St. Peters Orthodox Syrian Church and Others vs Fr. Abraham Mathews and Others

V. Ramkumar J.

The appellants in this first appeal are the plaintiffs in the suit, O.S. No. 162 of 1977 on the file of the Church Court (I Add1. District Court, Eraakulam). The said suit was one filed by the Catholicos (Orthodox) faction of the Syrian Christians for a declaration that all religious worship and administration of the assets of the 1st plaintiff- plaint schedule church (St. Peters Orthodox Syrian Church, Puthencruz, together with the church building and cemetery comprised in Survey Nos. 390/3, 392/1 /78, 392/1/77/2, 382/3B and 392/1/77 in Pannikuzhi Kara, Chemmanad Village, Kunnathunad Taluk) are to be carried on under the authority of the Catholicos and in accordance with the constitution of the Malankara Orthodox Syrian Church and for a perpetual injunction restraining defendants 2 to 11, members of the Jacobite (patriarch) faction of Syrian Christians from interfering with the religious worship or administration of the plaint schedule church or from obstructing the 2nd plaintiff (the vicar) or the Catholicos from conducting worship or from carrying on the administration of the 1st plaintiff church, namely the St. Peters Orthodox Syrian Church, Puthencruz. The suit was resisted by the defendants on various grounds. The trial Court originally framed 19 issues for trial. Subsequently, some of the defendants raised an additional objection that the suit was bad for want of leave u/s 92 C.P.C. There upon, one more issue was framed as Additional Issue No. 20 as follows:-

Whether the suit is maintainable for want of leave to institute the same as contemplated under Sec. 92 C.P.C.?

The trial Judge then heard both sides and as per the impugned Judgment dated 28-11-2000 upheld the above objection of the defendants and dismissed the suit as not maintainable due to noncompliance of Sec. 92 C.P.C. Hence, this appeal by the plaintiffs.

The only point which arises for consideration in this appeal is as to whether the St. Peters Orthodox Syrian Church, Puthencruz, is a public religious trust and whether the impugned Judgment holding that the suit was not maintainable due to the non-compliance of Sec. 92 C.P.C. is unsustainable or not?

THE POINT:-

We heard Advocates M/s. B.G. Bhaskar and Biju Abraham, the learned counsel appearing for the appellants and Sr. Advocate Sri. K. Rarnakumar and Advocate Sri. P.J. Philip the learned counsel appearing for the respondents.

ARGUMENT OF THE PLAINTIFFS/APPELLANTS

Assailing the judgment of the Church Court, Advocate Sri. B.G. Bhaskar, appearing for the plaintiff/appellants made the following submissions before us:

The 1st plaintiff Church, namely, the St. Peter''s Orthodox Syrian Church, Puthencruz is not a public religious or charitable trust as was wrongly assumed by the lower court. The said Church is a purely private trust in which the beneficiaries are not the general public, but the persons belonging to the particular denomination and who are ascertainable. Unlike the Orthodox group according to whom churches are episcopal i.e. the right to govern the Church is vested in the Bishop, the Patriarch group believes that the Churches are congregational i.e. belonging to the congregation. Most of the American churches are congregational and they have no Vicar (who is an agent of the Bishop) but only a Pastor who has no religious power but has only secular powers. The vicar on the other hand has both secular as well as religious powers. The final verdict of the Apex Court in Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., are neither episcopal nor congregational but are episcopal only to the extent to which the constitution says so. In the Jacobite Syrian Churches the Bishops have only a power of approval unlike the purely episcopal churches where the Bishop is the owner who has all the powers. A Church becomes a church only when it is consecrated by the Bishop. If the Church is consecrated by the Bishop of a particular denomination, the Church will be of that denomination only and not of the entire Christian public. Merely because the public have been freely admitted to the religious institution it does not mean that Courts should readily infer therefrom a dedication to the public. (Vide The Bihar State Board Religious Trust, Patna Vs. Mahant Sri Biseshwar Das, ). A Christian church cannot be compared to Muslim Mosques or Hindu temples. Even among Hindus, a smaller group of Gowdasaraswathas have been entitled to a private religious trust of their own. (Vide Gurpur Guni Venkataraya Narashima Prabhu and Others Vs. B.G. Achia, Assistant Commissioner, Hindu Religious and Charitable Endowment, Mangalore and Another, ). Likewise, in the case of a private family trust for the propagation of Jain religion, the Supreme Court has held that it is not a public trust (Vide State of Kerala v. M.R. Shanti Verma Jain - 1998 KHC 963). There are intrinsic circumstances afforded by the 1934 constitution itself to suggest that the church is a private trust and the beneficiaries are only the members of the particular denomination. Section 43 provides for the maintenance of a Parish Register containing the names and other particulars of all men and women of the Parish. Section 9,10 and 12 recognise the concept of membership. Thus, every member of the Parish is capable of ascertainment although it may be a fluctuating body depending on deaths, births and marriages. Section 23 provides for acquisition and sale of immovable properties. A public trust does not admit of any sale of its immovable property by private individuals. The court below relied on certain observations in the minority judgment of Justice R.M. Sahai in Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., to hold that these churches are "public trusts" falling under the purview of Sec. 92 C.P.C. As a matter of fact, paragraphs 1 to 82 in that judgment of the Apex Court constitute the minority view. The verdict of the majority is from paragraph 83 onwards. The majority decision does not say whether these churches are private or public trusts; nor does it approve the view taken by Justice Sahai that these churches are public religious institutions. In a subsequent decision of the Supreme court which arose from the State of Tamil Nadu in A.V.G.P. Chettiar and Sons and Others Vs. T. Palanisamy Gounder, it has been held in paragraph 35 thereof that the decision in paragraph 55 of P.M.A. Metropolitan''s case holding that these churches are public trusts is a minority view. The following are the comments offered by the appellants to the judicial pronouncements relied on by the Patriarch faction:-

A. Mathevan Pillai Vanniaperumal Pillai v. Muthia Pillai Sivasubramonia Pillai and Others - AIR 1952 TC 323.

There the trust was to conduct a feast in the village temple on the day of the annual "kuta" festival. All those who came on that day could participate in the feast as of right. Since the number of the persons who would attend the festival was unascertainable, it was held to be a public trust.

