Moran Mar Basselios Catholicos vs Thukalan Paulo Avira and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 267 of 1958

Decision Date: 12 September 1958

Coram: S.R. DAS, N.H. BHAGWATI, B.P. SINHA, K. SUBBARAO, K.N. WANCHOO

In the matter titled Moran Mar Basselios Catholicos versus Thukalan Paulo Avira and others, the Supreme Court of India delivered its judgment on 12 September 1958. The appeal, recorded as Civil Appeal No. 267 of 1958, was filed by the petitioner Moran Mar Basselios Catholicos against the respondents Thukalan Paulo Avira and other litigants. The judgment was reported in AIR 1959 SC 31. The bench that heard the case comprised Chief Justice S. R. Das together with Justices N. H. Bhagwati, B. P. Sinha, K. Subbarao and K. N. Wanchoo. The principal opinion was delivered by Chief Justice S. R. Das. In order to understand the arguments presented in this appeal, the Court found it necessary to set out a concise narrative of the facts that gave rise to the long-standing dispute between the two rival factions of the Malankara Jacobite Syrian Christian community, a dispute that had generated extensive and costly litigation over many years.

The community in question belongs to the Christians of Malabar who are commonly identified as Malankara Jacobite Syrian Christians. According to the tradition of the community, its origins date back to the year 52 AD when St. Thomas, one of the twelve disciples of Jesus Christ, arrived in Malabar and established a Christian Church there. In the year 1599 AD, under the growing influence of Portuguese political power on the western coast of India, the community briefly embraced the Roman Catholic faith. This affiliation proved to be short-lived. In 1654, the community convened a gathering known as the Mattancherry Meeting, during which it repudiated Roman Catholic supremacy and reaffirmed its alignment with the Patriarch of Antioch. After that meeting, the Church in Malabar placed itself under the jurisdiction of the Patriarch, who began appointing Metropolitans to ordain bishops within Malankara. Subsequently, the Patriarch himself performed ordinations for the Malankara Church, an example of which occurred in 1840 when the reigning Patriarch personally ordained Mar Mathew Athanasius, who had travelled to Syria specifically for that purpose.

In the year 1808, a charitable trust was founded by Moran Mar Thoma VI, popularly known as Dionysius the Great. He invested three thousand Star Pagodas with the British Treasury at Trivandrum, securing an interest rate of eight per cent per annum to be paid in perpetuity. The subject of the present dispute is that original principal sum together with the interest that has accrued thereupon. Over time, a society identified as the Church Mission Society and the Malankara Jacobite Syrian Church came to hold the trust property jointly. Disagreements subsequently arose between the Church Mission Society and the Malankara Jacobite Syrian Church concerning the ownership and administration of the property. Those disagreements were addressed by an arrangement called the Cochin Award of 1840, which allocated portions of the disputed assets to each party. Regarding the share allotted to the Malankara Jacobite Syrian Church, the Award stipulated that the property should be administered by three trustees: (i) the Malankara Metropolitan, (ii) a priest-named trustee (referred to as a Kathanar), and (iii) a lay trustee.

In 1876 Patriarch Peter III travelled to Malabar and summoned the accredited representatives of all the churches in the region. These representatives assembled in a synod that came to be known as the Mulunthuruthu Synod, which was presided over by Patriarch Peter III. The proceedings of the meeting were documented in writing, and a copy of the record is filed as Exhibit F o. At that synod the Malankara Syrian Christian Association, commonly referred to as the Malankara Association, was constituted to oversee the affairs of the churches and the community. The Association was to be headed by the Malankara Metropolitan, who would serve as the ex-officio President, and would include three representatives from each participating church. In addition, a managing committee comprising twenty-four members was established to function as the standing working committee of the Association, thereby giving it a permanent administrative structure.

On 4 March 1879 a priest named Mar Joseph Dionysius, claiming to be the duly consecrated Metropolitan of the Malankara Jacobite Syrian Church and the President of the Malankara Association, instituted civil proceedings identified as Original Suit No. 439 of 1054 in the Zilla Court of Alleppey. The suit was filed against Mar Thomas Athanasius, who asserted that he had been ordained by his brother Mar Mathew Athanasius and thereby succeeded to the metropolitanate, as well as against two other individuals who professed to be the Kathanar and lay trustees seeking the recovery of church properties. Mar Joseph Dionysius contended that the ecclesiastical supremacy of the Patriarch of Antioch was expressed through the regular consecration and appointment of Metropolitans to govern the Malankara Edavagai, the dispatch of sanctified oil (Morone) for baptismal use, the receipt of the Ressissa from the faithful to maintain his dignity, and the overall control of both spiritual and temporal matters of the Edavagai. In contrast, Mar Thomas Athanasius wholly repudiated this alleged supremacy, arguing that the Patriarch possessed no inherent right to control the Jacobite Syrian Church in Malabar in either temporal or spiritual domains, although the community honoured the Patriarch as a high dignitary of the churches situated in the land of the Savior’s birth and crucifixion. After a series of procedural steps, the case reached the Travancore Royal Court of Final Appeal, which rendered a judgment recorded as Exhibit DY in 1889. By a majority of two judges to one, the appellate court dismissed the appeal lodged by the defendant Mar Thomas Athanasius and affirmed the decree of the lower courts in favour of the plaintiff-respondent Mar Joseph Dionysius. The majority judgment, set out in paragraph 347, concluded that the See of Antioch’s ecclesiastical supremacy over the Jacobite Syrian Church in Travancore had long been recognised and acknowledged by the Jacobite Syrian Christian community and its Metropolitans; that such supremacy was exercised through the ordination of Metropolitans, either directly by the Patriarch or by duly authorised delegates, the provision of Morone for baptismal and other rites, and general supervision of the Church’s spiritual governance; and that the Patriarch’s authority never extended to the temporal administration of the Church, which remained an independent entity.

In this case, the Court explained that the Church in question had historically functioned as an independent body, and that the Metropolitan of the Jacobite Syrian Church in Travancore was required to be a native of Malabar who was either consecrated by the patriarch or by a delegate duly authorized by the patriarch, and who was accepted by the faithful as their Metropolitan. The Court found that the plaintiff-respondent had indeed been consecrated in that manner, had been accepted by the majority of the believers, and had succeeded to the Metropolitanship upon the death of Mar Mathew Athanasius. Consequently, the judgment under consideration gave Mar Joseph Dionysius possession of the office of the Malankara Metropolitan and of the church’s property. The Court observed that Patriarch Peter III naturally disapproved of that judgment because it denied him any authority over the temporal affairs of the Church. The Court then noted that up to the year 1905 the reigning Patriarch of Antioch was Abdul Messiah, and that a controversy existed regarding whether a valid synodical removal of Abdul Messiah from his office had taken place. While the existence of a dispute was acknowledged, the Court stated that there was no dispute that the Sultan of Turkey withdrew the firman that had previously recognized Abdul Messiah as Patriarch and issued a new firman in favour of Abdulla II, who subsequently assumed the duties of the Patriarch. The Court further recorded that in 1909 Mar Joseph Dionysius died, after which the Malankara Association elected and installed Mar Geevarghese Dionysius—who had travelled to Syria in 1907 and received his metropolitan ordination from Patriarch Abdulla II—as the Malankara Metropolitan. In that capacity Mar Geevarghese Dionysius became the ex-officio President of the Malankara Association and one of the trustees of the Church’s properties. The two other co-trustees who had served with Mar Joseph Dionysius, namely Kora Mathan Malpan and C. J. Kurien, continued as co-trustees of Mar Geevarghese Dionysius. The Court then turned to the events of 1909, when Patriarch Abdulla II travelled to Malabar with the objective of re-establishing his temporal authority over the Malankara Jacobite Syrian Christian Church. Upon his arrival he convened a meeting of the Malankara Association at the Old Seminary in Kottayam and demanded that the Association acknowledge and accept the Patriarch’s temporal authority. The congregation refused, and the meeting dissolved in disorder. Thereafter Abdulla II approached individual parish churches seeking Udampadis—submission deeds that would recognise both the spiritual and temporal supremacy of the Patriarch. He succeeded in obtaining such Udampadis from some churches, but many others refused. To reward those who submitted, he ordained them as Metropolitans, while he excommunicated those who declined. In 1910 Mar Poulose Athanasius—who was the first plaintiff in the present suit and, at the time of the present appeal, the respondent—executed an Udampadi and was consequently ordained a Metropolitan. Mar Geevarghese Dionysius, however, declined to provide any Udampadi. As a result, in 1911 Abdulla II excommunicated Mar Geevarghese Dionysius—whom he himself had ordained in 1907—and ordained Mar Kurilos as the Malankara Metropolitan, thereby automatically making Mar Kurilos the ex-officio President of the Malankara Association and a trustee of the Church’s property.

In the dispute, the Malankara Association together with one of the trustees of the trust properties was a party to the proceedings. The two other trustees, namely Kora Mathan Malpan and C. J. Kurien, aligned themselves with Abdulla II and formally acknowledged his newly nominated Malankara Metropolitan, Mar Kurilos, as the legitimate head of the Church and consequently as the ex-officio trustee. In response, Mar Geevarghese Dionysius, who also held the position of ex-officio trustee, summoned a meeting of the Malankara Association. At that meeting the association declared the ex-communication of Mar Geevarghese Dionysius to be invalid, removed from the trusteeship the two trustees who had supported the Patriarch, and appointed two new trustees in their place. The newly appointed trustees were Mani Poulose Kathanar, who was the second appellant in the present appeal and who has since passed away, and Kora Kochu Korula, who is also deceased. The same meeting resolved to investigate the actual standing of Abdulla II and Abdul Messiah and decided to suspend the payment of the Ressissa, that is, the contributions normally sent to the Patriarch.

Abdulla II departed from Malabar in October 1911. In 1912 he issued a Kalpana, which is a formal message or order, in which he described Abdul Messiah and Mar Geevarghese Dionysius as “wolves” and warned the faithful to keep entirely away from them. In the same year Abdul Messiah, whose Firman had been withdrawn by the Sultan of Turkey, arrived in Malabar and proclaimed that the ex-communication of Mar Geevarghese Dionysius was invalid. The following year, 1913, Abdul Messiah issued another Kalpana (Ex. 80) establishing a Catholicate in Malabar because he believed that without the installation of a Catholicos the Church could not maintain its purity and holiness. By virtue of that Kalpana Abdul Messiah ordained Mar Poulose Basselios as the first Catholicos and also ordained three Metropolitans. The Kalpana further stipulated that the Catholicos, assisted by the Metropolitans, would ordain Melpattakars “in accordance with the Canons of Our Holy Fathers,” would consecrate Holy Morone, and would grant the Metropolitan authority to install a new Catholicos when the present Catholicos died. Abdul Messiah left Malabar in March 1913.

