Moran Mar Basselios Catholicos And Another v. Most Rev. Mar Poulose Athanasius & Others

Das, J.— This appeal by Special Leave arises out of a suit filed in the District Court of Kottayam as far back as in 1938. That suit was concerned with the disputes that had arisen between two rival sections of the Malankara Jacobite Syrian Christian community regarding the fundamental tenets of their church and the possession and administration of the church properties. In order to fully appreciate the rival contentions carefully formulated and elaborately argued by learned advocates for both parties appearing before us, it is necessary to know the genesis of the controversy between the parties which has behind it a fairly long history and which must, accordingly, be stated at the very outset.

2. In Malabar there is a Christian community commonly known as the Malankara Jacobite Syrian Christians. That community traces its origin to 52 A.D when St. Thomas, one of the disciples of Jesus Christ came to Malabar and established the church there. In 1599 A.D under the influence of the Portuguese political power on the West Coast of India, the community accepted the Roman Catholic faith. This affiliation, however, did not last long. At a meeting known as Mattancheri meeting held in 1654 the Roman Catholic Supremacy was thrown off and the Church in Malabar came under the authority of the Patriarch of Antioch who began to depute Metropolitans (Bishops) from Persia and Syria for ordaining Metropolitans in Malabar. This continued up to 1800 A.D Between 1800 A.D and 1842 A.D the local Metropolitan ordained his successor. The last of the Metropolitans so ordained was Mar Cheppat Dionysius. In 1840 one Mar Mathew Athanasius went to Syria and got himself ordained as Metropolitan by the then reigning Patriarch of Antioch. This is said to be the first instance of a Metropolitan being ordained by the Patriarch himself.

3. There were disputes between the Church Mission Society and the Malankara Jacobite Syrian Church over properties held jointly by them. These disputes were settled by what is known as the Cochin Award made in 1840. This award divided the properties between the two bodies and so far as the properties allotted to the Malankara Jacobite Syrian Church were concerned, it provided that they should be administered by three trustees, namely, (i) the Malankara Metropolitan, (ii) a Kathanar (i.e priestly) trustee, and (iii) a lay trustee.

4. In 1842 Mar Mathew Athanasius returned to India but Mar Cheppat Dionysius refused to hand over charge to the former. In 1846 the Patriarch of Antioch sent one Mar Kurilos to settle the dispute. Mar Kurilos adopted a novel way of settling the disputes. He excommunicated Mar Mathew Athanasius and appointed himself as the Metropolitan of Malankara. This he is said to have done by utilising certain blank papers containing the signatures of the Patriarch. Mar Cheppat Dionysius withdrew in favour of Mar Kurilos but Mar Mathew Athanasius persisted in his claim. In 1848 the Travancore Government set up what was called the Quillon Committee to settle the dispute. That Committee decided in favour of Mar Mathew Athanasius who, therefore, took over charge as Malankara Metropolitan. It appears that later on Mar Mathew Athanasius incurred the displeasure of the Patriarch who in 1865 excommunicated Mar Mathew Athanasius and ordained one Mar Joseph Dionysius, who had gone to Syria, as Metropolitan. On the return of Mar Joseph Dionysius, however, Mar Mathew Athanasius refused to hand over charge to the former but continued in possession of his office and the church properties.

5. In 1876 Patriarch Peter III came to Malabar. He called a meeting of the accredited representatives of all the churches in Malabar which accepted the ecclesiastical supremacy of the Patriarch of Antioch. The said representatives met together in a synod called the Mulamthuruthu Synod under the presidentship of Patriarch Peter III. At that Synod the Malankara Syrian Christian Association, popularly called the Malankara Association, was formed to manage all the affairs of the churches and the community. It consisted of the Malankara Metropolitan as the ex-officio President and three representatives from each church. A managing committee of 24 was to be the standing working committee of the said Malankara Association. During his stay in Malabar Peter III ordained 6 Metropolitans.

6. In the same year Mar Mathew Athanasius died after having ordained his brother Mar Thomas Athanasius as his successor and accordingly the latter took possession of the church properties and began to act as the Malankar Metropolitan.

