Varghese and Others vs Pathrose and Others

B. Kemal Pasha, J.—No representation for the petitioner. Last time also there was no representation for the petitioner.

Hence, the appeal is dismissed for default.

Plaintiffs 1 to 3, 6, 9 and 10 in O.S. No. 95 of 1977 on the file of the First Additional District Court, Ernakulam have come up in this appeal challenging the dismissal of the said suit.

The plaintiffs are the parishioners of the plaint schedule church namely, St. Mary''s Orthodox Syrian Church, Vadavucode. The first defendant was the Vicar of the plaint schedule church. Defendants 2 and 3 were the trustees of the plaint schedule church elected by the parishioners to carry out the temporal administration of the church. The fourth defendant was a person assisting the religious services conducted in the plaint schedule church and the fifth defendant was the Headmaster of the Sunday School attached to the church. According to the plaintiffs, the plaint schedule church is a constituent church of Malankara Orthodox Syrian Church; that the constitution adopted by the Malankara Association on 26.12.1934 is binding on the plaint schedule church; that during 1973, a few members of the Malankara Church formed an organisation called Jacobite Association with a view to remove Parish Churches and other institutions of Malankara Church from out of the control of Catholicose and Malankara Metropolitan; that defendants 3 to 6 who are members of the said association convened a meeting of the Managing Committee of the plaint schedule church on 15.7.1974 with a view to remove the plaint schedule church also out of the hierarchy of Malankara Church and attempted to pass a resolution defying the authority of Catholicose and the Malankara Metropolitan and the constitution of Malankara Church. It is alleged in the plaint that the defendants are attempting to pass similar resolutions in the meeting of the parishioners also; that the plaint schedule church is a public trust; that the defendants have no right to alter the founding objects of the church or to adopt any new system of administration for the plaint schedule church; that the defendants have no authority to remove the plaint schedule church from out of the control and administration of the Metropolitans of Malankara Church and that the conducts of the defendants would amount to breach of trust. It is also alleged in the plaint that the ninth plaintiff is the present Vicar of the church appointed by the Diocesan Metropolitan and a parish assembly could be duly convened only by the ninth plaintiff or his successors appointed by Diocesan Metropolitan. It is further alleged in the plaint that the plaint schedule church is under the spiritual supervision and temporal control of the Cochin Diocese Metropolitan and that the defendants, in defiance of the constitution of the church, are obstructing the control and administration of the church and its institutions. The following are the reliefs sought for in the suit:

A) Restraining defendants 3 to 6 and others supporting them by an injunction from holding any meeting of the Edavaka Yogam (Parish general body meeting) of the plaint church on 28.7.74 or other dates or from taking any decision therein, denying the rights of the Catholicos, Malankara Metropolitan or the Cochin Diocesan Metropolitan over the plaint church, or recognizing the Episcopal authority of anyone other than the Cochin Diocesan Metropolitan or metropolitans of the Malankara church, over the plaint church, or removing the name of the Metropolitan Yuhanon Mar Sevarious from the Thubden during the service of Holy Qurbana in the church or substituting any other name therein:

B) Restraining defendants 3 to 6 and others supporting them by an injunction from disaffiliating the Sunday School and other institution of the plaint church from the Malankara Sunday School Association and other institution recognised by the Malankara church or expanding any funds of the plaint church for such purposes.

C) Restraining defendants 3 to 6 and their supporters from any way obstructing the 9th plaintiff from discharging his functions as Vicar and priest of the plaint church or refusing to pay him the salary and allowances for such, or inducting any priest or Deacon not appointed by the Cochin Diocesan Metropolitan Yuhanon Mar Sevarious or the Malankara Metropolitan to officiate or any way interfere in the worship or administration that is carried on in the plaint church;

D) Directing the contesting defendants to pay the plaintiffs their cost of this suit; and

E) Granting such other reliefs as may be deemed just and proper to vindicate the rights of the plaintiffs.

F) restraining the defendants and their supporters by a permanent prohibitory injunction from interfering with the conduct of Sunday service and all other forms of worship, exclusively by the 9th plaintiff or his successors to be appointed by HG Zacharia Mar Anthonios and his constitutionally empowered successors in office.

G) Restraining the defendants and all other parishioners of the plaint Church professing to belong to the Patriarch group from interfering with the exclusive control and administration of the Church and its properties by the plaintiffs and the office bearers elected in accordance with the 1934 Constitution from the Parish Assembly duly convened by the 9th plaintiff (or his successors appointed by HG Zacharia Mar Anthonios) and approved by HG Zacharia Mar Anthonios and his successors in office."

