AND ANOTHER ti. THE MOST REV. MAR POULOSE ATHANASIUS [S. R. DAS & Ors. v. The Most Rev. Mar Poulose Athanasius in the to appeal by & Ors.

this stage to discuss arid deal with a preliminary point raised by the learned for the plaintiffs respond Attorney-General appearing ents. In order to appreciate and deal with the point it will be necessary to take note of the changed so raised conditions had been brought JS 87 S. C. India/59 1954 Moran Mar Basselios Catholicos and Another v. The Most Rev. Mar Poulose A.thanasius and OtherJ Das]. 524 SUPREME COURT REPORTS [1955] India. matter of the State by judicial administration the recent political changes culminating in the adoption of the new Constitution of It will be recalled that the present review application was made on the 22nd August, 1946, and a notice to show cause was issued on the 4th December, 1947. The preliminary question as to the maintainability of the review applica the 29th June, 1949. During all tion was decided on this period Regulation IV of 1099 was in force in State of Travancore. Section 11, omitting the explana tions which are not material for our present purpose, and section 12 of that Regulation provided as follows : "11. (1) A Full Bench shall hear and decide all appeals from the decrees of the District Courts in suits in which the amount or value of the subject-matter. is less than five thousand rupees and the amount or value of the matter in appeal that sum. judgment of the The judgment of the Full Bench or the majority, together with the records of the case, shall be submitted to us in order judgment may be confirmed by Our Sign Manual. if there be difference of opinion, less than is not (2) Notwithstanding anything in the Civil Procedure Code, be the date on which Court after being confirmed by Our Sign Manual. the provisions of the date of the decree shall judgment is declared in open Explanation I. ................... . (a) ................... . (b) ................... . (c) ................... . ' .. Explanation II. ................... . 12. In cases decided under section 11 of Regulation a Full Bench of the High Court may admit a review of to the provisions of If, on review, a fresh judg Cotle of Civil Procedure. ment be passed,, the provisions of section 11 shall, as far as may be, apply." judgment subject It will be seen that under section 12 if a fresh judg- then the provisions of section 11 shall, judgment that is to say, the ment be passed as far as possible, apply, • .... 1954 Moran Mar Basselios Catholicos and Another• v. The Most Rev. Mar Poulose Athanasius and Others. Das]. S.C.R. SUPREME COURT REPORTS 525 • to be submitted incidental to the Maharaja Judiciary. Article the Covenant of merger between shall have -confirmation by his Sign Manual and the judgment so confirmed shall have to be declared in open Court after such confirmation. This was the position until the end In the meantime on the 29th May, 1949, of June, 1949. the Rulers of Travancore and Cochin with the concurrence and then Governor-General of India for guarantee of the formation as from the 1st July, 1949, of the United State of Travancore and Cochin with a common Executive, Legislature III that as from the appointed day (i.e., 1st July, provided 1949) all rights, authority and jurisdiction belonging to the covenanting States which the Ruler of either of appertained or were the Government of that State would vest in the United State. Article IV there should be a Rajpramukh of enjoined United State, the then Ruler of Travancore being the first Rajpramukh during his lifetime. Broadly speak the executive and ing, articles VI and XI vested legislative authority Rajpramukh subject period to suspend, remit or commute power of In exercise of the powers conferred death sentences. on him by article XI of the Covenant the Rajpramukh on the 1st July, 1949, promulgated Ordinance No. I of in force 1124. Clause 3 of that Ordinance continued that portion of the territories of the United State which formerly formed the State of laws until altered, amended Travancore all existing or repealed. Similar provision was made in clause 4 for the continuance of Cochin laws for that part of the United State which formerly formed the State of 7th July, 1949, however, came Cochin. On Ordinance No. II of 1124. Clause 4 of this Ordinance the Travancore High Court Act (Regulation repealed IV of 1099). The important for the present discussion therein spe.cified. Article XXI preserved the United State the conditions and relevant part of clause 8 which the purpose of territory of the Rulers coming into force of , this Ordinance in either of the commenced prior proceedings in the terms following : "8. All \ -. J • • 1954 Moran Mar Basselios Catholicos and -.Another v. The Most Rev. Mar Poufo"se Athanasius and Others. Das]. • 526 SUPREME COURT REPORTS [1955] High Courts of Travancore and Cochin, hereinafter in the existing High Courts, this Ordinance referred to as shall be continued and depend in the High Court as if in the High Court after such they had commenced date . ................. " The jurisdiction and powers of the High Court were defined thus : it by "18. Subject this Ordinance, to the provisions of the High Court shall have and exercise all the jurisdic this and any other tion and powers vested in Ordinance and under any law which may hereafter force and any power or jurisdiction vested in the existing High Courts by any Act or Proclamation the States of Travancore and Cochin immediately prior Ordinance. the con:iing into force of Clause 25 two Explanations which are nor material for our present purpose and clause 26 ran as follows :- leaving out "25. A Full Bench shall hear and decide all appeals from the decrees of the District Courts or the Court of a Subordinate Judge or of a Single Judge of the High the amount or value of the Court i·n Suits thousand rupees subject-matter the amount or value of the matter in appeal is not less than that sum. in which is not Explanation I. ................. . Explanation II ................. . 