Consequently, at that point two rival factions existed within the Malankara Jacobite Syrian Church. One faction consisted of the late Mar Geevarghese Dionysius and his co-trustees—Mani Poulose Kathanar, the second appellant, and Kora Kochu Korula—both of whom are now deceased. The opposing faction comprised Mar Kurilos together with Kora Mathan Malpan and C. J. Kurien, who had abandoned Mar Geevarghese Dionysius and supported Mar Kurilos. Both Abdulla II and Abdul Messiah died in 1915.

In the meantime, in 1913 the Secretary of State for India instituted an inter-pleader suit (O. S. No. 94 of 1088) in the District Court of Trivandrum. In that suit the Secretary impleaded the two competing groups of claimants as defendants. The first group, asserting its right to be trustees, included Mar Geevarghese Dionysius, Mani Poulose Kathanar and Kora Kochu Korula. The second group, also claiming trusteeship, comprised Mar Kurilos, Kora Mathan Malpan and C. J. Kurien. The prayer filed in the suit sought a determination of which of the two rival sets of trustees was entitled to the benefits and responsibilities of the trust.

In the inter-pleader suit the principal question was who would be permitted to draw the interest on the sums that were held for the benefit of the Malankara Jacobite Syrian Christian community in the British treasury. The two rival groups of trustees each filed a written statement interpleading against the other. In that filing the three individuals identified as Mar Geevarghese Dionysius, Mani Poulose Kathanar and Kora Kochu Korula were officially treated as plaintiffs, while Mar Kurilos, Kora Mathan Malpan and C. J. Kurien were treated as defendants. The trial court, in the judgment recorded as paragraph 3 of its decision dated 15 September 1919 (Ex. 255), held that the suit should be converted into a representative action on behalf of the entire Jacobite Syrian Christian population of Malabar. This conversion was made with the court’s permission, and the institution of the suit was announced in accordance with section 26 of the Travancore Civil Procedure Code by publishing advertisements in all the jurisdictions that were inhabited by members of the Syrian Christian community. Following this procedural step, defendants numbered from 7 to 41 were impleaded in the suit as additional defendants and they gave their support to defendants 1 to 3. While the suit was still pending, defendant 4, namely Mar Kurilos, died. Consequently the court added Mar Poulose Athanasius, who claimed to be the successor of Mar Kurilos in the office of Malankara Metropolitan, as defendant 42. The trial court’s judgment (Ex. 255) ultimately upheld the claim of defendants 1, 2 and 3—that is, Mar Geevarghese Dionysius, Mani Poulose Kathanar and Kora Kochu Korula—finding them to be the lawful trustees of the church properties.

The three defendants who were on the opposite side, namely Kora Mathan Malpan, C. J. Kurien and the newly added Mar Poulose Athanasius (defendants 5, 6 and 42), appealed the trial-court decision to the Travancore High Court. The Full Bench of that court delivered its judgment in 1923, reported in 41 Trav. LR 1(A) (Ex. DZ), and it reversed the earlier judgment and decree of the district court. The High Court directed that the money which had been lodged in the court’s custody be withdrawn by defendants 5 and 6 and by the individual who would subsequently be duly elected, appointed and consecrated as the Malankara Metropolitan. In response, Mar Geevarghese Dionysius together with his two co-trustees (defendants 1, 2 and 3) filed an application for review of the Full Bench’s judgment under section 12 of the Travancore High Court Regulation 1099. The application was admitted, but the court imposed a condition that, on rehearing, certain findings would be binding: (i) the authenticity of Exhibit 18, which was the version of Canon Law produced by defendants 6 and 42; (ii) the authority of the Patriarch to excommunicate without the involvement of the Synod; and (iii) the absence of any indirect motive on the part of the Patriarch in exercising his ex-communication powers. The matter was then re-heard by a Full Bench, which on 4 July 1928 delivered its judgment (Ex. 256) confirming the decision of the learned district judge and upholding his decree. This judgment was reported in 45 Tr. L.R. 116(A). As a result of this final determination, Mar Geevarghese Dionysius and his co-trustees were finally recognized as the lawful trustees entitled to withdraw the monies that had been deposited in the court.

The Court recorded that Mar Geevarghese Dionysius and his two co-trustees, identified as defendants 1, 2 and 3, ultimately obtained the legal right to withdraw the sums of money that had been deposited in the court on account of the church properties, having been recognised as the lawful trustees of those assets. On 16 August 1928 the Managing Committee of the Malankara Association received authority to prepare a constitution for both the Church and the Association. The very next day, on 17 August 1928, Mar Julius Elias – who acted as the Patriarch’s delegate in Malabar and appeared as plaintiff-witness 17 in the present proceedings – issued an order addressed to Mar Geevarghese Dionysius. In that order he demanded that the latter execute an Udampadi within two days and, simultaneously, suspended him on the allegation that he had “committed several grave offences against the Holy Throne of Antioch and the faith and practices of the Holy Church and repudiated the authority of the ruling Patriarch.” In addition to the suspension, Mar Julius Elias dispatched letters to the Governments of Travancore and Madras requesting that interest on any amounts owed to the defendant Mar Geevarghese Dionysius be withheld on the ground of his suspension. These actions set the stage for further litigation concerning the authority and assets of the Church.

Subsequently, on 21 August 1928, an application designated O.S. No. 2 of 1104 was filed in the District Court of Kottayam by eighteen individuals who were collectively described for brevity as the Patriarchal party. This application sought relief against the defendants numbered 1, 2 and 3 in O.S. No. 94 of 1088, as well as against twelve additional persons, among them the second Catholicos, Mar Geevarghese Philixinos, and the Secretary of State for India, who together were referred to as the Catholicos’ party. It is relevant to note that in 1929, following the death of Mar Geevarghese Philixinos, Moran Mar Basselios – who had been defendant No. 1 in the original suit and who now appears as the appellant – was installed by the local Metropolitans as the third Catholicos in accordance with the procedure prescribed by the Kalpana (Exhibit 80) issued by Ahdul Messiah. Consequently, Mar Basselios was substituted in O.S. No. 2 of 1104 as the defendant in place of the deceased second Catholicos. On 23 January 1931, O.S. No. 2 of 1104 was dismissed because the plaintiffs failed to comply with the court’s order requiring payment of certain monies to the Commissioner appointed in that case. The plaintiffs then applied for restoration of the suit by setting aside the dismissal order; however, that application was rejected on 29 September 1931 (Exhibit 46). An appeal against the refusal to restore the suit was lodged as Civil Miscellaneous Appeal No. 74 of 1107. In view of the deepening rift within the community, an effort was made, at the suggestion of Lord Irwin, the then Viceroy of India, to restore goodwill. Patriarch Elias I visited Malabar in 1931 for this purpose, but he died there before any settlement could be achieved. In 1933, a new Patriarch, Ephraim, was elected in Antioch, reportedly without notifying the Malabar community, and Mar Geevarghese Dionysius and his supporters thereafter refused to recognise Ephraim as the duly installed Patriarch.

The community did not accept Ephraim as the properly installed Patriarch. Kora Kochu Korula, who had served as one of the co-trustees of Mar Geevarghese Dionysius, died in 1931 and was succeeded by E. J. Joseph, who was appointed a trustee in his place. While the Civil Miscellaneous Appeal mentioned earlier was still pending, Mar Geevarghese Dionysius passed away in February 1934. Following his death, the trust properties came under the possession of Mani Polouse Kathanar together with the already-appointed trustee E. J. Joseph. Soon after these events, a draft constitution was printed in the form of a pamphlet and made available to the community. On 3 December 1934 three notices, identified as Exhibits 59, 60 and 61, were issued calling for a meeting of the churches to be held on 26 December 1934 at the M. D. Seminary in Kottayam. The agenda of that meeting included, among other matters, the election of the Malankara Metropolitan and the adoption of the draft constitution. In addition to the three notices, advertisements of the meeting were placed in two leading Malayalam newspapers, shown as Exhibits 62 and 63. The meeting took place on the scheduled date and its proceedings were recorded in Exhibit 64. At that gathering, the third Catholicos—who is identified as Defendant No. 1 in the present suit, is now the appellant before this Court, and was also Defendant 3 in Original Suit No. 2 of 1104—was unanimously elected as the Malankara Metropolitan. By virtue of this election he automatically became a trustee of the church properties. The assembly also unanimously adopted the constitution, as reflected in Exhibit A M. The factual existence and the legal validity of this meeting have been vigorously contested on a variety of grounds, each of which will be addressed later in the judgment.

Subsequently, on 5 July 1935 the Metropolitans belonging to the Patriarchal party issued a further notice, marked as Exhibit D, summoning a meeting of the church representatives to be held on 22 August 1935 at Karingasserai for the purpose of electing the Malankara Metropolitan. That notice expressly stated that no member of the Catholicos party should be elected, although it did not cite Exhibit A M as a reason for such exclusion. The meeting was convened on the appointed date, and at that session Mar Poulose Athanasius—who had been the original first plaintiff in the present suit but was deceased by that time—was elected Malankara Metropolitan. In the same meeting, the two individuals who were Defendants 2 and 3 in the present suit, namely Mar Poulose Kathanar and E. J. Joseph, were removed from their positions as trustees. Their places were filled by Avira Joseph Kathanar and Thukalan Paulo Avira, who are Plaintiffs 2 and 3 in the present suit, although Plaintiff 2 had died since the earlier proceedings. The three newly appointed trustees, identified as Plaintiffs 1 to 3 in the present suit, were empowered to initiate a suit for the recovery of the trust properties. After these resolutions were adopted, the pending Civil Miscellaneous Appeal No. 74 of 1107, which remained before the High Court, was on 23 July 1936 formally dismissed for non-prosecution. On 10 March 1938 a suit, recorded as Original Suit No. 111 of 1113, was filed in the District Court of Kottayam, giving rise to the present appeal and seeking various reliefs that will be discussed in detail later. That suit was ultimately dismissed on 18 January 1943, after which the plaintiffs appealed the decision to the Travancore High Court.

