Kerala High Court
Major Arcbishop vs P.A.Lalan Tharakan on 7 December, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938
CRP.No. 122 of 2010 ( )
------------------------
AGAINST THE ORDER IN OP 119/2005 OF DISTRICT COURT, ALAPPUZHA.
..........
REVISION PETITIONER(S)/RESPONDENTS 1-3:
--------------------------------------
1. MAJOR ARCBISHOP, ANGAMALY ERNAKULAM,
KANAYANNUR VILLAGE,, KANAYANNUR TALUK,
ERNAKULAM DISTRICT.
2. VICAR GENERAL, ARCHDIOCESE CURIA,
KOCHI-682037, KANAYANNUR VILLAGE,
KANAYANNUR TALUK, ERNAKULAM DISTRICT.
3. VICAR OF ST. RAPHAEL'S CHURCH, EZHUPUNNA,
FR.JOSE VALLAYIL SON OF JOHN, RESIDING AT
PRESBYTERY, ST. RAPHAEL'S CHURCH, EZHUPUNNA.
BY ADVS.SRI.VARGHESE C.KURIAKOSE
SRI.JOHN JOSEPH VETTIKAD
SRI.C.JOSEPH JOHNY
RESPONDENT(S)/PETITIONERS/RESPONDENTS 4 - 13:
---------------------------------------------
1. P.A.LALAN THARAKAN, S/O.P.V.AVIRA THARAKAN,
V/685, PARAYIL HOUSE, AROOR-688534,AROOR AMSOM,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
2. P.H.HORMIS THARAKAN, S/O. P.A.HORMIS THARAKAN,
PUTHEN VEETTIL PARAYIL, EZHUPUNNA,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
3. P.A.JOSE THARAKAN, S/O. P.V.AVIRA THARAKAN,
RANIMANGALAM PARAYIL EZHUPUNNA,
CHETHALA TALUK, ALAPPUZHA DISTRICT.
4. P.A.BABU THARAKAN, SON OF P.V.AVIRA THARAKAN,
NAVAPURAM, PARAYIL, EZHUPUNNA,
EZHUPUNNA AMSOM DESOM, CHERTHALA TALUK,
ALAPPUZHA DISTRICT.
--2--
--2--
CRP.No. 122 of 2010 ( )
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5. P.P.ULAHANNAN, S/O.PALLUPARAMBIL POULOSE,
PATTAPARAMBIL HOUSE, EZHUPUNNA,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
6. THATTARUPARAMBIL.T.V. ABRAHAM,
S/O.VARGHESE, PALARIVATTOM DESOM,
POONITHURA VILLAGE,, KANAYANNUR TALUK,
ERNAKULAM DISTRICT.
7. MADATHIVELIYIL SASI,SON OF KESAVAN,
MADATHIVELIYIL HOUSE, EZHUPUNNA VILLAGE,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
8. MAHUPARAMBIL AMBUJAKSHAN SON OF KESAVAN,
MADATHIVELIYIL HOUS, EZHUPUNNA VILLAGE,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
9. THUNDIYIL LONAN, SON OF BAVA, THUNDIYIL,
AROOR VILLAGE, CHANTHIROOR MURI,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
10. MULAKKAPARAMBLI TAHA, SON OF MOOSA,
CHANDIROOR MURI, EZHUPUNNA VILLAGE,
CHERTHALA TALUK, ALAPPUZHA DISTRICT.
11. AMINA, WIFE OF TAHA, CHANDIROOR MURI,
EZHUPUNNA VILLAGE, CHERTHALA TALUK,
ALAPPUZHA DISTRICT.
12. THEKKUMTHALA VEETTIL ABDUL AZEEZ,
SON OF ABDUL KHADER, THEKKUMTHALA VEEDU,
CHANDIROOR MURI, AROOR VILLAGE,
CHERTHALA TALUK, ALAPPUZHA DIST.
13. VELLAVETTANAVU MURIKKUMTHARA GEORGE,
SON OF AUGUSINHU, VELLAVETTANAVU MURIKKUMTHARA,
AROOR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DIST.
