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Judgment
Kerala High Court
in Nechoor Church Case
IN THE HIGH COURT OF KERALA
AT ERNAKULAM
AS. No. 844 of 1998(A)
1. VARKEY ABRAHAM
... Petitioner
Vs
1. ST. THOMAS ORTHODOX SYRIAN CHURCH
... Respondent
For Petitioner : SRI. S. SREEKUMAR
For Respondent : SRI. N. SUKUMARAN
The Hon'ble MR. Justice V. RAMKUMAR
Dated :14/10/2009
O R D E R
V. RAMKUMAR, J.
...............................................
A.S.No.844 of 1998
&
Cross Objection
................................................
Dated this the 14th day of October , 2009
JUDGMENT
In this appeal filed under
Section 96 read with Order XLI Rule 1 C.P.C, plaintiffs 2 to 5 in
O.S.No.32 of 1977 on the file of the 1st Additional District Court,
Ernakulum (Designated church Court) challenge the judgment and decree
dated 8.9.1998 passed by that Court.
RELIEFS CLAIMED IN THE SUIT
2. The said suit originally
instituted before the Munsiff's Court, Muvattupuzha as O.S.No.83 of 1976
by the deceased 1st plaintiff and the appellants herein was for the
following reliefs:-
a) a decree declaring that the
1st defendant St. Thomas Orthodox Syrian church, Nechur is a parish
church included in the Malankara Orthodox Syrian church and that it is
to be administered in accordance with the Malankara Orthodox Syrian
Constitution by Moran Mar Baselius Marthoma Mathews-I, the present
Malankara Metropolitan
A.S.No.844 of 1998 :2:
and Catholicos and his successors.
b) A decree declaring that the 5th plaintiff (T.P.Elias Kathanar) is the
Vicar of the 1st defendant church and the 2nd defendant(P.M.Kuriakose
Kathanar) has no right to function as the Vicar or perform the duties of
the Vicar in the said church and pass a decree of mandatory injunction
restraining the 2nd defendant who is keeping custody of the keys, diary,
parish register, marriage register, Baptism Register etc. in his
capacity as the Vicar, to hand over the same to the 5th plaintiff.
c) A decree of prohibitory injunction restraining the 2nd defendant from
convening a meeting of the Parishners of the 1st defendant/church on
15.2.1976 or any other day and restraining defendants 3 to 5 from
convening a meeting of the parishioners without preparing a voters list,
calling for objections to the same and publishing the final list.
d) A decree of prohibitory injunction restraining defendants 2 to 5 from
spending any amount belonging to the church for any purpose other than
the day to day affairs of the church and
A.S.No.844 of 1998 :3:
restraining them from permitting defendants 6 and 7 to enter the church
or paying defendants 6 and 7 any money from out of the church fund.
e) To pass a decree of prohibitory injunction restraining defendants 6
and 7 from entering the 1st defendant church and meddling with the
administration of the church.
f) To direct defendants 2 to 7 to pay the cost to the plaintiff .
g) To grant such other reliefs that may be prayed for.
THE PLAINT AVERMENTS
3. The plaint averments are as
follows:-
The 1st plaintiff (Kurian George Kathanar) and on his death, the 5th
plaintiff, (T.P.Elias Kathanar) is a Parishner and Vicar of the 1st
defendant St.Thomas Orthodox Syrian church, Nechur. Plaintiffs 2 to 4
are also members of the Parish of which plaintiffs 2 and 3 are members
of the church Committee as well. The plaintiffs are instituting the
A.S.No.844 of 1998 :4:
suit for the protection and benefit of the 1st defendant church in their
own behalf and also on behalf of the 1st defendant church. An
application for granting permission under Order I Rule 8 C.P.C is also
being filed along with the plaint. The 1st defendant is the St.Thomas
Orthodox Syrian church, Nechur. The 2nd defendant (P.M.Kuriakose
Kathanar) is the Vicar appointed by the then Metropolitan of Kandanad
diocese. The 3rd defendant is the Co-Vicar of the church. Defendants 4
and 5 are the trustees approved by the then Metropolitan. The 1st
defendant church is a Parish church included in the Kandanad diocese.
Both the 1st defendant church and the Kandanad diocese are part of the
Malankara Orthodox Syrian Congregation). Malankara Orthodox Syrian
Congregation, by virtue of its approved constitution, has an association
called Malankara Association, a Managing Committee and an Episcopal
Synod. The constitution of the church was approved by the Malankara
Metropolitan and Catholicos. The said constitution is
A.S.No.844 of 1998 :5:
known as the Constitution of the Malankara Orthodox Syrian Congregation.
Validity of the said constitution was challenged in O.S.No.111 of 1113
ME before the District Court, Kottayam. Ultimately, the Hon'ble Supreme
Court dismissed the suit upholding the validity of the constitution.
The said constitution received approval in the 1st defendant church
which is administered in accordance with the said constitution. Even if
any of the Parish churches does not specifically approve or adopt the
constitution, still the said constitution is binding on all the Parish
churches included in the Malankara Orthodox Syrian Congregation which is
an Episcopal church. The 6th defendant (Moran Mar Baselius Paulose II)
was appointed by the then Malankara Metropolitan and Catholicos as the
Metropolitan of Kandanad diocese. In pursuance of the said appointment,
the 6th defendant had executed a treaty ( ) with the then Malankara
Metropolitan and Catholicos and he was administering the church in
accordance with the aforementioned constitution. Subsequently, the 6th
A.S.No.844 of 1998 :6:
defendant started defying the constitution and Canon Law.
Besides, he tried to set up a new church directly under the
administration of the Patriarch of Antioch. Therefore, a show cause
notice was issued to the 6th defendant . After taking evidence and after
hearing him, the 6th defendant was removed from the Episcopal Synod of
the Malankara Orthodox Syrian church and also from the membership of the
church. This fact was informed by the then Malankara Metropolitan and
Catholicos to all the churches. After the expulsion of the 6th
defendant, the administration of the Kandanad diocese of which the 1st
defendant church is a constituent, became vested with Moran Mar Baselius
Ougen I, the Catholicos of the East and Malankara Metropolitan. This was
in accordance with the provisions of Malankara church Constitution.
Presently his successor, Moran Mar Baselius Marthoma Mathews-II
administers the diocese of Kandanad and the Orthodox Syrian church.