7. On 4-3-1879, Mar Joseph Dionysius claiming to be the proper person consecrated and appointed Metropolitan of the Jacobite Syrian Church and the President of the Malankara Association filed a suit (OS No. 439 of 1054) in the Zilla Court of Alleppey against Mar Thomas Athanasius and two other persons for the recovery of the church properties, movable and immovable, and other incidental relief. The most important point in dispute related to the authority of the Patriarch of Antioch over the Malankara Edavagai i.e the Syrian Christian Diocese of Travancore. Mar Joseph Dionysius asserted that the supremacy of the Patriarch consisted in his consecrating and appointing Metropolitans from time to time to govern and rule over the said Edagavai, sending morone (the sanctified oil) for baptismal purposes, receiving ressissa from the community to maintain his dignity and generally in controlling the ecclesiastical and temporal affairs of the Edavagai. Mar Thomas Athanasius' contention amounted to a total denial of such alleged supremacy of the Patriarch. According to him the Patriarch could not claim, as a matter of right, to have any control over the Syrian Church in Malabar, either in temporal or spiritual matters and that as a high dignitary in the churches of the country where their Saviour was born and crucified the Malabar Syrian Christian community did venerate the Patriarch but that such veneration did not create any right in him to take the position that was claimed for him by Mar Joseph Dionysius.

8. After various proceedings to which it is not necessary to refer, the Travancore Royal Court of Final Appeal pronounced its judgment (Ex. DY) in 1879 and by a majority of 2 to 1 dismissed the appeal of the defendant Mar Thomas Athanasius and confirmed the decree of the lower courts in favour of the Respondent Mar Joseph Dionysius. The para 347 of the majority judgment summarised the conclusions as follows:

“347. The conclusions we have arrived at on the whole, are that the respondent's claim is not barred by limitation; that the Ecclesiastical Supremacy of the See of Antioch over the Syrian Church in Travancore has been all along recognised and acknowledged by the Jacobite Syrian Community and their Metropolitans; that the exercise of the supreme power consisted in ordaining, either directly or by duly authorised delegates, Metropolitans from time to time to manage the spiritual matters of the local Church, in sending morone (holy oil) to be used in the churches in this country for Baptismal and other purposes and in general suprevision over the spiritual government of the Church; that the authority of the Patriarch has never extended to the government of the temporalities of the Church which, in this respect, has been an independent Church; that the Metropolitan of the Syrian Jacobite Church in Travancore should be a native of Malabar consecrated by the Patriarch of Antioch, or by his duly authorised delegates and accepted by the people as their Metropolitan to entitle him to the spiritual and temporal government of the local Church; that the respondent had been so consecrated and accepted by the majority of the people and consequently had a perfect right to succeed to the metropolitanship on the death of Mar Athanasius; that the appellant had neither been properly consecrated nor accepted by the majority thereof and therefore had no title to the dignity and office of Metropolitan; that the appellant's possession of the properties of the Church and its appurtenances and the assumption of the office of Metropolitan have been wrongful since the death of Mar Athanasius, the admitted last Metropolitan and Trustee; that the appellant should, therefore, surrender the insignia and office of Metropolitan of the Malankara Syrian Jacobite Church and give up possession of all the properties and moneys appertaining thereto which he now holds, to the respondent who would assume and take possession of the properties etc. to be administered with two other trustees as required by the Endowment Deed (Exhibit III); that the respondent's suit against the second Defendant, second appellant, having no cause of action, should be dismissed; that the mortgage in favour of Appellant 3 (Defendant 7) is null and void and should be cancelled; that the clerical errors in the decrees of the lower courts above noted should be rectified.”

As a result of the aforesaid judgment (Ex. DY) Mar Joseph Dionysius came into possession of the office of the Malankara Metropolitan and of the church properties.