R1 TO R3 BY SRI.S.SREEKUMAR (SENIOR ADVOCATE)
BY SRI.RENJITH THAMPAN (SENIOR ADVOCATE)
BY ADVS. SRI.N.SUBRAMANIAM
SRI.M.S.NARAYANAN
SRI.P.T.GIRIJAN
SMT.USHA NARAYANAN
SRI.P.MARTIN JOSE
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 23-03-2016, THE COURT ON 23-05-2016 PASSED THE
FOLLOWING:
mbr/
CRP.No. 122 of 2010 ( )
-----------------------
APPENDIX
PETITIONERS' ANNEXURES: NIL
RESPONDENTS' ANNEXURES:
ANNEXURE R1(A) : TRUE COPY OF THE NOTIFICATION DATED 7.12.2010
ISSUED BY THE GOVERNMENT.
ANNEXURE R1(B) : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE
3RD RESPONDENT IN IA.NO.572/2014 IN
OS.NO.91/2014.
//TRUE COPY//
P.S. TO JUDGE
mbr/
C.R.
P.B.SURESH KUMAR, J.
= = = = = = = = = = =
C.R.P.No.122 of 2010.
= = = = = = = = = = =
Dated this the 23rd day of May, 2016
O R D E R
Respondents 1 to 3 in a proceedings for leave to institute a suit under Section 92 of the Code of Civil Procedure ('the Code') have come up in this Civil Revision Petition challenging the decision of the court below in granting the leave sought by the petitioners in the proceedings.
2. The petitioners in the proceedings before the court below are members of a Christian family known as Parayil family, originally settled at Thaikkattussery. About a century and half ago, one branch of the said family migrated C.R.P.No.122/2010.
2 and settled at Ezhupunna. The members of the said family were believers of St.Thomas and belong to the church established by St.Thomas known as Syro Malabar Church. According to the petitioners, there was no church at Ezhupunna at the relevant time and consequently, the members of the family had established a church in the year 1859 in a property owned by them for their spiritual benefit as also for the spiritual benefit of other Christians in the locality who were following the same faith. It is alleged by the petitioners that the members of their family have been meeting all expenses for the maintenance of the said church namely St.Raphael's Church, including the payments due to the vicars. It is also alleged by the petitioners that later in the year 1084 ME, a partition deed was executed in the family by which a trust was constituted in respect of the properties described in schedule A to the Original Petition including the property in which the church building referred C.R.P.No.122/2010.
3 to above was constructed, for the maintenance and upkeep of the church and its assets, for the spiritual benefit of the members of the family as also the members of other families who have entrusted properties to the family of the petitioners for the said purpose. According to the petitioners, the said trust is a public trust of religious and charitable nature and the members of the family of the petitioners and other persons in the locality who belong to Syro Malabar Church are its beneficiaries. It is alleged by the petitioners that later two chapels were also established in portions of properties covered by the partition deed. It is also alleged by the petitioners that the intention of the authors of the trust was that the eldest members of the two branches of the family, one from each, were to be the trustees/kaikars for the management and supervision of the trust properties during their life time and thereafter their successors from each branch successively are to administer C.R.P.No.122/2010.
4 and manage the trust and the trust properties. It is further alleged by the petitioners that in course of time, the properties included in schedule C to the Original Petition have been acquired by the trust and it had established various educational institutions therein also including a High School. According to the petitioners, unlike other Roman Catholic Churches, St.Raphael's Church, the chapels and the institutions attached to the same constitute a public charitable trust.
3. The first respondent in the proceedings is the major Arch Bishop of Syro Malabar Church of Ernakulam- Angamaly Arch Diocese and the second respondent is the Vicar General under the first respondent. The third respondent is the Vicar of the St.Raphael's Church deputed by the first respondent. According to the petitioners, respondents 1 to 3 do not have any right over the plaint schedule properties and the church and the institutions C.R.P.No.122/2010.
5 attached to it except over the spiritual matters concerning the church and the plaint schedule properties including the chapels and the institutions attached to the same are to be managed by the trustees/kaikars of the church. It is alleged by the petitioners that respondents 1 to 3 are pretending that the ownership of the properties of the trust as also the institutions attached to the same vest in the first respondent; that they have absolute control not only over the spiritual matters concerning the church, but also over its temporal matters and that the kaikars/trustees of the church have only an advisory role. It is also alleged by the petitioners that respondents 1 to 3 have sold some of the properties of the trust and are attempting to sell other properties as well. It is further alleged by the petitioners that respondents 1 to 3 and others are attempting to demolish the church building constructed by their ancestors. According to the petitioners, in the circumstances, the suit is C.R.P.No.122/2010.