B. Gheevarghese Koshy Vs. Chacko Thomas of Pallimadyil and Others, . There the Patriarch group filed a regular suit before the Munsiffs Court for framing a scheme alleging that the church is a public trust The Orthodox group opposed it contending that leave under Sec.92 C.P.C. was not obtained. The plaintiff then wanted to amend the plaint so as to delete the prayer. This Court said that the plaintiff having asserted that the Church is a public trust cannot be permitted to evade Sec. 92 C.P.C. by an amendment at a later stage.

C. Amrithakumariy Ramanathan -1998 (2) KLT 305

Appellants do not dispute that merely because the suit contains a declaratory relief it will not take the suit out of Sec. 92 C.P.C. provided the suit relates to a public trust.

D. St. John''s Jacobite Syrian Church Vs. Fr. John Moolamattom, .

That was a suit filed by a Vicar for vindication of his personal right and hence it was held that such a suit would not fall under the ambit of Sec. 92 C.P.C. requiring leave. There was no finding by the Court that the Church was a public trust even though both sides admitted that the church was a public trust.

E. Surya Bibi v. Haji Kammu - AIR 1969 SC 784

This was not a church case. It was a wakf. In addition to family benefit the object consisted of substantial charitable purpose to the public (so unascertainable) and therefore held to be a public trust. Removal of the Muthavally was sought by a beneficiary.

F. Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others,

Here a shop building was attempted to be constructed in a public graveyard. Held that even though there was no allegation of breach of trust, since the defendants were trustees de son tort and their conduct called for a direction of the Court, it was a case for formulating a scheme under Sec. 92 Cr. P.C.

Charan Singh and Another Vs. Darshan Singh and Others,

There it was a suit to enforce the terms of the trust by a trustee in respect of a Gurudwara and that case is, therefore, clearly distinguishable. H. In the Judgment dated 14-10-2009 of the Single Judge of this Court in A.S. No. 844 of 1998 in the matter of the St. Thomas Orthodox Syrian Church, Nechoor, the counsel appearing for the Orthodox faction had conceded that the said church was a public trust. (Vide paragraphs 11 and 18 of the Judgment). A wrong concession by the counsel on a point of law is not binding on the parties. Moreover, the said case is pending in appeal before the Supreme Court.

JUDICIAL RESOLUTION

We are afraid that we find ourselves unable to accept the argument advanced on behalf of the appellants who belong to the Orthodox faction. In this appeal we are not called upon to decide any Issue as to whether it is the 1934 constitution which governs the churches of the Malankara Association. According to the appellants, after the trilogy of verdicts by the Apex Court starting with P.M.A. Metropolitan''s case, it is no more open to anybody to contend that any of the parish churches under the Malankara Association is governed by a constitution other than the 1934 constitution. Well, as already mentioned, that is not an issue germane for consideration before us at present.

We now proceed to consider the core issue, namely, whether the Church in question i.e. the St. Peters Orthodox Syrian Church Puthencruz is a public trust of a religious or charitable nature and whether the Court below was justified in dismissing the suit as not maintainable due to the non-compliance of Sec. 92 C.P.C.

The present suit was instituted on 19-2-1976 before the Munsiff''s court, Ernakulam where it was numbered as O.S. No. 147 of 1976. There were several suits relating to the Malankara Church disputes pending before various Courts in the State of Kerala. On the recommendations of the High Court of Kerala, the Government of Kerala had issued GO. Rt 1532/76/Home dated 30-6-1976 giving sanction for establishing an Additional District Court at Emakulam exclusively for the trial of such cases. Accordingly, the 1st Add1. District Court, Emakulam was established as the "Church Court" for the said purpose. Thereupon the present suit was also transferred to the Church Court where it was re-numbered as O.S. No. 162 of 1977.

SCOPE AND APPLICABILITY OF SECTION 92 C.P.C.

Since the present suit was instituted on 19-02-1976 it is the C.P.C. prior to the 1976 amendment (which came into force with effect from 1-2-1977) that is applicable in this case. Sub-section (1) of Section 92 C.P.C. prior to the amendment is also substantially the same except that the consent in writing which was to be obtained by 2 or more persons interested in the trust concerned was from the Advocate General and not from the Court After amendment such consent is to be obtained from the Principal Civil Court of original jurisdiction.

Section 92 as per the pre-amended C.P.C. read as follows:-

Public charities :- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed, necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree-

a) removing arty trustee;

b) appointing a neir trustee;

c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;]

d) directing accounts and inquiries;

e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust;

f) authorising the whole or any part of the trust- property to be let, sold, mortgaged or exchanged;

g) settling a scheme; or

h) granting such further or other relief as the nature of the case may require.

2) Save as provided by the Religious Endowments Act 1863, [or by any corresponding law in force in [the territories which immediately before the 1st November 1956, were comprised in Part B States] no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsection.