9. Patriarch Peter III did not, naturally enough, approve of that judgment and in 1892 issued a kalpana or message [Ex. 172(b)] addressed to the 24 members of the Synod appointed at Mulamthuruthu (presumably referring to the Managing Committee of the Malankara Association) ordering that thenceforth Mar Joseph Dionysius had no authority to decide any matter in Synod and enter into any common affair of the dioceses except Cochin or Quilon and authorising the 24 members to elect one of the kasisas (priests) as the President. It is not quite clear whether any effective action was taken on this kalpana.

10. In 1905 Abdul Messiah was the Patriarch of Antioch. The Sultan of Turkey withdrew the firman he had issued in favour of Abdul Messiah and issued a fresh Firman in favour of one Abdulla II. It was a matter of dispute whether there was a valid Synodical removal of Adul Messiah from the office of Patriarch.

11. In 1907 one Mar Geeverghese Dionysius, whose name figures very prominently in the present proceedings, went to Syria and got himself ordained as a Metropolitan. In 1909 Mar Joseph Dionysius died. The Malankara Association elected and installed Mar Geeverghese Dionysius as the Malankara Metropolitan and as such he became the ex-officio President of the Malankara Association and one of the trustees of the church properties. The other two co-trustees of Mar Joseph Dionysius, namely, Kora Mathan Malphan and C.J Kurean, continued as co-trustees of Mar Geeverghese Dionysius.

12. In 1909 Abdulla II came to Malabar. He convened a meeting of the Malankara Association at the old Seminary of Kottayam and demanded that the said Association should accept and acknowledge the temporal authority of the Patriarch. The congregation, it is said, declined to comply with such demand and the meeting ended in confusion. Abdulla II thereafter visited the parish churches separately and attempted to get udampadis (submission deeds) acknowledging spiritual and temporal supremacy of the Patriarch and actually succeeded in getting them from some of the churches. Abdulla II started ordaining new Metropolitans who gave udampadis to him. He excommunicated those who declined to do so and by issuing kalpanas he enjoined the faithful not to have anything to do with them. In 1910 Mar Poulose Athanasius (the first plaintiff and now the first respondent) gave an Udampadi and he was ordained as a Metropolitan. Mar Geeverghese Dionysius, however, declined to submit and give any Udampadi. Accordingly in 1911 Abdulla II excommunicated Mar Geeverghese Dionysius whom he himself had ordained in 1907 and ordained Mar Kurilos as the Metropolitan of Malankara so as to make the latter automatically the ex-officio President of the Association and trustee of the church properties. The other two trustees Kora Mathan Malpan and C.J Kurean sided with Abdulla II and his new nominee Mar Kurilos. Mar Geeverghese Dionysius thereupon convened a meeting of the Malankara Association. That meeting declared the excommunication of Mar Geeverghese Dionysius invalid and removed Kora Mathan Malpan and C.J Kurean from trusteeship and appointed two new trustees, namely, Mani Poulose Kathanar (the present second appellant) and one Kora Kochu Korula (since deceased). The said meeting also resolved to enquire into the real position of Abdulla II and Abdul Messiah and suspend the payment of ressissa to the Patriarch. Upon this Abdulla II in 1912 issued a kalpana (Ex. 9) enjoining that his supporters “should entirely keep aloof from these wolves (meaning Abdul Messiah and Mar Geeverghese Dionysius) and that you should not accept them in any way”.

13. At this stage, in 1912, Abdul Messiah, whose Firman had been withdrawn by the Sultan of Turkey, came to Malabar. He declared the excommunication of Mar Geeverghese Dionysius by Abdulla II as invalid. In 1913 he issued a kalpana (Ex. 80) establishing the Catholicate in Malabar as it appeared to him that “unless we do install a Catholicos, Our Church, owing to various causes, is not likely to stand firm in purity and holiness”. By this kalpana Abdul Messiah ordained Mar Poulose Basselios as the first Catholicos and also ordained three Metropolitans. This kalpana further provided thus:

“The Catholicos, aided by the Metropolitans, will ordain melpattakkars, in accordance with the Canons of Our Holy Fathers and consecrate holy morone. In your Metropolitans is vested the sanction and authority to instal a Catholicos, when a Catholicos dies. No one can resist you in the exercise of this right.”

