. With regard to a Hindu religious foundation, usage is what determines the right of trusteeship in the

absence of any direct evidence to prove the rules established by the founder but it must be remembered that the Hindu law prescribes no special

rules with respect to the management of religious institutions. There is no reason for holding that the canon law cannot be invoked as a guide in

deciding questions respecting temporal rights in Roman Catholic churches. It is no doubt the case that in some churches on the west coast the

parishioners have more or less control over the management of the properties, but we are not concerned with the question how far the canon law

may be modified by the usage of any particular church in this country. Our attention has not been drawn to any authority in support of the broad

proposition contended for by the appellant. On the evidence too, the Subordinate Judge found that the plaintiffs were in possession of the Church

and its properties till February 1902, and were then dispossessed by the defendants. The keys of the Church building itself were in the custody of

an officer styled Koil Pillay and he was appointed by the Vicar. We can find no reason for not accepting that finding. The moveable properties

must also be held to have been in the Vicar''s possession till February 1902. With respect to the funds of the church consisting chiefly of fees and

offerings derived from worshippers, the plaintiff''s witnesses admitted that they were kept and expended by three of the parishioners, but said that

they did so with the permission and under the control of the Vicar. The Subordinate Judge apparently accepted this statement though he does not

expressly say so. The District judge''s finding is not very clear on this point. He considered it unnecessary to decide whether the Vicar was the sole

trustee or not, as he was of opinion that the Vicar, who was at least one of the trustees, was entitled to sue for the recovery of the properties of the

trust. He considered that the defendants used probably to exercise some sort of control over the church funds and that they might have some right

in the trusteeship. The Judge is mistaken in his view that a single trustee is entitled to recover possession of the properties appertaining to the trust

from another trustee by evicting him though he may be entitled to maintain a suit in ejectment against a stranger on behalf of the trust.

The position of the defendants is not quite clear. They do not say that they are entitled to elect certain of their number and if so how many to

manage the trust along with the Vicar. But we think that the defendants by their conduct have in any event disentitled themselves to hold the office

of trustee. They have seceded from the Roman Catholic religion and repudiated the trusts of the institution. There can be no doubt that they could

have no answer to a suit for their removal. See Marian Pillai v. Bishop of MylaporeI.L.R. (1891) M. 447 even if they offered to return to their

allegiance to the Romish Church, it would not be possible to accept their recantation to the exetnt of holding them to be fit to hold the responsible

office of trustee. It is contended that as the plaintiffs have not asked in their plaint for the removal of the defendants from the trusteeship, we ought

not in this suit to direct their removal. We think we might hold that a complete repudiation by a trustee of the trusts on which he is bound to hold

the properties, committed to his charge for the benefit of others would work a forfeiture of his office so as to entitle the Court to decree his eviction

from the properties in his possession. No authority to the contrary has been cited at the hearing. The plaintiffs are desirous of avoiding further

litigation for getting a relief which they are undoubtedly entitled to. We consider it unnecessary to decide definitely whether there is any substance in

the technical objection of the appellant as we are prepared to direct an amendment of the plaint by the addition of a prayer for the removal of the

defendants from the management of the trust properties if necessary. It remains to notice an argument of Mr. Ramachandra Aiyar that the

defendants on the record refused to defend the suit on behalf of the other christians of the Village of Pallithamam and that the decree is therefore

not binding on the whole community of Christians in that Village. But u/s 30 of the CPC the Court has the power to allow the plaintiffs to sue some

persons as representing themselves and others having the same interest in the subject matter of the suit. The consent of the defendants on record is

not necessary to enable the Court to do so. In Andrews v. Sabuon (1888) W.N. 102 Kay J. made the necessary order though the defendants

actually on record objected. If a different view were held, it would be in the power of parties to prevent a plaintiff from availing himself of the

benefit of Section 30, Civil Procedure code. We dismiss the second Appeal with costs. We direct the plaint to be amended in the manner

mentioned above.

The memorandum of objections relates to the claim to the lands described in Schedule II to the plaint and to the moveables. The District Judge

disagreeing with the Subordinate Judge dismissed the claim for moveables on the ground that it was barred by limitation. We entirely fail to see

how the plea of limitation could be upheld when the defendants admitted that the properties belonged to the church and claimed to hold them as

trustees and set up no right of their own to them. The right, to the properties of the trust must go with the right to the office of trustee. See Gnana

Sambanda Pandara Sannadhi v. Velu Pandaram ILR (1909) M. 271, Gossami Sri Gridhariji Roman lalgi Gossami ILR (1889) C. 3 The claim

must therefore be allowed and the plaintiffs will have a decree for all the properties referred to in Schedule III attached to the plaintiff (amended as

per order of the Court on C.M.P. No. 597 of 1912 dated 7th November 1912).

With respect to the lands both courts have held that they do not belong to the church, but the facts found or admitted are in consistent with this

conclusion. It is admitted that the entire income has always been utilised for the church which is very good evidence that the lands belong to it. It is

further admitted that the Government revenue has been paid out of church revenues and that in the accounts kept by the defendants (Exhibit V) the

lands are described as belonging to the church. The 1st defendant in his evidence and one of his witnesses admitted that they belonged to the

church. The District Judge was under the impression that the plaintiffs were bound to prove some deed of endowment dedicating them to the

church or their actual possession of the lands. This is clearly wrong. The fact that the patta is in the name of the 1st defendant who does not claim it

as his own, is no evidence of any title in the villagers. The defendants have no evidence to prove their title, and the facts admitted necessarily prove

both title and legal possession in the church. The decrees of both courts must therefore be modified by directing that the plaintiffs be put in

possession of the lands claimed in the plaint. The plaintiffs are entitled also to mesne profits from the date of plaint to this date and further mesne

profits up to the delivery of possession. The Subordinate Judge will bold an enquiry into the question of the amount of mesne profits and pass a

decree for the amount he may find the plaintiffs entitled to. The plaintiffs are entitled to the costs of memorandum of objections also.