6 necessitated for settling a scheme for the administration of the church as also the chapels and the institutions attached to it; for declaring that the eldest members of the two branches of the family are entitled to be the trustees/kaikars of the church, the chapels and the institutions attached to the same and also for claiming consequential reliefs.
4. Respondents 1 to 3 opposed the Original Petition contending mainly that the pleadings in the Original Petition do not indicate that a public trust of religious nature has been created in respect of the properties described in the Original Petition as claimed by the petitioners. It was also contended by them that St.Raphael's Church, Ezhupunna is one of the several Parish Churches of Syro Malabar Church which is a Roman Catholic Church coming under Ernakulam-Angamaly Arch Diocese and that Syro Malabar Church being an Episcopal church, the Parish C.R.P.No.122/2010.
7 Churches under it and its properties including the properties described in the schedule to the Original Petition vest with the Bishop of the Church and are liable to be managed and administered in accordance with the Canon Law. As such, according to the said respondents, St.Raphael's Church, and its properties cannot be treated as a public trust of religious nature. As regards the partition deed relied on by the petitioners, it was contended by the said respondents that by virtue of the said document, the predecessors of the petitioners have conveyed the properties referred to therein absolutely to the Syro Malabar Church and that a public trust has not been created in respect of the said properties by virtue of the said document.
5. Respondents 9 to 13 also filed objections to the Original Petition raising substantially the same contentions raised by respondents 1 to 3.
6. The court below found that in so far as C.R.P.No.122/2010.
8 St.Raphael's church was constructed and maintained by the members of the family of the petitioners for their spiritual benefit and in so far as it is alleged by the petitioners that they are followers of St.Thomas which is distinct and different from Roman Catholics, a prima facie case of public trust of religious nature in respect of the properties scheduled in the Original Petition has been made out by the petitioners. The court also took the view that even if it is found that the petitioners are followers of the Roman Catholic faith, there is nothing to indicate that a public trust of a religious character cannot be formed by them in respect of a few properties and places of worship. Consequently, the Original Petition was allowed and the leave sought by the petitioners was granted. Respondents 1 to 3 are aggrieved by the said decision of the court below.
7. Heard Sri.Varghese C.Kuriakose, the learned counsel for the revision petitioners and Sri.Renjith C.R.P.No.122/2010.
9 Thampan, the learned Senior Counsel for respondents 1 to
3.
8. The learned counsel for the revision petitioners has reiterated and elaborated the contentions raised by them before the court below. Per contra, the learned Senior Counsel for respondents 1 to 3 supported the impugned decision. In addition, the learned Senior Counsel for respondents 1 to 3 has also contended that the civil revision petition filed invoking Section 115 of the Code, challenging the impugned order is not maintainable. The counsel also placed plethora of authorities in support of their respective contentions. In the light of the submissions made by the learned counsel for the parties, the questions arise for consideration are the following:
(i) Whether a Civil Revision Petition under Section 115 of the Code is maintainable against an order C.R.P.No.122/2010.
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granting leave to institute a suit under Section 92 of the Code?
(ii) Whether the court below was justified in granting leave under Section 92 of the Code on the facts and circumstances of the present case?
9. Question (i): It is seen that on an almost identical fact situation, the Apex Court in Vidyodaya Trust v. Mohan Prasad [2006 KHC 1111(SC)] held that a Civil Revision Petition under Section 115 of the Code is maintainable. Vidyodaya Trust v. Mohan Prasad (supra) was a case where leave to institute a suit under Section 92 of the Code in respect of a public charity was granted by the court without notice to the respondents in the proceedings. The respondents in the proceedings, in the circumstances, moved the court for deciding the maintainability of the suit as a preliminary issue on the ground that the court was not C.R.P.No.122/2010.
11 justified in granting the leave sought by the petitioners in the proceedings. As required by the respondents, the court considered the maintainability of the suit and found that the suit is maintainable. In other words, the case set up by the respondents that the court was not justified in granting the leave sought by the petitioners therein was not accepted. It is the said order that was challenged in the Civil Revision Petition by the respondents in the proceedings before this Court. The maintainability of the Civil Revision Petition was considered by the Apex Court in the above factual scenario. The learned Senior Counsel for the respondents contended that the present Civil Revision Petition being one preferred challenging the order granting leave to institute a suit under Section 92 of the Code, the decision of the Apex Court in Vidyodaya Trust v. Mohan Prasad (supra) cannot be applied to the facts of the present case. The learned Senior Counsel also contended that the leave granted by the court C.R.P.No.122/2010.