Moran Mar Baselius Mathews-II removed the 2nd defendant (P.M.Kuriakose
Kathanar) from the Vicarship of the 1st defendant church and appointed
the 5th plaintiff (T.P.Elias)
A.S.No.844 of 1998 :7:
as the Vicar of the church. The Kalpana (appointment order) dated
21.1.1976 issued in that behalf is produced along with the plaint. It
was directed in the Kalpana that the 5th plaintiff should take charge
from the 2nd defendant.
That Kalpana had been read out in the 1st defendant church. In spite of
the fact that the 5th plaintiff had issued a registered notice on
2.2.1976 to the 2nd defendant demanding handing over of the charge of
Vicar with records and keys of the church within three days, the 2nd
defendant did not comply with the same. From 21.1.1976 onwards the 5th
plaintiff is the duly appointed Vicar of the 1st defendant church. The
2nd defendant has no right to continue as a Vicar of the church. He has
no authority to bind the 1st defendant church as the Vicar. The 1st
defendant church is being administered in accordance with the provisions
of Malankara Orthodox Syrian church constitution. Neither defendants 2
to 4 nor anyone in the Parish has any right to act in violation of the
provisions of the constitution. The constitution contains specific
provisions regarding the convening of the general body of
A.S.No.844 of 1998 :8:
the church. Those provisions are contained in Chapter II clauses 7 to
12. According to the provisions of the constitution, the general body
can be convened only after publishing the list of the persons having a
right to vote in the church elections. A meeting convened without
complying with the above provisions is not legal. Only the Vicar is
vested with the right to call a meeting of the parishioners. Since the
2nd defendant is not the Vicar of the church, he has no right to call a
meeting of the parishioners. That apart, if the 2nd defendant is allowed
to do so that will not be congenial to the interests of the church.
However, defendants 2 to 5 jointly and in collusion with defendants 6 &
7 have taken steps to convene a meeting of the parishioners on the 15th
of this month.
Persons who have no authority to meddle with the administration of the
church are with the blessing of defendants 2 to 5 and at the instigation
of the 5th defendant, trying to create an artificial majority in the
church and take over the administration of the church. If this is
allowed to be done, it will adversely affect the church. It has to be
A.S.No.844 of 1998 :9:
prevented by the issuance of a prohibitory injunction. The 6th defendant
has no membership in the Malankara Orthodox Syrian church nor has he any
administrative authority. He is trying to establish an administration
directly under the Patriarch of Antioch. The approved constitution of
the Malankara Orthodox church has not invested any power with the
Patriarch of Antioch to exercise any sort of authority over the
Malankara Orthodox church. Since Patriarch of Antioch acted against the
constitution and the Canon Law, he himself has severed connection with
the Malankara Orthodox church. It is understood that the Patriarch of
Antioch called the 6th defendant to the former's seat and consecrated
him as Catholicos with the name Moran Mar Baselius Paulose II.
Similarly, 7th defendant (Thomas Mar Ostathius) is understood to have
been ordained as a Bishop by the Patriarch. The Patriarch has no
authority to ordain Catholicos or Bishop for the Malankara Orthodox
Syrian church. No permission was given to the Patriarch to do so either
by the Episcopal synod of the Malankara
A.S.No.844 of 1998 :10:
Metropolitan or Catholicos or the managing committee of Malankara
Association. 7th defendant has no administrative authority over any
church in the Malankara Orthodox Syrian church, including the 1st
defendant church.
Therefore, none of them has any right to enter the 1st defendant church
or to do any act in the matter of governance. Defendants 6 & 7, in
collusion with defendants 2 to 5 are trying to trespass into the 1st
defendant church. It is understood that it has been decided to receive
D6 and D7 in the church and to make available to them the funds
belonging to the church. All such intended activities are illegal and
the plaintiffs and the other parishioners are against the said proposal.
For the interests of the 1st defendant church, it is highly essential to
issue a declaration that the 1st defendant church is a parish church
under the Malankara Orthodox Syrian church and that the church is to be
administered as per the constitution of the Malankara church under the
patronage of the Catholicos and the Malankara Metropolitan, Moran Mar
Baselius Marthoma Mathews-I and his successors.
A.S.No.844 of 1998 :11:
Defendants 6 and 7 are to be prohibited by an injunction restraining
them from doing any act against the interests of the church, defendants
3 to 7 are to be restrained from convening a meeting of the parishoners.
Further, the said defendants are bound to hand over the records and keys
of the church to the 5th plaintiff who is the present Vicar of the
church. This suit has been necessitated since defendants 2 to 7 met and
decided not to submit to the administrative sovereignty of the
Catholicos.
4. After its institution, the suit was transferred to the designated
church Court at Ernakulam for trial and disposal.
THE DEFENCE
5. The suit was resisted by
defendants 2,3,5, and 6 of whom defendants 2 , 3 and 5 filed a joint
written statement contending inter alia as follows:-
The suit is not maintainable. The plaintiffs have no cause of action.
They have ceased to have communion with the Jacobite Syrian faith and
are
A.S.No.844 of 1998 :12:
presently not members of the first defendant church. They are the
followers of late Baselius Ougen - I who was found guilty of deviations
from the fundamental faith of the church by the Universal Episcopal
Synod of the Syrian Orthodox church (of which Malankara
church is a part) held on 16-6-1975 and on subsequent days. On the basis
of the said decision of the Synode which is the highest Ecclesiastical
Tribunal in the church, Patriarch of Antioch of the East declared
Basselius Ougen I Mathews Mar Athanesius and their partisans as
apostates on 21-8-1975. Mathews Mar Athanesius now calls himself as
Basselious Marthoma Mathew-I. The first defendant is described in the
plaint as the church which the plaintiffs call as the
"Nechur St. Thomas Orthodox Syrian church". The correct name of the
church is "Nechur Jacobite Syrian Marthommen church" (hereinafter called
as "the church" ). The said church is not a legal entity and cannot be
sued as a defendant by itself. It is further illegal for the church to
be represented by the
A.S.No.844 of 1998 :13:
plaintiffs. The church is a public trust and the aid of the court is
sought for against the trustees or administrators for authorising them
to discharge their duties in relation to the objects of the trust. The
reliefs prayed for in the plaint are really and substantially those
stated in Sec. 92 (1) of the Code of Civil Procedure, (C.P.C. for
short). Hence, the suit without obtaining sanction under Sec.92 (1)
C.P.C. is not maintainable. The matters raised in this suit,
particularly, those relating to relief A are directly and substantially
in issue in O.S. 81 of 1977 on the file of this Court (designated church
Court) the same having been initially filed as O.S. No. 142 of 1974 on
the file of the Sub Court, Kottayam. Hence, the present suit is barred
under Sec.10 and Order II Rule 2 C.P.C. The plaintiffs have no
possession of the plaint schedule property nor have they any role in the
administration or management of the same or any control over the same.