In this case, the appeal that had been designated as A. S. No. I of 1119 was initially heard by the Travancore High Court. On 8 August 1946 the High Court allowed the appeal and, by a majority of two judges to one, decreed the suit in favour of the petitioners. The decree was contested by the defendants, who filed a petition for review before the same High Court. The review was disposed of on 21 December 1951 with a dismissal. Undeterred, the defendants subsequently sought special leave to appeal to this Court under article 136 of the Constitution, and the Supreme Court granted that leave, assigning the appeal the number C. A. 193 of 1952. On 21 May 1954 the Supreme Court delivered its judgment in the matter of Mar Basselios Catholicos v. Mar Poulose Athanasious, reported as 1954 Ker LT 385; 1955-1 SCR 520; 1954 AIR(SC) 526. The Court allowed the appeal, set aside the earlier High Court judgment, admitted the pending review application, and ordered that the entire appeal numbered A. S. 1 of 1119 be reheard on all issues. Accordingly, the Travancore High Court reopened the appeal for fresh consideration. The fresh proceedings began with the hearing of arguments on 15 September 1956 and concluded in the first week of October 1956, after which the Court reserved its judgment. While the case was pending, the States Reorganisation Act came into force on 1 November 1956, creating the State of Kerala and the Kerala High Court in its place. In December 1956 the same bench of judges, now sitting as the Kerala High Court, reheard the matter de novo, posing a limited number of questions to the parties. On 13 December 1956 the Court rendered a unanimous judgment that allowed the appeal and decreed the suit. Subsequently, on 21 March 1957 the Kerala High Court issued a certificate under article 133 of the Constitution, permitting a further reference to this Court. Consequently, Moran Mar Basselios Catholicos, who had been the original first defendant, filed the present appeal, naming as respondents the original third plaintiff Thukalan Paulo Avira and the original seventh defendant Kurian George Semmassen, the remaining parties having died during the protracted litigation. Pursuant to an order dated 22 April 1957, the Court directed that two persons elected by the Patriarchal party should continue the proceedings if the first respondent died; those individuals have since been added as party-respondents. Meanwhile, on 17 April 1957 a petition under article 32 of the Constitution was filed by eight members of the Catholicos party. The petition sought a writ of certiorari, or any appropriate order, direction, or writ, to set aside the judgment and decree of the Kerala High Court dated 31 December 1956 in appeal A. S. 1 of 1119. The petition was scheduled to be heard together with the present appeal. Shri T. N. Subramania Aiyer, appearing for the petitioners, raised a preliminary objection regarding the maintainability of the appeal. He argued that although the final Kerala High Court judgment was delivered on 13 December 1956, it merely restores the decree of the majority of the Travancore High Court pronounced on 8 August 1946, and because that decree pre-dated the commencement of the Constitution, no appeal could be entertained under article 133. This objection was not pursued vigorously and did not affect the maintainability of the article 32 petition.

The objection raised by counsel was not pursued with any vigor, and the Court noted that even if it had been pressed, it would not have altered the question of whether the petition under Article 32 could be entertained. Consequently, the Court found no need to elaborate further on that preliminary objection and rejected it as untenable. The plaintiffs had instituted the present suit, from which the current appeal arose, asserting that they were the rightful trustees of the disputed properties. In their pleadings they sought a declaration that they possessed a valid title to the trust, that the defendants were not trustees, and that they were therefore entitled to possession of the trust property along with any other reliefs that might follow. The Court observed that a suit of this nature could succeed only if the plaintiffs were able to demonstrate the existence of a sound title in their favour. The plaintiffs based their claim to trusteeship upon an election that was said to have taken place at a church meeting on 22 August 1935 at Karingasserai, where the original plaintiff was purportedly chosen as the Malankara Metropolitan and the second and third plaintiffs were appointed as Kathanar and lay trustees respectively. The Court recorded that the meeting had been convened without any notice to the members of the Catholicos party, who were mistakenly treated as having left the Church. To justify this omission, the plaintiffs referred, albeit unconvincingly, to a Kalpana (Exhibit Z) that allegedly instructed the faithful to avoid association with heretics. The Court indicated that its forthcoming finding would establish that the defendants and their supporters had not, by operation of law, become heretics in the eyes of the civil court, nor had they abandoned the Church. Apart from the issue of whether the convener of the meeting possessed the requisite authority, the Court concluded that the meeting was invalid because proper notice had not been given to all interested churches. As a result, the election of the plaintiffs could not be sustained, and the suit, insofar as it functioned as an ejectment action, must fail for lack of a legitimate title to the trust property.

Counsel for the respondents attempted to overcome this difficulty by arguing that the plaintiffs were not relying solely on their alleged capacity as trustees but also on their individual status as members of the Malankara Jacobite Syrian Christian community. According to that argument, community members have the standing to approach the Court to safeguard property held in trust for the benefit of all members, themselves included. Counsel for the defendant-appellant further contended that the suit was neither a representative action nor one filed under Section 72 of the Travancore Code of Civil Procedure, which corresponds to Section 92 of the prevailing Code of Civil Procedure. On that basis, the appellant submitted that the plaintiffs could not challenge the validity of the defendants’ title as trustees of the church properties. The appellant’s counsel also observed that even if the plaintiffs...

In this case the plaintiffs asserted that they could bring the suit in their personal capacity as members of the Malankara Jacobite Syrian Christian community with the purpose of removing the defendants from the office of trustees. The Court observed that the burden of proof rested on the plaintiffs because the defendants had not approached the Court seeking a declaratory relief to establish that they possessed no title as trustees. Although the allocation of the burden of proof at the ultimate stage, after both parties had presented their evidence, was not deemed to be of decisive importance, the Court emphasized that it must render its decision after a thorough consideration of all the material placed before it. Moreover, the Court noted that the plaint did not expressly state that the plaintiffs were instituting the suit solely for themselves or on behalf of every other member of the community; nevertheless, the proceedings had been instituted under the provisions of the Travancore Code of Civil Procedure that correspond to Order I, Rule 8 of the present Code of Civil Procedure. Accordingly, the Court decided to determine the issues raised on appeal on the basis that the plaintiffs were duly authorized to maintain the suit not only as individual members but also as representatives of the entire Malankara Jacobite Syrian Christian community.

The plaintiffs’ primary ground for challenging the defendants’ title was the allegation that the defendants were either heretics, alienated from the Church, or had voluntarily withdrawn from the Church by establishing a separate congregation, thereby forfeiting their status as members of the Malankara Jacobite Syrian Church and consequently losing their right to act as trustees of the church properties. The Court observed that the principal thrust of the arguments presented by both sides revolved around the extent to which the plaintiffs’ new contentions, which aimed to undermine the defendants’ title, were constrained by the final decision recorded as Exhibit 256 in the earlier interpleader suit (Original Suit No. 94 of 1088) and by the provisions of the Kerala Code of Civil Procedure that correspond to Order 9, Rule 9 of the present Code, especially in light of the dismissal for default of another related suit (Original Suit No. 2 of 1104). In addition, the Court identified a critical question concerning the identity of the parties in the various suits. It referred to paragraph 3 of the judgment (Exhibit 255) delivered by the trial court on 15 September 1919 in the interpleader suit, which made clear that, with the Court’s permission, that suit had been transformed into a representative action on behalf of the Jacobite Syrian Christian population of Malabar. Consequently, the decision in that interpleader suit was held to be binding on every member of the Malankara Jacobite Syrian Christian community. The present plaint, in paragraphs 6, 9 and 32, indicates that the plaintiffs were acting on behalf of defendants 4 to 6 in the interpleader suit, thereby invoking the principle of res judicata to pre-clude re-litigation of issues already decided in that earlier proceeding.

The plaintiffs in the present action referred to the judgment in the earlier interpleader proceeding identified as suit O. S. No. 94 of 1088 and asserted that that judgment should operate as res judicata between the parties to the current suit with respect to the questions enumerated in the cited paragraphs. In their appellate memorandum, specifically in paragraph 55 of the grounds of appeal, the plaintiffs argued that the trial judge ought to have held, inter alia, that Exhibit 256 functioned as a matter finally decided and therefore barred re-litigation of the same points. It is significant that the individual who appears as the first plaintiff in the present case had previously been designated as defendant 42 in the interpleader suit, while the person named as the second defendant in the present proceeding had been the second defendant in that earlier case. With these identities in mind, the Court observed that there was no apparent obstacle to applying the doctrine of res judicata to the issues presently before it, provided that the remaining requisites for the doctrine’s operation were satisfied.

To determine precisely what issues were contested in the current litigation, the Court examined the plaint in detail. The plaint asserts that certain immovable properties are owned by the Malankara Jacobite Syrian Church and that those properties must be administered by a board of three trustees comprising the Malankara Metropolitan, a Kathanar (clergy member), and a lay trustee elected by the Church; these allegations appear in paragraphs 1 and 2 of the plaint. The background narrative summarised in paragraphs 3 through 12 outlines the factual context of the dispute. Subsequent paragraphs 13 and 14 refer to a meeting purported to be a gathering of the Malankara Association that took place at Karingasserai in August 1935. According to the plaint, that meeting resulted in the election of the first plaintiff as Malankara Metropolitan, the second plaintiff as the Kathanar trustee, and the third plaintiff as the lay trustee, while simultaneously removing the second and third defendants from their trustee positions. Paragraph 15 sets out the plaintiff’s claim to possession of the church properties. Paragraphs 16 to 21 counter the first defendant’s assertions that his authority derived from his alleged election as Malankara Metropolitan and trustee at a Malankara Association meeting held in December 1934; the plaint alleges that the December meeting was convened without competent authority and without proper notice to all churches. In paragraph 22 the plaint states that, for reasons later detailed—particularly in paragraph 26—the first defendant was disqualified and declared unfit to serve as Malankara Metropolitan. The plaint enumerates five specific reasons, each characterised as a denial or repudiation of the authority of His Holiness the Patriarch of Antioch. Paragraphs 23 and 25 further contend that the acts and pretensions described amount to heresy and that the first defendant, together with the second and third defendants who supported him, had thereby become heretics and alienated themselves from the Malankara Jacobite Syrian Church.