12 in the present case is not conclusive and that the respondents can move the court for revoking the leave after evidence is let in in the proceedings. As such, according to the learned Senior Counsel, the petitioners are not entitled to challenge the impugned order even in a proceedings under Article 227 of the Constitution of India.
10. I do not agree. As noted above, the leave to institute the suit was granted after issuing notice to the respondents and after hearing them. The effect of the impugned order granting leave to institute a suit under Section 92 of the Code after notice to the respondents and the order refusing to revoke the leave already granted which was impugned in the case decided by the Apex Court are one and the same. As such, it cannot be contended that the decision of the Apex Court in Vidyodaya Trust v. Mohan Prasad (supra) is not applicable to the facts of the present case. It is all the more so since the Apex Court rendered the C.R.P.No.122/2010.
13 said judgment holding that the order impugned in the proceedings under Section 115 of the Code would fall under the proviso to the said Section. There cannot be any dispute to the fact that the order impugned in the present case would also satisfy the requirement of the proviso to Section 115 of the Code. I have, therefore, no hesitation to hold that the Civil Revision Petition is maintainable.
11. Question (ii): It is beyond dispute that Section 92 of the Code applies only to express or constructive trusts created for either a public religious or a public charitable purpose or both. As far as the present case is concerned, paragraphs 10 and 11 of the Original Petition indicate that the specific case of the petitioners before the court below was that an express trust of a religious nature has been created in respect of the properties scheduled therein by virtue of the terms of the partition deed of the year 1084 ME, for the spiritual benefit of the members of C.R.P.No.122/2010.
14 Parayil family who are followers of St.Thomas and also for the spiritual benefit of the members of other families following the same faith, who have entrusted properties to Parayil family for the said purpose. The said fact is also evident from the specific averment in the original petition concerning the intention of the authors the trust. It is averred by the petitioners that the intention of the authors of the trust was that during their life time the eldest members of the two branches of their family, one from each, were to be the trustees/kaikars for the management and supervision of the properties of the trust and also for the conduct of festivals and other rituals in the church and thereafter, their successors from each branch successively are to administer and manage the trust and the trust properties. A copy of the partition deed of the year 1084 ME referred to in the Original Petition was made available to me at the time of hearing. A close reading of the partition C.R.P.No.122/2010.
15 deed does not indicate that a public trust has been created by virtue of the said document. As far as express trusts are concerned, it is now settled that a trust is created only when the author of the trust indicates with reasonable certainty by words or act the intention on his part to create a trust, beneficiary and the trust property. The partition deed does not indicate that the executants of the said document have intended to create a public trust in respect of the properties referred to therein. According to the petitioners in the original petition, the followers of St.Thomas are the beneficiaries of the said trust. But, the partition deed does not indicate that any beneficial interest is created by virtue of the said document in favour of the followers of St.Thomas. On the other hand, the said document indicates only dedication of a few items of properties in favour of St.Raphael's Church. True, the document provides that certain religious ceremonies will have to be conducted in the C.R.P.No.122/2010.
16 church for the repose of the souls of some of the deceased members of the family of the petitioners and others by making use of the income from some of the properties referred to therein. In the context of the documents which are in the nature of precatory trusts namely, transfers of properties to another coupled with words of direction, recommendation, expectation, desire etc, this Court in Ramadas Damodar v. Anna Nidhiyiri (1984 KLT 1077) held that if a gift in terms absolute is accompanied by a desire, wish, recommendation, hope or expression of confidence that the donee will use it in certain way, no trust to that effect will attach to it, unless, on the document as a whole, the court comes to the conclusion that a trust is intended. In other words, in considering whether a precatory trust is attached to any legacy, the court will always be guided by the intention of the executants of the document as apparent in the document itself and not by any C.R.P.No.122/2010.
17 particular words in which their wishes are expressed in the document. A close reading of the partition deed referred to above does not indicate that the executants of the document have intended to create a precatory trust even. As such, the case of the petitioners that a religious trust of public nature has been created by virtue of the execution of the partition deed referred to above is only to be rejected.