Sec 92 C.P.C. after the 1976 amendment reads as follows:-

Public charities:- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

a) removing any trustee;

b) appointing a new trustee;

c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

d) directing accounts and inquiries;

e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

g) settling a scheme; or

h) granting such further or other relief as the nature of the case may require.

2) Save as provided by the Religious Endowments Act, 1863, (20 of 1863), [or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States], no suit claiming any of the reliefs specified in sub section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied Cypres in one or more of the following circumstances, namely;-

a) where the original purposes of the trust, in whole or in part, -

i) have been, as far as may be, fulfilled or

ii) cannot be carried out at all or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

b) where the original purpose of the trust provide a use for a part only of the property available by virtue of the trust; or

c) where the property available by virtue of the trust of other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since, ceased to be, a unit for such purposes; or

e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

ii) ceased, as being useless or harmful to the community, or

iii) ceased to be, in law, charitable or

iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust

Thus, leave of the Court is not necessary if it is the Advocate General who has instituted the suit which is of the nature referred to in Section 92 C.P.C. Leave of the Court is insisted upon only if the suit is one falling under Sec. 92 C.P.C. and is instituted by 2 or more persons having an interest in the public trust concerned. The usage of the words "haying obtained the leave of the Court, may institute a suit" occurring in Section 92 (1) C.P.C. is a clear indication that leave of the Court is a condition precedent to the very institution of the suit and such leave cannot be given subsequent to the institution of the suit. If the case is one falling u/s 92 C.P.C. and the suit is instituted for any of the reliefs enumerated under clauses (a) to (h) of Section 92 (1) C.P.C. failure to obtain the leave of the Court before the institution of the suit, will go to the root of the matter and is a jurisdictional defect or infirmity which cannot be cured by a post-institutional leave granted by the Court (See for instance, paragraph 17 of R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others, ). The rigid requirement of law is that the leave petition itself should contain all the necessary facts such as the nature of the public trust concerned, the alleged breach of trust or the circumstances under which the direction of the Court is considered necessary for the administration of the trust and the main reliefs prayed for in the proposed suit It is only after the leave of the Court is obtained can the plaintiffs institute the suit as provided under Order IV Rule 1 C.P.C. (See Amrithakumari v. Ramanathan -1998 (2) KLT 305). Grant of leave being a jurisdictional pre-condition, any consent, waiver or acquiescence on the part of the opposite party either in the pleadings or otherwise, will not cloth the Court with the jurisdiction to entertain the suit, much less, try and dispose of such suit. Conversely, if the suit has been instituted after obtaining the leave of the Court, that by itself will not preclude the Court from revoking the leave already granted if the Court is thereafter convinced that the suit is not one felling u/s 92 C.P.C. (Vide St. Mary''s Church v. Saju - 2001 (2) KLT 6). In such an event, the suit will have to be filed before the proper Court having jurisdiction to try such suit Even though the Court is not bound to give notice to the proposed defendants before granting leave under Sec. 92 C.P.C. as a rule of caution, Court should normally give notice to the defendants. (Vide R.M. Narayana Chettiar''s Case - Supra). It is important to remember that a suit under Sec. 92 C.P.C. is a representative suit and the decision in the suit will bind not only the parties to the suit but also all persons interested in the public trust concerned. (Vide R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, and Shiromani Gurdwara Parbandhak Committee Vs. Mahant Harnam Singh C. (Dead), M.N. Singh and Others, ).

Section 92 C.P.C. enacts a complete Code in relation to the judicial administration and preservation of public religious and charitable trusts by a specified category of Court, namely, the Principal Civil court of original jurisdiction which by virtue of Section 2 (4) C.P.C. is the District Court, (See Sulekha Clay Mines v. Union of India - 2000 (1) KLT 691, AFRECO v/s. Kerala State Cashew Development Corporation Ltd - 2001 (2) KLT (SN) 96, Bishop Dr. Mathews Mar Savarios v. Thankachan 2001 (1) KLT 932) or, any other court empowered in that behalf by the State Government As per G.O. (MS) 384/66/Home dated 24-10-1966 published in the Kerala Gazette dated 1-11-1966, the Government of Kerala have empowered the Courts of the Subordinate Judges in the State within the limits of their respective jurisdiction, to try and dispose of cases u/s 92 C.P.C. Thus, with effect from 1-11-1966 the District Courts and Subordinate Courts have concurrent jurisdiction in the State of Kerala to try and dispose of suits u/s 92 C.P.C. The Munsiffs Courts are totally lacking in any jurisdiction to entertain, try or dispose of suits u/s 92 C.P.C. The main purpose behind the statutory insistence of the special procedure laid down under Sec. 92 C.P.C. is to give protection to the public trusts of a charitable or religious nature from being subjected to harassment by way of regular suits being filed against them. (Vide Chairman Madappa Vs. M.N. Mahanthadevaru and Others, ).

What is to be examined now is the question as to which are the types of cases in which leave of the Court is necessary if the suit is instituted by 2 or more persons having an interest in the public trust concerned. Leave of the Court is necessary before instituting the suit whether contentious or not).

(a) i) if there is an allegation of breach of any public trust (express or constructive) of a charitable or religious nature, or

ii) where the direction of the Court is necessary for the administration of any such trust.

AND

(b) the suit is to obtain a decree for any of the reliefs enumerated under clauses (a) to (h) of Section 92 (1) C.P.C.