In the plaint the third defendants, who supported and cooperated with the first defendant, were alleged to have become ipso facto heretics and outsiders to the Malankara Jacobite Syrian Church. Paragraph 26 of the plaint, which the Court considered essential for deciding the appeal, was quoted in full. It stated that the defendants and their supporters had voluntarily withdrawn from the ancient Jacobite Syrian Church and had created a new body called the “Malankara Orthodox Syrian Church.” According to the doctrines of that new church, functions such as the consecration of Morone, the ordination of Metropolitans, the granting of stations and the allotment of Edavagas to Metropolitans—rights that the plaint described as being exclusively within the powers of His Holiness the Patriarch—could be performed by the first defendant and others without any reference to His Holiness the Patriarch. The passage further provided that the Ressissa normally due to His Holiness the Patriarch could be paid to the person holding the dignity of Catholicos of the newly formed church. In summary, the plaint argued that the act of permanently constituting a church that was disconnected from His Holiness the Patriarch and that repudiated and denied his authority amounted to heresy. Consequently, the plaint asserted that the defendants had no right to claim membership of the ancient Jacobite Syrian Church and that, for these reasons, they were disqualified and unfit to serve as trustees, to hold any other position, or to enjoy any benefit from the Jacobite Syrian Church.

The constitution referred to in paragraph 26 was identified as Exhibit AM, which was said to have been adopted at the Mar Dios Seminary meeting held in December 1934. The Court noted that the remaining allegations in the plaint did not require detailed examination, but it observed that paragraph 35 claimed that the plaintiffs were entitled to maintain the suit not only in their capacity as trustees but also as individual members of the community. The plaintiffs sought declarations that they were the lawful trustees, that the defendants had no right to retain possession of the church properties, that the defendants be ordered to surrender those properties and that the plaintiffs be placed in possession of the suit properties. Additionally, the plaintiffs asked that the defendants be directed to pay mesne profits, to render accounts of their administration and of rents realized by them, and that the defendants be restrained from acting as trustees.

In response, the defendants filed a written statement denying the plaintiff’s contentions. They specifically repudiated any allegation that they had committed an act of heresy or, even if they had, that such a charge automatically terminated their membership in the Church. The defendants contested paragraphs 22 to 26 of the plaint by denying the corresponding allegations in paragraphs 26 to 39 of their written statement. They asserted that there were not two separate churches or two different faiths, that the defendants had not established a separate church, and that they had not separated from the Jacobite Syrian Church. The defendants further denied that the meeting alleged to have been held at Karingasserai in August 1935 had been convened by any competent person or had been properly noticed to all churches.

The defendants assert that the gathering held in August 1935 at Karingasserai was not convened by any competent authority and that it was not called on proper notice to all churches. They maintain that the meeting was void, that the first plaintiff was never validly elected as Malankara Metropolitan, and that the second and third plaintiffs were not lawfully chosen as trustees of the church properties. In paragraph 45 of the written statement the defendants further allege that, since the year 1085 (corresponding to 1910 A.D.), the plaintiffs and their supporters have claimed that the Patriarch possessed temporal jurisdiction over church assets, that the Patriarch alone could excommunicate and ordain bishops (Melpattakars), and that only the Patriarch was authorised to consecrate holy oil (Morone). They also contend that the canon of the Church is embodied in the book identified as Exhibit 18 in the 1913 suit, that the Catholicate had never been properly established, and that by refusing to cooperate with and by actively opposing the Malankara Syrian Church the plaintiffs voluntarily severed their association with the Church and thereby ceased to be its members. Paragraphs 46 and 47 of the written statement present alternative pleas, arguing that the plaintiffs and their adherents have, by means of adverse possession and the doctrine of limitation, lost any right, if such a right ever existed, to the church properties. Accordingly, the defendants claim that the plaintiffs have no legal title to the disputed properties and are not entitled to maintain the present suit. The written-statement allegations are denied, and the plaintiffs’ contentions, as set out in the original plaint, are restated in the replication filed by the plaintiffs. In the course of the proceedings, the parties filed certain clarifications termed “Issue Papers” in accordance with the Rules and Forms of the Code of Civil Procedure of Travancore; these papers, essentially interrogatories and their answers, were intended to form the foundation upon which the substantive issues would be decided.

On the pleadings, the Court identified more than thirty-seven distinct issues for determination. Issues 1 and 3 pertain specifically to the legitimacy of the titles claimed by the three plaintiffs: the first plaintiff’s claim to the office of Malankara Metropolitan, and the second and third plaintiffs’ claims to be trustees of the church’s properties, as well as the validity of the Karingasserai meeting held in August 1935. Issues 6 through 9 address the validity of the meeting of the M.D. Seminary in December 1934, at which the first defendant is alleged to have been elected Malankara Metropolitan, while the second and third defendants are said to have been previously elected as the Kathanar and as lay trustees, respectively. A series of further issues—numbered 10, 11, 13, 14, 15, 16, 17, 19 and 20—raise detailed questions concerning the first defendant’s installation as Catholicos in the year 104, including by whom the installation was effected, whether it was carried out with the cooperation and consent of Mar Geevarghese Dionysius and the other Metropolitans of Malankara, and whether the two immediate predecessors to the first defendant were similarly validly installed and exercised the functions of the office. These issues also inquire whether the institution of the Catholicate for the East, exercising jurisdiction over Malankara, ever historically existed, and if so, whether it was revived or re-established in the year 1088, the manner of such re-establishment, and the competence of Abdul Messiah in that process, together with the acceptance of the Catholicate’s authority by the Jacobite Syrian Association, its committees, churches and the faithful of Malankara.

In addressing the history of the Catholicate for the East with jurisdiction in Malankara, the Court examined whether the institution was first created in the year 1088 or whether it had previously existed and only lay dormant for some period before being revived in that year. The Court considered whether the revival and re-establishment of the Catholicate in 1088 was carried out by Abdul Messiah acting in cooperation with the late Malankara Metropolitan Mar Geevarghese Dionysius and with the other Metropolitans of Malankara and the broader Malankara Church. If such cooperation occurred, the Court asked whether the re-establishment was valid and lawful, and whether Abdul Messiah possessed the competence to effect it. The Court also inquired whether Mar Geevarghese Dionysius submitted himself to the authority of the Catholicate from the time of its revival in 1088 until his death. Further, the Court investigated whether the Malankara Jacobite Syrian Association, the Association Committee, and the churches and faithful of Malankara accepted the Catholicate and submitted themselves to its authority beginning in 1088. The Court then considered whether the present plaintiffs were estopped from arguing that the Catholicate had not been validly re-established in 1088 or that its authority had not been accepted or recognised by the Malankara Jacobite Syrian Church. The Court further explored whether, after the revival of the Catholicate, any powers previously belonging to the Patriarch with respect to the ordination or appointment of the Malankara Metropolitan and other Metropolitans of Malankara had become vested in the Catholicos. Finally, the Court examined whether the offices of Catholicos and Malankara Metropolitan could be combined in the same individual.

The Court also turned to the status of the Patriarch of Antioch in relation to the Malankara Jacobite Syrian Church, asking whether the Patriarch serves as the ecclesiastical head of the Church or merely as its supreme spiritual head. The Court sought to define the nature, extent and scope of the Patriarch’s ecclesiastical or spiritual authority, jurisdiction and supremacy over the Malankara Jacobite Syrian Church. The Court considered whether the Patriarch, acting alone or through a delegate duly authorised by him, is the sole authority competent to consecrate Metropolitans for Malankara, or whether the consecration must be a synodical act requiring the Patriarch to act together with a synod of two or more Metropolitans. The Court further examined whether the rite of “Kaivappu,” also known as the laying on of hands and regarded as an essential element of a Metropolitan’s consecration, must be performed exclusively by the Patriarch or his duly appointed delegate, or whether the Catholicos may also perform this rite. In addition, the Court queried whether the Patriarch alone is entitled and competent to consecrate the “Morone” used in the Malankara Church, or whether the Catholicos also possesses that entitlement. The Court also considered whether long-standing custom accepted by the Malankara Church and previous court rulings require that the holy Morone for use in the Malankara Churches be consecrated by the Patriarch. Finally, the Court examined the question of whether the allocation of dioceses, referred to as Edavagais, is a right that vests solely in the Patriarch, and whether, before exercising jurisdiction in any Diocese, a Metropolitan ordained and appointed by the Patriarch through a Staticon must be accepted by the people of that Diocese, or whether the allocation of Edavagais is not a right belonging to the Patriarch, the Catholicos or the Malankara Metropolitan but rather a right vested in the Malankara Jacobite Syrian Association.

The Court examined whether the right to allocate dioceses in Malankara had ever been vested in the Patriarch, or whether that right had always vested in the Malankara Jacobite Syrian Association. It then asked whether a Metropolitan, before exercising jurisdiction in any diocese, must first be elected for the office by the duly convened Malankara Jacobite Syrian Association prior to ordination, or whether acceptance by that Association after ordination could suffice. The Court further inquired whether the Patriarch alone possessed the competence to ordain and appoint the Malankara Metropolitan, and whether the issuance of a staticon or an order of appointment by the Patriarch—either before the election or selection by the church representatives or after such election—was essential, or whether such an order might be unnecessary provided that the election or acceptance by the Jacobite Syrian Association occurred. The Court also posed the question of the nature of the contribution called “Ressissa,” asking whether it constituted a levy that the Patriarch alone could impose as a matter of right, or whether it was merely a voluntary gift that might be made to, or received by, the Patriarch and the Catholicos. In addition, the Court considered whether the Patriarch held any temporal authority, jurisdiction, or control over the Malankara Jacobite Syrian Church, or whether, as the ecclesiastical head, he could exercise temporal authority by imposing spiritual punishments in cases of mismanagement or misappropriation of church assets. The Court then turned to the authenticity of the Hoodaya Canons compiled by Mar Hebraeus, asking which version—marked as Ex. A or as Ex. XVIII in O. S. 94 of 1088—represented the correct and genuine text. Subsequently, the Court asked whether any of the acts of the first defendant and his partisans amounted to open defiance of the Patriarch’s authority, whether such acts ran counter to the tenets of the Jacobite Syrian Church, and whether they consequently constituted heresy that would render the parties ipso facto heretics and aliens to the faith; specific acts considered included the claim that the first defendant was a Catholicos, the claim that he was the Malankara Metropolitan, the claim that he possessed authority to consecrate Morone and was in fact doing so, and the collection of Ressissa by the first defendant. The Court further queried whether the first defendant and his partisans had voluntarily renounced their allegiance to, and seceded from, the ancient Jacobite Syrian Church; whether they had established a new church styled the Malankara Orthodox Syrian Church; whether they had framed a constitution for the new church that conferred on the Catholicos the authority to consecrate Morone, to ordain higher orders of the ecclesiastical hierarchy, to issue stations allocating dioceses to Metropolitans, and to collect Ressissa; whether these functions and rights exclusively belong to the Patriarch and whether the first defendant’s assertion of the right to exercise them amounted to a rejection of the Patriarch; whether they had instituted the Catholicate for the first time in Malankara; and whether, if proved, these acts amounted to heresy. Finally, the Court asked whether the defendants had ceased to be members of the ancient Jacobite Syrian Church.