26. In cases decided under section ZS of Ordinance, a Full Bench of the High Court may admit a review of judgment subject to the provisions of Travancore and Cochin Codes of Civil Procedure." Clauses 18, 25 and 26 have been substantially produced in sections 18(1), 25 and 26 of the United State of Travancore and Cochin High Court Act 1125 (Act No. V of 1125) which repealed, amongst other things, Regulation IV of 1099 and Ordinance II of 1124. in 1950 which Then came created a union of several States grouped in Parts A, B and C by the First Schedule. · The United State of Travancore-Cochin became one 'of th~ Part B St2tes. the Constitution of India ' ; ' ... . ,- J - •• ' 1954 Moran Mar Basselios Catkolicos and Another v. The Most Rev. Mar Poluo!e Athanasius and Others. Das]. S.C.R. SUPREME COURT REPORTS 527 article 214 the High Court of the United State Under of Travancore and Cochin became the High Court of the Part B State of Travancore-Cochin and article 225 <:ontinued the laws administered in the then existing High Court. jurisdiction of and therein, for, even the appeal. infructuous, (IV of 1099), the Act and, The contention of learned Attorney-General to pronounce an effective It that in view of the changes referred to above which had the effect of setting up a common High Court for the United State of Travancore and Cochin with jurisdic the review application tion and power defined if it be allowed, has become jurisdiction there will be no authority which will have judgment after and power rehearing is pointed out that a review may be admitted under section 26 of the United State of Travancore and Cochin High Court Act, 1125, oniy in cases decided under section 25 of the Act. This case was not decided by a Full Bench under section 25 therefore, no review is maintainable under section 26. Further, if it be held that the appeal having been filed under section 11 of the Travancore High Court Regulation the application for review must be dealt with under section 12 of that Regulation if after the review to be passed after the provisions of section 11 would have to be complied with, namely, judgment will, under section 11, have to be the fresh to be confirmed by his Sign to the Maharaja submitted Manual and to be dated as of the judgment will be declared in open date on which the It is pointed out that Court after such confirmation. the Maharaja of Travancore no longer possesses power to consider and to confirm or reject judicial deci sions and it is submitted that such being the position in law the review application had become infructuous .and should have been dismissed by the Full Bench is not well .limine. founded. The application review was properly made to the Travancore High Court and the Travancore High Court had to decide whether to admit or to reject to be pronounced on judgment the application. The then, is admitted a fresh the Attorney-General, the decree will have In our opinion, this contention judgment has the appeal rehearing • 1954 Moran Mar Basselios Catholicos and Attother V, The Most Rev. Mar Poulose Athanasius and Others. Das]. 528 SUPREME COURT REPORTS [1955} reviving the said High Court after the High Court of the United State as the application for review did not require, under any provision of law to which our attention has been drawn, to be confirmed by the Maharaja or any other authority. It was a proceeding properly instituted and was pend the 1st July, 1949, and consequently under ing on section 8 of Ordinance No. II of 1124 had to be con tinued in if it had commenced · in coming into force of the said Ordinance. In this case, the application for review was rejected by the High If, however, Court. the High Court had admitted the then such admission would have had the effect review the original appeal whicI'. was properly in the Travancore High Court under section 11 of the Travancore High Court Regulation (IV of 1099). That appeal, so revived, having been commenced prior to the coming into force of Ordinance No. II of 1124 would, under section 8 of that Ordinance, have had to be continued in the High Court of the United State as if it had commenced in that High Court after such date. The position will be the same if on this appeal the review, for, upon such this Court now admits admission the Travancore High Court will be revived and then, having been commenced in the High Court of the United State by virtue of section 8 of Ordinance No. II of 1124 the appeal so revived will, under section 8 of the Act of 1125, have to be continued in that High Court as if it had commenced in that High Court after the coming into force of that Act. In if restored by this Court other words, the combined operation of section 8 of Ordinance II of 1124 and section 8 of Act of 1125, be an appeal pending in the High Court the United State. Under our present Constitution Travancore-Cochin has become a Part B State and under article 214 the High Court of the United State of Travancore-Cochin has become the High Court of the Part B State of Travancore-Cochin and shall have the jurisdiction to exercise all jurisdiction of and administer the law administered by the High Court of the United State. Such appeal must, accordingly, be the Travancore High Court and continued this appeal, will, by the appeal filed the old appeal, - - S.£.R. SUPREME COURT REPORTS 529 ·. disposed of under section 25 of the last mentioned Act. That section does not require any confirmation of judgment passed on the rehearing of the appeal by Maharaja or Rajpramukh or any other authority. if restored, will Assuming, however, the appeal, have to be governed by section 12 of the Travancore High Court Regulation the provisions of to be applied "as far as may be" and it may well be suggest ed that confirmation by have happened, be opinion, therefore, objection cannot prevail and must be rejected. (IV of 1099) even 11 would have requires in the events In our the portion of section 11 which the Maharaja will, the preliminary inapplicable. section 1954 Moran Mar Basselios Catholicos and Another v. The Most R1u. Mar PouloSI Athanasius and ·others. Das]. It restricted is much more limits fixed by Before going into the merits of the case it is as well to bear in mind the scope of the application for review the present appeal. which has given that the scope of an application needless to emphasise for review that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order XL VII, rule 1 of our Code of Civil Procedure, 1908, the Court of review has only a limited jurisdiction circum the language scribed by the definitive It may allow a review on three specified used therein. grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee reason" must mean "a reason sufficient on grounds, at least analog the rule." See Chhajju Ram v. ous to those specified Neki(1). This conclusion was reiterated 'by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath(2) and was adopted by our Federal Court in Hari Shankar Pal v. Anath Nath Mitter( 3 ). Learned counsel appearing in support of the aforesaid the words "any other sufficient this appeal recognises (1) L.R. 49 I.A. 144. !21 L. R. 61 I. A. 378. (3) [1949] F.C.R. 36 at pp. 47-48· • 530 SUPREME COURT REPORTS [19i5] limitations and submits that his case comes within the ground of "mistake or error apparent on the face of the record" or some ground analogous thereto. As alre.