Madras High Court
Unknown vs Mr.Rev. R.H.Eastaff
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
13~12~2021 22~12~2021
CORAM:
THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR
APPEAL SUIT (MD) No.23 of 1968,
SECOND APPEAL (MD) Nos.731 of 1971, 592 & 593 of 1996 &
CMP (MD) Nos.8430 of 2021, 8425, 8427 of 2021, 3117 to 3119 of 2016,
9127 of 2021, 9919 to 9922 of 2018
1. Mr.W.R.Stephen L.M. Christian,
Retired Teacher, Vilavoor,
Desom, Thuckalay Village,
Kanyakumari District.
2. Mr.H.Jayapal, L.M. Christian,
Vakil NorthStreet, Marthandam,
Nalloor Village,
Kanyakumari District.
3. Mr.Yocob John, L.M.Christian,
Evangelist, Kadamalakunnuvilai,
Vilavoor Desom, Thuckalay Village.
4. Abraham Gnanamony, Landlord and
Ariculturist, Andarkulam Ramapuram,
Theroor Village, Kanyakumari District.
5. Mr.J.Chelliah, L.M. Christian,
S/o.Yesudhas, Mahilum Malaraham,
Palliyadi Post, Kanyakumari District.
6. Mr.Thomas [died]
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
7. Mr.Daniel, L.M.Christian,
S/o.Masilamani, Thirutharavilai,
Palliyadi Post, Kanyakumari District.
8. Mr.Yesudhas, L.M.Christian,
S/o.Thangaiah, Kuttapila Vila Veedu,
Palliyadi Post, Kanyakumari District.
9. Mr.Jobu [Died]
Appellants 5 to 9 are brought on record as per Order in
M.P.(MD) 142 of 2009 in A.S.23 of 1968.
10. Mr.Vijayakumar, L.M.Christian,
S/o.Jobu, Ben Cottage,
Palliyadi Post, Kanyakumari District.
11. Mr.Paulraj, L.M.Christian, S/o.Thomas
Palliyadi Post, Kanyakumari District.
AA10 & A11 are impleaded vide Order of this Court
dated 21.09.2011in MP(MD) Nos.1 and 2 of 2009 in
A.S.No.23 of 1968 by MMSJ
12. Mr.Emil Durai Singh, S/o.Nallathambi,
Ayikuttyvilai, Murugavilai,
Palliyadi Post, Kanyakumari District.
13. Mr.Sam Merlin, S/o.S.M.Johnson, Christukoil,
Perumbilan Thottam,
Palliyadi Post, Kanyakumari District.
14. Mr.t.Joseph, S/o.Thomas, Peranarani Vilai,
Palliyadi Post, Kanyakumari District.
[Apellants 12 to 14 are impleaded vide Order of
this Court dated 05.02.2021 made in CMP(MD)
No.1068 of 2020in A.S.No.23 of 1968 by NSKJ] ... Appellants
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Vs.
1. Mr.Rev. R.H.Eastaff, M.A.B.D.
2. Mr.C.Trowel;
3. Mr.Rev.A.H.Lagg
4. Mr.A.Nesamony
5. Mr.Gunamony
6. Mr.Thomas David
7. Mr.D.Sahayadas
8. Mr.I.R.H.Ganadason
9. Mr.Yesudas
10. Mr.Sundararaj
11. Mr.Subanda Raj
12. Mr.sundaram
14. Mr.Solomon
15. Mr.G.Y.P.Dhas
16. Mr.Sundaram
17. Mr.Yesuratnam
18. Mr.Vadakkan
19. Mr.Yesudian
21. Mr.Jebamony
22. Mr.Silus
23. Mr.Nalliah Kan
24. Mr.Sathiaseelan
25. Mr.Thasan
26. Mr.Yovan
27. Mr.Yesudason
28. The London Missionary Society
Corporation Ltd.,
having its Office registered at
Bangalore, Mysore State.
29. The London Missionary Society,
represented by its General Secretary,
Maxwell C.James Livingstone House,
London E.C.L.
30. The Travancore Church Council represented
by its President Rev. A.Zachariah, M.A.,
London Mission Christian, Dennis Street,
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Nagercoil, Nagercoil Village.
31. Church of South India, represented by its Bishop,
I.R.H. Gnanadasan, 8th defendant in this case,
residing at Joshu, Nagercoil,
[I.R.H. Gnanadasan substituted by a.R.Chelliah,
S/o.Anandaraj, residing at Bishop Bungalow,
Nagercoil, Kanyakumari District vide Order dated
07.10.2021 made in CMP (MD) No.8339 of 2021
in A.S.No.23 of 68 by NSKJ.
32. Mr.James Arthur Ed wards
[Except the respondents 8 & 31, the other respondents are
exempted from bringing their legal heirs. Memo is
recorded OSR No.1133 dated 06.03.2015 made in M.P.No.1
of 2013 in A.S.No.23 of 1968, dated 18.03.2015 by MSNJ]
... Respondents
Prayer : Appeal filed under section 96 of Civil Procedure Code to allow this
appeal and set aside the decree and judgment of the learned Subordinate Judge,
Nagercoil in O.S.No.1 of 1960, dated 01.04.1967 with costs throughout.
For Appellants : Ms.J.Anandhavalli &
Mr.H.Lakshmishankar
For respondents : Mr.G.Masilamani, Senior Counsel
for K.Sreekumaran Nair
S.A.731 of 1979
1. Anbiah
2. Dharmakkannu
3. Yesudian
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
4. Joni Arulappan Nadar
5. Vethamuthu
6. Thankaraj ... Appellants
Vs.
1. Rev. J.George Robinson
2. Peribanayagom
Secretary of the C.S.I. Church
Andarkulam
3. Sam Ebenezer Gramani
4. Abraham
5. Daniel
6. Vethakkan
7. Rev. G.Christudas
Bishop of the Kanyakumari
Diocese C.S.I.
Mangalavadi, Nagercoil,
Kanyakumari District.
8. A.Grant
9. Paul Daniel
10. Yesuadiamal
11. Aruthangam
12. P.Dharmaraj
13. Robinson
14. Kenas
15. Jeofray Stephen
16. Devadas Devakadahsham Nadar ... Respondents
Prayer : Second Appeal filed under section 100 of Code of Civil Procedure
against the judgment and decree dated 12.03.1979 made in A.S.No.104 of 1975
on the file of the II Subordinate Judge & Special Judge, Nagercoil,
Kanyakumari at Nagercoil confirming the judgment and decree dated
12.03.1979 made in O.S.No.654 of 1970 on the file of the Additional District
Munsif Court, Nagercoil.
For Appellants : Mr.Rahamathullah
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
For respondents : Mr.G.Masilamani, Senior Counsel
for Sreekumaran Nair
S.A.592 of 1996
V.Asirvatham [Deceased]
1. Mr.S.Aruldoss, S/o.Subbiah [died]
2. Mr.M.Anandam S/o. Mathias [died]
3. Mr.G.Innas, S/o.Gnanaprakasam [died]
4. Mr.V.Muthiah, S/o.Vairavan [died]
5. Ms.S.Ponnabaramam @ Poochi, D/o.Subbiah [died]
6. Ms.M.Sundarabai, W/o.Muthiah [died]
7. Ms.M.Amirtham, W.o.Muthiah [died]
8. Mr.I.Yesurethinam
9. Mr.I.Xavier Singh
[ Appellants 8 & 9 brought on record as LRs of third appellant
as per Order in CMP (MD)1926 of 2004 in S.A.No.592 of 1996
dated 25.01.2014]
10. Mr.M.Manickam
11. Ms.M.Amirth Beula
12. Mr.M.Edward Anand
[Appellants 10 to 12 were brought on record as LRs of
deceased 4th appellant vide CMP.(MD) No.1927 of
2004]
... Appellants
Vs
1. Rt. Rev. G.Christdoss substituted to Devakadashm
substituted to A.R.Chelliah
2. P.Dharmaraj substituted to V.Ashokan Solomon
3. Y.J.Robinson subsituted to Jeyhar Joseph
4. Mr.Pakianathan substituted to Mrs.Helen Bright substituted to Ruskin Roy
5. Z.Johnson substituted by A.D.Yesudhas substituted by S.Paulmer Jeyasingh
[R1, R4 and R5 substituted vide Order dated 21.09.2011 made in M.P.
(MD) No.3 of 2009, M.P.(MD) No.3 of 2008, and MP.[MD[ No.5 of 2008
respectively.
R3 died and R2 who is the present Secretary and Treasurer of the Church
is already on record, Memo USR No.2813 recorded vide Order dated
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
27.08.2013 MVRJ.
R1 to R5 substituted vide Order dated 07.10.2021 in CMP (MD) No.
8428 of 2021 by NSKJ]
... Respondents
Prayer : Second Appeal filed under section 100 of Code of Civil Procedure
against the judgment and decree dated 26.02.1996 made in A.S.No.162 of 1978
on the file of the Principal District Judge, Kanyakumari at Nagecoil confirming
the judgment and decree dated 19.08.1978 in O.S.No.50 of 1971 on the file of
the Sub Judge, Nagercoil.
For Appellants : Mrs.J.Anandhavalli &
For respondents : Mr.G.Masilamani, Senior Counsel
for K. Sreekumaran Nair
S.A.593 of 1996
1. Mr.T.Mathuraraj
2. Mr.Kenaz Soloman
3. Mr.A.Yopu
4. Mr.Siromani
5. Mr.Thomas
6. Mr.J.Irvin
7. Mr.N.Thassian
8. Mr.S.Chinnathambi
9. Mr.P.Asariah ... Appellants
Vs
1. The Church of South India Trust Association,
having its Reg. Office at Madras, rep. by its
Power of Attorney Holders
a] Rt. Rev. G.Christudas substituted by Rt.Rev. G.Devakadacham
b] Mr.P.Dharmaraj substituted by Prof. Christian Babu
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
2. Mr.Dharmaraj substituted by Mr.Ashokan Solomon
3. Mr.Asariah [died]
4. Mr.S.Sathiyadhas
5. Mr.M.Johnson
6. Ms. P.Rachel Snehabai
7. Mr.A.Sam Ebenazer
8. Mr.A.Gladson Paul
[Respondents 6 to 8 are brought on record as LRs of the deceased
3rd respondent vide order dated 27.06.2011 made in M.P.(MD)
No.3 of 2009 in S.A.No.593 of 1996]
... Respondents
Prayer : Second Appeal filed under section 100 of Code of Civil Procedure
against the judgment and decree dated 26.02.1996 made in A.S.No.171 of 1978
on the file of the Principal District Judge, Kanyakumari at Nagercoil
confirming the judgment and decree dated 12.09.1978 made in O.S.No.93 of 77
on the file of the Sub Court, Padmanabhapuram.
For Appellants : Mrs.J.Anandhavalli
For respondents : Mr.G.Masilamani, Senior Counsel
for K.Sreekumaran Nair
COMMON JUDGEMENT
Though these appeals are pending before the Madurai Bench of Madras
High Court, the same have been listed before me as they are Specially Ordered
by the Honourable Chief Justice.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
2. As against the judgment passed in A.S.No.23 of 1968 and the second
appeals in S.A.Nos. 731 of 1979, 592 and 593 of 1996 appeals were filed
before the Apex Court in C.A.No.3293 of 1994 and the Apex Court by its
Order dated 19.02.2003 has set aside the Judgments of High Court and remitted
all the matters for fresh hearing. Though three different suits have been filed,
the main challenge is with regard to unification of churches, i.e., merger, which
is discussed as an issue in O.S.No.1 of 1960 and their consequent right over
properties.
3. Though several documents have been filed before the trial Court, due
to long pendency of matters for more than 6 decades and remanded by the Apex
Court, the documents filed before the trial Court have been taken back by the
parties themselves. After remand from the Apex Court, with great difficulty,
the relevant documents relied on by both the parties alone could be
reconstructed and both sides have fairly agreed to proceed with the appeals on
the basis of the relevant documents they relied upon. Accordingly, these
appeals have been proceeded with the documents mainly relied upon by both
sides.
A.S.23 of 1968
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
4. The suit has been filed in a representative capacity for declaration to
declare that the plaint schedule properties are Trust properties of the London
Mission Church of several churches of the LMS [London Missionary Society]
numbering 456 churches in Madras, Kerala State and L.M.Chirtian Community,
for declaration that the plaintiffs and those who remain as London Missionary
Christians are alone entitled to the beneficiary rights to the plaint properties and
that those L.M.Christians who have joined the C.S.I have thereby become
aliens to the L.M.Church and have forfeited all rights, into rest and benefits
over the plaint properties and for recovery of the plaint properties by the
plaintiffs on behalf of T.C.C. which are found in the possession of the
defendants with future mesne profits at the rate of Rs.1,00,000/- per annum, for
an injunction restraining the defendants 2 to 8, their agents, commissioned,
ordained or otherwise appointed from entering upon the plaint L.M. Properties,
Churches and cemeteries [scheduled and conducting divine service or
officiating in any other function, for an injunction restraining the defendants 2
to 8, their agents, commissioned, ordained or otherwise appointed from
alienating the plaint L.M. Properties and committing waste on the properties
and for costs.
5. Brief facts of plaintiff case is follows :
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
5.a. The L.M.Society was founded in England in the year 1795 for
preaching the Gospel among the non-christians. It consists mostly of
Congregatinalists and it sent Missionaries to several parts of the world from the
early years of the 18th Century. In the year 1800, one Maharasan, A.Sambayar
from Mylaudy in Agasteeswaram Taluk, later known as Vedamonickom,
accepted Christianity at Tanjore, returned home and made converts to
Christianity who form themselves into congregations at Mylaudy and
Wieravillai. Having heard that a Missionary of the L.M. Society, one
Ringaltaube had arrived at Tranquebar and was studying Tamil for doing
Gospel work, Maharasan invited him to South Travancore to help him in his
work. Ringoltaube accepted the invitation, came to Travancore in 1806 and
began to preach Gospel. He conducted worship, baptism, Holy communion and
other services in a prayer house of chapal at Mylaudy built by the converts with
their free offerings. Permission to build a church at Mylaudy for the converts
was obtained from Tranvancore Government in 1806 and the Church at Mylady
was erected at Sirkar Coast. As converts grow in number several other
churches were formed and chapals built with contributions of their own,
donations from their friends and sympathisers. The Gospel work spread to all
parts of South Travancore in the course of time by the work of the Christian
converts with the help of the missionaries followed in their worship, faith, order
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
and church Government practices and forms which were evangelical and
Congregational, that appeared to them as most agreeable to the word of God.
5.b. The Christian converts were known as the London Missionary
Christians and their churches, London Missionary Churches and collectively as
the London mission Church. For cooperative and co-ordination of the work of
the L.M.Churches, a council known as Travancore Church Council [T.C.C.]
was formed. It had constitution which defined and limited its powers and it
was an advisory body. The work of the L.M.Church was not confined to
preaching the Gospel alone but it included other humanitarian works such as
imparting education to the illiterate, giving medical aid to the sick and other
relief to the suffering, teaching cottage industries such as lace and embroidery
making, carpentry printing and paper making, to better their livelihood as well
as for profit. For the above works, the L.M.Church, properties were endowed
by philanthropists or acquired with funds donated or collected from members as
well as outsiders including non-Christians. All these properties were intended
for the L.M.Church and L.M. Christian community and were therefore trust
properties with the L.M.Christian community as the beneficiaries. These
properties belonging to the L.M.Chirstian Community were with the T.C.C.
representing the L.M.Christian community and the properties were managed for
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
and on behalf of the L.M.Church and community paying profits into the
Control of District Funds and rendering accounts annually to the T.C.C. The
Corporation appointed one of those missionaries as its Attorney and that
Missionary managed the plaint properties for and on behalf of the T.C.C. on its
approval and consent. The attorney made over the profits to the Control fund
and rendered accounts to the T.C.C. and the attorney Missionaries were only
managers and agents of the L.M. Church properties entrusted to them for
management. The properties had been treated as trust properties and the same
is borne out by the report of the special committee of the Travancore Church
Council which consisted among others, the first defendant, the then attorney of
the L.M.S. Corporation, the fourth defendant and the fifth defendant being the
Secretary and legal member.
5.c. The L.M. Society had no title or interest in the plaint properties nor it
ever acted as Trustee. The plaintiffs are not in possession of the title deeds
relating to the trust properties. The defendants 2 to 8 are in possession of title
deeds are bound to produce in Court all the title deeds of all immovable
properties and inventory of all the properties. The annual yield of the plaint
properties comes to over a lakh of rupees. This income belongs only to the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
L.M. Christian community as the beneficiaries. It is being diverted for
purposes of the South Travancore Diocesan council of the Church of South
India. It is misused and misappropriated and wasted. Alienations also are
being made from the plaint properties. The L.M. Community is suffering
considerable loss to conserve and protect the plaint properties and save the
interest of the real beneficiaries. The defendants who are members of the
L.M.Church or the T.C.C. and in that capacity only they were in possession of
the London Mission Churches. The LM Christians formed a distinct act by
themselves, having certain characteristic features and fundamentals differing
from such as the Lutheran the Salvation Army, the Anglican, the Weslyan, the
presbyterian, the Syrian, believers such as equality of Ministry & Co., and
opposed to episcopacy in any shape of form. In 1908, the LM.Church or T.C.C.
federated with seven other church councils in South India, all opposed to
Episcopacy under the name South India United Church [S.I.U.C.]. Its general
Assembly which consisted of representatives from all the eight church councils
and which met once in two years, was also an advisory body having no
authority over the churches or their properties. Neither the T.C.C. nor the
S.I.U.C. had any power under its constitution to destroy, alter or abrogate the
doctrine of fundamentals of the Church.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
5.d. In 1947, a new Episcopal Church called the Church of South India
[C.S.I.] was inaugurated in St. George's Cathederal, Madras. It was an organic
Union of the S.I.U.C., the Southern province of the Weslyen and 4 dioceses of
the Anglican Church in South India. The fundamentals of this new church are
entirely different repugnant and opposed to those of the L.M.Church, the later
being Congregational while the former is episcopalian. The L.M.Church does
not accept the Bishop of Episcopacy. The fundamentals of the original
L.M.Church are not preserved in the new church of South India. The seceders
to the new church have thereby ceased to be L.M.Christians and forfeited the
rights and benefits of the plaint and other properties of the L.M. Church. While
so, a meeting of the T.C.C. held on 29.08.1946 and Rev.R.H.Logg, the third
defendant presided over the meeting wherein a resolution was passed to form a
new church by a so called majority of votes of the T.C.C. The proceedings and
the resolution said to have been passed at the meeting are ultravires, illegal,
unconstitutional and void and not binding upon the plaintiffs or upon others of
the London Mission Christian Community. The plaintiffs and others who
continue in their original London Mission faith alone are entitled to the benefits
and amenities arising out of the plaint properties. The plaintiffs are authorised
to file the suit by the members of the Church and by the members of the T.C.C.
also and hence, the suit is filed on behalf of the Churches and on behalf of
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
themselves. The defendants with an ulterior motive of establishing the C.S.I.