12. It is settled that the court has power to grant leave under Section 92 of the Code without notice to the respondents. It is also settled that the court is expected to look into only the averments in the petition and the documents accompanied therein at the stage of considering the issue relating to the grant of leave. But, it is equally settled that it is desirable for the court to issue notice to the respondents before the grant of leave as a rule of caution. If the court chooses to issue notice to the respondents and to hear them in the matter of considering the petition for C.R.P.No.122/2010.
18 leave, it cannot be said that the court will see only the averments in the petition for the purpose of considering the prayer for leave. According to me, if the court chooses to issue notice to the respondents and hear them before grant of leave, it is obliged to consider the contentions raised by them also, as otherwise, the issuance of notice to the respondents would be an empty formality. As noted above, the impugned order granting leave to institute the suit was passed after notice to the respondents. But, it seems that the contentions raised by the respondents have not been considered by the court below in its true perspective while passing the impugned order. As such, I deem it appropriate to consider the contentions raised by the respondents as well in this matter.
13. As noted above, the essence of the contentions of respondents 1 to 3 before the court below was that St.Raphael's church is a Parish Church of Syro C.R.P.No.122/2010.
19 Malabar Church under the Ernakulam-Angamaly Arch Diocese; that Syro Malabar Church is a Roman Catholic Church and that the said church being an Episcopal church, a Parish Church under it and its properties cannot be treated as a public religious trust. 'Church' is the term employed to designate the communion of all baptized followers of Jesus Christ, those recognising the supremacy of the Roman Pontiff as well as those who do not. This spiritual community of Christians is not a juridic entity. There is also a communion of twenty two autonomous churches (churches sui iuris) assembled under the primacy of the Roman Pontiff. In common parlance, this communion of churches is called the Catholic Church or Universal Catholic Church. Syro Malabar Church is one of the said twenty two autonomous churches, following the Chaldean Tradition, assembled under the primacy of Roman Pontiff. (See, revised and augmented edition of Eastern Catholic Church Law by Victor C.R.P.No.122/2010.
20 J.Pospishil). There is a reference about the said church in the 15th Edition of Encyclopedia Britannica (Vol.7)also which reads thus:
"Malabarese Catholic Church, a Chaldean rite church of southern India (Kerala) that united with Rome after the Portuguese colonization of Goa at the end of the 15th century. The Portuguese viewed these Christians of St.Thomas, as they called themselves, as Nestorian heretics, despite their traditional alignment with Rome since about the 6th century. Although the Malabarese formally acknowledged the pope at the Synod of Diamper in 1599, the Portuguese subjected them to intense Latinization. The Malabarese reacted by breaking with Rome in 1653. Only when the Syrian bishop Sebastiani was installed in 1661 did most of the schismatic Malabarese return to the Roman Catholic church. The remainder affiliated with the Syrian Orthodox (Jacobite) patriarch of Antioch.
The Malabarese Catholics were given administrators separate from those of the Indian Catholics of the Latin rite in 1877 and in 1923 regained their own hierarchy. They use Eastern Syriac as the liturgical language."
In the light of the aforesaid materials, there cannot be any dispute to the fact that the Syro Malabar Church is a Roman Catholic Church. The petitioners in the Original Petition C.R.P.No.122/2010.
21 admit that they belong to Syro Malabar Church. They also admit the fact that Syro Malabar Church is a Roman Catholic Church. In other words, the petitioners admit that they are following the Roman Catholic faith. But, the case pleaded by them is that unlike other Roman Catholic Churches, St.Raphael's Church established by them and its properties constitute a public trust. The court below found that Syro Malabar Church is an Episcopal church, the government of which vests in the Bishop and is governed by the Canon Law. However, it took the view that even if it is held that the petitioners are followers of the Roman Catholic faith, there is nothing to indicate that a public trust of a religious character cannot be formed by them in respect of a few properties and places of worship. At the time of hearing, the learned Senior Counsel for the petitioners in the original petition conceded that religious services are rendered at St.Raphael's Church in accordance with the Roman Catholic C.R.P.No.122/2010.