Shortly after this Abdul Messiah left Malabar. The position at that time was that there were two rival groups in the Church who were represented by two rival sets of trustees, namely, (1) Mar Geeverghese Dionysius, and his co-trustees Mani Poulose Kathanar (the second appellant), and Kora Kochu Korula (since deceased), and (2) Mar Kurilos and Kora Mathan Malpan and C.J Kurean, who had sided with Mar Kurilos.

14. In 1915 both Abdulla II and Abdul Messiah died and in 1917 Elias became the Patriarch of Antioch. Mar Geeverghese Dionysius and his group contended that Elias had not been duly installed as no notice had been given to the Malankara Metropolitans. On the death of the first Catholicos Mar Poulose Basselios, Mar Geeverghese Philixinos was installed as the second Catholicos and in 1929, on the death of the latter, the present appellant Moran Mar Basselios was installed as the third Catholicos. Both these installations were made by the local Metropolitans in terms of the procedure prescribed by the kalpana (Ex. 80) issued by Abdul Messiah.

15. In the meantime in 1913 the Secretary of State for India filed an interpleader suit (No. 94 of 1088) in the District Court of Trivandrum against (1) Mar Geeverghese Dionysius, (2) Mani Poulose Kathanar, (3) Kora Kochu Korula, (4) Mar Kurilos, (5) Kora Mathan Malpan and (6) C.J Kurean for the determination of the question as to which of the two rival sets of trustees were entitled to draw the interest on the amounts standing to the credit of the Malankara Jacobite Christian community in the British Treasury. The two rival sets of trustees filed written statements interpleading against each other. The suit was converted into a representative suit and Defendants 7 to 41 got themselves impleaded in the suit as defendants and supported Defendants 1 to 3. During the pendency of the suit Mar Kurilos died and Mar Poulose Athanasius (the present first respondent) who claimed to be the successor of Mar Kurilos as Malankara Metropolitan was added as Defendant 42.

16. Thirty-three issues were struck in that suit but it is not necessary for our present purpose to recount all the findings of the trial court on all those issues. Suffice it to say that the District Judge found and held, amongst other things—

(i) that Mar Geeverghese Dionysius was lawful Malankara Metropolitan and was recognised and accepted as such by the Malankara Syrian Church and as such had become a trustee of the Church properties. (Issue I);

(ii) that the Patriarch had only a power of general supervision over the spiritual government of the Church but had no right to interfere with the internal administration of the Church in spiritual matters which rested only in the Metropolitan and that the Patriarch has no authority, jurisdiction, control, supervision or concern over or with the temporalities of the Arch-Diocese of Malankara. (Issue III);

(iii) that Patriarch Abdulla II did make an attempt to secure authority over the temporalities of the Syrian Church when he visited Travancore in 1085 but that his attempts and pretensions in regard to the government of the temporalities of the Church were illegal and against the interest and well being of the Malankara Church and the community, (Issues V & VI);

(iv) that Mar Geeverghese Dionysius was excommunicated by Patriarch Abdulla II but such excommunication was opposed to the constitution of the Malankara Church as laid down by the Synod of Mulamthuruthu and was canonically invalid and was still recognised and accepted as the Malankara Metropolitan by a large majority of Malankara Christian community. (Issues VII to XVII);

(v) that Defendants 2 and 3 (Mani Poulose Kathanar and Kora Kochu Korula) had been elected by the community as trustees to co-operate with Mar Geeverghese Dionysius. (Issue XVIII);

(vi) that 4th Defendant (Mar Kurilos) had not been elected and was not accepted and recognised as the Malankara Metropolitan by the community and was not competent to be a trustee. (Issues XIX and XX);

(vii) that Defendants 5 and 6 (Kora Mathan Malpan and C.J Kurean) had been validly removed from the office of trustee and Defendants 2 and 3 (Mani Poulose Kathanar and Kora Kochu Korula) had been validly appointed in their places. (Issues XXI and XXII);

(viii) that Defendants 1, 2 and 3 (Mar Geeverghese Dionysius, Mani Poulose Kathanar and Kora Kochu Korula) did not accept Abdul Messiah or deny the authority of Abdulla II over the spiritual supervision of the Church and they had not by such act become aliens to the faith or incompetent to be trustees. (Issue XXVII);

(ix) that the 42nd defendant (Mar Poulose Athanasius, the present first respondent) had not been canonically ordained or validly appointed as Malankara Metropolitan or as President of the Malankara Association. (Issues XXX to XXXIII);

(x) that Defendants 1, 2 and 3 were entitled to receive payment of the interest in deposit.