The defendants contested the suit, contending among others, that the plaint schedule church is a public trust; that there is an allegation of breach of trust and that the suit is for one of the reliefs provided for in Section 92 of the Code of Civil Procedure and therefore, the same is not maintainable as the plaintiffs have not obtained leave of the court to institute the suit.

In the light of the contentions raised by the defendants, one of the issues framed for trial was whether the suit is maintainable. The said issue was heard by the court below as a preliminary issue and decided against the plaintiffs, holding that the suit is not maintainable. The plaintiffs 1 to 3, 6, 9 and 10 are aggrieved by the said decision and hence this appeal.

Heard the learned counsel for the appellants and the respondents.

The fact that the suit was instituted without obtaining leave of the court as provided for under Section 92 of the Code of Civil Procedure (''the Code''), is not in dispute. Section 92(1) of the Code reads thus:

"92. 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 inquires;

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

(f) authorizing 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."

It is settled that for the application of Section 92 of the Code, the trust must be an express or constructive trust created for public purposes of a charitable or religious nature, there must be an allegation of breach of such trust, the suit must be a representative one on behalf of the public and the relief claimed must be one of the reliefs provided for in sub clauses (a) to (h) of Section 92(1) of the Code. In St. Peters Orthodox Syrian Church and Others Vs. Fr. Abraham Mathews and Others, (2011) 4 KLJ 357 , a Division Bench of this Court, relying on the decision of the Apex Court in Most. Rev. P.M.A. Metropolitan and others, etc. etc. Vs. Moran Mar Marthoma and another etc. etc., AIR 1995 SC 2001 : (1995) 5 JT 1 : (1995) 4 SCALE 760 : (1995) 4 SCALE 1 : (1995) 4 SCC 286 Supp : (1995) 4 SCC 286 : (1995) 1 SCR 542 Supp , held that constituent churches of Malankara Church are public religious and charitable trusts to which Section 92 of the Code applies. The said judgment was rendered in the context of a similar dispute in relation to St. Peter''s Orthodox Syrian Church, Puthencruz. Paragraphs 24 and 25 in the said judgment read thus:

"24. 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. S. 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. S. 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. S. 24 declares that for every Parish Assembly, there shall be a Parish Managing Committee. S. 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. S. 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 S. 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 S. 7. The right to worship is available to all men, women and children whether they belong to the particular parish or not. S. 4 of the constitution is very pertinent in this connection. The said Section 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 para.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 S. 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 S. 92 C.P.C., was not maintainable land 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."

Following the decision of this Court in St. Peters Orthodox Syrian Church v. Fr. Abraham Mathews (supra), a learned single Judge of this Court has also held in A.S. No. 768 of 1998 that St. Thomas Orthodox Syrian Church, another constituent church of Malankara Church, is also a public trust of religious and charitable nature. As far as the present suit is concerned, it is admitted by the plaintiffs in the plaint itself that the plaint schedule church is a public trust. The relevant averments in paragraph 7 of the judgment read thus:

"The parishioners constitute merely the beneficiaries of the plaint trust. They have no right to alter the terms of the plaint church which is a public trust, or to adopt any different system of administration for the plaint trust."

Thus, the appellants cannot be heard to contend that the plaint schedule church is not a public trust.

It is trite that only the allegations in the plaint need to be looked into to see whether the suit falls within the ambit of Section 92 of the Code. As noticed above, the case of the plaintiffs is that the defendants who are in management of the plaint schedule church are trying to alter the founding objects of the trust and their conduct would amount to breach of trust. Paragraphs 6 and 7 of the plaint read thus:

"6. Defendants 3 to 6 and their followers in the plaint parish in furtherance of their unlawful object are intent on taking the plaint church and its institutions out of the malankara church. A general meeting or pothuyogam of the parishioners of the plaint church is to be held on 28.7.1974. The Committee of the plaint church was convened by the first defendant to meet on 15.7.1974. The committee is to be presided over by the Vicar the first defendant. After the committee meeting commenced under the presidentship of the first defendant, the 3rd defendant and his supporters insisted that resolutions to the effect that the right to appoint and remove the Vicar is a right vested in the Edavaka Yogam, that the parish should in defiance of the decision of the Episcopal Synod and Kalpana of the Catholicos, accept allegiance to Metropolians Paulose Mar Athanasius, Gheevarghese gregarious and Thomas Dionysius who are not Metropolitans of the Malankara church, that all connections of the plaint church to the Catholicos Malankara Metropolitan, and the cochin Diocesan Metropolitan and other metropolitans of the Malankara church should be forthwith severed and that the plaint church its Sunday School and other institutions should be affiliated to similar organisations under the above said metropolitans who have nothing to do with the Malankara church, should be passed and placed before the parish yogam meeting on 28.7.1974. The first defendant Vicar who was presiding over the deliberations of the Committee disallowed the consideration of those resolutions on the ground that those resolutions constitute breach of trust and deviation from the objects of the foundation. There upon the meeting ended in confusion and the president went away. It is known that defendants 3 onwards are decided on moving such resolutions in the meeting that is to be convened on 28.7.74 on other dates. Neither defendants 3 to 6 nor anyone in the parish nor the parish yogam itself has the right to take any decision as desired by defendants 3 to 6. If it is so done it constitutes breach of trust and departure from the fundamental principles of establishment of the plaint church. It is learnt that the 2nd defendant refusing to co-operate to the illegal activity of the 3rd defendant and others have tendered resignation of his office of the church.