Church in the area and to create evidence that they have constituted a new
diocese known as Kanyakumari Diocese and the 8th defendant is appointed as
the Bishop for the above mentioned Diocese which act will neither bind the
L.M.Christians nor the L.M. Church. The defendants 2 to 8 were members of
the T.C.C. and were in management of the plaint London Mission properties in
that capacity. As they have now joined the new church of South India they
have thereby become aliens and trespassers and hence, they cannot continue in
the management of those properties. They were bound to surrender the
properties to the London Mission Community have a right to get recovery of
the properties now in the possession of the defendants 2 to 8 and their agents
and followers with mesne profits.
6. Brief averments of the written statement filed by the defendants 2 to 6
& 8 are thus:
6.a. The London Missionary Society [L.M.S.] is an undenominational
organisation and was found in 1795 by ministers and laymen of the Episcopal
Church of England of the presbyterian, congregational and Methodist churches
in England. Its fundamental principle was [and still is] as follows :
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
“As the Union of Christians of various
denominations in carrying on this great work is a most
desirable object so to prevent if possible any cause of future
dissension, it is declared to be a fundamental principle of
the London Missionary Society that its design is to sent out
not Presbyterianism, Independency, Episcopacy or any
other form of Church order and Government] about which
there may be difference of opinion among serious persons],
but the glorious gospel of the bless god and that it shall he
left [as it ought to be left] be the minds of the persons
whom God may call into the fellowship of his son to
assume for themselves such form of Church Government as
to them shall appear most agreeable to the word of God”.
6.b The L.M.S. Sent Rev. T.Ringeltanube a Lutheran to South India,
where he stayed with Rev. J.C.Kohlhoff, another Lutheran, who was in charge
of the Episcopal S.P.C.K. Churches in Tanjore and in many other places in
South India including Thirunelveli District. Rev.T.Ringaltauble was for a time
in temporary charge of S.P.C.K. Work in Tirunelveli but settled down at
Mylaudy. Maharasan, who later on assumed the Chirstian name of
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Vedamonickam was baptised at Tanjore by the Episcopalian Minister Rev.
J.C.Kohalhoff. Rev. Ringeltaube preached the Gospel, conducted worship,
administered holy communion according to the Anglican ritual and established
the Church on behalf of the L.M.S. At Mylaudy and Wicravilai. On leaving
Travancore by reason of ill health in 1816, Rev. Ringeltaube, who is a
representative of the L.M.S. of the protestant Mission in Travancore, appointed
Vedammonickam as native priest and temporary superintendent of the Mission
till another missionary appointed by the L.M.S. took over. After the arrival of
Rev. C.Head and Rev.C.Mault two years latter, Vedamonickam handed over
charge to them. The plaintiffs' contention that Vedamonickam accepted
Christianity at Tanjore is against the theory of congregationalism set up by
them. No permission is needed in 1809 to build a church. The further
allegation that other churches were formed and chapel built with contributions
and donation is too vague for answer. Rev. T.Ringaltaube used Lutheren
Catochism and Episcopal prayer books already translated into Tamil and use in
the S.P.C.K. Tanjore and churches in Thirunelveli and that continued ever since
Rev.C.Mood was trained as a church of England man. No particular form of
worship, faith, order and Church Government was then laid down by any
missionary contrary to the fundamental principle governing his conduct.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
6.c The Christian converts were known as protestant Christians and since
1908 as S.I.U.C. Christians. The Church was known as the S.I.U.C. Church.
The churches with members extending from copy to Kallada River were
presbyterian and not congregational in organisation with written constitutions
from time to time to guide their conduct. The allegation that the T.C.C. is an
advisory body is not tenable. All the churches and properties were under the
control of the Travancore District Committee consisting of missionaries until
1920. The L.M.S. in England through its missionaries and not any other body
that started, managed and controlled the work such as college, High Schools,
Hospitals, press, Industries, Reading Rooms and properties acquired in their
name and since 1920 through its Tranvancore Mission Council. From the early
days, the L.M.S. as founder, had been acquiring properties for its missionary
work in its name and were managed by the T.D.C. and later on by T.M.C.
These bodies were never subordinate to the T.C.C. nor did these bodies ever
render accounts to T.C.C. The properties were acquired only to aid them in the
spread of the gospel among non Christians and for the uplift of all Christians
which is an indeterminate body. Therefore, there was no such trust as alleged
and there was no such community as L.M.Christian Community.
6.d The S.I.U.C. came into being in 1908 and the T.C.C. Which formed
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part of it was formed only in 1920. Since 1908, the protestant Christians and
there was no L.M. Church or L.M. Community. The T.C.C. of the S.I.U.C.
Managed the properties mentioned in the Constitution in accordance with the
rules governing them. The properties were acquired by several missionaries
and were held by the L.M.S. Corporation. No accounts were ever rendered by
the mission Council to the T.C.C. The missionaries never treated the properties
as trusts for any determinate body but only carried on their work on behalf of
the L.M.S. in accordance with its foundation. The L.M.S. had formed in 1899
the L.M.S. Corporation for the better holding of the property in various parts of
the world. It was registered in India in 1922. In 1955, the L.M.S. Corporation
issued a power of attorney in favour of persons nominated by the South
Travancore Diocesan Council who are defendants 2, 3, 5 and 6 in this suit. The
L.M.S. Churches is not a Church, but the S.I.U.C. is the Church by which name
the converts to Christianity by the labours of the missionaries of L.M.S. were
called upto 1947 when the S.I.U.C. dissolved itself to form the church of South
India [C.S.I.]. All the S.I.U.C. Christians automatically become C.S.I.
Christians since that day. The income belongs to the L.M.S. who have made it
over to the C.S.I. and no question of misuse, misappropriation or waste arises.
The plaintiffs have withdrawn the allegation of breach of trust in their counter
to I.A.No.125 of 1960 filed in this suit. The T.M.C. used the income from the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
industries and properties for the support of the institutions it managed and made
small grants to the T.C.C. for specific purposes. Both the T.M.C. And T.C.C.
received annually large grants from the L.M.S. The nature of the allegation for
accounts is beyond the scope of the suit.
6.e The second defendant had been in possession of the properties
through his fellow missionaries living in them. Before the C.S.I. was founded
defendants 2 to 8 were members of the T.M.C. working under the L.M.S. In
that way they were in possession of the L.M.S. Properties either directly or
through their agents. The alleged L.M.Church is not congregational and its
constitution is presbyterian with hierarchy of Councils and Committees
opposed to congregationalism. The Church was undenominational at its
foundation and the Church at the time of Union being itself neither
congregational or presbyterian, question of episcopacy has no relevance to this
case and cannot be urged. The Supreme Court in Civil Appeal No.486 of 1957
in respect of the Kadamalkuntu Church within the T.C.C. and similarly situated
discountenanced the theory of congregationalism and observed that this
contention “Is some what remote from the realities of the church
administration.” This suit must fail on this ground alone. The authority of
T.C.C. extends even to decide conditions of membership of all the individual
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
churches and so the T.C.C. had power over individual churches. A written
constitution which the T.C.C. had will not warrant a contention such as ones
the plaintiffs raised nor could they be heard to raise such a contention. The
subject matter of church union had been before the TC.C. several times since
1919 and the authority of the T.C.C. to pass the resolution was not questioned
by any church or member including the plaintiffs. If the T.C.C. has power to
reject it, it has equally power to accept it. The plaintiffs are estopped from
raising such a contention. The T.C.C. has powers to pass the resolution binding
all. The claim of legal possession is not tenable. The plaintiffs are incompetent
to sue for possession. The defendants are not trespassers and no question of
surrender arises. There is no L.M.Christian and no L.M.Christian Community
nor are such Christians in possession of 'A' schedule property. All the
properties are being possessed on behalf of the C.S.I in continuation of the
defendants possession of lawful custodians as already stated. No claim for
recovery of possession is sustainable. There is no cause of action for this suit.
The C.S.I. was formed on 26.09.1947. The suit is barred by limitation. Hence,
prayed for dismissal of the suit.
7. Church of South India has been impleaded as the 31st defendant along
with the 8th defendant to represent Church of South India. This defendant has
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already submitted their objections to his impleadment to represent the Church
of South India and the plaintiffs themselves are aware that under the
constitution and he cannot represent the Church of South India. The
impleadment apart from being contrary to law and opposed to the observations
made in L.P.A. No.63 of 1962 has been made merely to circumvent the
observations made in the said L.P.A.No.63 of 1962 that individual churches
should be before Court to be bound by any decree that may be passed. The
impleadement does not cure the defect pointed out by this Court that any suit
without individual churches on record will be useless and ineffective. Hence,
the plaintiffs are not entitled to any relief against the Church of South India as
any relief against them is barred by limitation. Hence, prayed for dismissal of
this suit.
8. In the additional written statement filed by the 4th defendant it is stated
as follows:
The 30th defendant A.Zacharia's claim to represent the Travancore
Church council as its president is denied. There was no Travancore Church
Council since the inauguration of the Church of South India on 27.09.1947 nor
was the 30th defendant its president at any time. The third defendant was its
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
President in 1947 before it was succeeded by the South Travancore Diocesan
Council. This defendant was then only a member of the T.C.C. and took part in
the final voting on Union, which was passed without a dissentient vote. The
30th defendant by his long course of conduct is estopped from challenging the
competency of the T.C.C. to pass the resolution or its validity thereof much less
its rules of procedure which it laid down as a domestic body for the conduct of
its own business. The 30th defendant formed as Anti-Episcopal Association
constitute himself as its president with the first plaintiff as one of the secretaries
and that too had become defunct. The 30th defendant was a S.I.U.C. Christian
and not a London Mission Christian as he describes himself now. The fact that
there was no L.M. Church anywhere and therefore no L.M.Christians is borne
out by the letter dated 13.01.1948 to the 30th defendant by the foreign secretary
of the London Missionary society. The 30th defendant has made it his chief
business to get money from America by false representation that he is
upholding congregationalism on their behalf and admitted as P.W.2 in O.S.No.
98 of 1958 of the Principal District Munsif Court of Nagercoil that he had
received Rs.10,000/- for the appeal before the Supreme Court. The Supreme
Court in O.A.No.486 of 1957 discountenanced the idea of congregationalism
with reference to Churches under T.C.C. and observed that it was far away from
the realities of Church administration. It is a sect of American who are
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
maintaining the litigation behind the scenes and is champortuous and opposed
to public policy.
9. The following issues were framed in the suit :
1. Who is he founder of these churches? Does the
fundamental Principal of the L.M.S. Apply to these
churches?
2. Is it not true to say that the London Mission
Churches in Travancore [Local L.M.Churches] were
founded by the local Christian converts of Travancore and
that the Missionaries only helped them to found such
churches?
3. Have the plaint churches a separate fundamental
principle other than that of the L.M.S.? If so, what are they?
Are they found expressed any where? Is the Union with the
C.S.I. A deviation from that fundamental?
4. Whether the London Missionary Society [L.M.S.}
was not soon after its formation, supported by a
congregational one or two sent outside to Travancore by the
L.M.S. Congregational?
5. Whether the L.M.Churches in Travancore have not
adopted from the very beginning the congregational forms of
church Government and order and continue to maintain
intact such distinctive characteristics and tradition without
any alteration in fundamental for the past more than 150
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
years?
6. Are the plaint churches congregational or did they
remain undenominational from its inception?
7. Was not the S.I.U.C. Only a federation involving
no interference in the internal management of the federating
churches as distinguished from an organic union?
8. Was the amalgamation of the Travancore Church
Council [T.C.C.] and the Tranvancore Mission [M.C.}
anything to do with the formation of the South Travancore
Diocesan council [S.T.D.C.] Does not the S.t.D.C. Owe its
origin to the formation of the new church of South India
[C.S.I.]?
9. Is it open to the plaintiff to import any form of
worship faith or order than what is contained in the
constitution of the C.C. Of the S.I.U.C.?
10. Is it not the Constitution of the T.C.C. Governing
the plaint churches opposed to congregationalism? And it is
not undenominational? Could the plaintiffs be heard to ure
please contrary to the constitution governing them?
11. Is the S.T.D.C. Continuation of and successor of
the T.C.C.?
12. Whether the plaint schedule properties belong to
the London Mission Christians of Travancore?
13. Whether the London Missionary Society
Corporation is he owner of the plaint schedule properties?
14. Who are the beneficiaries with regard to the plaint
properties?
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
15. Whether the properties of the Travancore L.M.
Church [Collection of all the local L.M.Churches in
Travancore] were held by the missionaries or the
representative of the L.M.S. Corporation only as trustees of
and for the use and benefit of the London Mission Christians
of Travancore i.e., Christiances as distinguished from those
who have gone ever to the C.S.I.?
16. Was the T.C.C. a sovereign body or it is a
creation of the local Churches in Travancore?
17. Were not the Christians of the plaint churches
between 1908 to 1947 called S.I.U.C. Christians?
18. Was the S.I.U.C. Competent to united with the
Church of England in India [i.e.] the four diocese of the
Church of India, Burma and Ceylon [C.I.B.C.] and the
Methodist Church so as to from the C.S.I.?
19. Was not the resolution of the T.C.C. dated
29.08.1945 passed unanimously validly a religious body on a
religious question within its competency? Is it subject to
review by civil Courts? Have not the plaintiffs acquiesced
in the competency of the T.C.C. to pass the resolution since
1919 to 147 are not the plaintiffs estopped by their conduct
from questioning the competency of the T.C.C. to pass the
resolution?
20. Did not the plaintiffs automatically become
Christians of the C.S.I. and continue therein long after the
union become effective? Have they stoned and acquiesced
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
in it? Are they estopped from repudiating it?
21. Is the identity of the London Mission Church
preserved in the Church of South India, is not the union in
to the C.S.I. A deviation in fundamentals from the
fundamental principles and tenets of the Travancore L.M.
Church?
22. Have not the defendants and their followers who
have gone over to the C.S.I. Ceased to be members of the
Travancore L.M. Church and have thus become aliens to the
later and forfeit right of any in it and the properties
belonging to it?
23. Was not the T.C.C. Dissolved in 1947? Could it
be revived in the manner claimed by the plaintiffs?
24. Whether the suit is barred under Order 2 Rule 2
C.P.C.?
25. Whether reliefs claimed fall within one or other of
the reliefs in section 92[1] [a] to [b] C.P.C.?
26. Whether the suit is not maintainable by virtue of
Section 92 of the Code of Civil Procedure?
27. What is the status of the defendants in relation to
the trust properties?
28. Are the beneficiaries competent to sue for
possession of trust properties?
29. Whether the plaintiffs are competent to sue?
30. Is the suit for recovery of possession barred by
limitation?
31. Is the suit maintainable?
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
32. Could the plaintiffs question the competency of
the L.M.S. Corporation to appoint power of Attorney? Are
they not estopped by their acquiescence and conduct since
1922?
33. Who started, managed and controlled the
institutions mentioned in paragraph 5 of the plaint?
34. To which denomination did Vedamanickam
belong? Was it not the Angelican form of worship that was
followed them? 35. Is the suit entertainable in this Court
for the reason stated in paragraph 46 of the written
statement?
36. Having voluntarily left the C.S.I. Have the
plaintiffs a right of suit to question the Union?
37. Whether the plaintiffs are entitled for declaration
prayed for?
38. Whether suit is barred by resjudicata?
39. Whether the plaintiffs are entitled for mesne
profits? If so,as what rate?
40. Whether the defendants have committed waste?
41. To what relief plaintiffs are entitled to?
42. What is the Order as to costs?
43. Additional Issue 4 : Whether the suit is
maintainable without the individual Churches?
44. Whether the suit is not barred against the Church
of South India?
45. Whether the plaintiffs are entitled to any relief
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
against the 31st defendant for reasons stated in paragraph 6
of the written statement of the 31st defendant?
10. On the side of the plaintiff, P.W.1 and P.W.2 were examined and
Ex.A.1 to Ex.A.105 have been marked. On the side of the defendant, no
witness was examined, Ex.B.1 to Ex.B.58 were marked. The trial Court after
analysing both oral and documentary evidence, dismissed the suit. As against
which, the present appeal has been filed.
S.A.731 of 1979
11. The suit in O.S.No.654 of 1970 has been filed for declaration of
plaintiffs right or management of plaint schedule properties and 1st plaintiff's
right to conduct religious service and injunction restraining the defendants from
obstructing the plaintiffs from entering the plaint schedule property and church
building removing obstacle and from disturbing peaceful religious services
conducted by the first plaintiff in that church and the participation hereof by the
other members of the congregation and also for recovery of the property in case
if the plaint property is found in possession of the defendants.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
12. Brief facts leading to filing of this suit is as follows :
12.a. The case of the plaintiffs is that the plaint property being the
Church and compound situated at Andarkulam belonging to the Kanyakumari
Diocese of the Church of South India which is a Trust that the same is being
locally managed by the plaintiffs under the supervision of the Kanyakumari
Diocese of the Church of South India that the 1st plaintiff is a Paster of the
Church and other plaintiffs are the elected deacons to whom the first plaintiff is
the Chairman. Originally, 456 churches in South Travancore were under the
L.M.S. Corporation in London, but, after the churches merged with C.S.I. in
1947, all the properties and churches including the plaint schedule property
were transferred to the C.S.I. and the same is being administered by the C.S.I.
Trust Association, Madras through its Power of Attorney holders. The first
defendant and some others wanted to break away from the C.S.I. due to the
influence of the defendants 8 and 9 and the NACCC filed 24 suits against the
C.S.I. claiming all the 456 churches, properties and institutions for themselves,
calling themselves as L.M.S. Christians. All the suits were dismissed. Finally
in O.S.No.1 of 1960 filed by the 1st defendant and 4 others in the Subordinate
Court, Nagercoil under Order 1 Rule 8 of C.P.C., the claim regarding all the
456 churches and properties was dismissed. In the suit schedule the plaint
church was item no.9. Thus ownership and possession are with C.S.I. and there
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
is no L.M.S. Society and L.M.S. Corporation even in London or anywhere in
the world and the L.M.S. itself since dissolved has now become congregational
council for world Mission. Defendants 2 and 3 are the sons of the 1st defendant,
defendants 4 to 7 are more worshipers and defendants 8 and 9 are agents of an
alien church in America called the National American Congregational Christian
Churches, the purpose for which to secure a foot-hold in South India by seizure
of the some of the churches of C.S.I.
12.b. The plaintiffs and other church members belonging to Andarkulam
realizing the fact that the 1st defendant and defendants 8 and 9 are really the
agents of the NACCC disclaimed any connection with defendants 8 and 9 just
to avoid being caught by the NACCC. The foreign secretary of the NACCC
named John H. Alexander on 23-08-1970 has also requested the 1st plaintiff
through a letter to go over to the NACCC but the same was disregarded. The 1st
plaintiff continues to serve as pastor and Chairman of the church committee
formed by plaintiffs 2 to 7. But to capture the plaint church by any NACCC,
the defendants formed into an unlawful assembly and on 01-08-1970 broke
open the lock of the gate leading into the church premises and attempted to
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
break open the church. The complaint preferred before the police at
Suchindrum by the plaintiffs, ended in vain. On 02.08.1970, defendants and
their henchmen surrounded the church and obstructed the plaintiffs and the
other C.S.I. Christians from entering the compound. Then on 08.08.1970 the
defendants tampered with the lock of the front door of the church and prevented
the plaintiff and others entering the church so as to conduct the service on that
date thereby the church remains closed and the plaintiffs and the worshipers are
staying out. The defendants have no manner of any right nor possession of the
plaint property. Even in the judgment pronounced in O.S.No.1 of 1960 dated
01.04.1967 it is held that the C.S.I is the owner of all the churches and the
C.S.I. alone is competent to conduct services and other Christians can only
participate in such worship as members and as such the judgment in O.S.No.1
of 1960 acts as resjudicata over the claim that the plaint church is an L.M.S.
church and defendants are the owners. Under these circumstances, the
defendants are to be restrained by the injunction from obstructing the plaintiffs
from opening the church and the conduct service by the 1st plaintiff.