The plaintiffs are not entitled to any of the reliefs prayed for in the
suit. The claim by the first
A.S.No.844 of 1998 :14:
plaintiff and thereafter by the 5th plaintiff to be the Vicar of the
church is unsustainable. The Vicar or Priest of the church is to be
nominated by the parishioners or accepted by them and appointed by the
Diocesans Metropolitan. The first and 5th plaintiffs have none of those
qualifications. The Malankara Metropolitan has no authority to appoint a
Vicar in the church and he cannot exercise the powers of the Diocesan
Metropolitan unless he is accepted as such by the diocese. The Vicar of
the church is the 2nd defendant. The church was established by the
forefathers of the present parishners for conducting religious services
by religious dignitaries who had the spiritual grace obtained from the
Patriarch or his delegate for the benefit of the parishners. No person
including the religious dignitaries who is not subject to the Supreme
spiritual authority of the Patriarch has got any right in the church.
The Kandanad Diocese or its authorities have no power over the
temporalities of the first defendant church and such power is
exclusively
A.S.No.844 of 1998 :15:
vested in the parishioners. The church had adopted a set of rules for
its administration and those rules are incorporated in an udampadi
(treaty) which was registered on 7-12-1087 M.E. in the Aikaranadu Sub
Registry. The administration of the church is carried out under the
provisions of the said Udambadi with its subsequent amendments. The
alleged constitution relied on by the plaintiffs and referred to in
paragraph 20 of the plaint is not applicable to the church. The
Malankara Syrian Christian Association is an organization formed for
fellowship and co-operation in the common affairs. It has no
ecclesiastical, spiritual or temporal authority over the new parish
churches. Any Constitution adopted by that body and purported to be for
the administration of individual parish churches is without jurisdiction
and hence null and void. It was never enforced or accepted in the first
defendant church. The Patriarch has refused to accept the said
Constitution. The provisions of the said constitution are unreasonable,
in-conflict with the
A.S.No.844 of 1998 :16:
Constitution adopted at the Mulanthuruthi Synode in- defines of Court
decisions, against the usages which existed in the church and in
violation of the cardinal principles of faith and the common law . The
basic structure of the original church has been totally changed and a
new church has been created. The allegation that the church is an
episcopal church is not correct. It is episcopal only in spiritual
matters and in all other matters it is congregational. The 6th defendant
has been exercising the functions of the Metropolitan of the Kandanad
diocese and the first defendant church from 1952 onwards by reason of
his consecration by the Patriarch and by reason of the election and
acceptance by the parishioners and the people in that diocese. There was
no valid or effective appointment by Baselius Gee Varghese. The 6th
defendant has not executed any treaty accepting or approving any such
appointment by Baselius Gee Varghese. He has not conducted the
administration under the provisions of the Constitution relied on by
A.S.No.844 of 1998 :17:
the plaintiffs. The alleged proceedings against the 6th defendant are
void ab initio, mala fide and incompetent. It cannot bind the church or
6th defendant. The charges against him are false and the alleged
decision against him by the Malankara Episcopal Synode is without
jurisdiction and in violation of the principles of natural justice. The
6th defendant is continuing to exercise all the powers of the diocesan
Metropolitan in the Ist defendant church.
Basselios Marthomma Mathews or Baselious Ougen-I cannot get any
authority over the first defendant church or the Kandanad Diocese. The
provision in this behalf in the Constitution relied on by the plaintiffs
in paragraph 4 of the plaint is void. There is no valid order removing
the 2nd defendant from Vicarship of the church nor is there any order
appointing the first or 5th plaintiff in his place. Baselios Marthoma
Mathews has absolutely no power to make any such appointment.
The Vicar cannot be appointed or removed without the knowledge and
consent of the parishioners. The plaint
A.S.No.844 of 1998 :18:
allegation that the letter dated 21-1-1976 referred to para 5 of the
plaint was publically read in the church is false and hence denied. The
2nd defendant is not aware of the registered notices dated 2-2-1976. The
2nd defendant still continues to be the Vicar of the church and he has
the authority to continue as such.
The plaintiffs have no right over the first defendant church nor have
they any right to represent the church. They have ceased to be the
members of the Committee. The church is administered in accordance with
the Rules framed by the parishioners and not as per the provisions of
the Constitution relied on by the plaintiffs. The meetings are also held
as per rules adopted in the church. According to those rules all members
who have attained 21 years of age and who have taken confession and who
have paid the ressissa can be members of the poduyogam that is general
body. But a member who attains the age of 21 years and who wants to
participate in the general body for the first time must pay a fee of one
rupee. The 2nd
A.S.No.844 of 1998 :19:
defendanat is the Vicar of the Ist defendant Church. It is the Vicar who
announces the holding of the meetings unless he is unable to do so or
refuses to do so in which case others can convene the meeting. It was
with full authority in his capacity as the Vicar that the 2nd defendant
convened the Parish meeting on 15- 2-1976. The plaint allegations
against the proposed meeting on 15-2-1976 are wrong and without any
basis. The proposed meeting was essential for the welfare of the
parishioners of the church. The allegations leveled against the 6th
defendant and the Patriarch of Antioch are denied. The 6th defendant has
all episcopal functions in the first defendant church.
He is not only a member of the Malankara church but is also the highest
local ecclesiastical authority in the church. It is wrong to state that
he attempted to establish direct administration of the church through
the Patriarch. The powers of the Patriarch are definitely bestowed on
him and the Malankara Association with a majority of laymen cannot
abridge or
A.S.No.844 of 1998 :20:
curtail his spiritual powers. The alleged Constitution and its
provisions have been repudiated by the Patriarch and are not binding on
him. The plaint allegation that the Patriarch has severed connection
with the Malankara church is false. It is the plaintiffs and the
religious dignitaries whom they follow who have lost communion with the
Malankara Jacobite church and that is due to their deviations from the
fundamental faith. It is true that the 6th defendant is now the
Catholicos of the East he having been consecrated by the Patriarch on
7-9-1975. It is also true that the 7th defendant has been consecrated as
a Metropolitan by the Patriarch who is the supreme spiritual authority
in the Syrian Orthodox church of which Malankara church is an
archdiocese. The Patriarch of Antioch had the full authority to conduct
the aforementioned consecration and the consent of the authorities
referred to in paragraph 13 of the plaint is not necessary for such
consecrations by the Patriarch. The 6th and 7th defendants have full
A.S.No.844 of 1998 :21:
authority to enter the church and to perform all episcopal functions
therein. The plaint allegation that defendants 6 and 7 are attempting to
forcibly enter the church is not true. The 6th defendant is making his
episcopal visit to the church very often and he is always welcomed in
the church with the greatest honour and gratitude. The plaintiffs have
absolutely no right to restrain the 6th defendant from visiting the
church. The plaintiffs have no cause of action against these defendants.