The Court examined whether the defendants had lost their entitlement to serve as trustees or to occupy any other office within the Church, and whether they had also been stripped of any benefit rights concerning the trust properties that belonged to the Malankara Jacobite Syrian community. In the same vein, the Court considered whether the second and third defendants, by assisting and actively cooperating with the first defendant in the acts and pretensions described, had become heretics or had been alienated from the faith, thereby leaving the fold of the Church. The Court further investigated whether the plaintiffs and their supporters had organized themselves into a separate Church that stood in opposition to Mar Geevarghese Dionysius and the Malankara Jacobite Syrian Church, and whether they had detached themselves from the main body of beneficiaries of the trust that had existed since 1085.

The Court then turned to the specific allegations made by the plaintiffs to determine if those acts amounted to a separation from the Church. The plaintiffs claimed that only the Patriarch possessed the authority to consecrate Morone, that the Church’s canon was Ex. XXIII in O. S. 94, that the Catholicate had not been established, and that the Patriarch alone could ordain and excommunicate Metropolitans. They further asserted that the Patriarch held temporal powers over the Church, that Mar Geevarghese Dionysius was not the legitimate Malankara Metropolitan, and that they had introduced changes to the Church’s liturgy. The plaintiffs also alleged that the first plaintiff had executed an Udampady granting the Patriarch temporal authority over the Jacobite Syrian Church and its properties, and that, by virtue of these acts and claims, the plaintiffs and their partisans had become outsiders to the Church and were thereby disqualified from acting as trustees or beneficiaries of the Church’s assets. The pleadings, together with the replication and issue papers, clearly indicated that the principal contention of the plaintiffs was that the defendants had become heretics or had voluntarily left the Church based on the conduct detailed in paragraphs 19 to 26 of the plaint. Those conduct items specifically included the acceptance of Abdul Messiah as a validly continuing Patriarch and the acceptance of the establishment of the Catholicate, which vested the Catholicos with powers to ordain Metropolitans, consecrate Morone, issue Staticons, allocate Edavagais, and receive Ressissa. The Court noted that the powers to issue Staticons and to allocate Edavagais were not independent but were incidental to the authority to ordain Metropolitans. Finally, the Court considered whether these contentions had been definitively resolved by the final decision recorded as Exhibit 256, pronounced on 4 July 1928 in the interpleader suit (O. S. No. 94 of 1088), reported in 45 Trav. L.R. 116 (A-1).

It was noted with regret that the pleadings filed in the inter-pleader suit had not been produced before this Court for consideration in the present proceedings. Nevertheless, the judgment recorded as Exhibit 255, which had been delivered by the trial judge in the year 1919 and which is reported in volume 41 of the Travancore Law Reports, provided a concise summary of the pleadings and of the opposing arguments raised by the two rival groups of trustees who had inter-pleaded against each other. The present Court therefore relied upon the trial judge’s findings, as they were relevant to the issues that are presently before it. The findings of the trial judge may be set out as follows:

First, the trial judge held that Mar Geevarghese Dionysius was the duly recognised Malankara Metropolitan. He had been accepted as such by the Malankara Syrian Church and, by virtue of that recognition, had assumed the role of trustee of the Church’s property. This finding corresponded to Issue 1 recorded in the lower court’s proceedings.

Second, the trial judge concluded that the Patriarch possessed only a general supervisory power over the spiritual governance of the Church. The judge stated that the Patriarch had no authority to interfere in the internal spiritual administration of the Church, which was the exclusive domain of the Metropolitan. Moreover, the Patriarch was held to have no jurisdiction, control, supervision, or concern with respect to the temporal affairs of the Arch-Diocese of Malankara. This conclusion addressed Issue III.

Third, the trial judge observed that Patriarch Abdulla II had, during his visit to Travancore in the year 1085, attempted to assert authority over the temporalities of the Syrian Church. The judge found that such attempts and pretensions were illegal, contrary to the interests and welfare of the Malankara Church and its faithful, thereby constituting a breach of proper conduct. This observation related to Issues V and VI.

Fourth, the trial judge held that although Patriarch Abdulla II had excommunicated Mar Geevarghese Dionysius, that excommunication was contrary to the constitution of the Malankara Church as defined by the Synod of Mulunthuruthu. Consequently, the excommunication was deemed canonically invalid. Despite the Patriarch’s action, a substantial majority of the Malankara Christian community continued to recognise and accept Mar Geevarghese Dionysius as their Metropolitan. These findings covered Issues VII through XVII.

Fifth, the trial judge found that the second and third defendants, namely Mani Paulose Kathanar and Kora Kochu Korula, had been duly elected by the community to serve as trustees who would cooperate with Mar Geevarghese Dionysius. This determination corresponded to Issue XVIII.

Sixth, the trial judge concluded that the fourth defendant, Mar Kurilos, had neither been elected nor accepted by the community as the Malankara Metropolitan. Accordingly, the judge held that Mar Kurilos was not competent to act as a trustee. This finding related to Issues XIX and XX.

Seventh, the trial judge held that the fifth and sixth defendants, identified as Kora Mathan Malpan and C.J. Kurien, had been lawfully removed from their positions as trustees. In their place, the second and third defendants, Mani Poulose Kathanar and Kora Kochu Korula, had been lawfully appointed. These conclusions addressed Issues XXI and XXII.

Eighth, the trial judge observed that the first, second, and third defendants—Mar Geevarghese Dionysius, Mani Poulose Kathanar, and Kora Kochu Korula—had not accepted Abdul Messiah nor had they denied the spiritual supervisory authority of Abdulla II over the Church. The judge further concluded that by this conduct they had not become alienated from the faith nor rendered incompetent to serve as trustees. This finding corresponded to Issue XXVII.

Ninth, the trial judge determined that the forty-second defendant, Mar Athanasius, who was the original plaintiff in the inter-pleader suit, had neither been canonically ordained nor validly appointed as the Malankara Metropolitan or as the President of the Malankara Association. This conclusion covered Issues XXX through XXXIII.

Tenth, the trial judge affirmed that the first, second, and third defendants were entitled to receive the interest accrued on the deposited sums, as indicated in the judgment. These findings formed the basis upon which the learned District Judge issued a decree in favour of defendants 1, 2 and 3, declaring them to be the lawful trustees of the Church’s properties.

The Court recorded that defendants 1, 2 and 3 were entitled to receive the interest on the deposit and, based on those findings, the learned District Judge entered a decree in the interpleader suit declaring them the lawful trustees of the Church properties. Defendants 5, 6 and 42 subsequently appealed the decree to the High Court. In their appeal they framed five principal questions for determination. The first question asked what canon law governed the Church and what powers the Patriarch possessed under that law with respect to the excommunication of a Metropolitan. The second question inquired whether the Patriarch’s excommunication of Mar Geevarghese Dionysius was contrary to the canon law and to the constitution of the Malankara Syrian Church as articulated by the Synod of Mulunthuruthu. The third question concerned whether the Patriarch alone was competent to excommunicate a Metropolitan and, if so, whether any procedural steps were prescribed that the Patriarch must follow before exercising that power. The fourth question examined, in the absence of any prescribed procedure, whether the power of excommunication had been exercised in conformity with the principles of natural justice and without corrupt motive. The fifth and final question sought a determination of the validity of the excommunication of Mar Geevarghese Dionysius. A Full Bench of the Travancore High Court delivered its judgment, cited as Exhibit DZ, in the year 1923. In paragraph 80 of that judgment the Bench held that Exhibit 18, which had been produced by the appellants, represented the correct version of the canon law accepted by the Malankara Jacobite Syrian Church. The Bench then summarised its conclusions on the first three questions in paragraph 124. It concluded that Exhibit 18, and not Exhibit A, was the version of canon law recognised and binding upon the Malankara Jacobite Syrian Christian Church. Further, under Exhibit 18 the Patriarch of Antioch possessed the authority to ordain and excommunicate bishops and Metropolitans in his own right, without the necessity of convening a Synod of Bishops or undertaking any synodical procedure; the ordained person, of course, had to be a native of Malabar and accepted by the faithful. The Bench also observed that the Mulunthuruthu Resolutions, set out in Exhibit EL, contained no limitation on the Patriarch’s spiritual powers nor any restriction on his exercise of those powers. Finally, the Bench found that Exhibit 18 did not prescribe any special procedural form that the Patriarch must observe before exercising the power of excommunication. After an extensive discussion of the relevant material, the learned judges recorded their findings on questions 4 and 5 in paragraph 254. They affirmed that the excommunication of Mar Geevarghese Dionysius had been carried out in accordance with natural justice, without corrupt motive, and consequently held the excommunication to be valid.

Dionysius had lost his position as Malankara Metropolitan and as a Metropolitan trustee. Because of that finding, the Court considered it unnecessary to pronounce on whether Mar Geevarghese Dionysius had become schismatic or had alienated himself from the Jacobite faith by repudiating Patriarch Abdulla II and by recognizing Abdul Messiah. The Court further held that, although the Malankara Association possessed the authority to remove trustees, defendants 5 and 6 had not been validly removed. The removal meeting had been convened and presided over by Mar Geevarghese Dionysius, who at that time was an excommunicated Metropolitan; consequently, the proceedings of that meeting were void from the outset, and defendants 5 and 6 therefore remained trustees. The record also notes that an application for review of the earlier judgment had been filed by Mar Geevarghese Dionysius and his co-trustees, and that the application was admitted subject to three conditions previously specified. Upon rehearing the appeal, the Full Bench delivered its final judgment, recorded as Exhibit 256 and dated 4 July 1928. The Court summarised the net effect of that judgment in three points: (i) the excommunication of Mar Geevarghese Dionysius was held invalid because the rules of natural justice had been breached – he had not been informed of the charges against him nor given a reasonable chance to defend himself; (ii) defendants 1 to 3 were not deemed heretics or alienated, nor had they created a new Church by accepting the establishment of the Catholicate by Abdul Messiah, which granted the Catholicos the power, for the time being, to ordain Metropolitans and to consecrate Morone, thereby reducing the Patriarch’s authority over the Malankara Church to a negligible level; and (iii) the election of defendants 4 to 6 was held not to be valid.