In Harendra Nath Bhattacharya and Others Vs. Kaliram Das (Dead) by his Heirs and Lrs. and Others, , the supreme Court observed as follows: -

A suit under Sec. 92 is of a special nature which presupposes the existence of a public trust or a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration of the trust

For the applicability of Sec. 92 four conditions are necessary:

i) The trust must be for public purpose of a charitable or religious nature

ii) The plaint must allege a breach of such trust or seek court''s direction for administration of the trust;

iii) The suit must not only be in the interest of the plaintiff individually but also in the interest of the public or the trust itself; and

iv) The reliefs sought must be one of the reliefs mentioned in Sec. 92. (See Association of Radhaswami Dera Baba Bagga Singh and Another Vs. Gurnam Singh and Others, and Gheevarghese Koshy Vs. Chacko Thomas of Pallimadyil and Others, ).

Clause (e) of Sec. 92 (1) itself envisages a declaratory relief.

That apart, even in a suit under Sec. 92 C.P.C. a relief of declaration may be necessary if the rights asserted by the plaintiff have been denied by the defendant. It has been held that merely because the suit contains a declaratory relief it will not take the suit out of Section 92 C.P.C. (See Mahant Pragdasji Guru Bhagwandasji Vs. Patel Ishwarlalbhai Narsibhai and Others, & Chiranjilal Ramachandra Loyalka and Others Vs. Life Insurance Corporation of India, ; Amirithakumari v. Ramanathan - 1998 (2) KLT 305 The law does not insist that any two or more persons interested in the public trust concerned should invariably institute a suit. It is up to them to decide whether a suit is to be filed or not But, if a suit is filed and going by the nature of the suit it falls within the parameters of Section 92 C.P.C. then such suit will be maintainable only if leave of the appropriate Court prior to its institution has been obtained As already noticed, it is not every Court which is competent to grant the leave to institute the suit. It is only the principal Civil Court of Original jurisdiction or the empowered Court which can grant the leave and thereafter entertain the suit.

TRUST AND ENDOWMENT

"Trust" is an obligation annexed to the ownership of property and arising out of the confidence reposed in a person to whom the legal title to the property is conveyed for the benefit of another, the obligation being that such person will faithfully apply the property according to such confidence. (See Underbills Law of Trust and Trustees). The beneficial title or ownership of property of which the legal title is vested in another is also called "trust". The person who reposes or declares the confidence of trust is called the "author or founder of the trust" or the "settlor". The person who accepts the confidence or in whom the confidence is reposed is called the "trustee". The person for whose benefit the confidence is accepted or reposed or for whose benefit the trust is created, is called the "beneficiary" or the "cestui que trust. The subject matter of the trust is called the "trust property". The instrument, if any, by which the trust is declared or created is called the "instrument of trust". The breach of any duty imposed on a trustee either by the instrument of trust or by law is called a "breach of trust". A "trustee de son tort" is a person who, of his own authority, enters into possession or attends to the management of a property which belongs beneficially to another. When express trusts are created by deed or will and some third party takes upon himself the administration of the trust property, such third party becomes a truestee de son tort and as such is bound to account as if he were the rightful trustee. A trust arises as a result of a manifestation of an intention to create it. The two primary types of trusts known to English law are private trusts and charitable trusts. A "private trust" is a trust created for the financial benefit of one or more designated beneficiaries rather than for the public benefit An English charitable trust, on the other hand, is a trust created to benefit a specific charity or the general public rather than a private individual or entity. Such charitable trusts are dedicated to a general public purpose, usually for the benefit of needy people who cannot pay for the benefits received. (See Blacks Law Dictionary -9th Edition). While under the English law, all charitable or religious trusts are public trusts, under the Indian Law there can be a religious trust of a private character among the Hindus. In other words, a private charity, either religious or non-religious is alien to English law.

As already noted, Sec. 92 C.P.C. is attracted only in respect of suits pertaining to public trusts. A public trust means an express or constructive trust for either a public religious or a public charitable purpose or both and will include a temple, a math, a wakf, a church, synagogue or other place of public religious worship. An express trust is a trust created by express words as distinguished from an implied trust, a constructive trust is a trust arising by operation of law apart from any intention to create a trust. The main distinction between a "private trust" and a "public trust" is that in the former the beneficiaries are specific individuals or constitute an ascertainable group whereas in the latter the beneficiaries are the general public or at least a section thereof who are incapable of ascertainment. (See Deoki Nandan Vs. Murlidhar, and The The Bihar State Board Religious Trust, Patna Vs. Mahant Sri Biseshwar Das, ). Endowment" is a dedication of property for purposes of religion or charity having both the subject and object certain and capable of ascertainment. (Vide Pratapsinhji N. Desai Vs. Deputy Charity Commissioner, Gujarat and Others, ). A trust includes endowments for religious and charitable purposes. Eventhough an endowment is distinguishable from a Trust, the element of "trust" is embedded even in private religious or charitable endowments. (Vide para 7 of Shanmughan Vs. Vishnu Bharatheeyan, ) Endowment also means a permanent provision for any institution or person or any property belonging to, given or endowed for religious or charitable purposes.