13. Then as per Order passed in I.A.No.292 of 1971 dated 07.07.1971
additional plaintiffs 8 and 9 have been impleaded as power of attorney holders
of the Kanyakumari Diocese of the Church of South India.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
14.a. In the written statement filed on the side of the defendants 1 to 7
jointly, it is contended that the plaint church at Andarkulam is a L.M.Church
and the entire plant schedule property absolutely belongs to the L.M.S.
Christians of Andarkulam and the Kanyakumari Diocese of Church of South
India has no manner of any right or control or interest over the plaint church
and the premises thereof, that the 1st plaintiff was no doubt the pastor of the
church till 04.07.1970, that the plaintiffs 2 to 7 were also acting as deacons of
the church and as members of the church committee but the plaintiffs have
seized to hold their office on 05.07.1970, that it is no doubt true that some
churches joined in the C.S.I. But on the other hand, the plaint church even now
continue as a congregational L.M.Church, that the allegation as to that the
plaint church and the plaint schedule properties were transferred to the C.S.I. Is
not true, that the transfer, if any, in connection with plaint schedule property is
not valid and binding on the church or its members, that the transferors had no
competency or authority to make any such transfer, that the plaint church and
the properties are being administered by the present church committee
constituted by defendants 1, 2, 4 and 6 and others, that the Bishop of the
Kanyakumari Diocese of the C.S.I. is not competent to manage or to administer
the plaint property, that the 1st defendant is one of the deacons and as such a
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
member of the church committee, that the 2nd defendant is a validly elected
Secretary, that the 1st, 4th defendant is the accountant and the 6th defendants is
the treasurer of the present church committee, that the defendants 1 to 7 are not
mere worshipers of the church. The allegation that the 7th defendant is not also
an agent of the NACCC, but he is only a Missionary having supervision of all
the L.M. Churches in this District, that he is a member of the Christucoil L.M.
Churches in this District, that he is a member of the Crhistucoil L.M. Church at
Palliyadi, that he is also now acting president of the Travancore Church
Council in the place of the 1st plaintiff after the 1st plaintiff's resignation of that
post and that the allegation that the NACCC attempts to seize some of the
C.S.I. Churches is false.
14.b. It is further contended that not even a single member of
Andarkulam was a C.S.I., that all the members were L.M.Christians and hence,
there was no question of the 1st defendant and others never disclaimed any
connection with defendants 8 and 9, that these defendants are not aware of the
letter said to have been sent by the John H. Alexander to the 1st plaintiff that the
1st plaintiff and the colleagues made an attempt to join themselves with C.S.I.,
that the above intention was let to known to the Travancore Church Committee
by the 1st plaintiff, that the 1st plaintiff also expressed the above intention in the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
congregational prayer meeting in the morning on 05.07.1970. As soon as the
announcement was made by the 1st plaintiff there was loud protest from the
entire congregation and as a result the 1st plaintiff was not even allowed to
conclude the morning service in the church, that himself and other plaintiffs left
the church even before the prayer meeting concluded and they have never again
entered the premises of the plaint church afterwards. As a matter of fact, the 1 st
plaintiff is seized to be a pastor from 05.07.1970, that afterwards in the general
body meeting held on 12.07.1970 in the church, the plaintiffs were removed
from the respective office and a fresh body of deacons were elected by the
members of the congregation. As such on the date of suit, the 1st plaintiff was
not the pastor of the plaintiff's church.
14.c. It is further contended that defendants 8 and 9 never engaged any
rowdies and they never made any attempt to capture any C.S.I. Church, that
there was no unlawful assembly to broke open the lock etc. as alleged in the
plaint. These defendants are not aware of the complaint said to have been
preferred by the plaintiffs to police and none of the plaintiffs ever made any
attempt to enter the plaint church or its premises after they left the church in the
morning of 05.07.1970 in the midst of confusion due to their announcement to
join in the C.S.I. Afterwards the prayers and other services was conducted
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
peacefully by the members of the congregation and the Christian attached to the
Andarkulam Church. There is no C.S.I. Christian attached to the Andarkulam
Church and even the plaintiffs decided to join the C.S.I. on 04.07.1970 and they
have been calling themselves as C.S.I. Christians only after 04.07.1970. It is
also contended that the 1st plaintiff left his residence from the pastorate building
by about 10th July, 1970 and ever since, he is living in East Chalai
Agasteeswaram and the plaint church is its out house, store houses, school
building and the pastorate building are all in the complete exclusive possession
and control of the defendants and the other members of the L.M.Christians in
Andarkulam. The plaintiffs have never conducted any service in the church
after 05.07.1970 and no worshiper is stayed out as alleged in the plaint and
members of the congregation in a grand scale with a poor feeding etc. as usual.
It is again contended that the question of possession of the plaint schedule
property was never in issue in O.S.No.1 of 1960 of the Sub Court, Nagercoil,
that the findings about the possession of the Andarkulam church if any of the
judgment is without jurisdiction and incompetent and none of the findings in
A.S.No.23 of 1968 and as such the judgment of O.S.1/1960 does not bar as
resjudicata for any of the contentions raised by these defendants in the suit amd
the decisions in the suit is in fact not finding on the plaint church as such or the
members thereof.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
14.d. The defendants would further contend that since the plaintiffs
joined themselves in the C.S.I. are no longer as members of Andarkulam L.M.
Church and hence they have no right to conduct any service in the church and
that as C.S.I. Christian is not entitled to conduct any service in L.M. Church,
that the plaintiffs who fell for the pieces of bread thrown at them by the
officials of the C.S.I. Agreed among themselves to join the C.S.I. and also use
their influence and induce the other members of the Andarkulam church to join
in the C.S.I. But their attempt was thwarted like anything and the members of
Andarkulam Church were all along remain as a separate unit as L.M. Christians
from the year 1947 and this suit has been filed without any bona fide and that it
is a false and frivolous suit and that the suit as framed is not maintainable, since
in that suit only 7 of those 350 members attached to the L.M.S. Christians at
Andarkulami is impleaded as defendants and as such the plaintiffs cannot seek
to obtain any relief against the congregation as a whole and these plaintiffs are
fully aware of the facts of the deacons election held on 12.07.19700 by which
defendants 2, 4 and 6 were elected as deacons and office bearers namely
secretary, accountant and treasurer respectively of the new church committee
and that is why these defendants have been specifically impleaded in the suit
and these plaintiffs have no cause of action and they are not entitled to any
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
relief in the suit and the suit is liable to be dismissed with costs.
15.a. In the written statement filed on behalf of the defendants 8 and 9, it
is contended that the plaint property does not belong to the Kanyakumari
Diocese of the church of South India and the 1st plaintiff is not the pastor of the
church and the plaintiffs 2 to 7 are not deacons of the church, since they joined
in the C.S.I. on 14.07.1970 and as such the plaintiffs are not entitled to any
relief claimed in the suit against L.M.S. Christians and L.M.S. Church, situated
at Andarkulam. It is further contended that the Andarkulam church is not a
C.S.I. Church, that the same is a congregation church administered by the
L.M.S. Church committee, that the church building was put up at a cost of Rs.
50,000/- in a land bought by the L.M. Congregation subsequent to 1948 and the
C.S.I. have no connection with that and there is no C.S.I. church at Andarkulam
and there is not even a single C.S.I. Christian at Andarkulam. Even after steps
taken to join certain churches in the C.S.I. unit in 1947, the plaint church
remained conclusively as L.M.S. Church and is being functioned as an
independent self supporting church having its continued membership with
T.C.C. that since the membership did not join with C.S.I., the coercive methods
to induce the L.M. Christians at Andarkulam to join in the C.S.I. fold, but the
same was disregarded like anything even at the announcement made by the 1st
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
plaintiff on 04.07.1970 and hence, the plaintiffs alone joined in the C.S.I. for
personal gain and thereafter the L.M. Christians at Anderkulam had been
conducting regular service in the church in all Sundays by suitable alternative
arrangement and as such being managed by the new office bearers elected to
the church committee in the places of the plaintiffs.
15.b. The averments that the defendants 8 and 9 are members of the alien
church is false and the defendants 89 and 9 are born L.M. Christians and they
are holding high dignified offices in the church. the address given in the
address column of defendants 8 and 9 are incorrect and mischievously given
and the 8th defendant is a L.M. Pastor and the 9th defendant is a treasurer of the
T.C.C., that they are fully aware of the administration in and out of the plaint
church. They took part in several functions and services in the church and
addressed the congregation several times and the allegation that these
defendants influence the other defendants to cause coercion and confusion in
the Andakulam church is not correct. The other averments put forth in the
written statement filed on the side of the defendants 1 to 7 is that over and
above these defendants have also contended that the plaintiffs have no cause of
action to file the suit against these defendants and the suit is not maintainable
under Law and the plaintiffs are not entitled to get any relief and the suit is
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
liable to be dismissed with costs.
16. Then as per Order passed in I.A.No.292/1971 dated 07.07.1971,
additional plaintiffs 8 and 9 were impleaded as Power of Attorney Holders of
the Kanyakumari Diocese of the C.S.I. Church.
17. Then as per Order passed in I.A.871 of 1971 dated
12.10.1971additional 10th defendant has been impleaded for the fact that he is
in occupation of a portion of the school building, situated in the plaint schedule
property.
18. In the written statement filed on behalf of the 10th defendant, it is
stated that this defendant generally adopts the contentions raised by the
defendants 1 to 7 and add certain things as to that the Andarkulam church has
always been a L.M.Church and it continues to be so even today. It is not a
C.S.I. church that since the 1st plaintiff worked as pastor at Andarkulam C.S.I.
church joined in the C.S.I. fold he would not be allowed to enter the
Andarkulam Church or its premises and he is ceased to be the pastor from
14.07.1970. The defendants thereupon appointed one Abishekamony as pastor
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
in the church who continued as pastor till 31.12.1970, that afterwards the
church committee appointed this defendant as catechist in the church who is
continuing as such from 01.09.1971 residing with his family in a portion of the
school building attached to the church, since the same is not being used as a
school from 1967. At the instigation of Advocate V.Ezardas, some of the
plaintiffs and their partitions attempted to assault this defendant in the school
building which led to some criminal case also and the allegation in the plaint
that this defendant trespassed into the school building on 08.09.1971 is
absolutely false and he, aas a validity appointed pastor has every right to enter
the church premises wherein the school building is also situated and the
plaintiff have no right to claim his eviction from the building and as such the
suit is liable to be dismissed against this defendant with costs.
19. Then a replication has been filed by the 1st plaintiff stating that after
the L.M.S. Merged with C.S.I. in 1947, the Andarkulam Church and the
property belongs to C.S.I. and the defendants are estopped from saying that
they are L.M.Chirstians in view of the various legal proceedings taken place,
that the 1st plaintiff continues as pastor and nobody has any right to prevent
him, that the said Abishehamony never served as pastor of the church at
Andarkulam and he is attached to the Arulpuram N.A.C.C.C. Church at
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Nagercoil. He was ordained as pastor of that church by the defendants 8 and 9
long after 04.07.1970 and as such the said Abishekamony is not entitled to
work as pastor and there is no occasion for that that the defendants have no
authority to appoint him as poster of Andarkulam C.S.I. church and there is no
church committee for the defendants in Andarkulam church and the allegation
that there was an election of deacons after 05.07.1970 is false and that is not
also possible in view of the conflict of interest that has arisen that the 10th
defendant and his wife were residing in the school building in an unlawful
manner. The building belongs to the C.S.I. and this 10th defendant not entitled
to reside there and the occupation held by the 10th defendant is in violation of
the order of injunction passed by this court. This 10th defendant with the
collusion of other defendants attempted to convert the school building into a
house, which resulted in serious armed clash and due to that clash the 10 th
defendant and his wife ran for their life from that place. The allegation against
Mr.Ezards, the power of attorney holder of the C.S.I. is baseless and he is not a
party to the criminal proceedings taken in connection with the clash. The 10th
defendant is a stranger imported by defendants 2, 8 and 9 to serve their
nefarious purpose of capturing the church for them. The 10th defendant is
unqualified for both jobs of pastor and a catechist and he will not be allowed to
do service in the church under the cloak of stay of trial ordered by the High
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Court and he being a trespasser pendants late is to be pushed out of the school
building and the plaint property.
20. Then as per Order passed in I.A.No.244/1973 dated 04.03.1973 an
additional relief is also claimed by amending the plaint to the effect that if in
case it is found that the defendants are now in control of the church building,
the same is to be recovered from the possession of the defendants, since the
right and title over the suit property is always with the plaintiff.
21. After the amendment, additional written statements have been filed
on the side of the defendants 2 to 7 jointly and defendant No.8 individually.
22. In the additional written statement filed by the defendants 2 to 7 and
8, it is contended that the plaintiffs are not entitled to any right in respect of the
Andarkulam church or its property and the same are in the exclusive possession
and the control of the L.M.S. Chirstians of Andarkulam to whom only the same
belongs that the plaintiffs and the supporters of C.S.I. are conducting prayers in
different places mostly in the house of the plaintiffs, they have never after
05.07.1970 entered the plaint church or its premises. If the plaintiffs again
attempt at entering the church premises there will be breach of piece and
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
bloodshed and that in the interest of justice public piece and tranquility, the
plaintiffs shall not be allowed to meddle any more with the affairs of the plaint
church and the prayer for the recovery of the church and its properties is made
without any good faith and as such the plaintiffs are not entitled to any of the
reliefs claimed in the plaint and the suit is liable to be dismissed with costs.
23. On the basis of the above pleadings the following issues were
framed :
1. Are defendants claim to the church and property
barred by resjudicata in view of the decision in O.S.No.1 of
1960?
2. Is plaint property and church, the Trust property
of the Church of South India?
3. Did the members of the Committee cease to hold
the office of the Church Committee on 05.07.1970?
4. Are the members of the church Committee alleged
to have been constituted by defendants, validly elected or
are they more worshipers?
5. Did all the L.M. Christians and churches becom
C.S.I. by the fomation of the church of South India and did
the Travancore Church Council continue after it and could
it validly contain?
6. Did the defendants attempt to capture the church
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
for the NACCC as alleged in paras 10 to 15 of the plaint?
7. Could the resignation of the 1st plaintiff rom the
TCC affect his continuance as pastor of the church and the
conduct of service etc. for the church members?
8. Could the defendant obstruct the 1st plaintiff from
conducting service for the church members? Is he not
entitled to the injunction prayed for?
9. Reliefs and Costs ?
Additional Issue framed on 07.07.1971:
10. Whether the plaintiffs 8 and 9 are necessary
parties to the suit?
24. On the side of the plaintiff P.W.1 was examined and Ex.A.1 to
Ex.A.44 were marked and on the side of the defendant D.W.1 was examined
and Ex.B.1 to Ex.B.114 were marked. After analysing both the oral and
documentary evidence, the trial Court had dismissed the suit. Aggrieved over
the same, an appeal has been filed on the file of II Subordinate & Special Judge
[for trial of Thovalai Channel Special Repairs Conspiracy case], Nagercoil
However, the appellate Court while deciding the appeal, received additional
evidence, namely Ex.A.45 to Ex.A.57 and Ex.B.115 to Ex.B.118 and analysing
the entire evidence, allowed the appeal and reversed the finding of the trial
Court. As against which the present appeal came to be filed.
S.A.592 of 1996
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
25. The suit in O.S.No.50 of 1977 has been filed for declaration of title
of the C.S.I. Trust Association to the suit Church and its adjacent properties and
for recovery of possession of the same by plaintiffs 1 and 2 on behalf of C.S.I.
Trust Association and for permanent injunction restraining the defendants from
obstructing the plaintiffs and those duly appointed by the C.S.I. authorities
conducting service in the said Church and exercising all other rights pertaining
to the office of the a Presbyter and for costs.
26. Brief facts leading to filing of the suit is as follows :
26.a. The first plaintiff is the Bishop and the second plaintiff is the
Secretary and the third plaintiff is the Treasurer of Kanyakumari CSI Dioceses,
4th plaintiff is the Pastor and Chairman of Vadassery Pastorate and the fifth
plaintiff the the Secretary of the suit Church, Vadassery. The suit Church at
Vadasery along with other large number of properties including Schools,
Colleges, Press Industries, Hospitals, Churches etc., originally stood in the
name of London Missionary Society Corporation and have been transferred to
the Church of South India Trust Association Madras after the formation of the
Union known as the Church of South India in September, 1947. The above said
institutions and properties are administered under a constitution, the lowest tier
in the hierarchy of officers is the Church Committee with a Pastor as its head to
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
care for and repair all the buildings and properties used by the Church. Such
possession is only permissive and subject to change normally every three years
or otherwise on the retirement or transfer of the Pastor. The suit Church is one
among the churches which acceded to the Union from the inception. There was
a group of men calling themselves as “London Mission Christians” hereinafter
referred to as the “Dissidents” and they started litigations in L.P.A.No.63 of
1962 and other appeals pronounced on 28.12.1964 by the High Court. Those
suits were all under Order I Rule 8 of C.P.C. and the terms of settlement bind
all Christians coming within the category of the so called London Mission
Christians. By those terms of settlement it was agreed by the dissidents
opposing the Union that the possession, management and administration of all
properties including the conduct of service in all the churches ensure to the
C.S.I and that the right of the dissidents is thereby confined to participation in
the services conducted by the C.S.I. as full members of the respective churches.
Thus the dissidents conceded their status as mere worshipers.
26.b. While so, during the pendency of the appeal in L.P.A.No.63 of
1962 and other appeals in the High Court the dissidents group filed a suit in
O.S.No.1 of 1960 under Order 1 Rule 8 of C.P.C. in this Court for recovery of
all the properties as stated earlier under A Schedule and B Schedule and the suit
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Vadasery Church is described as item N.5 in A schedule. The suit in O.S.No.1
of 1960 was dismissed by the trial Court on 01.04.19967. The dissidents had
filed an appeal in A.S.No.23 of 1968 before the High Court of Madras and
petitions filed by them for restraining the C.S.I. from alienating the suit
properties scheduled in that suit and for appointment of a receiver for all the
properties including in Item No.5 in A schedule namely the suit Vadassery
Church were all dismissed by the High Court. The decision of the High Court
has become final and binds the dissidents as well and it operates as resjudicata.
While the C.S.I. and under it the respective Church Committee were in
possession and management of all the churches and the conduct of worship
therein the present defendants and two others by name Jepamony and
Chellappan since deceased caused obstruction to the conduct of divine worship
in the suit church by Rev. Packianathan the then pastor of the suit Church.