On these findings the learned District Judge passed a decree in favour of Mar Geeverghese Dionysius (Defendant I), Mani Poulose Kathanar (Defendant 2) and Kora Kochu Korula (Defendant 3) as the lawful trustees of the church properties.

17. Defendants 5, 6 and 42 (Kora Mathan Malpan, C.J Kurean and Mar Poulose Athanasius) appealed to the High Court. The principal questions urged in that appeal were:

(1) What was the canon law binding on the Church and what were the powers of the Patriarch under that law in regard to the excommunication of a Metropolitan;

(2) Was the excommunication of Mar Geeverghese Dionysius by the Patriarch opposed to the canon law and the constitution of the Malankara Syrian Church as laid down by the Synod of Mulamthuruthu;

(3) If the Patriarch was by himself competent to excommunicate a Metropolitan, whether any procedure had been prescribed to be followed by the Patriarch before the power of excommunication could be exercised by him;

(4) If no such procedure had been so prescribed, whether that power had been exercised in a manner consonant with the principles of natural justice and with no corrupt motive; and

(5) Whether the excommunication of Mar Geeverghese Dionysius was valid.

The Full Bench of the Travancore High Court pronounced judgment in 1923 which will be found reported in 41 TLE 1 and is marked as Ex. DZ in the present proceedings. In para 80, at p. 74 of the report the Full Bench held that Ex. 18 which was produced by the appellants was the correct version of the canon law which was treated and accepted as such by the Malankara Jacobite Syrian Church. The conclusions arrived at by the Full Bench on Questions 1, 2 and 3 were summarised in para 124 of their judgment at pp. 114-115 as follows:

“124. Our conclusions on the Questions 1, 2 and 3 formulated for decision are:

(a) That Exhibit 18, and not Exhibit A, is the version of the canon law that has been recognised and accepted by the Malankara Jacobite Syrian Christian Church as binding on it;

(b) That under Exhibit 18, the Patriarch of Antioch possesses the power of ordaining and excommunicating Episcopas and Metropolitans by himself i.e in his own right and that it is not necessary for him to convene a Synod of Bishops and proceed by way of Synodical action, in order to enable him to exercise these powers: the person ordained being, of course, a native of Malabar and accepted by the people;

(c) That there is nothing in the Mulamthuruthu Resolutions Exhibit EL, which limits the powers possessed by the Patriarch under the canon law in matters of spiritual character, or which imposes restrictions on him in regard to the exercise of such powers; and

(d) That no special forms of procedure are prescribed by Exhibit 18 for observance by Patriarch before he exercises his power of ex-communication.”

Then after an elaborate discussion of the relevant materials, the learned Judges in para 254, at p. 212 recorded their findings on Questions 4 and 5 in the affirmative and held that in consequence Mar Geeverghese Dionysius had lost his status of Malankara Metropolitan and Metropolitan trustee. In that view of the matter they considered it unnecessary to express any opinion on the question whether Mar Geeverghese Dionysius had become a schismatic or alien to the Jacobite faith by the repudiation of Patriarch Abdulla II and the recognition of Abdul Messian as Patriarch. They held that although the Malankara Association had the power to remove them, Defendants 5 and 6 had not been validity removed inasmuch as the meeting which had removed them was convened and presided over by Mar Geeverghese Dionysius, an excommunicated Metropolitan and that the proceedings of that meeting having been ab initio void Defendants 5 and 6 continued to be trustees. In the result the Full Bench reversed the judgment and decree of the District Judge and directed that the money lying deposited in Court be drawn by Defendants 5 and 6 and by the person to be thereafter duly elected, appointed and consecrated as the Malankara Metropolitan.