CHARITY - INDIAN PHILOSOPHY

In common parlance, the word "charity" denotes the giving to someone in necessitous circumstances and in law, a giving for public good. Fazlul Rabbi Pradhan Vs. State of West Bengal, ). Christianity encourages Christians to practice charity to attain spiritual salvation. Message of charily and compassion is to be found in all religions without any exception. ( John Vallamattom and Another Vs. Union of India (UOI), ). Paragraphs 69 and 74 of P.M. A. Metropolitan''s case which we will have occasion to advert to, go to show that a Christian church is an institution established for public charities and once a church is established, the property vests in the endowment and it becomes a public charity. If Indian life should be a true guide for the determination of questions arising in court, then we should go back to our ancient treatises to find out the true meaning of charity, which may be either dana or utsarga. In the case of dana the donor gives up his ownership over a thing, makes another the owner of it and cannot thereafter use it nor has any control over It. When a man makes an utsarga, he no doubt gives up his ownership but gives up the thing for the benefit of all. Opinion is, however, divided whether as a member of the public he can also use a thing thus dedicated for the public. But in any event, he would no longer have any control over the thing dedicated ( Commissioner of Income Tax, New Delhi Vs. Federation of Indian Chambers of Commerce and Industries, New Delhi, ). The word "Charity" in a legal sense includes every gift for the general public use, to be applied consistent with the existing laws for the benefit of an indefinite number of persons and intended to benefit them from a religious, moral, physical or social standpoint. ( Pannalal Bansilal Patil and others etc. Vs. State of Andhra Pradesh and another, ).

In the broadest sense "Charity" includes whatever that proceeds from a sense of moral duty or out of humane considerations towards others, uninfluenced by one''s own advantage or pleasures. A charity is a gift, for general public use, which may extend to the poor as well as to the rich. It embraces all that is usually understood by the words "benevolence", "philanthropy", "goodwill" etc.

WHAT IS RELIGION

"Religion" is a belief binding the spiritual nature of man to a supernatural being involving a feeling of dependence and responsibility together with the feelings and practices which naturally flow from such belief. Blacks Law Dictionary explains "religion" as a system of faith and worship usually involving belief in a supreme being and usually containing a moral or ethical code. Religion is further described as a system recognised and practiced by a particular church, sect or denomination. In A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, the Supreme Court of India observed that essentially, religion is a matter of personal faith and belief of the relations of an individual with what he regards as Cosmos, his maker or his creator which, he believes, regulates the existence of insentient beings and the forces of the universe. Religion is not necessarily theistic and in fact, there are well known religions in India itself like Budhism and Jainiam which do not believe in the existence of God. In India, Muslims believe in Allah and have faith in Islam; Christian in Christ and Christianity; Parsis in Zorastrianism; Sikhs in Guru Granth Sahib and teachings of Guru Nanak Devji, its founder, which is a facet of Hinduism like Brahma Samaj, Arya Samaj etc. A "religion" undoubtedly has its basis in a system of beliefs and doctrine which are regarded to be conducive to their spiritual well being by those who profess the religion. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Others Vs. State of U.P. and Others, the Apex Court observed that apart from commission of the individual with his perceived cosmos or divinity the primary aim of all religious faiths is to inculcate the feeling of oneness among the people, to imbibe the good of what that religion or that faith teaches; to get rid of unfounded or superstitious beliefs and to make a person self disciplined. In Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., , the Supreme Court observed that "religion" includes worship, belief, faith, devotion etc. and extends to rituals and religious right which is civil in nature, is the right of a person believing in a particular faith to practice, preach and profess it. It was further observed that a dispute about a religious office is a civil dispute. Thus, among Christians, it is to facilitate worship and services for paying religious reverence that churches are built, consecrated and dedicated to the worshiping public.

In Deoki Nandan (supra) the four Judges Bench of the Supreme Court observed as follows:-

When once it is understood that the true beneficiaries of religious endowment are not the idols but the worshipers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshipers

ln Kapoor Chand and others Vs. Ganesh Dutt and others, the Apex Court has observed thus:-

The true beneficiaries of religious endowment are not the idols but the worshippers and the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers.

This being the legal position, the judicial pronouncements sought to be distinguished by the learned counsel for the appellant are applicable on all fours against the appellants. There is, therefore, absolutely no scope for the plaintiffs/appellants to contend for the position that the first plaintiff church is a private trust. We, accordingly, hold that the St Peters Orthodox Syrian Church, Puthencruz which is one of the parish churches of the Malankara Association is a public trust of a religious and charitable nature as envisaged by Sec.92 C.P.C.

APPLYING THE ABOVE CRITERIA WHETHER THE FIRST PLAINTIFF CHURCH IS A PUBLIC TRUST OF A CHARITABLE OR RELIGIOUS NATURE?

Bearing in mind the above principles governing the scope and applicability of Sec. 92 C.P.C. we will now examine whether the present suit falls within the ambit of Sec. 92 C.P.C.

THE RELEVANT PLAINT AVERMENTS

It is well settled that the maintainability of a suit under Sec. 92 C.P.C. depends on the allegations in the plaint and does not fall for decision with reference to the averments in the Written Statement. (Vide Charan Singh and Another Vs. Darshan Singh and Others, ). But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason, the suit must be dismissed. (Vide Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, ). We will now examine the main plaint allegations.

A. It is admitted in paragraphs 2 and 7 of the plaint that the 1st plaintiff church, namely, the St. Peters Orthodox Syrian Church, Puthencruz is a parish church included in the Kandanad diocese of the Malankara Orthodox Syrian Church also called the Malankara Jacobite church and to be referred to in the plaint as the "Malankara Church". Paragraph 2 of the plaint further admits that the 1st plaintiff church was founded about 300 years ago as a parish church of Malankara Church. In paragraph 1 of the plaint it is claimed that plaintiffs 3 and 4 are suing on behalf of all the parishioners of the plaint church interested in securing the reliefs prayed for in the suit and the defendants are impleaded also as representing all persons interested in opposing the reliefs prayed for in the suit. The suit has been filed also under Order 1 rule 8 C.P.C. and a separate application in that behalf was also filed along with the suit and paragraph 16 of the plaint contains the necessary averments in that behalf.