26.c. As all attempts for a peaceful settlement had become impossible,
the said Rev. Packianathan and six others comprising the Church Committee of
the suit church filed a suit in O.S.No.108 of 1968 in this Court for declaration
of their management of the suit church and the right of the said Rev,
Packianathan to conduct worship therein and for an injunction restraining the
present defendants and Jabamony and Chellappan since died from obstructing
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
the Pastor in the conduct of worship in the suit church. The trial Court found
that the possession of the suit church as with Jepamony. On appeal in A.S.3 of
1972 the District Court found that the present defendants had all acceded to the
Union and that the control and management of the Church automatically
became vested with C.S.I. and the possession of the suit church was with the
dissidents and expressed the opinion that the remedy open to the C.S.I. was
filed as against the judgment in S.A.No.1924 of 1972 and the High Court found
that the suit Church belongs to C.S.I. and the said Rev. Packianathan was in
possession and had conducted service till 19.04.1971 till the date of his transfer
to Cehmponvillai Church and possession was not with the plaintiffs and hence
declined to grant the relief of injunction. The finding of possession of the suit
Church with the dissidents is patently wrong. The suit property is a Church a
place of worship and by the terms of the settlement in L.P.A.No.63 of 1962 the
dissidents have precluded from conducting any service in Church themselves
but merely to participate in the service conducted by the C.S.I. Hence, the
present suit filed by the plaintiffs belonging to C.S.I for declaration of title and
for recovery of possession and consequently for permanent injunction.
27. The averments of the written statement filed defendants 1 to 4 and the
defendants 5 to 8 is as follows :
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
The suit property is never a trust property. The constitution with Rule
1960 relating to C.S.I. are not binding upon the defendants and the Church
namely the suit property. So far as the suit church is concerned there is no
C.S.I. Church namely the suit property. So far as the suit church is concerned
there is no C.S.I. properties and all are attended to and done by London Mission
Church workers duly elected by the members of the congregation and the
church committee consist of elected members. The pastors belonging to C.S.I.
conducted service in the Church. The suit Vadassery Church never acceded to
the alleged union and it was opposed from the very inception. The judgment in
L.P.A.63 of 1962 is not passed by the High Court on merits. The terms of the
alleged settlement are not binding upon the London Mission Christians of the
Vadassery Church. The dissidents have not merely confined to participation in
the service conducted by the C.S.I. as full members of the respective churches.
The members of the suit church never conceded their status as were worshipers.
The suit Church and the properties are owned and possessed by a particular
community known as the London Mission Sambavar Christians. In the suit
Church Sambavar London Mission Christians from the majority in the
congregation and the C.S.I. Christians form only a very small minority
consisting of less than ten members. The suit in O.S.No.1 of 1960 was not filed
under Order 1 Rule of C.P.C. In that suit, the suit church is not one of the items
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
in the schedule. The present defendants never represented in that suit in the
trial Court or in the appellate Court. The minority C.S.I. Christians wanted to
take forcible possession of the suit property and on that account certain
documents were fabricated by the C.S.I. authorities. Certain members of the
minority group of C.S.I. filed a suit in O.S.No.108 of 1968 in this Court for
injunction and the suit was dismissed. The appeal in A.S.No.3 of 1972 was
also dismissed by the District Court. The High Court had also dismissed the
Second Appeal in S.A.No.1924 of 1072. The plaintiffs are not holding any
office in Vadasery suit church nor they have any rings over the administration
of the same. The defendants and their ancestors have been in possession in the
suit church and its properties for more than fifty years and they have prescribed
title to the same by adverse possession. The suit is not maintainable in law.
The plaintiffs are not entitled for the reliefs sought for.
28. Based on the above pleadings, the following issues have been framed
for trial :
1. Whether the plaint Church does not form part of
C.S.I.?
2. Whether London Mission Society has any right
over the said Church?
3. Whether the plaintiffs 1 and 2 are entitled to
possession of the church on behalf of the Church of South
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
India.
4. To what relief are plaintiffs entitled?
Addl. Issues :
5. Whether the defendants have prescribed their title
to the suit Church by Adverse possession?
6. Whether the suit in O.S.No.1 of 1960 on the file of
this Court was filed in representative capacity or not?
Whether that decree operates as resjudicata?
7. Whether the Court fee paid is not correct?
29. On the side of the plaintiffs, P.W.1 was examined and Ex.A.1 to
Ex.A.27 were marked and on the side of the defendants D.W.1 was examined
and Ex.B.1 to Ex.B.65 were marked. The trial Court, on analysing the oral and
documentary evidence, had decreed the suit. Aggrieved over the same, an
appeal in A.S.No.162 of 1978 has been filed before of Principal District Judge,
Kanyakumari and the appellate Court dismissed the appeal confirming the
judgment and decree of the trial Court. As against which the present second
appeal came to be filed.
S.A.593 of 1996
30. The suit in O.S.No.93 of 1977 has been filed for declaration of the
right, title and possession of the plaintiff over the plaint schedule properties and
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
for an injunction to restrain the defendants from disturbing the possession of
the plaintiff over the plaint schedule properties and in the alternative if the
Court finds possession of the suit properties with the defendants to order
recovery of the plaint schedule properties from the defendants and for costs of
the suit.
31. The brief facts leading to filing of the suit is as follows :
31.a The properties scheduled in the plaint, which includes the Christu
Coil Church parsonage and other buildings comprised there on belong to the
plaintiff institution and the plaintiff institution is in possession of them. The
Christucoil Church of Palladi is one of the Churches which came into existence
owing to the activities of the missionaries sent to this part of the country by a
society called “The London Missionary Society”. It was an inter-
denominational body. It had no tenet or creed for itself. Its sole aim was to
propagate the Gospel and it was left to the minds of those sent to assume for
themselves such form of Church Government as was most agreeable to the
work of God. The plaint schedule properties and other properties in and around
various Churches established by the missionaries were purchased by the
missionaries or were gifted to the missionaries Sale deeds often were obtained
in the name of the missionaries themselves of sometimes in the name of the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
local pastors or in the name of the L.M.S. All such properties were held,
controlled and administered by the European Missionaries sent out from time to
time. On 14.02.1936 Rev. Sinclair, the then missionary at Beyyoor transferred
all such properties to the London Missionary Society Corporation by an
indenture. The properties which served as revenue [income] to the churches
were held by the society as owner and the church and they are in actual use
including the parsonage, grave-yard, school were all held by the L.M.Society
Corporation as Trustees for the Travancore Church Council popularly known as
T.C.C. The local congregation was never the owner of the properties. The
local church committee was to simply to take care of the buildings and
properties and to effect the repairs of the buildings of the church.
31.b Consequent to the Union of the Church of South India in 1947, the
properties were held by the L,M.S. Corporation for the benefit of the S.T.D.C.
which was the successor to T.C.C. S.T.D.C. which was successor to the T.C.C.,
S.T.D.C. was bifurcated from the South Kerala Diocese and the Kanniyakumari
Diocese. Later on, on 24.02.1967, L.M.S. Corporation represented by its duly a
credited power of Attorney Holder transferred the plaint schedule and other
properties to the Church of South India Trust Association. Thus for the plaint
schedule properties the plaintiff institution is the owner and the plaintiff
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
institution owns other properties also at Palliyadi.
31.c Several litigations arose and finally W.R.Stephen and others styling
themselves as “London Mission Christians” filed O.S.No.1 of 1960 on the file
of the Sub Court, Nagercoil and the said suit was filed in a representative
capacity representing the London Mission Christians, London Mission
Churches and the trust. It was also a representative suit so far as the defendants
were concerned. The suit was filed for declaration that the plaint schedule
plaint schedule properties in that suit, which include the present Churches of
the London Mission Societies in the Madras and Kerala State, that the London
Mission Christian Community, that is the plaintiffs and those who remain as
London Mission Christians, were alone entitled to the beneficiary rights of the
plaint schedule properties, that the London Mission Christians who have joined
the C.S.I. have thereby become aliens to the London Mission Church and have
therefore forfeited all rights, interest and benefits over the plaint schedule
properties and for recovery of the plaint schedule properties by the plaintiff
therein on behalf of the Travancore Church Council and for other reliefs.
31.d. In O.S. 1 of 1960, there were two schedule properties as A and B
Schedules. In the A schedule properties stated to be in the possession of the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
London Mission Christians were included where under B schedule properties
held by the C.S.I. were included. Over A schedule properties, the plaintiffs
therein claimed declaration of their title and confirmation of possession. The
defendants in that suit included the C.S.I. Bishop, the attorneys of the London
Missionary Society Corporation and others. The suit was dismissed on
01.04.1967 rejecting all their claims. Being a representative suit, the decision
in that case binds all those who claim to be London Mission Christians. Not
satisfied with that decision, the plaintiffs therein preferred an appeal before the
High Court of Judicature at Madras in A.S.No.23 of 1968 and the said appeal
was dismissed on 10.121975 as having become abated. Thus the decision
rendered in O.S.No.1 of 1960 has become final. The plaintiffs in that suit were
held not entitled to any relief claimed in that suit. The so called L.M.
Christians had no right or possession in any of the properties scheduled therein,
wherein items 19, 20 and 23 of A schedule are the present suit properties of this
suit.
31.e. The first defendant is a Pastor appointed by Rev. A.H. Legg, the
last European Missionary of the L.M.S. and the 1st Bishop of the
Kanniyakumari Diocese of the Church of South India and when he reached the
age of superannuation, the Kanniyakumari Diocese appointed Rev. C.Samuel,
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
B.A., B.D. in the place of the first defendant. The first defendant colluding
with certain others filed O.S.No.28 of 1970 on the file of the Sub Court,
Nagercoil and sought for an injunction against the then Bishop and others.
They moved for a temporary injunction in I.A.No.375 of 1970 and the said
petition was also dismissed. This led to the institution of the criminal
proceedings under sections 145 and 147 Cr.P.C. The District Magistrate who
enquired into the matter wrongly found possession on 01.08.1970 with the so
called L.M. Christians. The learned Magistrate did not take into consideration
the binding judicial pronouncements of competent, civil courts in O.S.1 of
1960. The decision of the criminal court was therefore materially defective on
this ground. That decision was vitiated because it was opposed to facts, law
and evidence. Hence, a Revision before the High against the Order of the
District Magistrate was filed and the same was dismissed as there was no
procedural error to be revised. The plaintiff thereafter did not prosecute
O.S.No.101 of 1970 of this Court in O.S.No.28 of 1970 of the Nagercoil Sub
Court] as well as the C.M.A. Preferred against the dismissed of I.A.No.375 of
1970.
31.f. The proceedings of the criminal Court are summary and they are
subject to adjudication of the dispute by a competent civil Court. Therefore,
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
the local C.S.I. committee members instituted a suit in O.S.No.520 of 1972
against the defendants 1 to 4 and the same is pending, as it was stayed under
section 10 C.P.C. since A.S.No.23 of 1968 was pending before the High Court
at that time. The Defendants 1 to 4 have raised contentions claiming title as
well as possession. Defendants 5 to rest are colluding with the defendants 1 to
4. The 15th defendant is moving the Electricity Department for an overhead
electric wire connection to his house through the schedule properties. He has
moved the Electricity Department representing that he has obtained permission
from the so called London Mission Christians at Palliyadi for that purpose. The
permission even if had been granted by the self styled L.M.Christians is
unauthorised, illegal and incompetent. The plaintiff-institution will be
seriously dandified if the proposed line is taken through the schedule
properties. In that respect the plaintiff-institution has filed O.S.No.423 of 1977
on the file of the local Munsif's Court for an injunction.
31.g. The defendants who have no right whatsoever except answer
worshipers have set up these claims over the suit properties. They have been
manipulating records to prove their false claims. This is evident from the pleas
raised in O.S.No.520 1972. Since, it is necessary to safeguard the right of the
plaintiff institution by declaring the institution's right, title and possession over
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
the plaint schedule properties and also granting a consequential injunction.
Hence, this suit.
32. The second defendant was set ex-parte.
33. The brief averments of the written statement filed by defendants 1
and 3 to 15 is as follows :
33.a. The plaint schedule properties do not belong to the plaintiff
institution. They absolutely belong to the L.M.Christians of Christucoil of
Palliyadi. The christucoil Church of Palliyadi is a congregational L.M.Church
and it still continues to be so. The London Missionary Society has its own
doctrines and tenet. The aim of all the Christian institutions in general is to
propagate the gospel of God. These defendants admit the origin and nature of
the early acquisitions of the properties referred to in para 3 of the plaint. The
L.M.Churches are comprised of autonomous independent congregational
churches and each L.M.Church has its own committee consisting of elected
members and they are dealing with Church parsonage and other buildings and
lands, as their own. The T.C.C. Is not a governing body as claimed by the
plaintiffs. But it is only an advisory body giving certain ideas and advises to
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
the L.M.Churches. It is erroneous to assert that the local church committees
were simply to take care of the properties and buildings of the churches and to
effect the repairs of the buildings and churches. The local congregation is the
owner of the properties of the respective churches.
33.b. The plaint church did not join in the C.S.I. Union in 1947. In 1947
certain persons served their connections from the L.M. Church and joined in
the new C.S.I. Union and hence, thereafter they have no right over the plaint
Church. It is not true that the plaint Church, parsonage, buildings and lands
connected therewith were transferred to the C.S.I. by the Power of Attorney
Holders. The Power of Attorney Holders were not competent to effect any such
transfer. The transfer, if any, is not valid and binding on the Chistucoil Church
and its members. The said Church still continues to be a congregational
L.M.Church administered by its own Church Committee. By virtue of the
transfer, the plaintiff-institution cannot become the owner of the plaint schedule
properties. The indenture referred in the plaint is an invalid document and it
will not confer any right to the plaintiff over the plant church. The 1st
defendant is the present honarary pastor of the plaint Church, the 3 rd defendant
is the deacon, the 10th defendant is the accountant of the Church Committee, the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
12th defendant is the deacon, the 15th defendant is the treasurer and the other
defendants are the members of the Church. The other office bearers are not
made parties to the suit.
33.c. O.S.1 of 1960 on the file of the Sub Court, Nagercoil is not a
representative suit so far as the plaint Church and the defendants are concerned.
The members of the Church were not informed about the filing of the case and
they never agreed to file the suit. The L.M.Chirstians of the Christucoil Church
at Palliyadi have right, title and possession over the properties scheduled in the
plaint and the plaintiff-institution has no right, title or possession over the
plaint schedule properties. This suit is bad for non joinder of parties.
33.d. As the plaintiff-institution attempted to disturb the possession of
the defendants over the suit properties, M.C.59 of 1970 on the of the District
Magistrate Court, Nagercoil were initiated under Sections 145 and 147 of
Cr.P.C. and the learned District Magistrate has rightly considered all questions
relating to possession and found possession with the L.M.Christians of the
L.M.Church Christucoil. There is no defect in the judicial pronouncement
made by the learned District Magistrate. It is binding upon the plaintiff
institution. The plaintiff-institution filed a revision before the High Court,
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Madras against the decisions and that too was dismissed and hence, the Order
of the learned District Magistrate has become final, as the same was accepted
by the High Court.
33.e. The possession of the plaint schedule properties with the
L.M.Christains is admitted by the plaintiff-institution in its correspondence and
letters. Till today the Christucoil is paying all government taxes and dues in its
name. Regular service in the church is conducted according to the old L.M.
Rites. The said Church has never accepted the supremacy of the Bishop and it
never allowed any interference by the plaintiff-institution. Marriages and
babtism are conducted and solemnised respectively as usual by the L.M.Pastor.
The Church buildings have been renovated with the funds of the Church. All
the Church Registers, books, records and keys are in the custody of the
Secretary of the Church. The plaintiff-institution has never conducted any
service, marriage or baptism in the Kristucoil L.M. Church. The Chrishtucoil
L.M.Church is an independent congregational church and it has not joined the
C.S.I. Union in 1947. The members of the said church still continue to be
L.M.Christians who have not accepted or adopted the rites and ceremonies
imposed by the plaintiff-institution as the other C.S.I. Churches. There are
doctrinal differences between the L.M.S. & C.S.I. in various aspects and under
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
such circumstances the plaintiff-institution cannot make any legal claim
regarding the title and possession of the plaint schedule properties. The
plaintiff is not competent to file the present suit in view of the pendency of
O.S.No.520 of 1972. The plaint claim is barred by limitation. The plaintiff
institution has no cause of action for the suit. Proper Court Fee is not paid.
Therefore, the suit is liable to be dismissed with costs.
34. Based on the above pleadings, the following issues were framed for
trial :
1] Whether the plaint schedule properties belong to
the plaintiff? If so whether the plaintiff is entitled to get
reliefs of declaration of title, possession and injunction?
2] Whether the plaintiff is entitled to get the
alternative relief of recovery of possession of the schedule
properties if possession is found with the defendants?
3] Whether O.S.1/1960 is not a representative suit?
Whether the defendants are not bound by the decision
thereon?
4] Whether this suit is hit by Section 10 C.P.C.?
5] Whether the suit is barred by limitation?
6] whether the suit is not maintainable?
7] Whether the Court fees paid is not correct?
8] Whether the plaintiff has no cause of action?
9] Relief and costs?
Addl . Issues :
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
10] Whether the defendants have perfected title to the
suit properties by adverse possession and prescription?
11] Whether the suit is bad for non-joinder of
necessary parties?
35. On the side of the plaintiffs, P.W.1 was examined and Ex.A.1 to
Ex.A.18 were marked and on the side of the defendants D.W.1 was examined
and Ex.B.1 to Ex.B.172 were marked. The trial Court, on analysing the oral
and documentary evidence, had decreed the suit. Aggrieved over the same, an
appeal in A.S.No.171 of 1978 has been filed before of Principal District Judge,
Kanyakumari and the appellate Court dismissed the appeal confirming the
judgment and decree of the trial Court. As against which the present second
appeal came to be filed.
Discussion in A.S.No.23 of 1968 :
Submission of Parties :
36. Mrs.Anandavalli and Lakshmi Shankar Nair appearing for the
appellants in A.S.No.23 of 1968 and Second Appeal Nos.592 and 593 of 1996
submitted that London Machinery Society had been founded in England in the
year 1795 for preaching gospel among the non christians. About 1800 London
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Machinery Society have come to India and converted the local people to
christianity and constructed churches. Ringletaube constructed churches out of
contribution from the local and also by the rulers. It is their further contention
that 456 churches were constructed by the converts out of the contribution by
themselves and also from outside. Hence, it is their contention that that every
church is a separate religious institution like a temple in Hindu religious
institution and every church has a right to its properties. According to them,
the Travancore Church Council were only a advisory body. Whereas, the
churches were independently formed. Churches were built from the year 1806
whereas TCC advisory body formed after a century. It is their further
contention that the suit filed in respect of the properties of the churches and a
specific allegation has been made in the plaint that all the title deeds are with
the defendants. The TCC was managing the properties. The machineries who
converted the Christians all along were known as LM Christians and their form
of worship is congregationalism. The suit itself has been filed in a
representative capacity. Therefore, the suit is maintainable.
37. It is their further contention that the form of worship or adopted form
of practice is left to the minds of people to follow. Though the majority of TCC
members have merged with CSI in the year 1947, the members of such church
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
were following congregational form of worship. Therefore, they cannot be
forced to follow episcopacy. Such practice cannot be thrusted on the unwilling
people. Further no documents have been filed to show that the properties were
placed at the disposal of CSI and to contend that the properties were purchased
by LM Christians no documents is available and no title deeds have been
produced. Only on the basis of a resolution passed by LMS, the trial Court has
assumed that the properties belong to LMS. However, LMS Corporation has
not asserted their right to the properties in the resolution. Hence, it is their
contention that the plaintiffs are beneficieries of the church and the trust and
resolution Ex.A.86 itself proves the fact that the property held by the LMS in
Trust for TCC. The resolution also indicate that the property does not belong
to LMS. Therefore, the contention of the defendant that the properties belong
to LMS under Ex.A.16 and Ex.A.19 has not been adverted by the trial Court.