They are not entitled to any of the reliefs prayed for in the plaint.
The declaration sought is not to establish their own legal character but
is one relating to 3rd parties who are not even parties to the suit. The
plaintiffs are not in possession of the first defendant church or any of
its assets nor have they any title over the same. Hence, the relief of
injunction prayed for is misconceived. Since the reliefs prayed for in
the plaint are substantially those which come under Sec. 92 (1) C.P.C.
and the plaintiffs have sought for recovery of trust properties and have
also prayed for 22: the assistance of the Court for the proper
management of the trust, the suit filed without sanction under Sec. 92
C.P.C. is incompetent. The suit may, therefore, be dismissed with costs
of these defendants.
6. The 6th defendant filed a statement adopting the contentions of
defendants 2, 3 and 5.
7. The Court below framed the following 13 issues for trial:-
1) Is the first defendant Nechoor St. Thomas church a constituent Parish
Church of the Malankara Orthodox Syrian Church liable to be administered
under the authority of Catholicos-cum-Malankara Metropolitan or is it a
self governing autonomous church ?
2) Is Moran Mar Baselios Marthoma Mathews-I any way disqualified fron
functioning as the Catholicos-cum- Malankara Metropolitan by reason of
the Kalpana of the Patriarch of Antioch dated 21-8-1975 relied on by the
defendants ?
3. Is the first plaintiff entitled to be declared as the Vicar ofthe
plaint churches
4.Is the first defendant church liable to be administered under the
Constitution of the Malankara Church originally passed on 1934 and
amended up to date ?
5. Is the 2nd defendant entitled to function as the Vicar of thechurch ?
Is he liable to had over the records of the church tothe Ist defendant ?
6. Is the 2nd defendant competent to convene the Edavaka Yogam of the
Ist defendant Parish ? Is the Edavaka Yogum of the Ist defendant parish
liable to be convened except on finalisation of the list of qualified
and competent members of the yogam ?
7. Is the 7th defendant a validly consecrated and appointed Metropolitan
of the Malankara church ? Is he entitled to exercise any episcopal
authority over the plaint parish ?
8. Is the 6th defendant entitled to continue as the Metropolitan of the
Malankara Diocese after the disciplinary proceedings taken against him
by the Malankara Episcopal Synod ?
9. Is the claim made on behalf of the 6th defendant that he is the
Catholicos-cum-Malankara Metropolitan valid and sustainable ?
10. Are defendants 6 and 7 entitled to enter and interfere in the
administration of the first defendant Parish ?
11. Are the plaintiffs entitled to the injunction and declaration sought
for ?
12. Are the defendants competent to question the validity and
enforcibility of the constitution and the authority of the
Catholicos-cum-Malankara Metropolitan in view of the Supreme Court
ruling reported in 1958 KLT 721 ?
13. Reliefs and costs.
THE EVIDENCE
8. On the side of the
plaintiffs the 2nd plaintiff was examined as P.W.1 and Exts.A1 to A8
were got marked. On the side of the defendants the additional 8th
defendant was examined as DW1 and and Ext.B1 Edavakayogam register for
the period from 1912-1975 and Ext.B2 udambadi of the year 1912 and two
decisions in Ext.B1 Register were got marked.
THE IMPUGNED VERDICT
9. The learned Additional
District Judge presiding over the designated church Court, after trial,
as per judgment and decree dated 8-9-1998 partly decreed the suit
granting a declaration to the effect that the Malankara Metropolitan -
Catholicos is the head of the church subject to a nominal, spiritual
supervision of the Patriarch of Antioch and that the first defendant
church has to be administered as per the provisions of the 1934
Constitution and as per the directions of the Metropolitan and
Catholicos. The relief of injunction both perpetual and mandatory was,
however, refused. Hence, this appeal by the plaintiffs.
ADVOCATES WHO APPEARED IN
THIS APPEAL
10. I heard Advocate Sri. S.
Sreekumar, the learned counsel appearing for the appellants/plaintiffs,
Adv. Sri. N. Sukumaran appearing for the second defendant and Sr.
Advocate Sri.K. Rama Kumar appearing for additional respondents 8 and 9
who claim to have been elected as trustees consequent on the death of
the 5th defendant- Simon.
ARGUMENTS ON BEHALF OF THE
PLAINTIFFS
11. Advocate Sri. S. Sreekumar,
the learned counsel appearing for the appellant made the following
submissions in support of the appeal:-
Eventhough the contesting defendants had raised a contention that the
suit is bad for want of leave under Sec. 92 (1) C.P.C., the said
contention was not pursued further. No issue was framed by the court
below with regard to the maintainability of suit for want leave under
Sec. 92 (1) C.P.C. This appeal was filed on 5-12-1998. The contesting
defendants had filed a memorandum of Cross Objection the year 1998. In
the said memorandum of Cross Objection also they had no grievance
against the trial court
A.S.No.844 of 1998 :26:
for not having framed an issue that the suit was bad for want of leave
under Sec. 92 (1) C.P.C. The memorandum of Cross Objection was sought to
be amended twice by filing I.A. Nos. 3680/2004 on 27-10-2004 and I.A.
No. 1594/2007 on 9-3-2007. No plea under Sec.92 C.P.C. was raised in I.A.
3680/2004. It was only as per I.A. 1594 of 2007 filed on 9-3-2007 that
the defendants re-iterated their contention in the written statement
that the suit should have been dismissed for want of leave under Sec.
92. It is true that the church in question is a public religious trust.
But the reliefs prayed for in the suit do not include any of the reliefs
enumerated under Sec. 92 (1) C.P.C. Even though a plea based on Sec. 92
C.P.C. was raised in the written statement it was not prosecuted further
and was, therefore, given up. Even in the memorandum of Cross Objection
as originally filed no case based on Sec.92 C.P.C. was put forward. It
was only on 9-3-2007 that they raised the contention that the suit
should have been dismissed for want of leave under Sec.92 C.P.C. by
raising the said ground in I.A. 1594/2007. It was the decision of the
A.S.No.844 of 1998 :27:
Division Bench reported in Moran Mar Baselious Marthoma Mathews II v.