B. Paragraphs 3 and 4 of the plaint gives the historical background of the Malankara Church, the revival of the Catholicate of the East in the year 1912 (which is substantially the same as contained in paragraphs 86 to 92 of Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., ). Paragraph 5 of the plaint refers to the "Samudayam Suit" (made mention of in paragraph 106 of P.M.A. Metropolitan) finally culminating in Moron Mar Basselios Catholicos v. Thukalan Paulo Avira and Others - AIR 1959 SC 31 corresponding to 1958 KLT 721.

C. Paragraph 6 of the plaint states that after the above verdict of the Supreme Court all metropolitans submitted to the authority of the Catholicose and the constitution. The Kalpana issued by the Catholicose on 25-2-1959 appointing metropolitans to the various dioceses is referred to. (Reference to this is to be found in paragraph 112 of P.M.A. Metropolitan''s case).

D. Paragraphs 7 and 8 of the plaint allege that the 5th defendant (D5) Paulose Mar Philixinose who was appointed as the joint Metropolitan of Kandanad Dioceses was twice found guilty of certain ecclesiastical offences, but inspite of that he has unlawfully got himself installed as the Catholicos of the Malankara Church and D5 cannot have a claim to the office of the Malankara Church or the first plaintiff church.

E. Paragraph 9 of the plaint alleges that defendants 3,4,6 and 7 have not been validly appointed as metropolitans of the Malankara Church.

F. Paragraph 10 of the plaint alleges that the second defendant who claims to have been elected as the lay steward (kaikkaran) in a meeting of the Parish Yogum held on 28-12-1975 has not been validly elected since the Yogum was not a meeting of the parish of the first plaintiff Church.

G. Paragraph 11 of the plaint alleges that the first defendant who was the vicar of the first plaintiff church was removed from that post by the Catholicos Malankara Metropolitan on 21-01-1976 and the second plaintiff was appointed as a Vicar in that place and thereafter the first defendant is only functioning as a priest under the second plaintiff.

H. Paragraph 12 of the plaint alleges that defendants 2 to 11 who are members of a rival association by name Anthiyokya Viswasa Samrakshana Samithi the object of which is to take the plaint church out of the control of the Malankara Church and its constitution and if they are allowed to do, it will cause breach of trust. It is further alleged that the plaint church and its parishioners are entitled to see that all religious worship and services in the plaint church and the administration of its assets are carried on under the episcopal authority of the Malankara Church and its Constitution.

I. The cause of action as pleaded in paragraph 13 of the plaint is said to have arisen on 28-12-1975 when the second defendant was allegedly elected as the lay steward of the plaint church and thereafter.

WHETHER SEC. 92 C.P.C. IS APPLICABLE TO THE CHURCH IN QUESTION?

Thus, going by the plaint averments the immediate provocation for the suit was the alleged selection of the second defendant as the lay steward (kaikkaran) on 28-12-1975. As per Sections 32,37 and 39 of the 1934 constitution followed by the plain tiffs, the kaikkaran shall be the joint - steward along with the vicar of all the assets and records of the parish church. A "steward" is an administrator or a person entrusted with the management of estates or of affairs not his own. So, he is a co-trustee. As per Section 32, in all legal proceedings on behalf of the parish church the lay steward is entitled to represent the church. Hence, if the prayer in the plaint is granted, it will have the effect of disabling the lay-steward (D2) from acting as such. Likewise, defendants 3, 4, 6 and 7 who are Metropolitans of the Malankara Church will be disabled from exercising their authority as Metropolitans on the bald plaint allegation that they have not been validly appointed. In deciding the issue as to whether the suit falls u/s 92 C.P.C., the court most go beyond the reliefs and should have regard to the capacity in which the plaintiffs are suing and also examine the purpose for which the suit has been brought. (Vide Paramatmanand Saraswati v. Ramji Tripati - AIR 1974 SC 2142). We have, therefore, no doubt that if the first plaintiff church is a public trust, then Sec. 92 C.P.C. is attracted and the suit filed without the leave of the Court under Sec.92 C.P.C. will not be maintainable.

The fact that the first plaintiff church which was founded about 300 years prior to 19-02-1976 (i.e. the date of institution of the suit) and that it is a parish church of the Malankara Church is unambiguously admitted in paragraph 2 of the plaint. The plaintiffs belong to the Orthodox/Catholicos faction of Syrian Christians who, unlike the catholics, do not recognise the religious supremacy of the Pope. It is pertinent to observe that nowhere in the plaint is it averred that the first plaintiff church is a private trust. Of course, the plaint does not mention that the church is a public trust. But, in Gheevarghese Koshy Vs. Chacko Thomas of Pallimadyil and Others, the Kerala High Court in a similar dispute between the Orthodox and Patriarch factions of Syrian Christians held that in the absence of any allegation in the plaint that the church is a private trust, it can only be held that it is a public trust. In the above decision it was also held that since the beneficiaries of the church form a section of the general public, the church is a public trust. The declarations in sections 1 and 2 of the 1934 constitution of the Malankara Orthodox Syrian Church are also significantly relevant in this context. The said sections read as follows:-

1) The Malankara Church is a division of the Orthodox Syrian Church. The Primate of the Orthodox Syrian Church is the Patriarch of Antioch.