£1dy in the grounds observed, out of the 99 objections taken the majority of the High of review to the judgment of Court only 15 objections were urged before the High Court on review. the hearing of the application Although most of those points have been referred to by stre>.sed learned counsel three of them before us. Vie n'ow proceed to examine these objections. for the appelbnts, '1e mainly 1954 Moran Mar Basselios Ctitholicos and Another v. T !IA Most Rev. Mar Poulose Athanasius and Others. Das]. to custom. the defendants deny the Karingasserai meeting the ex officio trustee and The first objection relates first plaintiff as the M. D. Seminary the defendants rely, the validity of the the Malankara Metro election of the politan and as such "lections of plaintiffs 2 and 3 as his co-trustees at the is pleaded m Karingasserai meeting. This meeting In paragraph 18 · paragraphs 13 and 14 of the plaint. the plaintiffs refer to the meeting said to of the plaint in December, have been held at 1934, on which the plaintiffs' that meeting was not convened contention being by competent persons nor after due notice to all the In paragraph 20 of churches according the factum their written statement relied the validity of upon by the plaintiffs. They contend that that meeting was not convened by competent persons nor was the churches. invitation sent to the large majority of In paragraph 29 the ailega tions pleaded the plaint and their meeting was convened properly and maintain that upon notice In to all paragraphs 16 and 18 of their replication the plaintiffs reiterate allegations Issue 1 (b) the question of validity of the Karingasserai raises meeting of August, 1935, and question of the validity of the M. D. Seminary meeting of December, 1934. As the suit is for possession of the church properties to succeed, must establish trustees and this they can to discharge only do by adducing sufficient evidence irrespective the onus that is on them under the defendants rupudiate in paragraph 18 of issue 6(a) raises in Malankara. the plaintiffs, their title as the churches the plaint. issue 1 (b) in order • • 1954 Maran Ma Basselios Catholuos and Another v. The Most Rev. Mar Poulose Athanasius Others Das J. the churches that notice of It will be noticed in paragraph 165 he final argument before for reasons stated by him, SUPREME COURT REPORTS to all in paragraph 164 of 531 ·s.C.R . . cf whether the defendants have proved the validity of their meeting, for it is well established that the plaintiff in ejectment must succeed on the strength of his own the defendants' objection title. to the Karingasserai meeting was two-fold, (i) that the meeting had not been convened by competent persons and (ii) that notice had not been given churches. The District Judge judgment held, meeting had not been convened by competent persons said meeting had not been given to all the churches. It having been conceded by the plaintiffs' advocate at the District the time of Judge there· is no evidence on the plaintiffs' side in existence prior to to prove that all 1086 had been issued notices, the position was taken in the view of the plaintiffs' party the defen- up that dants and their partisans by adopting the new constitu tion Ex. AM had become aliens to the Church and as such were not entitled to that meeting. Their argument was that Karingasserai meeting was ·only a meeting of the representatives of those churches which stood by succeeding Patriarchs and as the defendants and their to the Church no notice partisans had become aliens to them was necessary. This argument clearly amounted to an admission that no notice was sent to the churches on the defendants' side .. The District Judge having held, contrary to the submission of the plaintiffs, -defendants and their partisans had not gone out of the it followed, according to him, Church they were to notice and as it was not proved that notices entitled were sent to them but on the contrary as it was con that no notice was necessary to be sent to tended the District Judge felt it to be quite clear that the said meeting was not duly convened. In matter learned District the matter and enquire Judge whether notices had been given to churches which had not adopted the new constitution Ex. AM. it was not necessary for the to go the Patriarch Abdulla this view of II and further invited to be Coming to the judgment of the High Court it appears <that the majority of the Judges dealt with the question + ,;' • 1954 MorariMar Basstlios Catholicos and Another v. The Most Rev. Mar Pou/ose Athanasius Others. Das]. ... ·; 532 SUPREME COURT REPORTS [1955] of the validity of the meeting summary manner. Nokes J. said :- in a superficial and "The lower Court held that the meeting was not duly convened, mainly because notice was not given to the defendants' party (judgment paragraphs 166, 167). The want of notice was not disputed, but was justified (Exhibit in accordance with the Patriarchal monition that the In view of the conclusion stated above, Z). adoption of the new constitution was clear evidence of repudiation of the Patriarchs' church, the defendants' took place in 1934 and of the fact the meeting at ·Karing about 8 months earlier than the want of notice was justifiable apart from asserai, the monition. The lower Court's conclusion meeting formed only a minority of is thus is the conclusion (judgment, par.agraphs erroneous as the meeting was not convened. by 164, 167) competent persons." the adoption the church Mr. Justice Sathyanesan simply observed : 'The only defect pointed out was invita that no to the churches under the tion of the meeting was given control of 1st defendant. The short answer to this that having already become members of a new Church, invitation and were to any they were not entitled rightly ignored." • J. the end of It thus appears that the question as to the compet the persons who convened the Karingasserai ency of in one single meeting was disposed of by Nokes the paragraph quoted above .. sentence at The learned Judge does not appear to have seriously applied his mind at all to the question of the compet ency of the conveners of that meeting. Sathyanesan J. did not deal with thought, quite the only question raised by the defend- wrongly, ants was as to whether notice was given It is. churches under pointed out by the· judgment of Sathyanesan · J. was only a supplementary judgment with the for he prefaced his judgment, observation findings: that he entirely agreed with of Nokes J. This argument might have had some force the control of the defendants. the learned Attorney-General that the question and ., - r954 Moran Mar Basseilios Catholicos and' Another v. The Most Rev. Mar Poulose Athanasius and: Others. Das]. S.C.R SUPREME COURT REPORTS 533 invitation took the view them. Sathyanesan J. also the meeting. It may be noted if Nokes J. had dealt with the point. The position, therefore, is that neither of the Judges applied his mind to the question of the competency of the persons who had convened the Karingasserai meeting. As to service of the notice on all churches, Nokes J. in the passage quoted above held the defendants had gone out of the Church by reason of their adoption of the new constitution Ex. AM. and that consequently no notice the passage was due to quoted above that the defendants having become members of a new church the defendants