18. Mar Geeverghese Dionysius and his co-trustees applied under Section 12 of the Travancore High Court Regulation 1099 for review of the aforesaid judgment of the Full Bench. That application was allowed but it was made a condition to the admission of the review that, on the rehearing, the findings recorded, (i) as to the authenticity of Ex. 18 (the then appellants' version of the canon law), (ii) as to the power of the Patriarch to excommunicate without the intervention of the Synod, and (iii) as to the absence of an indirect motive on the part of the Patriarch which induced him to exercise his powers of excommunication, must be taken as binding. The appeal was then reheard by a Full Bench on the basis of that order.

19. After rehearing the appeal the Full Bench pronounced its judgment in 1928 which will be found reported in 45 TLR 116 and is marked as Ex. 256 in the present proceedings. Chatfield, C.J, held in para 32 of his judgment at p. 182 of the report that no enquiry was held into the conduct of Mar Geeverghese Dionysius who was never placed on his defence or apprised of the charges against him or given any opportunity of defending himself and as such his excommunication was invalid and he continued to be the Malankara Metropolitian and as such the metropolitan trustee and, therefore, the meeting which removed Defendants 5 and 6 was validly convened by a competent Metropolitan. To the same effect were the findings on this point to Joseph Thaliath, J., at p. 204 and of Parameswaran Pillai, J., in para 48 of his judgment at p. 250. Learned Advocate for the then appellants fell back on the case that quite irrespective of the excommunication Mar Geeverghese Dionysius and his co-trustees could not be permitted to act as trustees for the Jacobite Church as they had rendered themselves aliens to the faith by reason, amongst others, of their repudiating the lawful Patriarch Abdulla II and accepting an unlawful Patriarch Abdul Messiah and by upholding the Catholicate. It was contended on the authority of the decision of the House of Lords in Free Church of Scotland v. Overtoun LR (1904) AC 515 that Mar Geeverghese Dionysius and his adherents had set up a new Church effectively freed from the control of the Patriarch and that if he and his co-trustees were allowed to act as trustees they would divert the trust funds of the former Jacobite Church to the use and benefit of a new and strange church. Chatfield, C.J, at pp. 190-91 negatived this contention with the following observations:

“The objection to the trusteeship of Defendants 1 to 3 does not seem to have been stated in this form in the written statements of Defendants 4 to 6 and 42. In any case it is not contended that the appointment of a Catholicos is a thing which is in itself forbidden and to work for which is a sign of disloyalty to the church. In the canon ‘of Nicea' as given on both Exhibits A and XVIII there is express provision for a great ‘Metropolitan of the East' who was to have power like the Patriarch, to consecrate Metropolitans in the East. All that can be urged against the Ist defendant therefore is that he co-operated with one who was not a valid Patriarch when the latter was doing acts which could only be done by a Patriarch or at the worst that he caused this unlawful Patriarch to do such acts. It is conceded by the defendants that if Abdullah had done these acts there would have been no objection. Therefore the whole matter resolves itself into a personal dispute between two claimants to the Patriarchate in which it is said, the 1st defendant deserted the Patriarch who had created him Metropolitan and supported his rival. Such conduct might amount to an ecclesiastical offence for which the offender could be deprived by his ecclesiastical superior but it could not be an offence for which the civil courts could try him or express any opinion as to his guilt.”

Further down on the same page the learned Chief Justice concluded:

“In the circumstances it cannot be said that the church to which Defendants 1 to 3 belong is a different church from that for which the endowment now in dispute was made. Therefore no question of any loss or forfeiture of trusteeship by the 1st defendant irrespective of Exhibit L or of any threatened diversion of trust funds can arise.”