State of Kerala - 2003 (1) KLT 780 holding that the Parish churches are
covered by their own constitution and the decision in P.M.A.
Metropolitan's case - AIR 1995 SC 2001 will not be binding on the Parish
churches which emboldened the defendants to revive their contention
based on Sec. 92 C.P.C. Their contention that the 1934 Constitution is
not applicable to the present church at Nechur which is admittedly a
church falling under the Malankara Association cannot stand the scrutiny
of the court in the light of the verdict of the Apex Court in P.M.A.
Metropolitan's case. The Hon'ble Supreme Court in the decision reported
in Moran Mar Thoma Mathews v.
Most Rev. Thomas Mar D. Metropolitan - 2002 (1) KLT 125 (SC) had
appointed Sri. Justice Malimath, former Chief Justice of the Kerala High
Court as an observer to supervise the election of the Malankara
Association and its Constituent churches to be conducted in accordance
with the provisions of the 1934 Constitution. Pursuant to the
A.S.No.844 of 1998 :28:
said decision, elections had been conducted both in the Malankara
Association as well as in the Parish churches.
Hence, the court below was not justified in refusing the perpetual and
mandatory injunction. The decision reported in Moran Mar Baselious
Marthoma Mathews II v. State of Kerala - 2003 (1) KLT 780 was reversed
by the Supreme Court in Moran Mar Baselious Marthoma Mathews II v. State
of Kerala - 2007 (3) KLT 349 (SC) . Even though in one the six suits
which were fought up to the Supreme Court culminating in the decision in
P.M.A. Metropolitan's - AIR 1995 SC 2001 there was a contention that the
suit was bad for want of leave under Sec. 92 C.P.C. the learned Single
Judge of this Court who disposed of the suits at the first instance held
that the suit was not bad for want of leave under Sec. 92 C.P.C. All
those suits were representative suits under Order 1 Rule 8 C.P.C.. The
above finding by the learned single judge was not pursued further either
in the appeal before the Division Bench of this Court or before the
Supreme Court. The said finding in O.S. No. 5 of 1979 will operate as
res
A.S.No.844 of 1998 :29:
judicata under Explanation VI to Sec. 11 C.P.C. There is no allegation
in the plaint of any breach of Trust nor is any direction of the Court
sought for the administration of the Trust. The suit is not one to
obtain any of the reliefs enumerated under clauses (a) to (h) of Sec. 92
(1) C.P.C. There is no relief to remove any trustee or to appoint any
trustee. There is no relief for possession of trust properties . There
is no prayer for settling a scheme for administration of the trust.
Merely because the right of the 2nd defendant to function as the Vicar
of the church is asserted by the defendants and denied by the plaintiffs
it cannot be said that the suit falls under Sec.92 (See Swami
Parmatmanand Saraswati and another v. Ramji Tripathi and Another - AIR
1974 SC 2141).
Likewise, the right of defendants 6 and 7 to act as Metropolitans is
denied by the plaintiff. That will not bring the suit under Sec. 92
C.P.C. The appellants/plaintiffs rely on the following decisions:-
1. Deoki Nandan v. Murlidhar and others - AIR 1957 SC 113
2. Gheevarghese Koshy v. Chacko Thomas of Pallimadayil and Others - AIR
1963 Kerala 191
3. Chairman Madappa v. M.N. Mahanthadevaru and others - AIR 1966 SC 878
4. Swami Parmatmanand Saraswati and another v. Ramji Tripathi and
another - AIR 1974 SC 2141
5. Charan Singh and another v. Darshan Singh and Others AIR 1975 SC 371
6. B.K.N. Pillai v. George Mendez - 1988 (2) KLT 605
7. Chandra Warrier v. N.S.S. Karayogam - 1991 (1) KLT 387
8. Amrithakumari V. Ramanathan - 1998 (2) KLT 305
9. Vidyodaya Trust v. Mohan Prasad - 2007 (1) KLT 538
10. Vidyodaya Trust v. Mohan Prasad 2008 (2) KLT 68 (SC)
It is well settled that in a suit falling under Sec.92 C.P.C. no
declaratory relief can be granted and even a declaration that the
property is trust property cannot be granted. Vide Uma Shanker and
others v. Salig Ram and others - AIR 1975 All. 36 (F.B.) and S. Guhan
and Others v. Rukmini Devi Arundale and Others - AIR 1988 Madras 1.:31:
JUDICIAL EVALUATION
12. I am afraid that I find
myself unable to accept the above contentions raised on behalf of the
plaintiffs.
SCOPE OF SECTION 92 CPC
13. Section 92 C.P.C. enacts a
complete Code in relation to the judicial administration and
preservation of public religious and charitable trusts by a specified
category of Court, namely, the Principal Civil court of original
jurisdiction which by virtue of Section 2 (4) C.P.C. is the District
Court, (See Sulekha Clay Mines v. Union of India - 2000 (1) KLT 691,
AFRECO v/s. Kerala State Cashew Development Corporation Ltd. - 2001 (2)
KLT (SN) 96, Bishop Dr. Mathews Mar Savarios v. Thankachan - 2001(1) KLT
932) or, any other court empowered in that behalf by the State
Government. As per G.O. (MS) 384/66/Home dated 24-10-1966 published in
the Kerala Gazette dated 1-11-1966, the Government of Kerala have
empowered the Courts of the
A.S.No.844 of 1998 :32:
Subordinate Judges in the State within the limits of their respective
jurisdiction, to try and dispose of cases under Section 92 C.P.C. Thus,
with effect from 1-11-1966 the District Courts and Subordinate Courts
have concurrent jurisdiction in the State of Kerala to try and dispose
of suits under Section 92 C.P.C. The Munsiff's Courts are totally
lacking in any jurisdiction to entertain, try or dispose of suits under
Section 92 C.P.C. Since the present suit was instituted on 13-2-1976, it
is the C.P.C. prior to the 1976 amendment (which came into force with
effect from 1-2-1977) that is applicable in this case. Sub-section (1)
of Section 92 C.P.C. prior to the amendment is also substantially the
same except that the consent in writing which was to be obtained by 2 or
more persons interested in the trust concerned was from the Advocate
General. After amendment, such consent is to be obtained from the
Principal Civil Court of original jurisdiction.