were to the Karingasserai meet not entitled to any the finding of ing. The learned Judges having reversed the District Judge and held the dekndants had the Church by adopting the new constitu gone out of tion Ex. AM. it became incumbent on them to enquire the plaintiff's side had whether all churches not on adopted Ex. AM. and if not whether such of them who had not adopted Ex. AM. had been summoned the High Court in their judgment the learned Judges of the churches which adopt the M. D. ed Ex. AM. did so by participation at Seminary meeting. Reference has been made arguments the number of ment of Churches which according to the evidence had attended It is not clear how many out of 310 the meeting. to have been churches claimed by to Ex. 272 had completely on tl1e M. D. Seminary meeting and formally attended If ad0p the new constitution adopted for determining tion of the Ex. AM. it becomes im whether notice portant the chu'.ches which the plaintiffs but who had not adopt were not with ed Ex. AM. had been served. Apart the ques there was also the the notice tion of the persons who the competency of question as had convened the Karingasserai meeting where to have been elected. While Mar plaintiffs are said as President Geeverghese Dionysius was alive he, is due or not, to consider whether all the District Judge as the defendants their side according the various figures set out the service of in this context the Ex. AM. indicate in the t - '.~54 Moran Mar Basselios C athfllicos and Another v. The Most Rev. Mar Poulose Jtt/ianasius and Others. Das]. 534 SUPREME COURT REPORTS [1955] to convene learned Attorney-General, all members attend, even of the Malankara Association, used the Association. vVho, after his death, meetings of issue notice of meeting ? There was competent to be no rules on the subject. In this situa appear all the tion, members of the Association attended the meeting the defect of want of proper notice does not matter. But the defendants' party who had adopted Ex. AM be left out ? It does not appear that either of the two majority Judges of the High Court adverted to either of these aspects of the matter, namely, service of notice to all churches and competency of the persons who issued the notice of the Karingasserai meeting and in any case did not come to a definite that question. The majority judgments, therefore, are defective on the face of them they did not effectively deal with and determine in that in the case on which depends the the plaintiffs and the maintainability of the title of suit. This, apparent on the face of the record. in our opinion, is certainly finding on important their allegiance The next point urged by learned counsel appearing for the appellants is that the majority decision proceeds on a misconception as to a concession said to have been It will be recalled made by the defendants' advocate. that issues Nos. 14 and 1'.' quoted above the defendants having gone out of the question of Church, for having committed acts of heresy or having to the ancient voluntarily given up J acoc:te Syrian Church and establishing a new church and framing a constitution the same. Likewise, the question as to whethe.r issues Nos. 19 and 20 raise the plaintiffs and themselves their partisans into a new church and separated from the old Church by reason of the several acts and claims therein red to. Here again the suit being one in ejectment is more important for the plaintiffs the defendants' issues 14 and 15 decided against by getting for a mere destruction of the defendants' . defendants, in the absence of establishments of their own title title, title by getting favour issues 19 and 20 decided to establish to destroy formed .;.• - • 1 954 Maran Mar Basselios Catholicos amt Another v, The Must Rev. Mar Poulose Athanasius amt Others. Das]. S.C.R. SUPREME COURT REPORTS 535 trusteeship or their allegiance in paragraph 133 the plaintiffs and In paragraph 132 of his trustees and not a suit under learned District Judge found imputed to section 92, Civil Procedure Code, to be remembered carnes It is the plaintiffs nowhere. the valid! y cons that this is a suit by the plain tiffs as the section tituted analogous removal of defendants framing of a scheme. the acts to the defendants did not amount and claims to heresy and did not make the defendants or their partisans heretics or aliens faith and in issue 15, even if ·such acts and conduct mentioned proved, would· not amount to heresy and would not amount to a voluntary giving up of or secession from the ancient Jacobite Church. On the other hand, the District Judge held their adherents by taking up in 1085 and which they adopted the 'position which they had persistently maintained till then had unlaw fully and unjustifiably created a split in the Malankara to have pursued a Church and might in a sense be said to persistent schism. He course of conduct amounting their parti~ that, nevertheless, the Church or created sans had not become aliens or formed themselves had not been found guilty and punished ~with the the Church or excommunication from removal from t'.1e Church by a proper ecclesiastical authority. It learned District Judge found will be noticed to the defendants not proved but the the facts to have been proved. He made no difference between acts of heresy and the Church but merely voluntary treated It will be recalled them on that m the District that by accepting Abdul Messiah Judge had held the autho an<l rity of Abdulla his co-trustees had not become aliens the faith. Finally, rehearing of the appeal in the judgment on reported in 45 T.L.R. 116 from which passages have to the defendants been quoted above in that r.:ne which are similar to to the their ecclesiastical head or by denying separation the same footing. II, Mar Geeverghese Dionysius into a separate church as the plaintiffs and to the plaintiffs the interpleader suit of 1913 the acts imputed imputed imputed imputed 1954 Moran Mar )Basselios Catholicos Another v. The Most Rev. Mar Poulose ..Athanasius and Othtrs. Das]. 536 SUPREME COURT REPORTS [1955] separation. defendants in the present case, with the exception of the adoption of Ex. AM, were held not to amount to a voluntary separation from church by the establish that the Free Church case( 1 ) ment of a new church and had no application to the facts of that case. Likewise, in the present case the District Judge dealt with issues issues on 15, 16, 19 and 20 together, which covered Presumably both heresy and voluntary in view of the decision of the Court of Appeal in previous suit in this case did the learned District Judge not make any distinction between acts of heresy and the Church ·and held that voluntary separation from there was "no case of ipso facto heresy or ipso facto loss of membership of loss of status as Priest and prelates for ecclesiastical offences the offenders were tried and punished by a com unless petent authority." the evidence of P.W. 17, is claimed as supporting this view. the Pope's delegate, It is in the light of this situation that the question as to the misconception of the concession has to be con sidered. Sathyanesan J. in paragraph 4 of his judgment, referred to the concession said to have been made by the learned advocate for in the follow ing terms:- the Church or ipso facto the defendants Indeed, . .,. .. ' >' .. interfere " ............ However the learned advocate respondents clarified the situation by very fairly con ceding that plaintiffs had not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else. Another clarification has been made by the learned advocate for the appel lants that the plaintiffs, whatever might have happen ed in the past, do not hold that the Patriarch can at Malankara seem to have their . position clear even at the time of pleadings. According 'The Patriarch as the ecclesias tical head of the Malankara Church could exercise that authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropria tion of church properties'-Vide pleading No. 124(1). The concession made by (1) L.R.[1904] A.C. 515. internal administration of trust properties. Plaintiffs learned advocate for to them, - ...,. • - - • • '( ,. S.C.R. SUPREME COURT REPORTS 537 defendants has obviated discussion of several matters. So a while and understanding implications of the concessions. It tends to mean- the necessity of a lengthy is worth pausing importance and ( i) that the Patriarch is not an alien to the Church, i.e., the Patriarch and his predecessors in question are the true and lawful head of the original Jacobite Syrian Church, (ii) that the plaintiffs and their partisans, holding 1954 Moran Mar Basseli.os Catholicos and Another v. The most Rev. Mar Poulose Athanasius and Others. Da.rJ. (a) the Patriarch has only a ·spiritual supervi trust properties by sion of the administration of the trustees, (b) the Patriarch alone can consecrate Morone, ( c) that Exhibit BP true Canon of the Jacobite Church, and ( d) that the Catholicate was not properly esta- blished, cannot, on have become aliens these grounds, be considered to the original church. So the question is more properly whether the defend the original church and ants have formed a new church. plaintiffs can succeed only if they make out, In the nature of the suit, seceded (A) that defendants Jacobite Church to Malankara the maintenance, support and benefit of another namely Malankara Orthodox are using properties belonging and a different body, Syrian Church, and (B) that the plaintiffs are elected trustees." Likewise, Nokes J. at pp. 355-356 referred concession as follows :- " .......... In to disturb the finding did not seek the church. had not become aliens previously stated, he based his case on that both parties were still within abandonment of his clients' contention court was no doubt due to the fact statement this court the defendants' advocate that the plaintiffs Indeed, as the ground the church. This in the lower the written the plaintiffs' inv9lved an admission r954 Moran Mar Basselios Catholicos and Another v. The Most &v. Mar Poulose Athanascus and Others. Das], , • , ~ ..__ • I ' I I • 538 'we are the the plaintiffs in effect said, we are SUPREME COURT REPORTS [1955! : the defend trustees of a church to which is an alien.' Nor was any attempt made trust had not become altered ; for the contrary provided no defence 'plaintiff's case. the pleadings case ; for trustees of the Patriarch's church,' while ants said, the Patriarch here on behalf of finding any contention and was a further admission of the But the existence of this allegation on serves trust." the defendants' attitude the defendants to challenge to emphasise Further down the learned Judge said :- " .... The learned Judge held against limited scope of temporal affairs to be based on the general allegation of separation (judgment, paragraph 133), but in favour of the special allegation as to the plaint temporalities (paragraph 108). He aiso iffs' view on recorded findings (paragraphs 58, Patriarch's powers the erroneous view 60), which seem inter alia that persons who are subject to two .systems of law are amenable for different -aspects of the same (see offence only paragraph 57). The general finding was challenged in the memorandum of objection (grounds 10 and 11 ),· but not in the argument for the defendants here, which, as previously stated, proceeded on the basis that both sides were still members of the church." to punishment under one system imputed Judges the District Judge, On a plain reading of the two judgment; it appears took the view that even if, that the majority the plaintiffs had been as held by to them it was not guilty of acts and conduct to enquire whether those acts were necessary for them mere heresy or also amounted to a settinv, up of a new church or whether the Canon law requirinv. the verdict to both or only of an ecclesiastical authority applied to acts of heresy. This attitude they adopted simply iv~s the concession because of what made by that the plaintiffs had L>t gone out of the church. They, how ever, the contention of the defendants that they were also, for similar reasons, the defendants' advocate, namely, felt bound, notwithstanding they u:1derstc::~ 1954 Moran Ma Basselios Catholicos and Another V, The Most Reo. Mar Poulos. Athanasius ~nd Others. Das]. S.C.R. SUPREME COURT REPORTS 539 the church, to consider whether is a good deal of force the majority within the defend ants had voluntarily gone out of the church by setting up a new church as evidenced by their aforesaid acts. the appellants contends, and we Learned counsel for in such contention, to have Judges do not appear examined the question or considered whether volun tarily going out of the church was a concept separate and distinct from acts of heresy and if so whether the imputed to the plaintiffs apart from acts and conduct being acts of heresy from an ecclesiastical point of to voluntarily going out of the view, amounted also church by establishing a new church. Nor do appear the Canon requiring verdict of an ecclesiastical authority was req u1red in both cases. There can be no doubt, there fore, on the face of the judgment, that the decision of this behalf proceeds on what the learned Judges they considered was a concession made by the defend that the plaintiffs had not gone out of ants' advocate the church. Learned the defendants appellants contends this was a misapprehension relies on the affidavit of Sri E. J. Philipose, and he advocate, with which were produced letters written the senior advocate. to him by letter it is stated as follows :- to have considered whether In the counsel is open length of "I argued at in going against the misconduct of judgment and said that while the basic conditions of the plaintiffs the con Royal Courts' duct· of each party to examination neither could be said to have left the church. Their acts