Joseph Thaliath, J., disposed of this point at pp. 207-208 of the report in the following way:

“Ordinarily, it is for the ecclesiastical tribunals to pronounce whether a person is guilty of an ecclesiastical offence, and what the consequences are if one is found so guilty. The decisions of secular courts with respect to ecclesiastical matters, by the very nature of things cannot be very satisfactory. We have also to consider the probable inconvenience that will result from the temporal courts determining whether a person is guilty of any declaration made by proper ecclesiastical tribunals. If we are now to enquire into the alleged offence of schism of the 1st defendant, it will come to this. Every time the Metropolitan trustee applies for the interest on the trust fund, there will be some people who are members of the Jacobite Church, to object to the payment of interest, on the ground that the Metropolitan cannot act as the trustee of the Church, since, according to them, he is guilty of some heinous ecclesiastical offence or other. And every time, a fresh suit will have to be instituted to decide the question. For these reasons, it seems to me, that the better policy for the temporal courts to adopt will be not to enter into such questions as long as there has been no pronouncement on the subject made by the ecclesiastical authorities. There has been no such pronouncement in the present case. Hence I have to find this point also against the defendants.”

Parameswaran Pillai, J., expressed his views in para 50 of his judgment at p. 251 which runs as follows:

“50. I have considered this aspect of the case very carefully and have come to the conclusion that there is no substance in this contention. The 1st defendant has not denied the authority of the Patriarch of Antioch and therefore he remains the Metropolitan Trustee of the Malankara Church and he claims to draw the money on behalf of that Church. At best, what he did was, when Abdulla and Abdul Messiah both claimed to be the Patriarchs of Antioch, he acknowledged the latter as the true Patriarch in preference to the former. If he was wrong in this he has committed a spiritual offence for which his spiritual superiors might punish him in a proper proceeding. This court has nothing to do with his spiritual offence. Free Church of Scotlant v. Overtoun LR (1904) AC 515 referred to in this connection by Sir C.P Ramaswami Iyer, has no bearing upon the facts of this case.”

The Full Bench, therefore, upheld the decision of the learned District Judge and confirmed his decree. Accordingly Mar Geeverghese Dinoysius and his co-trustees as the lawful trustees became finally entitled to withdraw the money deposited into court.

20. Within two weeks after this decision was pronounced Mar Julius Elias, the Patriarch's delegate who was in Malankara at the time and who has figured as PW 17 in the present proceedings issued an order (Ex. 165) suspending Mar Geeverghese Dionysius for having “committed several grave offences against the Holy Throne of Antioch and the faith and practices of the Holy Church and repudiated the authority of the ruling Patriarch”.

21. In view of the ranging disputes between the two sections of the community resulting in acute dissension in the church an attempt was made to restore goodwill and amity and to bring about a compromise and at the instance of Lord Irwin, the then Viceroy of India, Patriarch Elias visited Malabar in 1931. Elias, however, died in Malabar before he could effect any settlement. After Elias' death Mar Geeverghese Dionysius on the 7th March 1932 wrote a letter (Ex. 65) to the Metropolitans in Syria warning them that if notice was not given to the Malabar Metropolitans before the election of the successor to Elias, they would not recognise the Patriarch so elected without notice. In 1933 Ephraim was elected as Patriarch of Antioch without, it is said, any notice to the Malabar Metropolitans. Mar Geevergese Dionysius and his supporters did not recognise Ephraim as the duly installed Patriarch.

22. In 1934 Mar Geeverghese Dionysius died. A meeting of the Malankara Association was called at M.D Seminary. Invitations were issued to all the churches to attend the meeting. Three months before the meeting was held, Patriarch Ephraim issued a kalpana (Ex. Z) to the effect that “those who believed in and supported the Catholices were aliens to the Church and that none of his followers, Metropolitans, priests, deacons and people, should co-operate with them or join them in any worship pertaining to the Church”. However, the meeting was held in December 1934. At this meeting the first appellant Moran Mar Basselios was elected Malankara Metropolitan in the place and stead of Mar Geeverghese Dionysius and Ex. AM was adopted as the Constitution of the Church. As a counter measure the first respondent Mar Poulose Athanasius and other Metropolitans on his side convened a meeting of the Malankara Association at Karingasserai. Notice of this meeting, it is said, was not given to all the churches which supported the first appellant Moran Mar Basselios. This meeting was held in August 1935. At this meeting the first respondent Mar Poulose Athanasius was elected Malankara Metropolitan and the two co-trustees of Mar Geeverghese Dionysius, namely, the second appellant Mani Poulose Kathanar and E.J Joseph were removed from the office of trustee and the second respondent Thukalan Poulo Avira and one Joseph Kathanar were appointed co-trustees of the first respondent Mar Poulose Athanasius.