The LMS Corporation has remained exparte and they have not denied the
contention of the plaintiff. The plaintiffs are the beneficiaries and the same can
be seen from the resolution itself. Therefore, it is their contention that as long
as the ownership of LMS is not established, the merger with TCC and Transfer
of the property to CSI did not arise at all.
38. It is their further contention of the plaintiffs that there is no evidence
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
available on record to show that the properties were vested with TCC which
had power to transfer the property. Ex.A.99 itself indicate that there is a
congregationary form of worship by the plaintiff. Having entered into a
settlement under Ex.A.99, the defendant now cannot take a contrary stand that
there is no congregation. P.W.2 is none other than the president of TCC. He
was made as a defendant i n the suit. The trial Court has not even adverted to
the documents properly and found that they are not entitled to recover the
properties. There is no need whatsoever for the individual churches to file a
suit separately. As the defendants have not produced any documents to prove
the title, adverse inference has to be drawn against them. Mere merger of TCC
with CSI will not confer any right on TCC in the absence of any document of
title. It is their further contention that Ex.A.99 judgment will not bind the
LMS Christians. Therefore, the defendants without establishing the title
independently cannot contend that they are the owner of the properties. Ex.A.
13, Ex.A.99 and Ex.A.17 relied upon by the trial Court will not prove the title
of the CSI. It is their further contention that the suit filed in a representative
capacity order passed in that regard was not challenged by the defendants.
Therefore, now they cannot contend that the suit is not maintainable. It is their
further contention that as the TCC itself has been dissolved in the year 1947,
the plaintiff cannot represent TCC is also self serving arguments. The 30th
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
defendant is the TCC. He has also given evidence to the effect that the original
TCC was an unregistered association of some representatives and it is a
different splitted group with an object to union. It is their further contention
that the plaintiff and plaintiff representative capacity is only relating to TCC,
the plaintiff, LMS as a beneficiary, they have filed the suit and the suit is very
much maintainable and there is no requirement to implead the individual
churches.
39. It is their further contention that the trial court has ignored the legal
aspect decided in Ex.A.99, the LPA judgment and simply followed the Single
Judge decision which was later modified. Ex.A.1, Ex.A.2 and Ex.A.3, Ex.A.86,
Ex.A.87 and Ex.B.4 are not appreciated properly by the trial Court and the
same clearly prove that the manner in which the properties were acquired and
they are being treated as trust properties. Similarly, the evidence of P.W.2 is
also not considered properly and Ex.A16 and Ex.A.17 clearly show that the
properties are not in the name of LM Society or Corporation and they have also
expressed their intention not to hold the properties. The above documents
clearly show that LMS Christians are the beneficiaries. It is their further
contention that the dissidents group in the original TCC are continuing to
follow the fundamental principles of LMS, namely to preach gospel with
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
congregational form of government. P.W.2 was the president of the newly
formed TCC. Therefore, it cannot be said that the TCC has been dissolved and
not in existence. As the suit has been filed as a beneficiary and also on behalf
of the TCC, the suit is very well maintainable. The defendants have also not
established either SIUC, CSI or TCC had episcopal form of church
government. It is their further contention that LMS denomination cannot be
taken advantage by the respondent in as much basic belief of the plaintiff that
the fundamental principle of LMS is preaching gospel.
40. It is their further contention that unless the defendant establish the
fact that prior to 1947, episcopacy was followed in Travancore state that they
cannot dispute the claim of the plaintiff. It is also their contention that now the
indenture dated 24.02.1967 filed as an additional document, marked as Ex.A.
106, the document has come into existence pending O.S.No.1 of 1960. At any
event, it is their contention that the same is a self serving document and the
LMS, being an unregistered body cannot hold any property in its favour. The
letter of indenture relate to transfer of property in Kanyakumari District and
exemption of Stamp Duty referred in the document is also not valid in the eye
of law. It is their contention that exemption at the most can be granted under
section 2 (24) of the Indian Stamp Act. Hence, there cannot be any transfer of
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
property under the above document. It is their further contention that even
assuming that the indenture is valid, it is only a transfer of management and not
transfer of title. Though TCC was managing the properties, they do not have
any control over the churches and its members. The CSI cannot insist upon the
individual churches to hand over the churches. The CSI based on these
documents.
41. It is further contended that the suit is not barred by limitation. As
there is no proof that on 01.10.1947 properties were placed at the disposal of
CSI. The defendants 3, 5 and 6 became the directors of the LMS in 1955 and
the question of the suit being barred by limitation is necessarily untenable. In
Ex.B.13, the claim of the plaintiff has been disputed. Therefore, cause of action
strictly commence after 13.01.1948. The suit for recovery of trust properties by
the beneficiaries from the alleged defacto trustees and there is no bar of
limitation for the suit of this nature. Hence, suit is very well maintainable. It is
also submitted that merely non complying of Section 92 will not be a bar to file
a present suit for want of sanction of Advocate General. This has reached its
finality and therefore, the same cannot be argued by the respondent. The earlier
suit in O.S.No.98 of 1958 ended in a compromise judgment. Similarly in
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
O.S.No.128 of 1128, in the plaint itself breach of trust is alleged, but only the
injunction was sought for when recovery of possession naturally flows. The
trial Court has given much importance to the above judgment rather than Ex.A.
99 the LPA judgment, wherein the parties were given liberty in respect of the
properties. It is also their contention that the plea of resjudicata decided by the
trial Court is also not proper. Mere disposal of the suit in O.S.No.200 of 1957
for want of relief claimed under section 92 does not operate as rejudicata for the
subsequent suit and more particularly when it is the representative suit. In
support of their contentions, they relied on the judgment in Thangachi Nachial
and another Vs. Ahmed Hussain Malumiar and others reported in AIR
1957 Madras 194 and Vinodkumar M. Malavia and others Vs. Maganlal
Mangaldas Gameti and other reported in 2013 [15] SCC 394.
42. It is the contention of the learned Senior Counsel appearing of the
respondent that the array of parties in the suit assume significance and the
defendants 1 to 8 have already died, 29th defendant, the so called President of
TCC, the dissident group, no steps have been taken to bring on record the
necessary parties. It is his contention that the LMS formed in England sent
machinery only for the purpose of preaching gospel. P.W.1 and P.W.2 have
admitted in their evidence that conversion is their main object and LMS was
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
incorporated an association and all the members have not been impleaded and
no evidence has been established to show that each church are following
congregationalism. Hence, it is his contention that the church is not a juristic
person like the deity in Hindu law. Converted Christians subject matter of this
suit are Presbyterians, which has not been disposed of and no idol worship in
churches except ‘cross’. LM is in nature of undenomination and the evidence
of P.W.1 and 2 itself prove that it was in nature undenominational. It is also
not established that at the time of conversion of Hindus to Christianity, no
undertaking was taken from the converts that they will follow
congregationalism. Whereas the materials on record clearly indicate that the
LMS are in various denominations. It is his contention that the properties were
purchased by the machineries out of the contributions from the converts, local
people and rulers. The properties are all along under the management of TCC.
The pleadings in the plaint itself indicate that the original machinaries does not
show that they are congregationalists. There is no authorization whatsoever
obtained from each churches. The plaintiffs are minorities and there is no
evidence to show that all the churches are adopting congregational form of
Government.
43. It is further contended that the trial Court has analysed all the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
documents and gone to the history of LMS and rendered a finding, which
cannot be interfered. Further Ex.B.4 and Ex.B.33 itself indicate that LMS are
not beneficiaries and P.W.1 and P.W.2 have also admitted that for merger of
TCC there were negotiations from 1915 to 1946 which resulted in passing of a
resolution for merger. The resolution has not been challenged in the suit.
Similarly, merger has been challenged in O.S. 98 of 1958 and the above suit
was rejected. All the churches were represented in TCC which was confirmed
in the year 1920. The properties of the churches were under the control of TCC
and the resolution was passed by 3/4th majority. The first plaintiff along with
the 30th defendant were members of TCC at the time of passing of the
resolution. Therefore, they are now estopped from questioning the resolution.
The resolution was passed on 28.09.1946 and merger took place on
27.09.1947. Whereas, the suit was filed on 08.01.1960, which is barred by
limitation. The TCC itself dissolved in the year 1947 under Ex.B.4. Therefore,
TCC formed by the 31st defendant namely, P.W.2 Zakharia on 27.09.1949
cannot be construed as TCC when the original TCC has been dissolved.
Merger with CSI existence alone are relevant for cause of action. CSI itself is
made as a party on 29.10.1965 by the Order of this Court after merger. CSI was
not impleaded in its representative capacity. The aliens are not before the
Court. The plaintiff cannot claim as a beneficiary of all the churches. The
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
properties of LMS include each church property. List of 456 churches was not
given in the schedule.
44. The original TCC itself is elected by the episcopacy association and
merging with TCC which was formed by dissident group latter does not arise at
all. But the members of the dessindents have no right to call for the meeting
when had no form at all at the relevant point of time. P.W.2 admitted that he
only gave instructions to file a suit. In the earlier suit filed by the parties, the
plaintiffs and Zakariah are parties in that suit. It is their further contention that
the LMS Corporation is company registered in the year 1922 in England and
India and LMS is an uncongregated association. Ex.A.97 the previous
judgment in respect of the rights of the parties clearly show that the suit is
barred by resjudicata. The rights have already been crystallized and the present
suit is only an attempt by the dessidents who are only minorities, to unsettle the
issues which has already been settled, filed the present suit.
45. In the light of the above submissions, now the points that arise for
consideration in A.S.No.23 of 1968 are as follows :
1. Whether the plaintiffs are beneficieries of the
properties which were merged with CSI by the resolution
dated 27.09.1947?
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
2. Whether the plaintiffs can maintain the suit in
respect of 456 churches on the premise of representative of
all the churches?
3. Whether the suit properties are separate properties
of each church or properties of LMS?
4. Whether the merger of TCC with CSI will confer
any right on the CSI over the properties?
5. Whether properties were legally transferred in the
name of CSI?
6. Whether all the converts are following
congregational form of government in the churches?
7. Whether the suit is not barred by principle of
resjudicata?
8. Whether the suit is not barred by limitation?
9. What are the other reliefs?
46. A petition in CMP. No.9127 of 2021 in AS.No.23 of 1968 has been
filed to implead the petitioner as the 33rd respondent in the place of 16th
defendant Sundaram. The petitioner is representing the Kalparaidi church and
their land in Survey No.3413 for an extent of two ground and 3 cents is also
included as fourth item of A schedule property in the present appeal. The
learned counsel appearing for the petitioner in the above petition submitted that
he is adopting the arguments of learned counsel appearing for LMS Christians.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
47. The learned Senior Counsel appearing for the C.S.I. submitted that
Kalparaidi is not a subject matter in the first appeal and their property is not in
the plaint schedule at all. The learned Senior Counsel further submitted the 16 th
defendant is one of the party in the suit in his personal capacity and he has not
been represented on behalf of the church and now it cannot be said that he is
representing the church and there is nothing in the long cause title to show that
the said Sundaram belongs to the Church or he is a member of the church and
that in the place of the said Sundaram, they want to implead the 33 rd defendant.
Further, the said Sundaram remained exparte in the suit and now the petitioner
cannot be impleaded as a new respondent at this stage.
48. Defendants 1, 7, 9, 10 to 29 remained exparte and they have not
contested the suit. Now the question of impleading on behalf of the 16th
defendant does not arise at all as he remained exparte before the trial Court.
The third party has no right to implead themselves in the suit and they have not
established any nexus between the Sundaram and the society. They have
already filed various suits with the regard to the same church.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
49. Defendants 1, 7, 9, 10 to 29 remained exparte and they have not
contested the suit. Now the question of impleading on behalf of the 16th
defendant does not arise at all as he remained exparte before the trial Court.
The third party has no right to implead themselves in the suit and they have not
established any nexus between the Sundaram and the society, as many suits
have already been filed with regard to the same issue. They have already filed
various suits with the regard to the same church and the suits are pending. The
impleading petitioner is a third party and he cannot represent the 16th defendant,
since the 16th defendant was made as a defendant in his personal capacity and
he has not been representing any church. Therefore, sitting over the fence in all
these days and now at this stage, a third party cannot be impleaded as a
respondent in the place of the 16th defendant Sundaram. As A.S.No.23 of 1968
is itself filed in a representative capacity and the property in survey No.3413 is
also included in the schedule of properties, the impleadment of the present
petitioner will not add anything new to the suit. Having slept over all these
days, filing an application after many decades indicate that such application is
filed only to protract the proceedings by one way or other. Hence, this petition
is dismissed.
50. A petition has been filed for reception of additional documents in MP
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
No.1 of 2015 including registered indenture, patta and tax receipts etc. in the
name of the pastor of the concerned church. The learned Senior Counsel
appearing for the respondent has no objection in receiving the registered
indenture dated 24.02.1977. However, vehemently opposed for receipt of other
documents which are letter and tax receipts stand in the name of the plaintiff.
As there is no objection for receipt of the registered indenture by both sides, the
same is marked as document. As it is submitted that they have no oral evidence
in this regard, the application filed under Order 47 of CPC in M.P.No.1 of 2015
alone is received as an additional document. Since, it is a registered document,
the same is taken on record and marked as Ex.A.106 on the side of the
plaintiff. As both sides in categorical terms admitted before this Court that they
have no oral evidence with regard to the Document, the document is marked. It
is to be noted that both sides have unanimously submitted that since the matter
is pending for more than 60 years they no longer intend to stand on
technicalities. In such view of the matter, registered document alone is marked
as a document. Since other documents relate to tax receipts obtained
subsequent to the suit, which are not relevant at this stage to decide the rights
of the parties, accordingly, the document No.17 alone is received as an
additional document and the indenture is marked as Ex.A.106.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
51. Plaintiffs 1 to 5, who are said to be dissident members of the original
TCC laid the suit for declaration and injunction. The original TCC which was
in existence and managing the properties of the churches and machineries was
merged with the 31st defendant C.S.I. The 31st defendant was not made a party
in the suit. They were impleaded only during the pendency of the suit on
29.10.1965. Though the plaintiff has laid the suit for declaration and recovery
of possession, it is stated that there were 456 churches formed by the converts,
in the suit schedule only 146 churches were shown. The remaining churches
which are now within the jurisdiction of Kerala State never been subject matter
of this suit. Further there is no details, whatsoever in the entire pleadings as to
whether the entire 456 churches are still following congregational form of
Government. Though it is generally stated in the plaint that all the 456 LMS
churches are following congregational form of Government, the entire churches
were not made subject matter of the suit.
52. The plaintiffs, though claim to be representing over 456 churches,
now the real dispute is only with regard to the churches shown in the plaint
schedule. All the churches have not been made in the schedule. Only 93
churches were shown which fell within the jurisdiction of Tamilnadu. As the
other churches are only in Kerala State, they have not been made as a party.
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Having stated that the all the churches belong to LMS, now it appears that
except 3 churches, which are subject matter of S.A.592 and 593 of 1996 and
731 of 1979 all other churches fell in line with CSI and are following
episcopacy. Be that as it may.
53. It is undisputed by both sides that the machinery known as LMS has
been founded in 1795 for preaching gospel among the nonchristians. It is the
contention of the plaintiff that the society consisted of Congregationalists and it
sent machineries to several parts of the world in the early part of 19 th century.
Therefore, it is their contention that the churches formed by converts are mainly
Congregationalists and they never followed episcopism. It is also not disputed
that machineries were sent to several parts of the world in the year 1800, one
Maharasan, a Sambavar subject of Travancore from Mylaudy in
Agasteeswaram Taluk, accepted Christianity at Tanjore later changed his name
as Vedamanickam. One Ringaltaube, machinery of LMS also conducted
worship and started converting people to chirstianity and obtained permission
to build churches from the sirkar and churches were erected. The history of the
LMS relied upon by the trial court clearly show that no machinery was sent out
by the society from congregational or as a Presbyterian or episcopism. The
churches found by them were following undenominational character. Trial
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Court in para 34 recording the history of LMS, has categorically recorded a
finding that as well known fundamental principle stated that the society’s
design is not to send Presbyterians independently, Episcopacy or any other
form of church order and Government but the glorious gospel of the blessed
god to the heathen. The learned trial Court has considered Ex.A.1 in entirety
and recorded a finding that how the churches have been formed after
conversion. It also recorded that donations were also extended by the then Raja
and Rani of the Travancore. Ex.A.1 and Ex.A.4 have been thoroughly analysed
by the trial Court and recorded a finding that contributions have been obtained
for forming churches. Ex.A.1 and Ex.A.2 have not been disputed by both
sides.
54. Ringeltaube was a machinery of LMS. He has appointed
Vedamonickam to act as a paid agent of the trust and machinery till another
machinery arrived. It is also admitted that the authority under which he has
acted is that of LMS and the same has been recorded in para 38 and it is also
not seriously disputed by both sides. History and theological aspects have not
been disputed.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
55. The main dispute between the parties is with regard to the right of the
parties over the properties left by the machineries and enjoyed by the converted
Christians. After adverting to the formation of early churches trial Court in
para 48 has categorically recorded the fact that LMS was found in the year
1795 by an association of Protestant Christians of all denomination and had for
its purpose as its fundamental principle still shows to send “not
Presbyterianism, Independency or Episcopacy or any other form of Church
order and Government, but the glorious gospel of the blessed god.” Ex.A.105
is the resolution passed by the Directors on 9th May 1795 is also relied upon by
the trial Court, wherein also it is clearly recorded in the resolution that their
design is not to send Presbyterianism, independency, Episcopacy or any other
form of Church Order and Government [about which there may be differences
of opinion among serious persons] but the glorious gospel of the blessed God to
the Heathen : and that it shall be left [as it ever ought to be left] to the minds of
the persons whom God may call into fellowship of His son from among them to
assume for themselves such form of Church Government as to them shall
appear most agreeable to the Word of God. The resolution itself indicate that
the machineries sent to India were undenominational in character. From the
above document, it is clear that they never followed congregationalism alone.
However, it is left to the discretion of the members. The trial Court also has
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
extracted the answer to question by Ringeltaube and considered Ex.A.1 and A.2
and also referred to the judgment in Rev A.H.Legg Vs. Jothiraj reported in
1963 KLT 125. It is also relevant to note that a similar suit was filed in O.S.98
of 1958 before the District Munsif Court, Nagercoil. Dispute arose consequent
to the union of Churches of LMS in South Travancore with CSI. The suit was
decided in the second appeal before this Court in the above second appeal. The
issue before the Court was with regard to the union of LMS with CSI.
56. In the above judgment in Rev A.H.Legg Vs. Jothiraj, the Court has
recorded a specific finding how the properties have been under LMS Society,
wherein it is held that all the properties should be legally transferred to the
Society or to be held by the Trust on its behalf. The above finding has been
recorded taking note of all the various documents. Though the above judgment
was challenged in Letter Patent Appeal, which is marked as Ex.A.99, the above
five suits were originally filed questioning validity of the union between
SITUC including TCC in the Letter Patent Appeal. In the appeal, was
canvassed in the LPA. Thereafter, the above LPA was disposed in terms of the
compromise entered between the parties.