may in both cases but they cannot be said to be set aside the church. The Judges cannot accept it in have left one case as a concession and the other case as my submission. Deciding one part of it as a concession is unjust to my lengthy argument on the misconduct of the plaintiffs in regard to their diversion of property from the trust." the decision of Court requiring I 11 the second letter we find the following passages : the plaintiffs "Throughout my argument was steadily and consistently set at naught 16-87 S. C India/59 •954 Moran Mar Basselios Catholicos and Another v. Thi Most Rev. Mar Poulose Athanasius and Others. Das]. • 540 SUPREME COURT REPORTS [1955] fundamental principles of the charity as settled judgments of the Royal Court and the Cochin Court. in the I expressed should be As between the charge and counter charge · of it as my violation of the foundation rules, that while their views may be corrected by the as having Court neither party to the church by reason merely of erro become aliens in paragraph neous views. That 17 of the one case and a If my view of the law was submission as to the other. not acceptable the learned Judges must decide and not treat one part of a connected statement as a concession not requiri1w to be considered by the Court." the grounds. My opinion so expressed is not treated as a concession of is what is explained treated In the review petition ground No. 17 is as follows : conceded inaccurate observation incomplete, "Their Lordships' the ground defend· ants' ' Advocate based his case on that the the Church and both parties were still within the plaintiffs .defendants' Advocate they were as good the church and that have not left the original Jacobite Syrian Church as members of anybody misleading. The Advocate devoted a great part of the the plaintiffs have departed argument to showing the Royal Court from the constitution as settled by Judgment. The plaintiffs stated the defendants the Church. the argument was ipso facto secession is no such merely because of differences of views on the powers to be followed. of the Patriarch or about .the Canon It was in that sense and in that sense only it must be taken .:irgument was advanced that both parties were within the Church. The Judges it out of its setting and were not in taking using part of it as an admission in support of the other portion as a mere plaintiffs and in law so far as the defend argument not sustainable If it should be treated as an ants are concerned. admission at all it must have been accepted or rejected It must not have been torn piecemeal as a whole. and part used and part rejected. In reply thing as rejecting justified in law ' Moran Mar Basse/ios Catholicos and Anoth<r v. The Most Rev, Mar Poulos• Athanasius and Others. Das]. - -\ ' - .S.C.R. SUPREME COURT REPORTS 541 The reasons assigned for concluding that the defend .ants have gone out of the Church apply even more the plaintiffs and the Judges should have strongly ·dismissed the suit in limine. Their Lordships the basic ·Constitution of the Church had been laid down by the Royal Court Judgment and the plaintiffs by disown mg and repudiating it had really seceded from it. to note failed to sustain If the view of the court was that departure from the rules of the foundation put the parties out of ·Church it should apply alike to both the parties and that neither party had gone out of the the statement the plaintiffs' right Church cannot be used to support and at the same the precisely similar rights of the defendants. • that the defendants' Advocate strongly urged that it was necessary to have the charges framed, enquiry held and due and proper grounds made out before a person can be put out of . the Church and there was not even a whisper of it as having been complied with ih this case. Their Lordships failed to note time rejected as untenable Their Lordships also failed to note that there can be no such thing as an entire body of persons against whom nothing was alleged or proved being held to have gone ·out of the Church. to note Their Lordships failed that the so-called admission did not m any way affect the defendants' the Patriarch and the plaintiffs and their the Church and had partisans have voluntarily thereby ceased to be members thereof." Learned Attorney-General strongly objects the facts contained to any reference being made -affidavit of E.J. Philipose or the letters produced along with it and he refers us to the decision of this Court in Sha Mulchand & Co. Ltd. v. fawahar Mills Ltd.(1 ), and to the case of Reg. v therein referred to and the cases It will, however, be Pestanji Dinsha and Another( 2 ). in that case was the noticed that what was deprecated in the appeal Court, Court for the rectification of what, that no affidavit had been filed before (I) [1953] S.C.R. 351 at p. 366. (2) 10 Born. H.C.R. 75 . • 1954 MManMar Basselios Catholicos and Another v. The Most &v. Mar Poulose A.thanasius and Others. Das]. 542 SUPREME COURT REPORTS [1955} ' .._ • - ' -1# freely in the judgment referred to this Court judgment •· · judgment is said the appeal Court itself while the Chief Justice ~ to move the Court the error is alleged to have crept was alleged to have been wrongly recorded by the Judge. The Privy Council in Madhu Sudan CltoflJdri v. Musammat Chandrabati Chowdhrain(1 ) also suggested that the proper procedure was in. In this case, as already stated, an affidavit was before if, as laid and Nokes J. were still in office. Further, judgment of this Court to which reference down in the the proper procedure is to apply to has been made, to be founded on a mis Court whose the concession made by the learn~d conception as to Advocate appearing before it, by what procedure, unless it be by way of review, could that Court be moved i' Indeed, the Madras case the applicatiop indicates should be by way of review. Patanjali. Sastri J. (as he then was) sitting singly the Madras High Court in Rekhanti Chinna Govinda definitely took the view Chettiyar v. S. Varadappa Chettiar(') that a misconcep- the Advo- tion by the Court of a concession made by the party appears cate or of the attitude taken up by to be a ground analogous review section and affords a good the first part of the and cogent ground for review. The learned Attorney- General contends letters to be part of "the accompanying the meaning of Order 47, rule 1. We record" within see no reason to construe very restricted sense as was done by Denning L.J. Rex v. Northumberland Compensation Appeal Tribunal, ~ Ex Parte Shaw(') which was a case of certiorari and include within the document which term only the pleadings and the adjudica- initiates tion and exclude record. Further, when the error complained of is that the Court assumed that a concession had been made the Court when none had in fact been made or misconceived the scope and extent of it, it will not generally appear on the ., > 4 the terms of the concession or the evidence and other parts of the grounds set forth the word "record" this affidavit and it cannot be said the proceedings, '·r - .