2) 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 Orthodox Syrian Church of the East is the Catholicos.

One of the findings in the "Samudayam Suit" culminating in Moron and Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31 which was approved in P.M.A. Metropolitan''s case was that Mar Geevarghese Dionysius who was ordained as the Malankara Metropolitan in the year 1907 by the Patriarch of Antioch was the lawful Malankara Metropolitan recognized and accepted as such by the Malankara Syrian Church and as such had become a trustee of the church properties. Thus, the properties of the Church were trust properties.

Tudor on Charities (6th Edition, 1967) at page 124 has observed as follows:-

Churches are built for the public celebration of divine service. A Church when consecrated is set apart forever for sacred use It is dedicated to GOD or to the service of GOD

There are observations in paragraphs 59,69 and 74 of P.M.A. Metropolitan''s case clearly suggesting that these churches are public religious and charitable trusts. After referring to Halsbury''s Laws of England, Volume 14, para 535 and Faiths of the World by James Gardner (page 617) this is what is observed in para 59:

A Parish Church, thus is an ecclesiastical authority operating in a specific area. But they are of a religious order. Their autonomy, their financial powers, their administrative control have been thus different in different ages depending on the terms of creation of the trust, the purpose and objective of its establishment, the personality of the person occupying it, the financial strength of it etc. The Syrian Churches, as the history narrated earlier indicates, were, established for religious worship and public charity and every church, small or big claimed that its spiritual head was the Patriarch of Antioch

Again in paragraph 69 of P.M.A. Metropolitan, the Apex Court held as follows:

The establishment of a church is normally understood as an institution established for public charities. Its objective is religious and spiritual

The learned Judge has adverted to the commentaries of Lewin on Trust and Tudor on Charities as well. Again in paragraph 74 of P.M.A. Metropolitan it is observed as follows:-

But once a church is established then the property vests in the endowment and it becomes a public charity the administration and control of which has to be governed in accordance with the objective of the endowment".

No doubt, the above observations are in the minority judgment of Justice R.M. Sahai. But those observations are in no way inconsistent with the view taken by the majority. The above observations regarding the status of a church under the Malankara Association are founded on unimpeachable authority and have not been deviated from either by the majority or by the subsequent verdicts of the Supreme Court pertaining to the very same dispute. In fact, the minority judgment is not a dissenting judgment A close reading of the entire text of the reported judgment will show that both the minority as well as majority judgments affirm the verdict of the Division Bench of the Kerala High Court. The only narrow difference of opinion was as to whether the Supreme Court could direct amendment of the 1934 constitution. According to the majority power did exist in the Supreme Court to give such a direction. The solitary observation of the Supreme Court in paragraph 35 of A.V.G.P. Chettiar and Sons and Others Vs. T. Palanisamy Gounder, was only to the effect that the minority view in para 55 of P.M.A. Metropolitan''s Case did not support the impugned finding of the Madras High Court that the earlier decision in the suit filed u/s 92 C.P.C. was not res judicata. Moreover, paragraph 55 in the minority Judgment does not deal with the question as to whether parish church under the Malankara Church is a public trust or not. As a matter of fact, the said-paragraph deals with the question of res judicata.

Annexure A to this Judgment gives a brief origin and the ecclesiastical hierarchy of the Malankara Syrian Church according to both factions and Annexure B to this Judgment gives the meaning of certain expressions of common usage in church cases.

IS THE CHURCH APRIVATE RELIGIOUS TRUST UNDER THE 1934 CONSTITUTION

Equally misconceived is the argument on behalf of the Orthodox faction that there are intrinsic provisions in the 1934 constitution to indicate that the beneficiaries of the Trust are not the worshipers but only the members of the particular denomination and, therefore, it may at best only amount to a private trust. If the above argument is accepted it would be as good as holding that the Malankara Church is congregational in character where the property of the church vests in the congregation After the verdict of the Supreme Court in P.M.A. Metropolitan''s Case it is not open to anybody to contend for the position that the church is congregational. There is nothing in the 1934 constitution to show that the entire body of worshippers are excluded from the beneficiaries of the Church and that the beneficiaries are not the worshipers but are only the parishioners or are still confined to the members of the Parish Assembly. Section 7 of the 1934 constitution declares that all men who confess and receive Holy Qurbana (Holy mass) at least once a year and who have completed the age of 21 years can be members of the Parish Assembly. Section 8 provides for the maintenance for a Parish Assembly Register containing the names and particulars of the members of the parish Assembly and a Holy Confession Register containing the names and particulars of those who have confessed. Section 24 declares that for every Parish Assembly, there shall be a Parish Managing Committee. Section 25 inter alia provides that members of the Parish Managing Committee excluding the priests are to be elected by the Parish Assembly and their term shall be one year. Sec. 43 insists that the Parish Register to be maintained should contain the names of all men and women of the Parish. There is no provision made to enter the names of children or the names of those who have come to the Parish through marriage. The 1934 constitution does not say that parishioners alone will have the right to worship in the churches of Malankara Association. What the constitution provides is that membership in the Parish Assembly shall only be for males who satisfy the requirement of Sec. 7 and the Parish Assembly is for the administration of every Parish Church. On the incurring of any disqualification such as default in the payment of dues etc., such member of the Parish Assembly only looses his right to vote and not his right to worship. Even if he ceases to be a member of the Parish Assembly, he continues to be a Parishioner. Thus, Parish Assembly and the Parishioners are not one and the same thing. Moreover, the right to worship is not restricted to men alone whereas membership to the Parish Assembly is restricted to men alone and that too upon fulfillment of the conditions mentioned in Section 7. The right to worship is available to all men, women and children whether they belong to the particular parish or not Sec. 4 of the constitution is very pertinent in this connection. The said Sec. reads as follows:-