57. The above LPA has been disposed in terms of the settlement entered
between the parties. The respondent in the above appeal has agreed to permit
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
all the members of minorities now before this Court to take part in the rituals
and purely Presbyterian of churches as full members of the congregation
thereof As far as declaration relief is concerned, it is agreed between the
parties that the validity of these declaration reliefs are as per the terms of the
compromise and it is also agreed that the plaintiffs are therefore prohibited
from filing any suit against the very same defendants with the same averments.
As far as right to hold administration and management of the churches is
concerned, it is agreed that the respondents in the above suits, who are in
favour of the union is in administration of the church property and management
of church is concerned the same is limited the respondents in the above suits
and such rights shall be exercised with the determination to the majority in the
previous cases. From the above LPA judgment, it can be seen that while
disposing the appeal, this Court also recorded a finding as follows :
“The present plaintiffs nomine will therefore, be
prohibited from again filing the very same form of suits
against the very same defendants with the very same
averments. But we have not given any decision on this aspect,
of the validity and maintainability of the declarations in the
suits; that will of course, not prevent other forms of suits
differently framed, including these and other parties on both
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
sides and on different pleadings; of course, if tenable in law
and subject to defendants on both sides;
3. Similarly as regards the rituals and modes of worship
and ceremonies adopted in each individual church, again to the
extent of the ability specified above, the respondents will
follow the rituals, modes of worship and ceremonies as prior to
1947 and before change which is reflected in the Union of the
Council of the United Churches. But this will be subject to the
right, in each congregation of a church, to effect suitable
alterations; by the verdict of a decisive majority or substantial
majority in favour of that alteration in accordance with the
binding constitution. Until that is done, the rituals, ceremonies
and worship as specified above shout be respected and
followed.
4. So far as the right to hold and administer church
property and to manage church affairs is concerned, again, as
limited to the present respondents and to the few properties
with which were are no concerned, the existing personnel of
the Church organisations will have these rights and exercise
them without detriment to the rights of the minorities in the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
previous clauses.”
58. The same indicate that there is no dispute over the properties at the
relevant point of time, even while arriving at the settlement. At any event,
while disposing the Letter Patent Appeal, the Division Bench of this Court has
not over ruled the judgment of the single Judge, who has recorded a finding
based on the facts and documents and the Letter Patent Appeal has been
disposed of in terms of the settlement permitting the minorities to enter into the
respective churches and to conduct congregation form of worship in those
churches. In respect of any other matter and with respect to the properties, the
finding recorded by the Single Judge has not been disturbed in the Letter Patent
Appeal.
59. Though the appellate Courts recorded a finding that there is no
alteration of church worship or in the form of creed followed, the Courts have
recorded a specific finding as to the formation of churches and control of the
churches in paras 27 to 30 and recorded a finding that it is not established by
the plaintiff that after the formation of TCC, LMS kept these properties in trust
for the congregation of a particular church alone and ultimately dismissed the
suit on non impleading the LMS and SIUC. Therefore, when the similar set of
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
allegations with regard to the right of the church properties which has already
been decided by the Courts, merely because the suit has been dismissed for non
impleadment of LMS and CSI, it cannot be said that the findings recorded by
the Courts on appreciation of all other facts and evidence is not binding on the
plaintiffs, who are also claiming the same relief.
60. Ex.A.15 resolution passed by the LMS also indicate that all the
machineries should associate themselves into committees to be called as
District Committees and maintain correspondence with the Board at Home.
The Church council was formed on the directions of LMS. This resolution of
the Church Council were to be forwarded to the Secretary of the District
Committee of the Missionaries who were to deal with them in such a way as
they deem fit. The District Committee has composed a missionary sent by
LMS. Thereafter, in the year 1904 Travancore Church Council was formed.
The name is given as the South Indian United Church. Ex.A.90 minutes
indicate that their object is to bind the churches together with one body with a
view to self supporting, self governing, self propagating church which shall
present an united living testimony of Christ and worthily represent to the old
the Christian ideal. The resolution also indicate that it is empowered to take
action with regard to the framing of regulations regarding the qualification of
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
ministers, framing of regulations regarding marriages, framing of regulations
for committees and relationship with other churches, arranging for the transfer
of ministers connected with these councils which desire the assembly so to act.
Ex.A.11 is the Constitution rules of the South India United Church Travancore
Church Council. The name is given as the Travancore Church Council of the
South India United Church in association with LMS. Travancore Church
Council is consisting of representatives of all the Churches and had a power to
decide the constitution rules for itself and for all its subsidiary bodies. The trial
Court in para 49 recorded a finding that after formation of TCC, the churches
which practiced the principle of congregationalism, will depart them from their
actual practices.
61. It is also relevant to note that similar issue was the subject matter
before the Apex Court in a judgment in Rev. Thomas Williams V. John &
Others reported in 1961 KLT [Supreme Court] 58 wherein one of the church
in Kadamalakunnu raised a dispute that they are Congregationalists, the Apex
Court has been held as follows :
"This does not appear to be material for the
decision of the case, as the: court is only concerned with
the destination of the trust property which is solely
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
controlled and directed by the intentions of the L. M. S. as
the author of the trust which, in creating the trust, was as
held already, guided by no other consideration than the
adherence to its own fundamental principle, evidenced by
Ext. G1. The plaintiff cannot therefore by his acceptance
of the principles of the C. S. I, be deemed to have become
incompetent to enter the plaint Church or hold services in
it. It has already been found on issue 7 that the legal
possession of the plaint church and the land in actual use
vests in the plaintiff under the attorney of the L. M. S.
Corporation and that the defendants have no right except
to use the: church for worship. Consistently with these
findings it has to be held that by entering the church and
conducting services, the plaintiff would not infringe any
right: of the defendants. The plaintiff does not seek to
drive away the defendants from the church or prohibit
their use of it for worship; but on the contrary he insists
on their remaining in it, if they care, to participate in the
services. He only seeks the assistance of the court in order
that the defendants may not interfere with his rights. I
think, on the findings he is entitled to this protection."
Accordingly, the plaintiff was given a decree in terms of
the plaint with costs.
10. In the appeal the defendants attacked all the
findings recorded by the learned District Judge against
them. The plaintiff, while supporting the decision, objected
to the findings that were against them. Very learned and
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
elaborate arguments were addressed to us by counsel
appearing on both sides on the various questions that
arose for consideration in the appeal. The two main
questions for decision are those relating to the possession
of the plaint church and to the validity or binding
character of the church union so far as the plaint church
is concerned. For a proper appreciation of these questions
it is necessary to have an idea about the London
Missionary Society, the London. Mission Churches in
Travancore and the Church Union Movement.
2. It is necessary in this connection to refer to the
chief characteristics of Congregationalism. The
Congregationalists are one of the Non conformist
Protestant denominations. The distinguishing features of
Congregationalism are thus described in Encyclopaedia
Britannica: Congregationalism is "the name given to that
type of church organisation in which the autonomy of the
local church, or body of persons wont to assemble in
Christian Fellowship, is fundamental. Varied as are the
forms which this idea has assumed under varying
conditions of time and place, it remains distinctive enough
to constitute one of the three main types of ecclesiastical
polity, the others being Episcopacy and Presbyterianism.
It regards church authority as inherent in each local body
of believers, as a miniature realisation of the whole
church, which can itself have only an ideal corporate
being on earth. But, while in practice it is religious
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
democracy, in theory it claims to be the most immediate
form of theocracy, God himself being regarded as ruling
His people directly through Christ as Head of the Church,
whether Catholic or local. So viewed Congregationalism
is a "high Church" theory as distinct from a high clerical
one. It springs from the religious principle that each body
of believers in actual Church Fellowship must be free of
all external human control, in order the more fully to obey
the Will of God as conveyed to conscience by His Spirit".
(Encyclopaedia Britannica, 14th Edition, Vol. VI, page
246). The essential feature of Congregationalism is the
autonomy or independence of the individual church or
congregation. But there may be matters in which the
individual churches are interested as a whole and in order
to enable the churches to effectively fulfil their
responsibilities in respect of those matters they may enter
into unions. The Congregational Churches of England and
Wales have such a Union. Ext. DE is the Year Book of that
Union for the year 1948. But the Union gets only those
powers that are voluntarily surrendered by the individual
churches. In this respect Congregationalism is opposed to
Presbyterianism, the distinguishing feature of
Presbyterianism being the highly centralised system of
administration. In the Presbyterian Church the General
Assembly of the Elders is the Governing Body and the
local churches have no real independence. Both
Congregationalists and Presbyterians are opposed to
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Episcopacy, i. e., Government of the Church by Bishops.
They do not believe in the institution of Episcopacy nor in
what is called Apostolic Succession, the doctrine that the
Bishops are the successors of the apostles of Christ. We
shall have to consider this matter in detail when we deal
with the question whether the union of the London Mission
Church in Travancore with the Episcopalian Church of
England in South India amounted to a deviation from the
fundamental principles of the London Mission Church.
Before going into that question it is necessary to have an
idea about the history of the London Mission Church in
Travancore.
9. The Travancore Church Council (T. C. C.) which
took the place of the Travancore Church Union was
formed in 1920. The constitution of the S. I. U. C. provided
that each Church Council should "adopt its own system of
rule?, subject to the approval of the General Assembly",
Ext. 30 is the first constitution of the Travancore Church
Council. While the Travancore Church Union of 1904
related only to Pastorate Churches the T. C. C. brought
the non pastorate churches also within the union. The
constitution, Ext. 30, of the year 1920 was modified in
1922 by Ext. 31 and in 1928 by Ext. I which was again
modified in 1939 by Ext. H. Ext. H was the constitution
that was in force on the date of the union into the C. S. I.
20. With the formation of the Travancore Church
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Council which exercised jurisdiction over both pastorate
and non pastorate Churches the Travancore District
Committee (T.D.C.) ceased to function and another body
called "The Travancore Mission Council" was brought
into existence in 1939 for supervising and coordinating
the educational, industrial, medical and other institutional
work of the L. M. S. in Travancore which was not handed
over to the T. C. C. and which had formerly been carried
on by the Travancore District Committee (T. D. C.).
Besides the Missionaries, representatives of the (T. C. C.)
were also members of this Council. This Council also was
functioning along with the T.C.C at the time of the union.”
62. From the above judgment in similar set of facts, forming of TCC and
entrusting the properties and management of the properties by TCC thereafter,
merger of TCC with CSI has already been approved by the Apex Court.
Therefore, the same issue cannot be agitated in this matter. Further, P.W.1 and
P.W.2 in their evidence have also spoken that LMS was undenominational. To
show that all the churches are Congregationalists, no evidence whatsoever is
available on record. Therefore, merely because, some minority members, who
are members of original TCC and who have become a dissident and who have
not agreed for merger, now cannot contend that entire churches are practicing
congregationalism without any evidence. When TCC has already been
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
dissolved and its dissolution has already been approved in various judgments,
mere forming dissident association and becoming a president, P.W.2 cannot
maintain a suit in support of the plaintiffs. In fact, his action was only to non
suit the judgments already recorded in the particular facts.
63. It is also to be noted that in a case of Church of South India Trust
Vs. Telugu Church Council reported in 1996 (2) Supreme Court Cases 520
wherein also the resolution of the TCC for merging with CSI on 29.09.1947
was sought to be challenged. In the above case also one Telugu Church
Council was formed by the dissidents on 29.06.1949. The issue was whether
the dissident group representing old TCC, which has already merged with CSI
can maintain a suit. The Apex Court has held that since the Madras High Court
in O.S.107 of 1961 which is a decided issue and which amounts to resjudicata,
the decision in the above case regarding merger of TCC with CSI would be
binding on the respondent. The very merger was sought to be assailed in the
above judgment by the Telugu Church Council which was formed
subsequently, which is a similar issue projected in this case as TCC by 30th
defendant Zakariah. The Apex Court has held that originally TCC voluntarily
merged with CSI in the year 1947. The TCC formed subsequently, which is not
representing the old TCC which has already been merged with CSI. From the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
judgments of the Apex Court in the judgment in Rev. Thomas Williams V.
John & Others reported in 1961 KLT SC 58, judgment in Church of South
India Trust Association Vs. Telugu Church Council reported in 1996 [2]
SCC 520 and the judgment in Rev A.H.Legg Vs. Jothiraj reported in 1961
KLT 125 which is modified in the Letter Patent Appeal, the issue of merger by
TCC with CSI has reached finality. The same cannot be reagitated by any of
the dissident groups. It is to be noted that while merging, Ex.A.15 directions,
makes it very clear that the District Committees has given a direction to make
all arrangements and secure land and building for use of the converts and use
not on behalf, should be put in trust and accord has also been made to the LMS
in 1973 which reads as follows :
“It is desirable that the society’s property in
foreign countries shall be restricted, as far as
practicable, to dwelling – houses for their
missionaries; to the buildings necessary for their
evangelistic work among the heathen; and to the land
required for both. When Chapels and school – houses
are needed for the native converts and their families,
the District Committees shall make such arrangements
as will secure the land and building for the use of the
converts, on whose behalf they shall be put in trust.
The gist of directions were; the missionaries should
associate themselves into committees to be called
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
District Committees and maintain correspondence with
the Board at Home. All property given to the
missionaries or the society or purchased from funds,
were to be legally transferred to the society or held in
trust on its behalf. It was desirable that the societies
properties in foreign countries should be restricted as
far as practicable to dwelling houses for the
missionaries, to the buildings necessary for their
evangelistic work among the heathn and to the land
required for both. When chapels and school houses
were needed for the native converts and their families,
the district committees should make arrangements to
secure the land and build houses for the converts for
whose behalf they should be put in trust. The converts
should contribute to the erection of church, schools
and other funds. Funds to the society should be given
as grant-in-aid, for the building up of the native church
in strength it was desirable when they became
numerous to form them into a union and to encourage
periodical pastors meetings of their delegates and
members for the management of their affairs and the
stimulating of their zeal. In preaching the gospel every
missionary should have for the aim to produce in a
foreign and unchristian land a body of the Christians
who individually and in their common fellowship
maintain the ordinances and fulfill the duties of
Chirst’s servants. Like the churches of the past days
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
and the church from which their messenger had been
sent, he was under God’s blessing to produce and
organize a new entire of light and power. I amy also in
this connection advert to Rule 7[a] of TCC. “While it I
necessary for the present for the London Missionary
Society Corporation to remain the legal instrument in
all matters of property, the District is expected to give
special attention to all the properties and compounds
within their areas.” Rule 7 provides as follows : “New
compounds shall be bought in the name of the London
Missionary Society Corporation and the following
official formula must be used in the documents : “in the
name of A.B. and his successors in office for and on
behalf of the London Missionary Society
Corporation.” Thus it may be noted that the L.M.S.
kept its hold on the tile in the church properties. It
would appear that there was a proposal by a
missionary at Nagercoil to sell a portion of the
ompound adjacent to the Church. I may extract here
the attitude of the London Missionary Society doe not
desire to hold property save as it is necessary for the
work of the spread of the Kindom of God, but in the
interest of that work. , the legal tenure of the necessary
property must be secured. If such property is lost to
the purpose for which it was acquired the propagation
of the Gospelwill be hindered and to guard against
this, the property is at present being gradually
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
transferred to the L.M.S. Corporation and the rest
should be transferred as soon as possible.”
64. Similarly, the trial Court has also adverted to Ex.B.31 and B13 letter
from Foreign Secretary of London Machinery to hold that the properties are
always under the control of London Machinery Society and the Machinery only
purchased the properties. The plaintiffs have filed the suit for recovery of the
property alleging that the properties belong to them. It is also relevant to note
that the fourth plaintiff in the present suit is already one of the plaintiff in
Letter Patent Appeal No.63 of 1962 and the fifth plaintiff was the fourth
defendant in the above suit. When the Latter Patent Appeal has been disposed
only with regard to the permission and certain aspects and there is no dispute
with regard to the properties at the relevant point of time, now the plaintiff
under the pretext of representative capacity cannot reopen the matter which has
already reached its finality. It is also to be noted that the subsequent suit filed
for declaration and recovery of possession, though in general it is stated that
machinery started purchasing the property from 1860, though there are
evidence to show that Ringeltaube built the first church and thereafter there
were contributions from the local converts and also from the non Christians and
rules, such things happened prior to Transfer of Property Act and Registration
Act came in to effect in the year 1882 and 1908 respectively. Prior to the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
enactment of Registration Act, transfers were governed by the rules in effect at
the relevant point of time. However, no documents were filed by the either side
to show that whether transfers were effected by any documentary evidence or
by oral transfer prior to the enactment of Registration Act as well as Transfer of
Property Act.
65. The pleadings and evidence of the parties and also decided case laws
in this aspect proves the fact that LMS was formed in London and missionaries
were sent to South India to preach gospel which resulted in conversion of
1,40,000 people even in the early stage when the preaching came up in South
India as per evidence of the parties. There is no evidence of purchase of the
properties in the individual names or in the machineries or churches after
enactment of Registration Act or Transfer of Property Act, the ownership of the
property has to be gathered from the nature of the circumstances under which
the properties were all along retained by the Christian machineries and
churches. It is an admitted fact that the evidence of P.W1 and P.W.2 itself
indicate that the LMS was an association of protestant Christians of all
denominations. The history relied upon by the plaintiff in Ex.A.1 itself clearly
indicate that one Ringeltaube built a small church and the lands were
transferred to the machinery and how the churches evolved was clearly shown
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
in Ex.A.1 which has been taken note by the trial Court. These things happened
in the early 1800. Therefore, the contention of the plaintiff in the suit that the
title deeds have been withheld by the defendants cannot be countenanced. As
indicated, the possibility of keeping any title deeds with the defendants is
remote at the relevant point of time. The transfer of property at that time either
would have governed by way of oral or by way of existing practice at the
relevant point of time. Both sides were unable to lay hands on that. The
contention that the defendants have withheld the document and therefore,
adverse inference has to been drawn cannot be countenanced. Ex.A.2 also
indicate that some churches were built and permission of the sirkar was
obtained and the same has also been recorded by the trial Court.
66. P.W.1, who was examined in the suit, was also examined as a
witness in O.S.No.91 of 1958 wherein he has stated that the stone inscription in
the church indicate that it was erected by Rev.Emdyn. and he was a
machinery. Similarly, Ex.B.53 relied upon by the trial Court also show that the
church in Christu Covil is also built by the machineries. Ex.A.15 referred by
the trial Court also show that the properties are all along under the control of
LMS. Ex.A.11 and Ex.B.33 relied for constitution of TCC. TCC was formed
in association of SIUC in 1806 and it was formed under the constitution of
SIUC. The resolution passed in the year 1873 also indicate that the properties
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
held by the LMS corporation held in trust for TCC. From the above it is clearly
established that the properties are actually used by the churches concerned and
those churches held the properties in trust for TCC.
67. It is to be noted that the earlier suit has been filed by Zakariah and
two others in O.S.No.200 of 1957 and a copy of judgment has been filed in
Ex.B.27. The above suit was dismissed on the ground that sanction under 92 of
C.P.C. was not obtained. Another suit has been filed which was subject matter
of the Letter Patent Appeal marked as Ex.A.99, where the parties are also one
and the same. From the above repeated filing of suit indicate that few groups at
the relevant point of time formed themselves into an association in the name of
TCC which has already been merged with CSI and contend that they took a
decision that they cannot be forced to follow episcopacy. The issues in the suit
are mainly with regard to the declaration of rights over immovable properties .