(;. (1) [1917] 21 C.W,N. 897. (2) A.LR. 1940 Mad. 17. (3) [1952] 2 K.B. 338 at pp. 351.35._ .S.C.R. SUPREME COURT REPORTS 543 re.cord but will have to be brought before the Court by way of an affidavit as suggested by' the Privy Council as well as by this Court and this can only be done by to which reference has been way of review. The cases the Court made indicate to an must be error on the face of the record. permissible an additional ground for review of the judgment. regarded as sufficient reason analogous to rely on the affidavit the misconception of In our opinion 1954 Moran Mar Basselios Catholicos and Another v. The Most Rev. Mar Poulose Athanasius and Others. Das]. • .;,. - the acts and conduct imputed "'.- . • learned Advocate for the defendants did was review law and them. What it is quite obvious to acts of heresy or law as interpreted by that nobody goes out of the affidavit and the letters and Turning to ground No. 17 of defendants had not given up their contention, upheld that the plaintiffs had been guilty by the District Judge, -0f to accept the Canon the District Judge, namely the church without ecclesiastical' authority, whether the verdict of an the acts complained of amount the establishment of a new church so as to make persons who are guilty of such conduct aliens to the If the majority Judges took the view that such faith. was not the Canon the same acts and conduct may have an ecclesiastical aspect in the sense they amount to heresy punishable as such and may also amount to a voluntary separation is not an ecclesiastical offence and does church which the verdict of any ecclesiastical authority not require the church then to place it was Judges to consider whether the acts and conduct of which found guilty had actually the plaintiffs had been been committed by them and whether such acts the dual aspect, namely, conduct to an ecclesiastical offence requiring excom :amounted munication and also to a voluntary separation which not being an ecclesiastical offence did not require :an ecclesiastical verdict to place a guilty person out of the pale of the Church. This, on the face of the judg ment, the learned Judges failed to do. incumbent upon the ma1onty the guilty person out of also had clearly Learned Attorney-General has submitted allegations against namely- the plaintiffs are five in number, ..# ,._. .. 1954 Moran Mar lJJasselios Catholicos and Another v. The Most Rev. Mar Poulose Athanasius and Others. Das]. 544 SUPREME COURT REPORTS [19551 (1) The Patriarch has Temporal powers over the properties of the Malankara Church ; (2) The Patriarch has got the power acting by himself to excommunicate and ordain a Bishop ; (3) Only ( 4) The Canon of the Church is Ex. XVIII in O.S. the Patriarch may .consecrate Morone ; No. 94 of 1088 ; and (5) The Catholicate has not been validly instituted in the Malankara Church ; and suggests these charges have been gone into· directly or indirectly by the majority Judges and that, therefore, no prejudice has been caused. He, however, that the Judges have failed to consider cannot dispute to any definite finding on some of them. We and come do not consider learned the contention of Attorney-General Issue 20(1) is entirely well founded. the plaintiffs and even contains several charges against if charges (a) and (b) have been referred to majority judgment, the charges (c), (d) and (e) have· .certainly not been dealt with. As to temporal power of the Patriarch the District Judge held in para graph 58 of his judgment that the Patriarch had no· temporal authority or jurisdiction or control over the Malankara Jacobite Syrian Church and its temporalities and that the power of general supervision over spiritual in Ex. DY Government conceded did not carry with it by necessary implication the right to interfere temporalities the Church. The decision and properties of contrary in 41 T.L.R. 1 cannot be regarded as having any bearing after that judgment was set aside subject 011ly to three points as hereinbefore mentioned. It that the majority Judges considered does not appear temporal powers to whether to him in the Patriarch or the limited one as conceded Ex. DY and if they did temporal to him full they had departed from a fundamental powers whether tenet of the Church. · They do not also appear have considered whether, if the plaintiffs originally pledged themselves to the tenet of full temporal power of the Patriarch and thereby departed from a fundamen their having tal article and such departure in the administration of the Patriarch the plaintiffs imputed full involved impute • J , ~. 1954 Moran Mar Basselws Catholicos and Another v. The Most Rev. Mar Poulose Athanasius and Others. Das]. ...l. -J. - "' '."' - • { S.C.R . SUPREME COURT REPORTS 545 it as finding then the the claim t~1e Canon. the Canon, the Church by making finding may in their attitude become aliens, any subsequent change by limiting in Ex. DY would make a difference. Further, as to the power of consecrating Metropolitans Nokes J. found that a nlidly appointed Catholicos had the power, under both versions of consecrate Metropolitans without a Synod and that by so claiming the defendants had not become aliens to the learned Judge, however, did not consider faith. The the implication of this so far as the plaintiffs concerned. This the Patriarch alone implication the Catholicos has got the power of ordination and regarded as a has not that power cannot but be departure Issue 20(1) (a) (i) which the consecration of Morone has been found in relates If the defendants have not favour of the defendants. gone out of the claim that Morone may be consecrated by the Catholicos or learned Judge the Metropolitan in Malankara should have considered whether a denial of such by the plaintiffs constituted a departure by them from the canonical related to the establishment of ·do. the plaintiffs the Catholicate. maintained that a Catho!icate had not been established that Abdul Messiah at all. The District Judge held by his Kalpana Ex. 80 the Jacobite Catho revived respondents' ground of appeal No. 17 licate. The assumed that a Catholicate had been established. Nokes that Abdul Messiah was a Patriarch, that a Patriarch had the power by himself and without the Synod that a Catholicate had been established by him although the East had not been revived. old Catholicate of Sathyanesan J., however, held that the establishment of the Catholicate in Malankara was dubious, surrepti that no Catholicate had tious and uncanonical and to be judgments appear been established. The In any case, somewhat at vanance m Nokes J. has not considered whether the stand that no Catholicate had been esta the plaintiffs blished at all amounts the injunctions of the Canon law. On a fair reading 0£ to establish a Catholicate and In "pleading" No. 124 learned Judge failed Issue 20(l)(a) (iii) to a departure by law. This J. held respect. •9541 Moran Mar Basselios [.. Catholicos and ;:_ < Another v.. TM ·Most Rev. Mar Poulose .Athanasius and Others. Das]. 