Section 92 as per the pre-amended C.P.C. read as follows:-
"92. Public charities :- (1) In the case of any alleged breach of any
express or constructive trust created for public purposes of a
charitable or religious nature, or where the direction of the Court is
deemed necessary for the administration of any such trust, the
Advocate-General, or two or more persons having an interest in the trust
and having obtained the consent in writing of the Advocate-General, may
institute a suit, whether contentious or not, in the principal civil
Court of original jurisdiction or in any other Court empowered in that
behalf by the State Government within the locallimits of whose
jurisdiction the whole or any part of the subject- matter of the trust
is situate, to obtain a decree -
a) removing any trustee;
b) appointing a new trustee;
c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased
to be a trustee, to deliver possession of any trust property in his
possession to the person entitled to the possession of such property;
d) directing accounts and inquiries;
e) declaring what proportion of the trust- property or of the interest
therein shall be allocated to any particular object of the trust;
f) authorising the whole or any part of the trust- property to be let,
sold, mortgaged or exchanged;
g) settling a scheme; or
h) granting such further or other relief as the nature ofthe case may
require.
2) Save as provided by the Religious Endowments Act 1863, [or by any
corresponding law in force in [the territories which immediately before
the Ist November 1956, were comprised in PartB States] no suit claiming
any of the reliefs specified in sub-section
(1) shall be instituted in respect of any such trust as is therein
referred to except in conformity with the provisions of that sub-
section.
Sec. 92 C.P.C. after the 1976 amendment reads as follows:-
92. Public charities:- (1) In the case of any alleged breach of any
express or constructive trust created for public purposes of a
charitable or religious nature, or where the direction of the Court is
deemed necessary for the administration of any such trust, the Advocate
General, or two or more persons having an interest in the trust and
having obtained the leave of the Court may institute a suit, whether
contentious or not, in the principal Civil Court of original
jurisdiction or in any other Court empowered in that behalf by the State
Government within the local limits of whose jurisdiction the whole or
any part of the subject-matter of the trust is situate to obtain a
decree-
a) removing any trustee;
b) appointing a new trustee;
c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased
to be a trustee, to deliver possession of any trust property in his
possession to
A.S.No.844 of 1998 :35:
the person entitled to the possession of such property;
d) directing accounts and inquiries;
e) declaring what proportion of the trust property or of the interest
therein shall be allocated to any particular object of the trust;
f) authorising the whole or any part of the trust property to be let,
sold, mortgaged or exchanged;
g) settling a scheme; or
h) granting such further or other relief as the nature of the case may
require.
2) Save as provided by the Religious Endowments
Act, 1863, (20 of 1863), [or by any corresponding law in force in [the
territories which, immediately before the Ist November, 1956, were
comprised in Part B States], no suit claiming any of the reliefs
specified in sub section (1) shall be instituted in respect of any such
trust as is therein referred to except in conformity with the provisions
of that sub-section.
(3) The Court may alter the original purposes of an express or
constructive trust created for public purposes of a charitable or
religious nature and allow the property or income of such trust or any
portion thereof to be
A.S.No.844 of 1998 :36:
applied Cypres in one or more of the following circumstances, namely;-
a) where the original purposes of the trust, in whole or in part, -
i) have been, as far as may be, fulfilled or
ii) cannot be carried out at all or cannot be carried out according to
the directions given in the instrument creating the trust or, where
there is no such instrument, according to the spirit of the trust; or
b) where the original purpose of the trust provide a use for a part only
of the property available by virtue of the trust; or
c) where the property available by virtue of the trust of other property
applicable for similar purposes can be more effectively used in
conjunction with, and to that end can suitably be made applicable to any
other purpose, regard being had to the spirit of the trust and its
applicability to common purposes; or
d) where the original purposes, in whole or in part, were laid down by
reference to an area which then was, but has since, ceased to be, a unit
A.S.No.844 of 1998 :37:
for such purposes; or
e) where the original purposes, in whole or in part, have, since they
were laid down,-
(i) been adequately provided for by other means, or
ii) ceased, as being useless or harmful to the community, or
iii) ceased to be , in law, charitable or
iv) ceased in any other way to provide a suitable and effective method
of using the property available by virtue of the trust, regard being had
to the spirit of the trust".
14. Thus, leave of the Court is not necessary if the suit is of the
nature referred to in Section 92 C.P.C. but is instituted by the
Advocate General. Leave of the Court is insisted upon only if the suit
is one falling under Sec. 92 C.P.C. and is instituted by 2 or more
persons having an interest in the public trust concerned. The usage of
the words "having obtained the leave of the Court, may institute a suit"
occurring in Section 92 (1)
C.P.C. is a clear indication that leave of the Court is a condition
precedent to the very institution of the suit and such leave
A.S.No.844 of 1998 :38:
cannot be given subsequent to the institution of the suit. If the case
is one falling under Section 92 C.P.C. and the suit is instituted for
any of the reliefs enumerated under clauses (a) to (h) of Section 92 (1)
C.P.C, failure to obtain the leave of the Court before the institution
of the suit, will go to the root of the matter and is a jurisdictional
defect or infirmity which cannot be cured by a post-institutional leave
granted by the Court. (See for instance, paragraph 17 of R.M. Narayana
Chettiar v. . Lakshmanan Chettiar - AIR 1991 SC 221). The rigid
requirement of law is that the leave petition itself should contain all
the necessary facts such as the nature of the public trust concerned,
the alleged breach of trust or the circumstances under which the
direction of the Court is considered necessary for the administration of
the trust and the main reliefs prayed for in the proposed suit. It is
only after the leave of the Court is obtained can the plaintiffs
institute the suit as provided under Order IV Rule 1 C.P.C. (See
Amrithakumari v. Ramanathan - 1998 (2) KLT 305). Grant of leave being a
jurisdictional pre-condition, any consent, waiver or acquiescence on the
part of the opposite party either in the pleadings or
A.S.No.844 of 1998 :39:
otherwise, will not cloth the Court with the jurisdiction to entertain
the suit, leave alone, try and dispose of such suit.
Conversely, if the suit has been instituted after obtaining the leave of
the Court, that by itself will not preclude the Court from revoking the
leave already granted if the Court is thereafter convinced that the suit
is not one falling under Section 92 C.P.C. (Vide St. Mary's Church v.