The parties argued that there was no dispute regarding whether the acts attributed to Mar Geevarghese Dionysius had actually been performed by him, nor whether the ordination of three Metropolitans by Abdul Messiah was valid. They maintained that the only allegation against Mar Geevarghese Dionysius and his two co-trustees (defendants 1 to 3) was a charge of heresy based on certain acts. While the same acts are mentioned in paragraphs 19 and 20 of the plaintiff’s submissions, the appellants contended that no allegation existed that the defendants had left the Church or had established a new Church by those very acts. The Court found no merit in that contention. In paragraph 32 of his judgment, Justice Chatfield observed that no enquiry had been conducted into the conduct of Mar Geevarghese Dionysius, who had never been placed on defence, had never been informed of the charges, and had not been given any opportunity to defend himself. Accordingly, his excommunication was declared invalid, and he continued to hold the office of Malankara Metropolitan and to serve as one of the trustees of the church properties.

The Court noted that the earlier findings of Justice Joseph Thaliath and Justice Parameswaran Piliai concerning the church properties were likewise affirmed. Counsel for the appellants, identified as defendants 4 to 6, then argued that irrespective of whether the excommunication of Mar Geevarghese Dionysius was valid, he and his co-trustees could not continue to serve as trustees because, among other reasons, they had alienated themselves from the faith by repudiating the lawful Patriarch Abdulla II and by accepting the deposed Patriarch Abdul Messiah, thereby upholding a Catholicate whose powers were vested in the Catholicos as previously described. The appellants relied upon the House of Lords decision in Free Church of Scotland v. Overtoun [1904] A.C. 515 (C) to support the view that Mar Geevarghese Dionysius and his followers had established a new Church effectively free from the Patriarch’s control. Consequently, the Court held that, owing to the earlier finding of a breach of natural-justice principles, the Full Bench was obliged to consider the alternative claim grounded on the Free Church precedent.

In paragraph 34 of the judgment, Justice Chatfield summarized the contentions set forth by defendants 4 to 6 in their written statement. He highlighted that the appellants asserted, among other points, that Mar Geevarghese Dionysius and his co-trustees (defendants 1 to 3) had “rendered themselves aliens to the faith.” The term “alien” was explained to imply that a person had departed from the faith. However, the Court observed that the matter could not be decided solely on that narrow ground. After reviewing the series of events that occurred following the excommunication, including the repudiation of the lawful Patriarch, the acceptance of a deposed Patriarch who was invited to Malabar to perform acts as Patriarch of Antioch—such as ordaining certain persons as Metropolitans, establishing a Catholicate by ordaining Mar Ivanios as Catholicos with authority to ordain Metropolitans and consecrate Morone—the Chief Justice stated that the arguments advanced for defendants 4 to 6 were that Mar Geevarghese Dionysius and his supporters had consistently sought separation from the See of Antioch and had succeeded in creating a “new church.” Towards the end of the paragraph, the Chief Justice again referenced the appellants’ contention that, “by reason of the actions of the first defendant mentioned in the first part of those paragraphs, the first defendant and his followers seceded from the Jacobite Syrian Church in the year 1087 and set up a different Church….” The use of the word “seceded” was noted to indicate a clear departure from the Jacobite Syrian Church, reinforcing the appellants’ position that a distinct ecclesiastical body had been established.

It was held that the language used left no uncertainty that the allegation of having departed from the Church by establishing a new Church, which accepted the Catholicate and the powers accorded to the Catholicos as previously described, had been raised and actually decided in the final judgment on review. The Chief Justice Chatfield and the other judges rejected the contentions advanced on behalf of defendants 4 to 6 and set out their observations. According to Chief Justice Chatfield, the objection to the trusteeship of defendants 1 to 3 did not appear in that form in the written statements of defendants 4 to 6 and 42. Moreover, the judges noted that the parties did not contend that the appointment of a Catholicos was per se prohibited or that seeking such appointment demonstrated disloyalty to the Church. The judges pointed out that the canon of Nicaea, reproduced in both Exhibit A and Exhibit XVIII, expressly provided for a “Metropolitan of the East” who possessed powers comparable to those of the Patriarch, including the authority to consecrate Metropolitans in the eastern region. Consequently, the only argument that could be advanced against the first defendant was that he had cooperated with a person who was not a valid Patriarch when that individual performed acts that could be performed only by a Patriarch, or, at the very least, that the first defendant had caused this unlawful Patriarch to perform such acts. The judges observed that the defendants conceded that, had Abdulla performed those acts, there would have been no objection. Accordingly, the matter was characterized as a personal dispute between two claimants to the Patriarchate, in which the first defendant was said to have deserted the Patriarch who had created him Metropolitan and had supported his rival. The judges stated that such conduct might constitute an ecclesiastical offence, for which the offender could be disciplined by his ecclesiastical superior, but it was not an offence that civil courts could try or for which they could pass judgment. Further, they concluded that, under the circumstances, it could not be said that the Church to which defendants 1 to 3 belonged was a different Church from the one for which the disputed endowment had been made. Consequently, there was no question of any loss or forfeiture of trusteeship by the first defendant, irrespective of Exhibit L, nor any threat of diversion of trust funds.

Justice Joseph Thaliath observed that, ordinarily, it is the function of ecclesiastical tribunals to determine whether a person is guilty of an ecclesiastical offence and, if so, to decide the appropriate consequences. He expressed the view that decisions of secular courts concerning ecclesiastical matters, by their very nature, could not be entirely satisfactory. Justice Thaliath also considered the likely inconvenience that would arise if temporal courts were called upon to decide whether a person had committed an offence that should be adjudicated by proper ecclesiastical tribunals. He noted that, should the court inquire into the alleged schism committed by the first defendant, the inquiry would inevitably involve repeated examination of the same ecclesiastical issues, leading to continual litigation whenever the Metropolitan trustee sought to draw interest on the trust fund. This, he reasoned, would cause ongoing disputes and further suits, underscoring the importance of allowing the ecclesiastical authorities to make the definitive pronouncement on such matters.

In the matter before the Court, it was observed that whenever the Metropolitan trustee seeks to draw interest from the trust fund, certain members of the Jacobite Church are likely to object, alleging that the Metropolitan is unfit to act as the Church’s trustee because, in their view, he has committed a serious ecclesiastical offence. The objection, according to the petitioners, would inevitably give rise to fresh litigation each time the issue of interest payment arose. The Court therefore concluded that the more prudent approach for civil courts is to refrain from entertaining such theological disputes unless an authoritative pronouncement has been issued by the appropriate ecclesiastical body. Since no such pronouncement existed in the present case, the Court found the contention raised by the defendant to be untenable. Justice Parameswaran Pillai, after careful consideration of the same aspect, held that the contention lacked any substantive basis. He noted that the first defendant had never denied the authority of the Patriarch of Antioch, and consequently continued to serve as the Metropolitan Trustee of the Malankara Church, claiming the right to draw the trust monies on the Church’s behalf. The only action on record was the defendant’s acknowledgment, when confronted with competing claims by Abdulla and Abdul Messiah to the Patriarchate, that Abdul Messiah was the legitimate Patriarch, preferring him over Abdulla. Justice Pillai explained that if the defendant’s choice was erroneous, it would constitute a spiritual offence subject only to discipline by his spiritual superior in a proper ecclesiastical proceeding, and that the civil court possessed no jurisdiction over such a spiritual transgression. He further observed that the case cited, Free Church of Scotland v. Overtoun, referenced by counsel, bore no relevance to the facts at hand. Finally, the Court held that the allegations set out in paragraphs 19 to 26 of the plaint—specifically issues 14, 15, 16 and 17—were directly and substantially the same as those examined in the earlier interpleader suit (Original Suit 94 of 1088). That interpleader suit had been reviewed by the Travancore High Court, which ruled in favour of Mar Geevarghese Dionysius and his two co-trustees (defendants 1 to 3) and against defendants 4 to 6. The pivotal question in that antecedent proceeding was whether Mar Geevarghese Dionysius and his co-trustees had become heretics, alienated from the Church, or otherwise disqualified from acting as trustees. The High Court determined that none of the following—(a) the repudiation of Abdulla II, (b) the acceptance of Abdul Messiah after he had ceased to be Patriarch, (c) the acceptance of the Catholicate with the powers previously described, or (d) the marginalisation of the Patriarch’s authority—constituted a heretical act or a voluntary schism that would amount to the creation of a new Church. Consequently, the present suit could not revive those issues, as they had already been fully decided in the interpleader proceedings.

The respondents’ counsel tried to escape the earlier position by arguing that, in addition to the grounds raised in the interpleader suit (O S No 94 of 1088), the present plaintiffs relied on a fresh cause of action based on new allegations that disqualified the present defendants from acting as trustees of the Church properties. The advocate representing the third respondent, who has been elected Malankara Metropolitan by the Patriarchal party and was made a party to the proceedings by the earlier court order, formulated these new allegations as follows: (i) by adopting the new constitution (Ex A M.) which removes the supremacy of the Patriarch, the defendants have created a new church; (ii) by inserting clause 5 in the same constitution, the defendants have repudiated the true canons binding on the Church (Ex BP-Ex 18 in O S No 94 of 1088) and therefore have departed from the Church; (iia) the exclusive privilege of the Patriarch to ordain Metropolitans and to consecrate Morone has been taken away as a result of adopting an incorrect canon (Ex 26-Ex A in O S No 94 of 1088), indicating that the defendants have set up a new church; (iib) the privilege of the perquisites of the Ressissa has been denied to the Patriarch by the new constitution in breach of the true canons; (iii) there has been a complete transfer of the trust properties from the beneficiaries, namely the Malankara Jacobite Syrian Church, to an entirely different institution, the Malankara Orthodox Syrian Church; and (iv) the re-establishment of the institution of the Catholicate of the East in Malabar, with jurisdiction over India, Burma, Ceylon and other Eastern countries, is different from the Catholicate institution that was the subject-matter of the interpleader suit (O S No 94 of 1088). The Court noted that each of these contentions must be considered separately.