All men and women, who have received Holy Baptism and believe in the divinity of the Holy Trinity, the incarnation of the Son, the procedure of the Holy Spirit, the Holy Church and the application of the Nicene Creed, the mediation of the Mother of God and the saints, the administration of the seven sacraments and the canonical observances like fasting etc. and have accepted the obligation to observe them, will be members of this Church

(emphasis supplied)

In P.M.A. Metropolitan''s case, after referring to the earlier litigations and court verdicts, there is the following observation by the majority in paragraph 145 of the decision:-

It is thus clear that the Malankara Association was formed not only to manage the temporal affairs of the Church but also its religious affairs and that the appointment of Metropolitans was subject to acceptance by the people of Malankara, The emphasis is upon the people of Malankara and not upon the individual churches/Parish churches. It is true that the 1934 constitution of the Malankara Association provides that the members of the said Association shall be one priest and two laymen elected by each "Parish Yogum" (Assembly) (clause 68). Yet clause 4 of the very constitution declares that "all those men and women who accepted the Holy Baptism and who believe in the Godhead of the Trinity, in the incarnation of the Son and the procession of the Holy Ghost, in the Holy Church, in the performance of the 7 sacraments, in the observance of the precepts, in the use of the Nicean Creed and who have undertaken the responsibility of performing them are members of this Church". It thus appears that while the membership of the Malankara Association is limited to one priest and two laymen elected by each Parish Assembly, the membership of the Malankara Church as such consists of all men and women who accept the tenets and the faith mentioned in clause 4 aforesaid

(emphasis supplied)

We have, therefore, absolutely no doubt in our mind that the St. Peter''s Orthodox Syrian Church, Puthencruz (1st plaintiff church) is a public religious and charitable trust to which Sec. 92 C.P.C. squarely applies.

OUR CONCLUSION

The result of the foregoing discussion is that the suit filed by the appellants (orthodox faction) without complying with the mandatory requirements of Sec. 92 C.P.C. was not maintainable and was rightly dismissed by the court below (Church Court). This appeal is accordingly dismissed. However, in the circumstances of the case, the parties are directed to bear their respective costs in this appeal.

A WARNING TO THE WARRING FACTIONS

It is distressingly sad to note that the rift between these two warring factions (the catholicos and the Patriarch factions) among the Syrian Christians, only deepens with no sign of re-union or togetherness. Every one knows that the bad blood, acrimony, fighting, bloodshed and forensic battles are all for spiritual and temporal supremacy of One group over the other. An ugly transmutation recently noticed in a couple of cases was the offer for a peace-pact by the establishment of separate churches of the rival groups in the same compound. That will only help to polarise the worshipping polity into discordant groups.

Merely because the right of dissent is a logical concomitant of the freedom of speech and expression, there is no reason why it should be pugnaciously exercised and the cult of violence is practiced in the sacred abodes of God and elsewhere. Gallantry, heroism and individuality are very often seen expressed by defying the Creator or questioning the leader. May be, some people believe in the harmony of brotherlihood through dissension; or may be it is out of a misplaced realisation that mere is nothing more powerful than the plutocratic clout. What a legitimate" exercise of the fundamental right to freely profess, practice and propagate religion!

A peep into the past indicates that these churches are possessed of appreciable temporalities which explains the avaricious scramble for possession and power by the two warring actions even where the assets belong to the Almighty. Both sides are under the grip of a chronic litigation fever which keeps on waxing and warning as manifested even through the interlocutory applications which are invariably fought up to the High Court, if not still higher. Judicial analgesics and febrifuges have failed to give sustainable results thus calling for the need to administer stronger and more bitter medicines. Experience shows that where temporalities flourish there is always an avaricious scramble for power even where the assets belong to the Almighty. It is the maladministration in religious institutions which is the main cause for quasi-judicial and judicial intrusions into areas of religious worship notwithstanding the fact that secularism and religious freedom are guaranteed fundamental rights under the Constitution of this country. Once there is avoidable executive and bureaucratic interference into such sensitive areas, the problems of overdoing, undoing or non-doing by the instrumentalities of the State and the consequential administrative, quasi-judicial or judicial reviews also crop in. Even in areas which are seemingly impervious to judicial probe, we have seen the beneficial virus of judicial review exploring ameliorative possibilities and translating into reality the well-being of the mankind. The verdict of the Apex Court in All India Imam Organization and others Vs. Union of India and others, was a breakthrough gesture of judicial creativity in that direction. The warring factions of the religious denomination should, however, remember that whatever be the sweep and amplitude of the constitutional guarantee to profess, practice and propagate religion, there is a corresponding fundamental duty cast on every citizen under Article 51A of the Constitution of India to abjure violence and to promote harmony and the spirit of common brotherhood amongst all the people of India transcending, inter alia, religious diversities. (See also Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Others Vs. State of U.P. and Others, ). The power of the Court exercising jurisdiction under Sections 92 C.P.C. and the inherent power of the Court in any other jurisdictions to commit the subject matter of discord to the custody of a receiver, is a power potent enough to dispossess and disable both the disputants of their right to administer the church. Hence such an extreme measure will be a real threat to those who indulge in the cupid power grab. The agitators will do well if they realise that by provoking the Court through their undemocratic and anti christian activities they stand to loose the virtually unfettered right to profess, practice and propagate religion.