Saju - 2001 (2) KLT 6). In such an event, the suit will have to be filed
before the proper Court having jurisdiction to try such suit. Eventhough
the Court is not bound to give notice to the proposed defendants before
granting leave under Sec. 92 C.P.C as a rule of caution, Court should
normally give notice to the defendants. (Vide R.M. Narayana Chettiar's
Case - Supra). It is important to remember that a suit under Sec. 92
C.P.C. is a representative suit and the decision in the suit will bind
not only the parties to the suit but also all persons interested in the
public trust concerned. (Vide P. Venugopala Naidu v. Venkita Raghulu
Naidu Charities - AIR 1990 SC 444).
15. What is to be examined now is the question as to which are the types
of cases in which leave of the Court is
A.S.No.844 of 1998 :40:
necessary if the suit is instituted by 2 or more persons having an
interest in the public trust concerned.
Leave of the Court is necessary before instituting the suit (whether
contentious or not ).
(a) i) if there is an allegation of breach of any public trust (express
or constructive) of a charitable or religious nature,
or
ii) where the direction of the Court is necessary for the administration
of any such trust.
AND
(b) the suit is to obtain a decree for any of the reliefs enumerated
under clauses (a) to (h) of Section 92 (1) C.P.C.
16. It has been held that merely because the suit contains a declaratory
relief it will not take the suit out of Section 92 C.P.C. (See
Amirithakumari's case (supra). The law does not insist that any 2 or
more persons interested in the public trust concerned should invariably
institute a suit. It is up to them to decide whether a suit is to be
filed or not. But, if a suit is filed and going by the nature of the
suit it falls within the parameters of Section 92 C.P.C., then such suit
will be maintainable only if leave of the appropriate Court prior to its
institution has been
A.S.No.844 of 1998 :41:
obtained. As already noticed, it is not every Court which is competent
to grant the leave to institute the suit. It is only the principal Civil
Court of Original jurisdiction or the empowered Court which can grant
the leave and thereafter entertain the suit.
17. A trust is an obligation annexed to the ownership of property and
arising out of a confidence reposed in and accepted by the owner or
declared and accepted by him for the benefit of another or for the
benefit of another and the owner. The person who reposes or declares the
confidence of the trust is called "the Author of the Trust". The person
who accepts the confidence is called "the trustee". The person for whose
benefit the confidence is accepted is called "the beneficiary". The
subject matter of the trust is called "the trust property" or "the trust
money". The beneficial interest of the beneficiary is his right against
the trustee as the owner of the trust property. The instrument, if any,
by which the trust is declared is called "the instrument of trust". A
breach of any duty imposed on the trustee as such by any law for the
time being in force is called a breach of trust" (Vide Section 3 of the
Indian Trusts Act,
A.S.No.844 of 1998 :42:
1882). A trust includes endowments for religious and charitable
purposes. As already noted, Sec. 92 C.P.C. is attracted only in respect
of suits pertaining to public trusts. A public trust means an express or
constructive trust for either a public religious or a public charitable
purpose or both and will include a temple, a math, a wakf, a church,
synagogue or other place of public religious worship. An express trust
is a trust created by express words as distinguished from an implied
trust. a constructive trust is a trust arising by operation of law apart
from any intention to create a trust. The main distinction between a
private trust and a public trust is that in the former the beneficiaries
are specific individuals whereas in the latter the beneficiaries are the
general public who are incapable of ascertainment. (See Deoki Nandan v.
Muralidhar and Others - AIR 1957 SC 133 and The Bihar State Board of
Religious Trust v. Mahanth Sri. Biseshwar Das - AIR 1971 SC 2057) -
'Endowment" is a dedication of property for purposes of religion or
charity having both the subject and object certain and capable of
ascertainment. (Vide Pratap Singhji v. Charity Commissioner - AIR 1987
SC 2064).
A.S.No.844 of 1998 :43:
Endowment also means a permanent provision for any institution or person
or any property belonging to, given or endowed for religious or
charitable purposes.
WHETHER THE PRESENT SUIT IS
BAD FOR WANT OF LEAVE UNDER SECTION 92 CPC ?
18. There is no dispute that
the St. Thomas Orthodox Syrian Church, Nechoor is a public religious
trust within the meaning of Sec. 92 (1) C.P.C. It is specifically
admitted in the plaint that the 2nd defendant was appointed as the Vicar
by the Metropolitan as per an order of appointment. It is also admitted
that defendants 4 and 5 are trustees of the said Church and duly
approved by the Metropolitan. Even as per the 1934 Constitution relied
on by the plaintiffs the Vicar is a co-trustee.
In paragraph 7 of the plaint what is pleaded is that the suit is
instituted for the protection and benefit of the Ist defendant church
and that the plaintiffs are safeguarding the interests of the church.
The property scheduled to the plaint is the 76 = cents of land comprised
in survey Nos. 388/3, 428/5, 346/16, 428/4 and 147/8 of Maneed Village
where the massive church building, its courtyard, cemetery, chapel, 3
coffers , buildings
A.S.No.844 of 1998 :44:
just outside the compound wall etc. are located. As per prayer
(c) in the plaint, the 2nd defendant the Vicar is sought to be injuncted
from performing one of his duties, namely, convening a meeting of the
parishners on 15-2-1976 or any other day and defendants 3 to 5 are also
sought to be restrained from holding a meeting of the parishners of the
church. If a decree in terms of prayer (b) in the plaint is granted,
then it will have the effect of ousting (removing) the 2nd defendant
from trusteeship and installing the 5th plaintiff in the place of
replacing the 2nd defendant and directing 2nd defendant by a mandatory
injunction to deliver possession of the trust property to the 5th
plaintiff which squarely attracts clause (cc) of Sec. 92 (1) C.P.C. The
keys and registers of the church are the visible manifestations in the
form of tangible instruments signifying possession of the church with a
particular person. When those keys and records are requested to be
handed over to the 5th plaintiff by means of a decree for mandatory
injunction to be issued to the 2nd defendant who is admittedly in
possession of those items in his capacity as the Vicar, the case
indubitably falls under clause (cc) of Section 92 (1) C.P.C. In
paragraph 11 of the plaint, it is
A.S.No.844 of 1998 :45:
alleged that defendants 2 to 5 are acting against the interests of the
Ist defendant church at the instigation of the 6th defendant who has no
manner of right over the management of the church.