Turning to the first allegation, the Court examined the counsel’s reliance on paragraphs 18, 22 and 26 of the plaint, paragraphs 29 and 38 of the written statement, paragraphs 18 and 27 of the replication, and issues 6, 14, 15 and 16. The Court held that the pleadings and the issues could not be interpreted in the manner suggested by counsel. While the allegation that the supremacy of the Patriarch had been removed was indeed raised, it was not a blanket claim founded solely on the adoption of Ex A M.; in fact, paragraph 26 of the plaint makes no specific reference to Ex A M. The claim is based on certain particular matters that appear to have been incorporated as rules in the new constitution (Ex A M.). Consequently, only those specific matters that are pleaded as disqualifying the defendants are relevant, not the mere fact that the constitution was adopted. The Court therefore concluded that the pleadings do not support a charge that any incorporation of any matter other than those expressly pleaded in the plaint within the new constitution would disqualify the defendants.

The Court observed that the only grounds that could disqualify the defendants from acting as trustees were the particular matters expressly pleaded, and not the mere fact that a new constitution (Ex. A. M.) had been adopted. The plaint did not allege that the incorporation of any provision other than those specifically set out in the pleading would cause a disqualification. The plaintiffs had come to the tribunal accusing the defendants of being heretics or of having left the Church because they had adopted a constitution (Ex. A. M.) containing the very specific matters listed in the plaint and reiterated in the replication, and these matters formed the subject-matter of the specific issues. The same matters had previously been relied upon to argue disqualification in the earlier interpleader suit. Moreover, the plaintiffs themselves asserted that some of those matters were already decided as res judicata against the defendants, based on the conditions under which their review application had been admitted. On the basis of the pleadings as they now stood and the issues as framed, the Court could not allow the plaintiff-respondent to go beyond the pleadings and claim that the supremacy of the Patriarch had been removed simply by the adoption of the new constitution (Ex. A. M.) or by any particular clause therein, except for those clauses that were expressly mentioned in the pleadings. The Court held that the issues could not be broadened to encompass matters that, on a reasonable construction, were not contained in the pleadings on which they were based.

The Court applied the same reasoning to the two grounds identified as (ii) and (ii a). It found no allegation anywhere in the pleadings that the defendants had left the Church by accepting the Hudaya canon compiled by Bar Hebreus (Ex. 26 – Ex. A in O.S. No. 94 of 1088) as the proper canon. Counsel for the plaintiffs referred to issue 13 and issue 16, arguing that the loss of status as members of the Church by accepting the wrong canon fell within those issues and that the parties had proceeded to trial with that understanding. The Court rejected that argument as unfounded. A review of the pleadings showed why and how the Hudaya canon was pleaded and discussed. The plaintiffs imputed certain acts and conduct to the defendants, claiming that, because of those acts, the defendants had become heretics, aliens, or had left the Church. Those imputations formed the basis of issues 14 and 15, and the conclusions to be drawn from findings on those issues were captured in issues 16 and 17. Conversely, the defendants alleged that the plaintiffs had committed acts that caused the plaintiffs to separate from the Church and to constitute a new Church; these counter-charges were the subject of issues 19 and 20.

In order to resolve the accusations and the counter-accusations presented by the parties, it was essential for the Court to ascertain which book of canons was the correct authority. The plaintiffs had based their charges on Exhibit B. P. – Exhibit 18 filed in Original Suit No. 94 of 1088, whereas the defendants had relied upon Exhibit 26 – Exhibit A filed in the same suit. The purpose of Issue No. 13 was precisely to determine which of these two texts represented the proper canon. Issue No. 16, on the other hand, dealt with the conclusions that should follow from the findings on Issues 14 and 15. The Court held that the plaintiffs could not use Issue No. 16 as a general, unrestricted issue; it must be confined to the matters specifically raised in Issues 14 and 15, and expanding it beyond that scope would exceed its legitimate purpose. Regarding point (ii b), the question concerned the Patriarch’s right to receive Ressissa. Ressissa was characterised as a voluntary contribution from parishioners and not a compulsory levy. Exhibit F. O., which recorded the proceedings of the Mulunthuruthu Synod held on 27 June 1876, contained a resolution, among other things, directing the Committee of the Malankara Association to collect and forward any Ressissa due to His Holiness the Patriarch, suggesting that some amount might indeed be payable to the Patriarch. However, paragraph 218 of Exhibit DY, the judgment of the Travancore Royal Court of Final Appeal dated 12 July 1889, observed that the court had not been presented with satisfactory evidence regarding any payment of Ressissa to the Patriarch by the Malankara committee; the record was described as very meagre and inconclusive, and there remained doubt as to whether such payments were payable to the Metropolitans within the country or to the Patriarch abroad. Exhibit 86, documenting the meeting of the Malankara Association on 7 September 1911, recorded a resolution that prohibited maintaining any connection with Patriarch Abdulla II, and, as a consequence, the payment of Ressissa to the Patriarch was apparently halted. The interpleader suit, Original Suit No. 94 of 1088, had been instituted in 1913. If the failure to pay Ressissa were to be raised as a ground of attack, the proper occasion would have been that earlier suit; because the issue was not raised there, it could not be resurrected now under the doctrine of constructive res judicata. Moreover, Paragraph 115 of the contested constitution (Exhibit A. M.) required every Vicar in each parish church to collect only two chukrums from each male member aged twenty-one years or more and to remit those to the Catholicos. This provision did not forbid the payment of any Ressissa to the Patriarch, should such a sum be due and should any parishioner wish to contribute, especially since Clause (1) of the same constitution declared the Patriarch to be the supreme head of the Orthodox Syrian Church. In any case, according to the canons

In the matter before the Court, each side relied upon documentary evidence. The plaintiffs produced Exhibit B P-Ex 18 from the interpleader suit identified as O S No 94 of 1088, while the defendants depended upon Exhibit 26-Ex A from the same interpleader suit. Both parties argued that the failure to pay the Ressissa did not constitute heresy. The Court observed that, even if the issue raised under ground (ii b) was not directly addressed in the earlier decision in the interpleader suit, the arguments presented on the foregoing basis required a decision against the plaintiff-respondent.

Regarding the contention labeled (iii), the Court noted that this was not an independent charge but rather a statement of the conclusion that the plaintiff-respondent wished to draw from the preceding charges. Because this point had not been formally pressed before the Court, no further discussion was deemed necessary.

The Court then addressed the argument identified as (iv), wherein counsel for the respondents attempted to distinguish between the subject of the earlier interpleader suit—described as the ordination of a Catholicos—and the present suit, which allegedly concerned the establishment of a Catholicate. The respondents further claimed that the Catholicate of the East referred to in the present complaint was a distinct institution from the Catholicate discussed in the interpleader suit. The Court found no merit in this distinction. A reference to paragraphs 30 and 31 of the written statement made clear that the Catholicate relied upon by the defendants was none other than the Catholicate founded in Malabar in the year 1088 by Patriarch Abdul Messiah. The plaintiffs themselves accepted this description in their grounds of appeal numbered 13, 15, 17, 18 and 27 to the High Court of Travancore, challenging the decision of the District Judge of Kottayam. Issues 14 and 15, together with the District Judge’s judgment, also demonstrated that the controversy centred on the Catholicate established by Abdul Messiah in 1088. The Court observed that, prior to the present argument, no allegation had been made that the impugned constitution (Exhibit A M) created a Catholicate of the East. Consequently, the attempt to draw a distinction between the ordination of a Catholicos, the Catholicate founded by Abdul Messiah in 1088, and a purported new Catholicate of the East derived from the constitution was deemed a fanciful afterthought and wholly untenable.

On the basis of the foregoing reasoning, the Court concluded that the case presented by the plaintiffs in the present suit asserted that the defendants had become heretics or aliens.

The Court observed that the defendants were alleged to have left the Church by establishing a new church, based on the specific acts and conduct attributed to them in the present suit. It held that the charges arising from those specific acts had already been finally decided by the High Court of Travancore in the interpleader suit identified as O. S. No. 94 of 1088, as reflected in Exhibit 256, and that the previous judgment therefore operated as res judicata. Regarding the charge founded on the alleged non-payment of Ressissa, the Court stated that if that charge was not already settled by constructive res judicata, then, on its merits and for reasons previously explained, it must be found against the plaintiff-respondent. The Court further expressed the opinion that the charges now advanced as a fresh cause of action were not covered by the pleadings or the issues that were tried, that some of these charges were pure after-thoughts and therefore could not be raised at this stage, and that, in any event, most of them should have been presented in the earlier suit O. S. No. 94 of 1088. Because they were not raised then, the Court concluded that they were barred by res judicata or by analogous principles. Accordingly, agreeing with the trial court, the Court held that the plaintiff-respondent could no longer re-agitate the question that the appellant-defendant had ipso facto become a heretic or an alien, or had left the Church, and consequently lost his status as a member of the Church or his office as a trustee.

The Court noted that, given its view on res judicata, it was unnecessary to address whether the present suit was founded on the same cause of action as the suit designated O. S. No. 2 of 11O4, nor whether, by allowing that suit to be dismissed for default, the plaintiffs could, under the relevant provisions of the Travancore Code of Civil Procedure corresponding to Order 9, Rule 9 of the Code of Civil Procedure, maintain the present action. The Court then turned to the next argument raised by counsel for the respondents, which contended that the appellant had not been validly elected as a trustee by the Malankara Association. The Court clarified that this objection affected only the appellant, who was the first defendant, and not the other two defendants, who were deceased and had been elected in 1931 at a meeting whose validity was not in dispute. The plaintiff asserted that he had been elected as the Malankara Metropolitan at a meeting of the Malankara Association held on December 26, 1934 at the M. D. Seminary. That meeting had been convened by notices issued individually to all Jacobite Syrian Christian Churches in Malabar. Three notices, identified as Exhibits 59, 60 and 61, were alleged to have been sent together at the same time. Exhibit 59 purported to be a notice issued by the defendant Basselios Catholicos and was addressed to the relevant parties.