As already indicated that the relief has been sought for 456 churches situate in
Tamilnadu and Kerala. Whereas most properties situate in Kerala which has
not been included. Now, it is an admitted fact that except 3 churches, which are
subject matter of S.A.Nos.592 and 593 of 1996 and S.A.731 of 1979 others
joined with CSI. Therefore, this suit is mainly filed for property rights and for
declaration that plaintiffs are alone entitled to beneficiary right to the plaint
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
properties, such suit is certainly not maintainable. Even in the Letter Patent
Appeal Ex.A.99, there is no dispute with regard to the parties permitting the
minorities to perform worship. Such being the position, they cannot be
declared as beneficiaries of the entire LMS Corporation as there is no evidence
available on record to show that all the church Councils have independently
joined together to establish their rights.
68. P.W.2, who formed TCC after dissolution of the original TCC, who
was arrayed as 30th defendant, in his evidence has admitted that from the year
1890 negotiations for the union of churches have started. He has also admitted
in his evidence that the first plaintiff is the member of Kamdamalakunnu LMS
and Secretary of Church of TCC. Though he has stated that the church has
authorised him to file the suit, no documents whatsoever has been filed. It is to
be noted that Kamdamalakunnu is the subject matter of the decision of the
Apex Court in the judgment in Rev. Thomas Williams V. John & Others
reported in 1961 KLT SCC 58. There was a specific finding recorded in the
above judgment in para 10 that the control of churches was with LMS. There is
no authorisation filed by the Church. P.W.2 has also stated that he only filed
suits from 1947 and he only gave instructions to the lawyer to prepare the
plaint. He has also admitted that in all those churches at the most the member
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
of any church cannot have authority over any church unless if churches are
denomination churches as admitted by P.W.2. Only few persons filed a suit in
respect of 456 churches without any express authority from each churches. His
evidence also clearly indicate that only 10 dissident members of the TCC have
formed a new association against the merger. He has also admitted that original
TCC had a membership of 212 and he was also a member of TCC when the
resolution was passed under Ex.A.11. Therefore, when the majority has passed
a resolution for union of churches, which is also approved by the Courts, the
minority members now cannot contend that all the properties belong to minority
members who followed congregationalism. P.W.2 has also admitted that he has
not come across any trust in favour of any church. He has also admitted that
LMS was formed as a corporation which was registered which was formed to
hold the properties all over the world. The properties in the name of several
machineries in the area are for the benefit of LMS. He has also admitted that
the machineries settled some of the properties by registered documents in
favour of the settlees only after obtaining consent of TCC. The above
admissions also makes it clear that even for dealing with the properties, original
TCC had absolute control over it. It is also relevant to note that original TCC
was merged with CSI on 28.09.1946 by a resolution dated 28.09.1946 wherein
30th defendant was also a signatory. The above resolution was never challenged
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
in the suit by way of seeking any relief. Further, merger based on the resolution
was approved by the Apex Court in two judgments in Rev. Thomas Williams
V. John & Others reported in 1961 KLT SC 58 and in Church of South
India Trust Association Vs. Telugu Church Council reported in 1996 [2]
SCC 520. Therefore, the suits which are filed in a representative capacity and
very merger was reached finality, such judgments not only operate as
resjudicata but also estoppel. Further, merger took place in the year 1947,
whereas the suit filed in the year 1960 is certainly barred by limitation.
69. It is also relevant to note that almost all the suits decided by the
Supreme Court wherein the main challenge is merger of TCC with CSI. The
merger relating to 456 churches. Therefore, finding of the Apex Court is
certainly binding on all other churches. It is to be noted that the apex Court in
the judgment in Moran Mar Basselios Catholicos vs Thukalan Paulo Avira &
Ors reported in AIR 1959 SC 31 has held that though in the previous suit was
commenced as suit was converted into representative action on behalf of
christians of Malabar, the Apex Court has held that the decision is binding on
the Jacobite Syrian Christians and subsequently the suit was dismissed as
barred by resjudicata. It is also to be noted that when the same issue of merger
has already been confirmed by the two judgments of the Apex Court as referred
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
above, the parties cannot reagitate the same issue merely on the basis of the
members of the church which was not originally included in those proceedings
to undo the judgment of the Apex Court, such action not only amounts to
resjudicata but also amounts to relitigation of the issues which had already
reached finality.
70. The Apex Court in in K.K.Modi Vs. K.N.Modi and others reported
in 1998 [3] SCC 573 and also in T.Arivanandam Vs. T.V.Satyapal reported
in AIR 1977 SC 2421 discouraged relitigation and struck of the plaint. As the
facts in this case is also with regard to merger of TCC with CSI, though the suit
has ben filed in a representative capacity, the same is not maintainable. It is to
be noted that only a dissident group claiming that they are not part of the
merger filed the present suit. As already stated, the very suit itself has been
engineered by the 30th defendant, who is one of the member of original TCC,
who also participated while passing the resolution for merger. Therefore,
merely on the basis of some dissident minority member appears to have taken
certain decision, they cannot claim right over the properties.
71. The resolution marked as Ex.A.86 indicate that the properties are
held by LMS Trust for TCC. The resolution also makes it very clear that the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
properties held by LMS in trust for TCC. Ex.A.87, a copy of a report of Sub
Committee on the sale of property was relied by the plaintiff and much
emphasis has been made on that. The above report has been passed while
certain machinery properties were sold and it is decided that all the properties
should be transferred legally so that future misuse could be prevented. Merely
because, such a resolution has been passed to prevent sale of some machinery
properties, it cannot be said that the properties were never held by the TCC's
control at any point of time. The Sub Committee Report at the most can be
construed for preventing sale of certain properties by the machineries
themselves.
72. The judgment of the Apex Court in the judgment in Vinldkumar M.
Malavia and others Vs. Maganlal Mangaldas Gameti and other reported in
2013 [15] SCC 394 relied upon the plaintiffs to contend that unification of
churches and transfer of properties has no legal foundation, wherein in the
above case the first District Committee has registered under the Societies
Registration Act and its properties vested in the trust as required under the
Bombay Public Trust Act. There were unification of 6 churches which
included the first district Church Ruthern [FDCD] a suit of Ruthern Church of
USA. Those 6 churches were united and conveyed in the year 1961 – 1964.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Based on such unification, the Court had held that mere resolution, the property
will not vest. The Apex Court has held that unless the properties are vested and
continued in accordance with the Society Registration Act, the Church of North
India cannot claim a merger of churches and thereby they cannot claim that the
properties are vested with the Trust.
73. It is to be noted that in the above case FDCB was registered under
the Societies Registration Act in the year 1960. After the enactment of the
Bombay Trust Act, the property was vested with the trust. Similarly the Church
of North India is also registered from the year 1971. Only in that situation,
unless the properties are vested with the trust under the provisions of
Registration of Societies Act in accordance with the Bombay Public Trust Act,
the Churth of North India cannot claim transfer of properties by mere change of
reports. But the facts in the case has already been adverted. There is no title
deeds produced by both sides. All the title deeds were of early 1800. The
properties were all along under the management of TCC which was dissolved
and merged with CSI with appropriate resolution. Such resolution and merger is
also accepted by the Courts in various judgments referred above in the
judgment in Rev. Thomas Williams V. John & Others in 1961 KLT 58 and
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
1996 [2] SCC. Therefore, the merger of churches cannot be challenged in this
proceedings onceagain. Hence, the judgment Vinodkumar M. Malavia and
others Vs. Maganlal Mangaldas Gameti and other reported in 2013 [15]
SCC 394 is not applicable to the facts of the present case.
74. Letter of Indenture marked before this court as Ex.A.106 has been
admitted by both the parties. A perusal of the above document makes it very
clear that the LMS Corporation was incorporated under the Indian Companies
Act and all the properties have been transferred in the name of LMS
Corporation. The transfer deed was executed in the year 1967 and it was
executed in pursuant to the resolution passed on 27 th June 1951, wherein it was
resolved to hand over to the Church of South India Trust Association all the
properties held in South India and Travancore. The deed of transfer was
registered before the Sub Registrar – I Nagercoil and it relates to 178 churches
which are situated within the jurisdiction of Kanyakumari District. Letter of
Indenture relates to all the properties situated in Tamilnadu. The remaining
properties situated elsewhere Trivancore is not shown in the plaint schedule.
This document itself clearly show that the transfer is also effeted legally in
favour of CSI. Though it is argued by the learned counsel appearing for the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
appellant, exemption from payment of stamp duty can be granted only under
section 2 [24] of the Indian Stamp Act. As far as Transfer of management in
respect of properties belong to a religious institution or in favour of a religious
institution exemption from payment of stamp duty cannot be granted.
Therefore, it is their contention that even if exemption is granted by the
Government, the same is not according to law. Therefore, their contention is
that transfer should have been effected as per Section 25 of the Companies Act
and Corporation should have been registered under section 25 of the
Companies Act, 1956. It is to be noted that the document has been registered
by the registration authorities by relying on G.O.Ms.No.[Revenue] 2498 dated
04.06.1960. The exemption has been granted for payment of Stamp duty. It is
relevant to note that the contention of the counsel that exemption can be
granted only under section 2 [24] of the Stamp Act alone is not correct. Section
2 [24] of the Stamp Act is a definition of settlement. Section 9 of the Stamp
Act deals with power to reduce and to remit or compound duties. Section 9 of
the Stamp Act reads as follows:
“9. Power to reduce, remit or compound duties.—
(1) Government] may, by rule or order published in
the Official Gazette,—
(a) reduce or remit, whether prospectively or
retrospectively, in the whole or any part of [the
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
territories under its administration], the duties with which
any instruments or any particular class of instruments, or
any of the instruments belonging to such class, or any
instruments when executed by or in favour of any
particular class of persons or by or in favour of any
members of such class, are chargeable, and
(b) provide for the composition or consolidation of
duties [of policies of insurance and] in the case of issues
by any incorporated company or other body
corporate [or of transfers (where there is a single
transferee, whether incorporated or not)] of debentures,
bonds or other marketable securities.
(2) In this section, the expression “the
Government” means,—
(a) in relation to stamp-duty in respect of bills of
exchange, cheques, promissory notes, bills of lading,
letters of credit, policies of insurance, transfer of shares,
debentures, proxies and receipts, and in relation to any
other stamp-duty chargeable under this Act and falling
within entry 96 of List I in the [Seventh Schedule to the
Constitution, except the subject matters referred to in
clause (b) of sub-section (1)];
(b) save as aforesaid, the State Government.]
75. Therefore, when the Government has exercised its power as per
statute and exempted stamp duty, now it cannot be contended by the appellant
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
that exemption granted by the Government is not according to law. Such a
contention cannot be entertained at this stage. Further, the document itself has
not been challenged by the appellant. Transfer of the trust properties is
provided in Schedule – I Article 62 [e] of the Indian Stamp Act. When the
statute itself provide for such transfer of the Trust property and the Government
has given exemption for stamp duty, now it cannot be said that the transfer is
not according to law. As indicated above mere transfer itself makes it very
clear that now the title of the properties legally transferred to the 31st defendant
in respect of the immovable properties. Such being the position, the plaintiffs,
who claim that they perform the worship in the form of congregation, cannot
seek recovery of properties which is all along held by LMS and LMS
corporation held as a trust and it was maintained and administered by TCC
which is also merged with CSI legally and which was approved by the Courts.
That apart, immovable properties have also been transferred by the indenture
referred above. Such being the position, the plaintiff claiming relief of
declaration and injunction has to fail. Further, to show that only congregation
was followed in every church, there is no evidence available on record. Be that
as it may. Even as per the compromise, CSI has become the owner of the
church and infact there is no objection by the respondent to follow practices as
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
recorded in Ex.A.99 Letter Patent Appeal. Therefore, the plaintiff is not
entitled to any relief in this suit.
S.A.Nos.592 & 593 of 1996 and 731 of 1979
76. The following substaintial questions of law have been formulated in
all these Second Appeals :
1. Whether the judgments of the Courts below hold that the
respondents/plaintiffs are in legal possession of the properties and
granting an injunction in terms thereof is sustainable in law,
particularly when the appellants were disputing the rights in
question and are found to be in physical possession of the
properties?
2. Whether the suits filed by the respondents are not liable
to be rejected as barred by limitation?
3. Whether the appellants have not prescribed title to the
properties by adverse possession and whether the jugment of the
Courts below which have not considered the said question are
mainainable in law?
S.A.No.592 of 1996
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
77. The 17th Appellant Mr.A.Bala, is said to be suffering from viral
fever and therefore, on his behalf of Mr.Das appeared on the basis of the
authorization given by the 17th appellant, before this Court on 13.12.2021.
The learned counsel for the appellants has also confirmed such authorization
and a person appearing on behalf of 17th appellant is also identified by the
counsel. Appellants and respondents 1 to 5 are present. All of them have
singed the Memorandum of Compromise and it is stated that CSI TA said to
have given a Power of Attorney resolution authorizing the Bishop to do all the
necessary acts and the same would be produced to the appellants within three
months. This statement has been recorded.
78. The parties have entired into a compromise to settle the matter
amicably between them. The memorandum of compromise entered between the
parties reads as follows :
1) It is hereby mutually agreed by both the Parties that in
an extent of NIL Acre and 17 Cents comprised in
Re.Sy.No.B3/35/1, (old Sy No. 1491, 1492 and 1493), situated
at Vadassery Village, Agastheeswaram Taluk, Kanyakumari
District, more particularly described in the 'A' schedule and
shown as 'A' portion in the sketch attached to this compromise
memo would be absolutely belong to the Party of the FIRST
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
PART, The Party of the FIRST PART shall construct a church
in the said extent of NIL Acre and 17 Cents described as 'A'
Schedule property within a period of 18 months from the date of
grant of permission by the Collector, Kanyakumari District and
payment of the amount of RS.50,00,000 (RUPEES FIFTY
LAKHS ONLY) by the Party of the SECOND PART within a
week thereafter and the PART of the FIRST PART shall enjoy
the same absolutely, without any let, hindrance or obstructions
by the Party of the SECOND PART or anybody claiming under
or through them.
2) It is hereby mutually agreed by both the parties that in
an extent of NIL Acre and 35 7/8 Cents, comprised in Re Sy
No.B3/35/1, (Old Sy.No. 1491, 1492 & 1493) situate at
Vadassery Village, Agastheeswaram Taluk, Kanyakumari
District, together with the church building more particularly
described in the 'B' schedule and shown as 'B portion in the
sketch attached to the compromise memo would be absolutely
enjoyed by the party of the SECOND PART without any let.
hindrance or obstructions from the Party of the FIRST PART or
anybody claiming under or through them subject to the
condition imposed in Clause 3 & 13.
3) Both the Parties mutually agree that till the
construction of new church, within the period agreed between
the parties under Clause 13 the Dual prayers will be continued
as is being done as on date in the Church as per the orders made
in I.A.No.488 of 1978 in A.S.No.162 of 1978, by the Leamed
District Judge, Kanyakumari at Nagercoil, under the supervision
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
of the Learned Advocate Commissioner, Thiru. V.SRIKUMAR,
who has been appointed by the Learned District Judge,
Kanyakumari at Nagercoil. On No account the dual prayer shall
be continued beyond the said period mentioned in clause 13.
After the time prescribed in clause 13, the party of SECOND
PART alone can exclusively use the 'B' Schedule property and
the party of the FIRST PART cannot have any right or access to
the 'B' Schedule property. The Party of the FIRST PART also
shall not have any right to seek extension of time through the
court.
4) It is mutually agreed by the both the parties that there is
no dispute in respect of allotment of time that is being allotted
by the Learned Advocate Commissioner for prayers all along
and the same timing shall continue until the period specified in
clause 13 and thereafter the Party of the FIRST PART shall not
conduct the prayers in the presently existing church situate in
Nil Acre 35 7/8 Cents comprised in Re.Sy.No.B3/35/1, (Old
Sy.Nos. 1491, 1492 & 1493), situate at Vadassery Village,
Agastheeswaram Taluk, Kanyakumari District.
5) Both the Parties mutually agree that the administration
and the management of the Vadasery Church shall be nder the
control of the Advocate Commissioner Thiru. V.SRIKUMAR,
who shall also attend to the repair works of the church after
informing the party of the FIRST PART and the SECOND
PART and on their permission and the expenses incurred for the
said repair work will be shared equally by both the parties, until
the expiry of the period mentioned in clause 13. On the expiry of
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
the time specified in the said clause No.13, the Learned
Advocate Commissioner Thiru.V.SRIKUMAR shall hand over
possession of the Vadasery Church to the Party of the SECOND
PART.
6) It is agreed by Party of the FIRST PART that they will
not claim any right, title and possession of the existing Church
building in Survey Nos. 1491, 1492 & 1493 (Resurvey
No.B3/35/1), after the construction of the Church within the
period mentioned in clause 13. The Party of the FIRST PART
shall not claim any right, Title or Interest in respect of the
Vacant Land abutting the Church Building comprised in S.Nos.
1491, 1492 and 1493 (Resurvey No. B3/35/1), situate at
Vadassery Village, Agastheeswaram Taluk, Kanyakumari
District and has no objection for the Party of the SECOND
PART in carrying on any developmental activities in the vacant
land situated on the southern side of the existing church
immediately on this memo of compromise being recorded. After
expiry of time prescribed in clauses 13, the party of the FIRST
PART has no objection for the Party of the SECOND PART in
demolishing and re-constructing the existing church.
7) It is agreed by Party of the SECOND PART that they
will not claim any right, title and possession of the new Church
that is to be constructed by the Party of the FIRST PART in
Survey Nos. 1491, 1492 & 1493 (Resurvey No.B3/35/1). The
Party of the SECOND PART shall not claim any right, Title or
Interest in respect of the Vacant Land of 17 Cents comprised in
S.Nos. 1491, 1492 and 1493 (Resurvey No. 83/35/1), situate at
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Vadassery Village, Agastheeswaram Taluk, Kanyakumari
District where the new church is to be constructed by the party
of the FIRST PART and has no objection for the Party of the
FIRST PART in carrying on any developmental activities in the
land remaining after the construction of the new church by the
party of the FIRST PART.
8) It is mutually agreed by both the parties that the Sketch
of the land is annexed to this Memo of Compromise. In the said
plan. Nil Acre 17 Cents in which party of the FIRST PART shall
construct a church is shown as 'A' portion and the same would
belong to the party of the FIRST PART. The Nil Acre 35 7/8
Cents in which there exist an old church and the abutting land is
shown as 'B' portion and the same would belong to the party of
the SECOND PART.
9) The Party of the SECOND PART agrees to deposit a
sum of Rs.50,00,000 (RUPEES FIFTY LAKHS ONLY) within
three months from the date of grant of permission from the
Collector, Kanyakumari District in the Bank Account No.
1506101002231, Canara Bank, IFSC No.CNRB0001506,
Vadasery Branch which stands in the name of Executive
Committee of Vadassery LMS Church rep. by 1) Thiru A Selvin
Muthunayagam and 2) Thiru.G.Sam Edward Raj. If the said sum
is not deposited as agreed by the party of SECOND PART, the
party of FIRST PART is entitled to move this Hon'ble Court for
appropriate orders for payment of the said amount. The party of
the FIRST PART agrees that the said sum will be utilised only
for the construction of the church and to meet all expenses
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
towards the infrastructure and furniture including to purchase all
the essential materials necessary for the church. It is agreed by
the Party of the FIRST PART that they shall not claim any
additional amounts other than the amount of Rupees Fifty Lakhs
from the Party of the SECOND PART.