22 faith by the priests deputed by the first respondent from time to time. The question, therefore, is whether the petitioners who are following the Roman Catholic faith and belonging to Syro Malabar Church are entitled to contend that their Parish Church and its properties constitute a public trust for the mere reason that the church building was constructed by them in one of their properties and that they have maintained the church by incurring expenses required for its upkeep and maintenance. In this context, it is worth referring to the decision of the Madras High Court in Luis v. Gonsalves (35 MLJ 407). After referring to various authorities on the point, it was held in the said case as follows:
"The Roman Catholic Church is not an Established Church. It is what is described as a voluntary association in the English cases, and the result of those cases, of which the most important are Long vs. The Bishop of Cape Town, (1863) I.Moo.P.C. (N.S.) 411 and Merriman v. Williams, (1882) L.R.7 A.C. 484 seems to be this: If you join a voluntary association you will be bound by any rules which it has formed for its internal discipline and for the management of its affairs. You may adopt the doctrines of the C.R.P.No.122/2010.
23
established or any other Church en bloc, but if the voluntary association has adopted rules which differ materially from those of what may be called the parent body, the members of that association will not be members of the parent Church, but will be an independent organization with their own rules. It seems to us that the appellant in this case is in a dilemma. If his Church is part and parcel of the Universal Catholic Church, as apparently he wishes it to be regarded, he must be assumed to be governed by the law of the Church in the Canon Law, and if that be so, it is clear that the control of the temporalities vested in the Bishop, since the Canon Law recognized no distinction between the spiritual and temporal powers of the Papacy and its local representatives the episcopate. If this Church is to be regarded as an independent voluntary association, which, while adopting in the main the doctrines of the Roman Catholic Church, has yet enacted certain rules contrary to the rules of the Catholic Church in matters of discipline and management, then those rules must be proved in the same way that a custom would have to be proved in a Court of Law. Questions of custom may often in the end become questions of law, as in the familiar instances where the Courts have to say whether a custom is reasonable, is legal or is not inconsistent with the terms, e.g., of some document such as a contract. But at the outset they must necessarily be questions of fact. You must first prove that the thing is done before you can go on to inquire whether it legally may be done. Looking at the case from this point of view, it seems sufficient to say that the learned Judge has found that the evidence put forward has failed to support the contention that the junta has established a recognized custom as holding in its hands the appointment of a moktessor. He has found as a fact that such appointments as they have made have been merely permissive as a matter of convenience and that C.R.P.No.122/2010.
24
the Bishop has never relinquished his claim to be the final repository of the power of appointment. We think that, even if this be regarded as a voluntary association, a person who joins it must be considered as prima facie subscribing to the rules of the Catholic Church as embodied in the canons unless he can give affirmative proof of an established usage to the contrary. The learned Judge by his finding has negatived the existence of such a rule in the present case and as we do not think he misdirected himself in law in coming to that finding of fact, we cannot disturb it."
In this context, the observations made by E.D.Devadason in his book on Christian Law in India also demand quotation, "In regard to the Roman Catholic Church the Canon Law is to be recognised by the Courts of India as customary law binding on the members. However, since 1918 when the Canon Law was codified by the Vatican Council, the Canon Law cannot be regarded as customary law. Such a set of rules which lend themselves to change from time to time by the deliberations of a competent body cannot be classified as customary law. As the Canon Law can be changed by the Vatican, perhaps under recommendations of the curia or a General Council, there is a machinery which can effect the necessary changes in the Canon Law from time to time. Therefore such a body of rules cannot any longer be treated as customary law. They can be recognised by the Courts in India only as the rules of voluntary associations binding on the members. They are like "Club Rules". When a person becomes a member of a club, he not only subscribes to the existing rules and regulations but also agrees to C.R.P.No.122/2010.
25
accept the rules as they may be changed from time to time provided the procedure prescribed for changing them has been followed. As long as a person continues to be a member of a club he is bound by the rules of the club as they are amended from time to time. The rules are binding among the members interse and also between the members of the club. In fact the rules of the club are applicable as though each member has entered into an agreement between himself and the club by which he accepts the rules of the club as terms of the contract he has entered into to become a member of the club. Similarly in accepting membership in the Church a person binds himself with the rules and the regulations of the Church concerned as though he has entered into a contract with the Church binding himself with the rules and regulations of the Church on which conditions alone he has been admitted into membership of the Church."