Vicars, Kykers and Parishioners were addressed in a notice that set the meeting for Wednesday the 11th of Dhanu, 1101 (26 December 1934). The first item on the agenda was the election of one as Malankara Metropolitan. Exhibit 60 was a notice issued by three Vice-Presidents of the Malankara Jacobite Syrian Association, also addressed to the Vicars, Kykers and Parishioners. That notice referred to the earlier notice sent by the Catholicos (Exhibit 59) and announced that the Association would meet at the M. D. Seminary on the appointed day, requesting each Church to elect a priest and a lay man as their representatives. Exhibit 61 was a notice from the Managing Committee of the Association addressed individually to each Church; it likewise referred to the Catholicos’s notice (Exhibit 59) and fixed the same time and place for the meeting. In addition to these individual notices, advertisements were placed in two leading daily newspapers, copies of which have been marked as Exhibits 62 and 63. The plaint, in paragraph 18, asserts that no meeting was held and, even if a meeting had taken place, it was not convened legally, not conducted according to customary usage, and not called by a competent person nor after notice to all Churches according to custom. A plain reading of that paragraph shows that the sole objection is that the meeting was not called by a competent authority and that notice was not given to every Church; no other specific objection to the validity of the notice is raised. The respondent’s counsel now seeks to rely on the sentence in the same paragraph that the proceedings at that meeting were illegal and void. That statement is a conclusion derived from the specific objections previously articulated and cannot be treated as a separate, independent ground expressed in vague language that would encompass any conceivable objection. Indeed, Issue 6(a), which is the only issue concerning the election of the first defendant at that meeting, clearly rejects the omnibus interpretation now being attempted to be read into paragraph 18 of the plaint.

The District Judge, for reasons that appear cogent and well-founded, found that all Churches had been duly served and that the meeting was properly convened and held. Paragraph 146 of his judgment examined whether the Association meeting was called by a competent authority, and paragraph 147 considered whether invitations had been sent to all Churches. He concluded that all Churches had indeed been duly served. His reasoning can be summarised as follows: (i) a large majority of Churches were in favour of the defendants, giving no incentive for the defendants to suppress notices; (ii) the plaintiff’s witnesses testified that the partisans of the Patriarch would not have attended the meeting even if they had received the notices, and that, according to them, notices from “heretics” would not be read in their Churches at all; (iii) in fact, two of the Churches that sided with the plaintiff returned the notices, marked as Exhibits 150 and 151; and (iv) besides the individual notices, advertisements were published in two leading Malankara daily newspapers, identified as Exhibits 62 and 63. Although the fact that the plaintiff-aligned Churches would not have attended does not, by itself, justify withholding notice to them, it does bear on the likelihood of any attempt to suppress notices directed to those Churches. The public advertisements in newspapers also counter any alleged attempt at suppression of notice.

In assessing whether the defendants had suppressed the notices, the Court considered four relevant matters. First, it observed that there was no indication that the defendants deliberately sought to suppress any notices. Second, the Court examined the testimony of the plaintiff’s witnesses, which clearly showed that the supporters of the Patriarch would not have attended the meeting even if they had received the notices; indeed, those witnesses stated that notices originating from persons they regarded as heretical would not be read in their churches at all. Third, the Court noted the factual circumstance that two churches aligned with the plaintiff actually returned the notices that were identified as Exhibits 150 and 151. Fourth, the Court pointed out that, in addition to the individual notices sent to each church, public advertisements had been placed in two leading Malankara daily newspapers, these advertisements being recorded as Exhibits 62 and 63. While the Court did not find the unwillingness of the plaintiff-aligned churches to attend the meeting to be a sufficient justification for failing to give them notice, it recognized that this circumstance bore upon the question of whether there was any likelihood of the notices being suppressed with respect to those churches. The presence of the newspaper advertisements further weakened any claim of a deliberate attempt to suppress the notices. Moreover, the Court observed that the Mulunthuruthu resolutions, reproduced in Exhibit F.O., which documented the proceedings of the meeting at which the Malankara Association was formed, did not prescribe any specific mode of service for such meetings. Consequently, it was sufficient that the ordinary practices followed by voluntary associations and clubs were observed; that is, in the absence of any special rule, the method of service determined by the Managing Committee was deemed appropriate. The Kerala High Court, however, adopted a different approach in the appeal. Its reasoning, set out in paragraph 48 of the judgment reported in Mar Poulose Athanasius v. Mar Basselios Catholicos, 1957 KLJ 83 at p. 147 (D), held that even if the Catholicos had been validly appointed, he occupied no position in the Malankara Association or in the Managing Committee as a member or President, and therefore could not be considered competent to issue the notice shown as Exhibit 59. The High Court further noted that Exhibit 60 had been issued by three Metropolitans acting as Vice-Presidents and that Exhibit 61 had been issued by members of the Managing Committee. In the absence of a specific rule governing who may issue such notices, the High Court concluded that Exhibits 60 and 61 should be treated as proper and valid notices issued by duly authorized persons. Counsel for the respondents argued that the High Court had ignored the fact that Exhibit 60 had not been issued by all the Vice-Presidents, because the Metropolitans on the plaintiff’s side who also held the office of Vice-President did not participate in issuing that notice. The Court dismissed this argument as having no substance. Finally, the judgment of the Travancore Royal Court of Final Appeal, reproduced as Exhibit DY and dated 12 July 1889, was cited to affirm that a Metropolitan of the Jacobite Syrian Church must be a native of Malabar consecrated by the Patriarch.

The judgment explained that a Metropolitan could claim spiritual and temporal authority over a local church only when he was native of Malabar, was consecrated by the Patriarch, and was accepted by the faithful as their Metropolitan. In paragraphs 54 and 78 of the District Judge’s decision in the present suit, it was clearly held that any person ordained by the Patriarch had to be accepted by the entire Malankara Church, as represented by the Malankara Association. The Court observed that the Metropolitans on the plaintiff’s side had not received such acceptance; consequently they could not lawfully become Vice-Presidents, and their failure to join in issuing notice Ex. 60 did not invalidate that notice. The High Court therefore correctly concluded that notices Ex. 60 and Ex. 61 were issued by persons competent to do so. However, the High Court also examined whether the notices had been issued and served upon all the churches. It remarked that there was no reliable and convincing proof of such service. Referring to the testimony of witnesses identified as D.W. 23 and D.W. 22, the High Court held that although the notices were issued by competent persons, the record did not meet the required standard of proof to establish that the notices had been served on every church, particularly those belonging to the plaintiffs. Ordinarily an appellate court does not overturn factual findings of the final fact-finding court, but in this case the Court felt that the High Court had overlooked material that, if considered, would demonstrate that all churches had received ample notice of the meeting. The judgment pointed out that the High Court had completely ignored the evidence of D.W. 29, the Secretary of Mar Geevarghese Dionysius, who was directly involved with the notice issue. While a defendant’s witness testified that they believed notices had not been sent to the plaintiff Metropolitans, the High Court omitted the testimony of the plaintiff’s witness Kuran Mathew (P.W. 2), who explained that for meetings of church representatives notices are sent to the churches themselves, not to the Metropolitans. Moreover, the plaintiff Metropolitans had never been accepted by the Malankara Association, so no notices were required to be sent to them. The Court noted that notices convening the Ex. 98-B meeting in the year 1106 were indeed served on the plaintiff Metropolitans, but that occasion was a special settlement meeting. It was further observed that no plaintiff witness testified that he, if a Metropolitan, or his church had not been served. Finally, the Court considered the notices published as advertisements in newspapers (Exs. 62 and 63) to be sufficient notice to both the Metropolitans and the churches on each side.

In this case, the Court observed that the advertisements in newspapers identified as Exhibits 62 and 63 were sufficient to constitute notice to the Metropolitans and to the churches on both sides. The appellant’s counsel submitted portions of the evidence recorded from some of the witnesses who had been examined by the plaintiffs. Those witnesses declared that even if they had actually received the notices, they would not have given them any attention and would not have arranged for the notices to be read in their respective churches. The Court noted that such an attitude on the part of the plaintiffs’ supporters does not relieve the defendants of their legal duty. It further observed, as previously stated, that the duty includes serving notices on the churches that sided with the plaintiffs. Moreover, the Court found that the defendants, being aware of this attitude, would have had no incentive to deliberately suppress the notices. The Court also pointed out that the trial judge did not refer to the testimony of Deponent Witness 25. That witness, according to Plaintiff Witness 5, was a partisan of the plaintiffs and made no complaint about any lack of notice to his church. In addition, the Court observed that the trial judge gave no explanation for rejecting the newspaper advertisements as adequate notice. This was especially notable because the judge had concluded that no specific rule prescribed the mode of service of such notices. Apart from Exhibits 59, 60 and 61, the advertisements shown in Exhibits 62 and 63 were, in the view of this Court, sufficient notice to every church concerned. The Court found no evidence that any particular church was unaware that a meeting was scheduled at the time and place previously specified. After reviewing all material placed before it, the Court was satisfied that the notices had been served on all churches, including those aligned with the plaintiffs. Consequently, there was no reasonable basis for overturning the factual finding of the trial court on this issue. The Court concluded that the High Court’s decision was, with due respect, partly based on a mis-reading of the evidence. It also found that the decision was partly on a failure to consider important material evidence affecting the probabilities of the case.

The respondent’s counsel attempted to challenge the notices by pointing to minor imperfections. For example, the counsel argued that, except for Exhibit 59, none of the notices specified the agenda of the meeting. The Court noted that the plaint did not raise any objection to this point. It also observed that the notices, by expressly referring to Exhibit 59 and being dispatched together, effectively incorporated the full agenda set out in Exhibit 59. Consequently, the Court held that the meeting of the Malankara Diocese (M.D.) Seminary was duly convened and validly held. The Court further observed that the first defendant, who now appears as the sole appellant, had been correctly appointed as the Malankara Metropolitan. By virtue of that office, he had become the ex-officio trustee of the church properties. The Court also affirmed that the second and third defendants, who are now deceased, had previously been elected by a properly constituted meeting of the Malankara Association, and therefore their election was legitimate.

In this case the Court observed that the meetings of the seminary had been duly convened, that they had been properly held, and that the individuals who were appointed at those meetings were duly constituted as trustees. Accordingly, the Court concluded that the plaintiffs, whether acting in their personal capacity or as representatives of others, were not entitled to challenge the title of the defendants as trustees who had been validly appointed. On that basis the Court held that the appeal must be allowed. Consequently the judgment of the Kerala High Court was set aside and the decree of the trial court that had dismissed the suit was restored. The Court ordered that the plaintiff-respondent together with the newly added respondents shall pay to the defendant-appellant the costs of this appeal. In addition, the plaintiff-respondent was directed to pay the costs of all proceedings that had been conducted in every court, including the costs of the proceedings that had previously been awarded to him by this Court and that will now remain in force. As a result the suit was confirmed as dismissed, with costs awarded against the plaintiff-respondent throughout the litigation. All interim orders that had been issued, including those relating to security for mesne profits and similar matters, were vacated. The Court further noted that the petition filed under Article 32 of the Constitution was not pursued and therefore was dismissed, without making any order as to costs of that petition.