It is also alleged that defendants 2 to 5 have been acting illegally and
in furtherance of their own interests and contrary to the terms of the
Constitution of the Church. Paragraph 15 of the plaint alleges misuse of
trust funds. Defendants 6 and 7 who were admittedly appointed as the
diocesan Metropolitan and Malankara Metropolitan, respectively are even
sought to be injuncted against entering the Church. The said averments
including those pertaining to misuse of trust funds amount to an
allegation of breach of trust and the plaintiffs are seeking the
intervention of the Court by means of the reliefs prayed for in the
suit. I have, therefore, no hesitation to conclude that the suit is one
which squarely falls under Section 92 (1) C.P.C. This conclusion of mine
is fortified by the decisions in Chairman Madappa v Mahanthadevaru - AIR
1966 SC 878, Harendra Nath Bhattacharya and others v. Kaliram Das - AIR
1972 SC 246 and Narayana Chettiar's Case (Supra).
Admittedly no petition was filed seeking leave under Sec. 92 (1)
A.S.No.844 of 1998 :46:
C.P.C. nor was leave obtained under Sec. 92 (1) C.P.C. prior to the
institution of the suit.
19. The contention raised on behalf of the plaintiffs that the defence
plea under Sec. 92 C.P.C. is barred by res judicata by virtue of
Explanation VI to Section 11 C.P.C. also does not merit acceptance.
According to the plaintiffs out of the 8 suits disposed of by a learned
Judge of this Court as O.S. Nos. 1 to 8 of 1979 the bar under Section 92
C.P.C. was raised in O.S. Nos. 1 and 5 of 1979 and a specific issue was
raised in O.S. 5/1979 as to whether the said suit was barred for want of
leave under Section 92 C.P.C. The finding in O.S. 5 of 1979 was that the
defendants were unable to show that the suit was bad for want of leave
under Section 92 C.P.C. The said finding was recorded in a
representative suit. The said finding was not challenged either before
the Division Bench in appeal or before the Apex Court in further appeal
which culminated in P.M.A. Metropolitan's case. AIR 1995 SC 2001. It is
further contended that since the said suit was a representative suit,
the finding entered therein will operate as res judicata not only
against the parties thereto but also against all persons
A.S.No.844 of 1998 :47:
having the same common interest. I am afraid that I am unable to accept
the above contention. There were more than two hundred suits filed in
various civil courts in the State in respect of different parish
churches. Those two hundred and odd suits were among the 1065 churches
under the Malankara Association. It was 8 out of those 200 and odd suits
which were transferred to this Court by virtue of an order passed by the
Supreme Court of India in Civil Appeal No. 2222/1979. Those 8 suits were
tried and disposed of by T. Chandrasekhara Menon, J. on 6-6-1980. All
those suits were in respect of eight different parish churches. It was
only in one suit namely O.S. 5/1979 that the learned Judge held that the
said suit was not shown to be bad for want of leave under Section 92
C.P.C. That finding, even if it was not challenged further in that
litigation, cannot operate as res judicata as against the parishners of
other churches. Moreover, if the above contention of the plaintiffs is
extended to its logical conclusion, then for all the 1000 and odd parish
churches under the Malankara Association, there need only be one
representative suit and the findings entered thereon will operate as res
judicata under Explanation VI to Sec. 11
A.S.No.844 of 1998 :48:
C.P.C. The argument that the defence based on Section 92 C.P.C. is
barred by res judicata is, therefore, unsustainable.
20. There is no dispute that the contesting defendants had in their
joint written statement specifically pleaded that the suit was bad for
want of leave under Sec. 92 C.P.C. The Court below was acting illegally
in not framing an issue in that behalf since such an issue directly
arose from the pleadings. Failure on the part of the
respondents/defendants to raise the objection regarding want of leave
under Sec. 92 C.P.C. in the cross- objection as originally filed before
this Court or the belated incorporation of the said objection in the
cross-objection by way of subsequent amendment etc. are all beside the
point. This is because, want of leave is a fatal defect in the very
institution of the suit and even if the objection in that regard was not
raised by the defendants the court was bound to apply the law whether an
issue in that regard was framed or not.
Moreover, in this appeal by the plaintiffs, the defendants need only
support the decree and they can assail the judgment on the ground of
Section 92 C.P.C. as well even without any cross-
A.S.No.844 of 1998 :49:
objection. As observed earlier, it was essentially the duty of the Court
to see whether on the plaint averments the suit was not barred under
Section 92 C.P.C.
21. The question as to whether it is the 1934 Constitution which governs
the Church in question which is admittedly a Church under the Malankara
Association can fall for consideration only in a properly instituted
suit.
22. The result of the foregoing discussion is that the suit which was
instituted without leave under Section 92 C.P.C. was not maintainable.
Even if leave was sought under Sec. 92 C.P.C. in this case, that would
be of no avail, since the suit was filed before the Munsiff's Court
which was totally incompetent to entertain a suit under Sec. 92 C.P.C.
Merely because the suit was subsequently transferred to the designated
Church Court which is presided over by an additional District Judge, the
suit will not become one instituted before the principal civil Court of
original jurisdiction even assuming that leave under
A.S.No.844 of 1998 :50:
Section 92 C.P.C. was obtained from that Court in advance.
CONCLUSION
23. This appeal is therefore,
dismissed and the cross- objection filed by the contesting defendants,
to the extent that it has raised the above objection regarding want of
leave under Section 92 C.P.C. is allowed. The suit will stand dismissed
as not maintainable. The plaintiffs would consequently be disentitled to
any of the reliefs prayed for in the plaint. The parties shall, however,
bear their respective costs in this appeal.
NOT AN IMPIOUS EPILOGUE
It is distressingly sad to
note that day by day, the rift between these two warring factions (the
Catholicos and the Patriarch factions) among the Syrian Christians, only
deepens with no sign of re-union or togetherness. Every one knows that
the bad blood, scramble and acrimony are all for spiritual and temporal
supremacy of one group over the other. An ugly transmutation recently
discernible is the offer for a peace- pact by the formation of separate
churches of the rival
A.S.No.844 of 1998 :51:
factions in the same compound. This will only help to polarise the
worshipping polity into discordant groups.
Merely because the right of dissent is a logical concomitant of the
freedom of speech and expression, there is no reason why it should be
pugnaciously exercised in the sacred abodes of God as well. Gallantry,
heroism and individuality are very often seen expressed by defying the
Creator or questioning the leader. May be, some people believe in the
harmony of brotherlihood through dissension ; or may be, the misplaced
realisation that there is nothing more powerful than the Plutocratic
clout. What a legitimate exercise of the fundamental right to freely
profess, practice and propagate religion !
Dated this the 14th day of
October 2009.
Sd/-V. RAMKUMAR,
JUDGE
Source:
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