546 SUPREME COURT REPORTS [1955] ' to us learned judgments it appears the plaintiffs the majority majority Judges have been misled by a misconception to the nature and scope of the concession alleged to If the have been made by the defendants' advocate. imputed to the defendants amounted to a voluntary separation, should have consi Judges imputed to the plaintiffs like dered whether the acts If the wise amounted voluntary separation. to a defendants had not gone out of the Church by asserting that a Catholicate had been established, Catholicos can ordain Metropolitans and consecrate they should have considered whether by Morone the plaintiffs had not gone these assertions denying out of the Church. This they failed to do. They could not properly decline to go into the question of fact on account of the admission of the defendants' advocate the Church. Such admission at best was an admission a; to the canon law and the decision that the defendants had voluntarily gone out of the absence of an the Church even implies that the conce ecclesiastical verdict necessarily requiring an ssion made by the defendants' advocate precedent a verdict as ecclesiastical voluntary separation also was obviously wrong and an erroneous concession of law made by the defendants' advocate could not be The that cross-objection plaintiffs. No. 11 filed in the High Court by the defendants does not appear to have been pressed makes no difference. this head of In our opinion, for reasons stated above, objection appllants before us is well-founded and the judgments the majority Judges are vitiated by an error of a tl1e 1neaning of kind whicl1 is .sufficient reason witl1in the Code of Civil Procedure for allowing the review. relied upon for saving therefore, raised by :ondition remained advocate learned fact, to · The last point taken up by that although certain matters left out in connection with for the appellants is to be been agreed No. ll(a), against left out by agreement. powers of the Patriarch. Clauses specific powers of the Patriarch. Clause (a) the learned advocate !:'.ad took an adverse view to the relates (b) to ( i) relate to the defendants on matters which had been Issue No. 11 learned Judges ·of • j. • , ' • I 1954 Moran Mar Basselios Catholicos Another v. The Most Rev. Mar Poulose Athanasius and Others. Das]. S.C.R. SUPREME COURT REPORTS issue is vague and is expressed in very general Paragraph 60 of follows:- the District Judge's judgment 547 terms. is as this suit "60. It was stated by the advocates on both sides for the purpose of .that it is unnecessary in a general and comprehensive determine or decide manner or define exhaustively all the powers that the Patriarch may have over or in respect of the Malankara the supreme spiritual or ecclesiastical head Church as of the whole Jacobite Church including Malankara and I also think it is not within the province or competency -0£ this court to attempt to do it. Whether he is the supreme spiritual head or whether he is the supreme ·ecclesiastical head, his powers as respect of the matters specified under clauses (b) to (h) ·of issue 11 (which have formed the subject-matter of ·dispute in this case) have been considered and defined under these various headings under this issue 11 and it has also been stated how far they have been deter mined or upheld by law courts, custom, practice and precedent so far as Malankara is concerned and · these .findings, it is conceded on both sides, will suffice." the Patriarch relating related only In other words, It will be noticed the specific powers of that after this agreement issue No. 11 to certain specific powers of the Patriarch. The findings on these issues by themselves -do not lead to any result. They were, as it were, only introductory issues and were material for other issues, ·e.g. issues 14, 15, 19 and 20. the other issues general issue ll(a) being given up, limited mentioned above were automatically speCific acts Patriarch. The majority Judges have, however, cer tainly gone into three matters which were then agreed to have been left out, e.g., (a) obligation to obey the 'Patriarch whether canonically (b) extent of the right of the Patriar.ch by himself to decide matters of faith and ( c) whether the Patriarch has in the sense that such right to approve of a Catholicos approval was necessary. These matters are not averred issues have been raised and, in pleadings and no specific in the circumstances, should not have been gone into. these points are covered by The suggestion is learned Judges held other issues. to a the new constitution Ex. AM amounted It is said installed or not, 1954 Moran Mar Basselios Catholicos anti Another v. The Most&v. Mar Poulose .A.lhanasius and Others. Das]. 548 SUPREME COURT REPORTS [1955}' repudiation of following grounds :- the authority of the Patriarch on ( 1) Installation Catholicos 1gnonng Patriarch ; (2) Absence of a provision for Patriarch or Malankara Metropolitan ; the approval by the (3) Ordination of Metropolitan and the issuing of Staticons by the Catholicos, and It issues the effect The above discussion, it is clear themselves on the to trial clearly amounts (4) the right to collect Ressissa. These points are said to be covered by issues 11 ( b) ,. (c), (g) and (h), and also by issues lO(b), 14, 15 and 16. learned Judges· Assuming it is so, three points herein also founded to fall within before mentioned which do not appear issue ll(a) which in the case except any of was given up. To decide against a party on matters issues on which the which do not come within to an error appa-· parties went rent on the face of the record. futile to speculate these matters had on the minds of the J u<lges in comparison with the effect of the other points. is quite the purpose of disposing of this appeal sufficient the several other· the· minor points appellants have made out a valid ground for allowing their application for review. We accordingly allow judgment of the High Court and appeal, set aside involved in . admit intimately this appeal are interconnected we direct to be reheard on all points unless the entire appeal the High both parties accept any of the findings of Court. The costs must follow the event and we order the costs of this appeal the appellants must get before us and of the application the· for review before High Court. the review. As the different points is not necessary to go raised before us. in our opinion, In our opinion We need hardly add that the observations that we have made in this judgment are only for the purpose of for review and should not be taken or this application read as observations the merits of the appeal now restored and to be reheard by the High Court. Appeal allowed.