It is thus evident that since it is conceded by the petitioners in the original petition that they belong to Syro Malabar Church and they are following the Roman Catholic faith, they must be held to be bound by the rules of the said church namely Canon Law as per which the spiritual and temporal affairs of the church are to be managed by the Bishop. As noted above, the partition deed of the year 1084 ME indicates only dedication of a few items of properties in C.R.P.No.122/2010.
26 favour of St.Raphael's Church, of course subject to a few precatory terms which are only terms of expectation. In fact, petitioners before the court below also admit that by virtue of the partition deed referred to above, the properties including the property in which St.Raphael's Church building is constructed has been transferred, but according to them, the transfer was in favour of St.Raphael's Church. The fact that St.Raphael's Church is a Roman Catholic Church is not in dispute. According to Canon Law, a Roman Catholic Church becomes, as soon as it is consecrated, the property of the church authorities, irrespective of the fact that any particular worshipper or worshippers contributed to its construction [See Michael Pillai v. Rt.Rev. Bartle (ILR 39 Madras 1056]. As such, when it is admitted by the petitioners that the properties referred to in the partition deed have been transferred in favour of St.Raphael's Church, it has to be reckoned as a transfer/dedication in C.R.P.No.122/2010.
27 favour of Syro Malabar Church. Merely for the reason that the church building was constructed by the members of the family of the petitioners in one of their properties and merely for the reason that they have given properties to the church, the church and its properties would not become a public trust. In this context, it is also worth extracting the relevant portion of the judgment of the Madras High Court in C.S.Robert and another v. M.Kanagappan and 8 others (2003(2) MLJ 254), which reads thus:
"A reading of various provisions of the Canon Law postulates that a detailed procedure has been made for the administration of the church and its properties and so long as the church retains the status of a Roman Catholic church, in our view, the diocesan Bishop alone would have the right in both the spiritual and the temporal matters in respect of the church and its properties. The church in question by its very nature, has been constructed only from the donations made mostly by the members following Christian religion and from the fact of contribution for the construction of the church by the public, it does not mean that the properties should be transferred to the public or held by the public. When a building is constructed for the purpose of divine worship, it would become a church only C.R.P.No.122/2010.
28
after the fulfilment of certain formalities prescribed in the Canon Law and there must be an express and written consent of the diocesan Bishop and there must be dedication or blessing following the law of sacred liturgy. Once a sacred building becomes a church under the Canon Law, the faithful will have a right of access for divine worship. The Canon Law contemplates the complete existence of a church."
14. The learned Senior Counsel, relying on the decision of the Travancore High Court in Rev.Fr.Pathrose Fernandez and others v. Swamiyadian Gnanaprakasham (XXIII TLJ 928), contended that in a case where strong proof of a religious endowment is made, existence of a public trust can be presumed even among Roman Catholics. I have found that the petitioners before the court below have not made out a case of public religious trust. As such, I do not propose to go into the finer details of the said judgment. The learned Senior Counsel, relying on the decision of the Madras High Court in C.S.Robert and another v. M.Kanagappan and 8 others (supra), contended that it is open to the petitioners before the court C.R.P.No.122/2010.
29 below to show that notwithstanding the provisions of the Canon Law, temporal affairs of the church are governed by the custom prevalent in the area and that therefore, it cannot be contended that merely for the reason that the petitioners follow the Roman Catholic faith, they are governed by the Canon Law. I do not propose to go into this argument also as the petitioners before the court below have no case that the temporal affairs of St.Raphael's Church are governed by any custom.
15. That apart, in James Chinnamma v. Joseph Abraham (1962 KLT 240), referring to the judgment in Kunju Varkki v. Neelacandan Nambyar (4 CLR 351) as also the Ecclesiastical Law applicable to Christians in British India as compiled by Jerome A. Saldanha, it was held by this Court that the Roman Catholic Church is a juristic person. Juristic persons cannot, in any circumstances, be regarded as trusts.
C.R.P.No.122/2010.
30
16. In the aforesaid facts and circumstances, the finding rendered by the court below that a prima facie case of public trust of a religious nature in respect of the properties scheduled in the Original Petition has been made out by the petitioners before the court below is unsustainable in law.
In the result, the Civil Revision Petition is allowed, the impugned order is set aside and O.P.119 of 2005 on the file of the District Court, Alappuzha is dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Kvs/-
// true copy // PA TO JUDGE.