10) The Party of the SECOND PART agree that they have
no objection for the construction of a Church and associated or
other buildings in the 'A' Schedule property to this Memo of
Compromise by the party of the FIRST PART in
Re.Sy.No.B3/35/1 and for passing of an order by this Hon'ble
Court directing the Collector, Kanyakumari District and other
authorities as per the building rules to grant permission for the
construction of the Church associated or other building by Party
of the FIRST PART in the 'A' Schedule property and in the
sketch marked as 'A' portion.
11) Both the parties mutually pray, that this Hon'ble Court
may be pleased to direct the Collector, Kanyakumari District
and other authorities as per the building rules to grant
permission for the construction of the church, associated and
other buildings in favour of the party of the FIRST PART, in the
'A' Schedule property and shown as portion 'A' in the sketch.
Both the parties mutually pray, that this Hon'ble Court may be
pleased to direct the Collector, Kanyakumari District and other
authorities as per the building rules to grant permission for the
demolition and construction of the Church, associated and other
buildings in favour of the party of the SECOND PART, in the
'B' Schedule property and shown as portion 'B' in the sketch, as
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
the old church is in a dilapidated condition, after the expiry of
the period mentioned in Clause 13.
12) The Party of the FIRST PART has no objection for
the party of the SECOND PART in putting up a new church and
associated and other buildings in Nil Acre 35 7/8 Cents
comprised in S.No.1491, 1492 & 1493, Resurvey No. B3/35/1,
situate at Vadassery Village, Agastheeswaram Taluk,
Kanyakumari District morefully described in the 'B' Schedule
and shown as portion 'B' in the sketch after the expiry of the
time granted to the party of the FIRST PART mentioned in
Clause 13.
13) The party of the FIRST PART hereby undertake and
agree to construct and complete the construction of the Church
within a period of 18 months from the date of deposit of sum of
Rs.50,00,000 (RUPEES FIFTY LAKHS ONLY) to the account
mentioned in Clause 9. Both the parties hereby agree to have
dual prayers till the completion of construction of church by the
party of FIRST PART in A Schedule. The party of the FIRST
PART also has no objection for the Learned Advocate
Commissioner Thiru V. SRIKUMAR handing over the
possession of the old church to the Party of the SECOND PART
on the expiry of the construction of new church mentioned in
this Clause 13.
14) The Party of the SECOND PART has no objection for
the party of the FIRST PART in putting up a new church and
associated other buildings in 17 Cents comprised in S. No.1491,
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
1492 & 1493, Resurvey No. B3/35/1, situate at Vadassery
Village, Agastheeswaram Taluk, Kanyakumari District
morefully described in the 'A' Schedule and shown as portion 'A'
in the sketch.
15) It is agreed by Party of the SECOND PART that they
have no objection for transfer of Patta in the name of Executive
Committee of Vadassery LMS Church represented by
1)Thiru.A.Selvin Muthunayagam 2)Thiru.G.Sam Edward Raj
3)Thiru.M.Daniel in so far as to an extent of Nil Acre 17cents in
Re.Sy No.B3/35/1, on the orders being passed by this Hon'ble
Court, recording this Memo of Compromise.
16) The Party of the FIRST PART hereby agrees that they
will not have any claim as against the Party of the SECOND
PART in respect of the property mentioned as Schedule "B" to
this Memo of Compromise.
17) The Party of the SECOND PART hereby agrees that
they will not have any claim as against the Party of the FIRST
PART in respect of the property mentioned as Schedule "A" to
this Memo of Compromise.
18) Both the parties mutually agree that in respect of
movables in the Church, the same will be taken as per the list
attached to this Memo of Compromise. The Party of the FIRST
PART shall receive and take possession of the movables allotted
to them in the list, in the presence of the Advocate
Commissioner, a week prior to the expiry of the time mentioned
in Clause 13 or before. If the Party of the FIRST PART fails to
do so, the Party of the SECOND PART shall handover the same
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
to the Advocate Commissioner. The List of movables to be
maintained by both the parties in the same status till the same
are taken by the parties separately as per the list.
19) The Party of the SECOND PART hereby agrees that
the LMS name board that is kept in the existing Church will not
be removed till the expiry of the period mentioned in Clause 13.
20) Both the parties mutually agree that they will not
cause any disturbance, hindrance or interruption in conducting
prayers in the Church. Both the parties mutually agree that they
would not use the external amplifier/speaker of sound services
outside the Church Building as well on the outside walls of the
Church building while the other party is conducting the church
Services.
21) The Party of the FIRST PART hereby agrees to
produce the Resolution passed by the LMS Christian
congregation of Vadasery Church authorising the appellants to
affix their signature to the memo of compromise. They also
agree that the Resolution would contain the names and
signatures of all the members of the LMS Christians of
Vadasery Church. The Original Resolution would be appended
to this memo of compromise. The Party of the SECOND PART
hereby produced a xerox copy of Power of Attorney dated
07.12.2019 executed by CSITA authorising the first respondent
to do all acts on behalf of CSITA and also to act in general as
Attorney for CSITA and the party of the SECOND PART agree
to give the resolution passed by CSI authorising respondents
2and3 to enter into and sign this compromise memo within a
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
period of three months from today and hand it over to the party
of the FIRST PART and the party of the SECOND PART
hereby. also produce the resolution of Vadasery CSI Church
containing the names and signatures of all the members of CSI
Vadasery Church. The said Original Resolution would be
appended to this memo of compromise.
22) Both the parties have understood the terms and
conditions and have affixed their signature acknowledging the
same and they hereby agree to abide by all the terms and
conditions set forth above.
23) The Parties to this Compromise memo hereby agree
that they shall bear their respective costs throughout.
24) Both the parties pray that this Hon'ble Court may be
pleased to record this compromise and pass a Decree in terms of
this Compromise Memo and attach this Compromise memo as
part and parcel of the Decree and thus render Justice.
79. As a compromise has been arrived between the parties and it has
reached its logical end to put at rest all the dispute between the two gropus of
christianity. As the compromise has been fructified, only on the bases of
contruction of a new church building in a land allotted to LMS christians by
CSI after receipt of the amount agreed, LMS christians shall apply for license
before the District Collector for permission to construct a church. On such
application, is filed, the District Collectore of Kanyakumari is directed to grant
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
permission to build a church. This direction is given considering the fact that
long dispute between the two groups of christians. Therefore, the positive
direction is issued to the District Collector to grant license to land allotted to
the LMS christians and on such permission is accorded, the LMS christians
shall construct a church within a period as agreed.
80. In view of the compromise recorded by this Court, the land allotted
to LMS christians shall exclusively belong to them and CSI has no claims or
rights whatsoever which is the subject matter of the compromise. This Court
also appreciate the efforts taken by the learned counsel Mrs.Anandavalli and
the learned Senior Counsel Mr.G.Masilamani in arriving at a settlement
between the parties to put an end to 7 decades litigation. The learned counsel
Mrs.Anandavalli has taken much efforsts in pursuading the dissident group to
arrive at an amicable solution and her efforts and assistance to this Court is
appreciated by this Court.
S.A.No.593 of 1996
81. The London Machinery Church was formed in 1804 and sent
machineries to South India for preaching gospel is nothing but preaching
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Christianity and the first machinery was Ringletaube which resulted in
conversion of people to christianity from non christians. One Vedamonikkam
has also become a convert and Ringletaube built a church and several
properties were accumulated by grant and contribution by the converts and
other non christians. Thereafter, the properties were managing under SIUC.
Then came under TCC from the year 1920 and the TCC with majority voting
has merged with CSI on 26.09.1947. After merging of TCC with CSI, it is the
case of CSI that all the properties were taken over by LMS and the minorities
about 10 in member have formed an association in the name of TCC claiming
that they are London Machinery Churches and filed suits. O.S.No.1 of 1960
was filed by such dissident group in a representative capacity. The subject
matter of the suits in three second appeals is also subject matter of O.S.No.1 of
1960. One Zachariah, who founded the dissident group, who was also a
member of original TCC, he is in fact instrumental for filing of various suits as
discussed in the earlier paragraphs.
82. The suit in O.S.No.93 of 1977 has been filed mainly for recovery of
the properties. The subject matter of the property involved in this suit is alo
included in the main suit in O.S.No.1 of 1960. The main contention of the
appellants before the trial Court is that the suit property situated in Christu
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
Covil belong to LMS. They never accepted the supremacy of the Bisop and it
is their contention that the merger of churches not binding on the appellants, the
appellant church continues to be congregational LMS church and administered
by its own church committee. Merely by virtue of merger, the plaintiff cannot
become the owner of the schedule properties. It has not joined in CSI union in
the year 1947 and they continued to be LMS and right surrendered by the
defendant institution. Though it is contended before the trial Court that they
are not aware that the suit filed in a representative capacity in O.S.No.1 of
1960, the trial Court considered Ex.A.3 and found that proper publication is
also made and the trial Court considering the factual aspects found that the
plaintiff is aware of the suit in O.S.No.1 of 1960, which was subject matter in
A.S.No.23 of 1968, the second plaintiff in O.S.No.1 of 1960 is none other than
the secretary of the present suit church namely Christu Covil and he was
examined as P.W.1 in O.S.No.1 of 1960.
83. Similar facts have been alleged even the subject matter of the suit in
O.S.No.93 of 1977 is also one of the properties in A.S.No.23 of 1968. The
present suit is filed by CSI mainly on the ground that the suit already filed by
the LMS in O.S. 1 of 1960, which is the subject matter of the first appeal in
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
A.S.No.23 of 1968 and their very same defence before this Court as the
defendant is that the so called LMS have never accepted supremacy of the
Bishops and merger of the church as noncongregational and administrated by
its own church committee. Hence, it is their contention that merely because the
merger took place, CSI cannot become owner of the properties. It is also stated
that they are not aware of the filing of the suit in a representative capacity in
O.S.No.1 of 1960. As the very issue of merger was the main issue in all the
suits, their contention that the suit filed in O.S.No.1 of 1960 not in
representative capacity also cannot be correct. In fact, the trial Court in the
judgment in O.S.No.93 of 1977 has found that in Ex.A.3 proper publication has
been made and recorded a finding that the appellants are aware of the suit in
O.S.No.1 of 1960. It is also to be noted that one of the plaintiff in A.S.No.23 of
1968 i.e., in O.S.No.1 of 1960 is none other than the secretary of suit church
namely Christu covil and he was examined as P.W.1 in O.S.No.1 of 1960.
84. This Court in paragraph 74 has clearly discussed about the letter of
indenture under which the property has been transferred. The subject matter of
the property in the second appeal in S.A.No.593 of 1996 is also one of the
property in O.S.No.1 of 1960, which is the subject matter of A.S.23 of 1968.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
As the issue of merger has already reached its finality and transfer of properties
also properly effected, the plaintiff CSI church has to be owner of the property
as discussed in the earlier paragraphs in the common judgment.
85. However, now the point remains to be seen is that whether the
defendant has perfected his title to the suit property by adverse possession. It is
to be noted that the converts were using the church properties for their worship
and it is under the control of TCC which has merged with CSI as discussed in
the earlier paragraphs. Merely because the dissident group continue their form
of worship, following such form of worship itself cannot confirm their
possession as adverse possession. To establish adverse possession, the apex
Court in S.M.Karim Vs. Mst.Bibi Sakina reported in AIR 1964 Supreme
Court 1255, has held that the possession must be adequate in continuity, in
publicity and extent and a plea is required at the least to show when possession
becomes adverse so that the starting point of limitation against the party affected
can be found. Except vague allegations, there is no evidence to show that they
have perfected their title by adverse possession. Having taken a plea that they
have never joined TCC, the plea of adverse possession is infact contrary to their
earlier plea. Merely one dissident group was worshiping and following
congregation as against episcopacy, without asserting hostile title and without
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
any pleading about hostility against the real owner and with vague allegations
are not at all sufficient for claiming adverse possession. It is relevant to note
that when the property has been held as a trust, merely dissident group claiming
a different form of worship, such different worship itself will not elevate their
possession adverse to true owner. In such view of the matter, this Court is of
the view that the suit cannot be allowed to be permitted when the issue has
already been decided. Now it is also stated that the appellant has also
constructed a separate church. However, still they are fighting for remaining
properties. As the merger has been established and transfer of properties have
taken place in favour of CSI, the appellants cannot succeed to take over the
properties or claiming right over the properties. Accordingly, the points are
answered against the appellants in S.A.No.593 of 1996. Further, very pleading
in O.S.No.1 of 1960 where one of the plaintiff was Secretary of suit church
indicate that C.S.I group was in possession and relief of recovery of possession
is claimed. In such view of the matter, suit filed by the plaintiff is not barred by
limitation.
86. Similarly in the Second Appeal in S.A.No.731 of 1979, wherein the
suit has been filed by for recovery of possession of the church of Adarkulam.
The learned counsel appearing for the appellant submitted that the Adarkulam
church never joined with CSI at any point of time. They have not been merged
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
with CSI and they are in possession of the properties as their own and they are
following congregation form of worship and the trial Court dismissed the suit.
It is the contention of the appellants that Ex.B.34 to Ex.B.37 title deeds show
that the properties have been purchased by Andarkulam people. Ex.B.38 is the
resolution passed by the church not to join with CSI. These facts have been
considered by the trial Court and held that there cannot be any merger. Further,
the correspondences relied upon by the defendants clearly show that the
properties are known as LMS properties and therefore, submitted that the first
appellate Court merely on the basis of the suit in O.S.No.1 of 1960 non suited
the defendants and the judgment of the first appellate Court is not proper.
87. The further allegation of the appellants is that no reliance can be
placed on the judgment in O.S.No.1 of 1960 since it is not a suit under section
92 C.P.C. and therefore it cannot constitute resjudicata as the said suit has been
filed only on a representative capacity. In this connection, it is relevant to take
into consideration the judgment in The Church of South India Trust
Association Vs. The Telugu Church Council reported in 1996 SCC (1) 720,
wherein the Apex Court has elaborately discussed about the principles of
resjudicata and held that the judgment in a former suit would operate as a res
judicata if the court which decided the said suit was competent to try the same
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
by virtue of its pecuniary jurisdiction and the subject-matter to try the
subsequent suit and that it is not necessary that the said court should have had
territorial jurisdiction to decide the subsequent suit.
88. The main contention of the appellants in this second appeal is that
LMS has no authority to transfer the ownership of the properties to CSI. It is
also his contention that CSI has no title or management or control over the
plaintiff church and they cannot claim independent right over the properties. It
is relevant to note that the first defendant in the suit in O.S.No.654 of 1970 is
one of the plaintiff, namely the fourth plaintiff in O.S.No.1 of 1960. The
defendants 2 and 3 in the above suit are his sons. The above suit is of the year
1960. As the defendant, the first defendant has claimed right in O.S.No.1 of
1960. The above suit itself has been filed for declaration and for recovery of
the properties and it is pleaded in the above suit that the plaintiffs who remain
LMS and those who have joined CSI, thereby become aliens to LMS and they
claim right over the plaintiff properties and for recovery of the plaintiff on
behalf of TCC. The first defendant is also one of the plaintiff and as indicated
the second and third defendants are his sons. The main relief sought in O.S.No.
1 of 1960 is not only for declaration but also for recovery of possession.
Therefore, now they cannot resist the suit on the ground that they have
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
prescribed their title on the basis of adverse possession.
89. The title deeds relied upon by the appellants indicate that the
properties have been purchased for the church by the converts of Andarkulam
people. As discussed in A.S.No.23 of 1968, all the properties have been
purchased either by contribution or by the converts themselves. It is an
admitted fact by both sides that all the church properties were purchased by
donation or by contributions of the converts. Merely because the people living
in Andarkulam had purchased the properties, it cannot be construed that
the properties are that of LMS. As discussed in the earlier paragraphs in
A.S.No.23 of 1968, the machineries have been sent only for the purpose of
preaching gospel, it is undenominational and congregation form of worship is
not part of the machineries. It is undenominational in character. Their object is
to preach gospel. Therefore, only few minority groups follow congregation
form of worship, they have also filed a suit in a representative capacity
including the subject matter of the church in Andarkulam in O.S.No.1 of 1960
and filed the suit in a representative capacity and now cannot take a different
view and turn around and contend that the suit filed in O.S.No.1 of 1960 is not
binding on them. As the merger of TCC has already been decided and reached
its finality, the dissident group, who formed a different group as LMS
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
congregations, who claimed majority members are aliens cannot contend that
the suit filed by the CSI is not maintainable.
90. It is to be noted that as already stated the first defendant herein is
also one of the plaintiff in the suit in O.S.No.1 of 1960. Similarly the nineth
defendant’s father was the first plaintiff in O.S.No.1 of 1960. This has been
clearly recorded by the first appellate Court in para 21 in its judgment. The
subject matter of the property in the second appeal is also shown as item No.9
in O.S.No.1 of 1960, which is the subject matter of A.S.No.23 of 1968.
Therefore, either as a defendant or as a plaintiff, the so called dissident group
cannot take a different stand and it cannot be permissible in law. The first
appeallate Court has recorded a factual finding that a letter was sent to the TCC
and the plaintiff church paid tax to the TCC under Ex.B.19 from 1951 to 1957
and out of contributions also put up in the church and a school run by the
Government on rent and rents also paid to the plaintiffs’ church [CSI]. Only
after 1971 there arose a dispute between the dissident groups. Thereafter, the
first plaintiff has not conducted any services. In such view of the matter, when
the merger had already reached finality and title also vest with TCC, the
plaintiff has to succeed. It is also stated that since the dispute broke between
the two groups, now the appellant group became minority group and they have
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
already constructed their own church. Further, the very plaint in O.S.No.1 of
1960 indicates that CSI group is in possession of the properties and relief of
declaration and recovery of possession was sought in the above suit. Therefore,
merely after 1971, the minority group appears to have taken control of the
church, the suit filed by CSI is not barred by limitation. In such view of the
matter, this Court is of the view that both second appeals S.A.Nos.731 of 1979
and 593 of 1996 have to fail and the points are answered against the appellants.
91. In the result,
[i] the Appeal Suit in A.S.No.23 of 1968 is dismissed.
[ii] the Second Appeal in S.A.No.592 of 1996 is decreed in terms of the
Compromise Memo filed by the parties and the Compromise Memo dated
13.12.2021 filed by the parties shall form part of decree.
[iii] The Second Appeals in S.A.Nos.731 of 1979 and 593 of 1996 are
dismissed.
[iv] No costs.
[v] As the main issue in all the above appeals is with regard to dispute
with two groups over the church properties and the appeals have been
dismissed, the connected impleading petitions and other applications are
closed.
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
22.12.2021
vrc
List of Exhibits marked on Appellants Side
in A.S.No.23 of 1968
Ex.A.106 - Registered Indenture dated 24.02.1977
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APPEAL SUIT No.23 of 1968, SECOND APPEAL Nos.731 of 1979, 592 & 593 of 1996
N. SATHISH KUMAR, J.
vrc Common Judgment in:
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