Any meeting of the parish yogam in order to be valid and binding on the plaint church is to be announced at least on two consecutive Sundays in the plaint church. No announcement has been made as to the holding of the meeting on 28.7.74. A meeting of the parish yogam has to be presided over by the Vicar or diocesan metropolitan of Malankara metropolitan only. The first defendant Vicar has already declared his intention to dissociate from the resolutions that defendants 3 to 6 propose to make at the meeting of 28.7.74. The parishioners constitute merely the beneficiaries of the plaint trust. They have no right to alter the terms of the plaint church which is a public trust, or to adopt any different system of administration for the plaint trust. Neither have they any right to take the plaint church from out of the control and administration of the Metropolitans of the Malankara church and put it under the control and administration of any other metropolitan who are not of the Cochin Diocese much less of the Malankara church. The defendants intention to take the plaint church and the institutions of the plaint church like the Sunday School, youth League and others from out of the lawful control of the Malankara church and to put them under the control of Institutions and authorities out of the Malankara church and to expend the funds of the plaint church for the said purposes constitute breach of trust. It is further learnt that the 4th defendant is intent on altering the form of worship by omitting the name of the Cochin Diocesan metropolitan from the Thubden or intercession in the service of Holy Qurbana in the plaint church and to include the names of the above said three metropolitans therein. It is incumbent that during the Thubden in the service of Holy Qurbana the name of the Cochin Diocesan metropolitan be announced and proclaimed in the plaint church. This was the practice from the very foundation of the plaint church and is one of the fundamental principles of the foundation. If the defendants are allowed to do as stated above the same will be a breach of trust and departure from the principles of the plaint trust. The plaintiffs members of the plaint church and the large number of other worshippers in the plaint church have a right to have proper religious worship and administration according to the principles of the plaint foundation carried on in the matter of the plaint church. They are entitled to the reliefs prayed for herein below."

It is thus evident from the averments in the plaint that the plaintiffs attribute breach of trust against the contesting defendants.

It is not in dispute that the suit is one filed by the plaintiffs in a representative capacity on behalf of the beneficiaries of the plaint schedule church and not one instituted for vindication of their private rights. Coming to the reliefs claimed in the suit, it is now settled that a suit claiming any relief akin to the reliefs mentioned in clauses (a) to (g) of Section 92(1) of the Code, would also fall within the ambit of Section 92 of the Code [See Charan Singh and Another Vs. Darshan Singh and Others, AIR 1975 SC 371 : AIR 1974 SC 371 : (1975) 77 PLR 262 : (1975) 1 SCC 298 : (1975) 3 SCR 48 : (1975) 7 UJ 93 . In Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, AIR 1974 SC 2141 : (1974) 2 SCC 695 : (1975) 1 SCR 790 : (1974) 6 UJ 607 , it is held that to ascertain whether the reliefs claimed in the suit would fall within the scope of Section 92(1) of the Code, the court must go beyond the reliefs and comprehend the purpose for which the suit is instituted. As rightly noticed by the court below, at the time of institution of the suit, defendants 3 to 6 were in administration of the trust and the decree of injunction sought against them under reliefs (A) to (C) was virtually for removing the said defendants from the administration of the trust. The said reliefs would come under clause (a) of Section 92(1) of the Code. Likewise, relief (G) is for administering the church in accordance with the constitution adopted by the Malankara association during 1934. The said relief would come under clause (g) of Section 92(1) of the Code. A reading of the prayers in the plaint would thus make it clear that the suit is one instituted claiming substantially the reliefs provided for in Section 92 (1) of the Code. The finding of the court below that the suit is not maintainable is, therefore, in order. The appeal is devoid of merits and the same is accordingly dismissed.