23. It was in these circumstances that in 1938 the first and the second respondents, namely, Mar Poulose Athanasius and Thukalan Poulo Avira Puliathu and the said Joseph Kathanar filed in the District Court of Kottayam a suit (being OS No. 111 of 1113) against the first and the second appellants, namely, Moran Mar Basselios Catholicos and Mani Poulose Kathanar and the said E.J Joseph. It is out of this suit that the present appeal has arisen and it is necessary, therefore, to analyse the plaint in some detail. The properties claimed to belong to the Malankara Jacobite Syrian Church and which have to be administered by three trustees, namely, the Malankara Metropolitan, a clergyman and a layman to be elected by the Church are mentioned in paras 1 and 2 of the plaint. The salient facts summarised above as constituting the background of the present disputes are concisely set forth in paras 3 to 12 of the plaint. Reference is then made in paras 13 and 14 of the plaint to the meeting said to be a meeting of the Malankara Association and said to have been held at Karingasserai in August 1935. It is alleged that at that meeting the first plaintiff was elected as the Malankara Metropolitan and the second and third plaintiffs were elected respectively as the clergyman trustee and lay trustee and that the second and the third defendants had been removed from trusteeship. In para 15 is formulated the plaintiffs' claim to be in possession of the church properties. In paras 16 to 21 are repudiated the claims of the defendants allegedly founded on their election as the Malankara Metropolitan and trustees at a meeting of the Malankara Association said to have been held in December 1934. It is alleged that the last mentioned meeting was not convened by competent persons nor was due notice given to all the churches. In para 22 it is stated that for reasons mentioned therein below and more particularly specified in para 26, the first defendant was disqualified and unfit to be the Malankara Metropolitan. The reasons set forth are five in number and each of them is characterised as amounting to a denial or repudiation of the authority of His Holiness the Patriarch of Antioch. The contentions formulated in paras 23 to 25 are that the acts and pretensions referred to in para 22 constituted heresy and that the first defendant as well as the second and third defendants who were supporting and co-operating with the first defendant had become ipso facto heretic and alien to the Malankara Jacobite Syrian Church. Para 26 of the plaint runs thus:

“26. The defendant and their partisans have voluntarily separated themselves from the ancient Jacobite Syrian Church and have constituted, for themselves, a new church called “Malankara Orthodox Syrian Church”. According to the beliefs and doctrines of that Church, such functions as consecration of morone, ordination of Metropolitans, granting of staticons and allotting edavagais to Metropolitans — privileges which are exclusively within the powers of His Holiness the Patriarch could be done by the first defendant and others, without any recourse to His Holiness the Patriarch. Further it is provided, that ressissa, which is due to His Holiness the Patriarch, may be paid to the person holding the dignity of Catholicos of the said Church. In short, this act which provides for the permanent constitution of the said Church without any connection with His Holiness the Patriarch, and in repudiation and negation of him, as well, constitutes heresy. The defendants have no right to claim membership of the ancient Jacobite Syrian Church. For these reasons also, the defendants have become disqualified and unfit to be the trustees of, or to hold any other position in, or enjoy any benefit from, the Jacobite Syrian Church.”

The Constitution referred to above is Ex. AM which is said to have been adopted at the said meeting of December 1934. The rest of the allegations in the plaint need not be scrutinised in detail except that it may be noted that in para 35 the plaintiffs claimed to maintain the suit not only as trustees but also in their personal capacity as members of the community. The plaintiffs claimed that they be declared the lawful trustees, that the defendants be declared to have no right to retain possession of the church properties, that the defendants be compelled to surrender and the plaintiffs be put in possession of the said properties, that the defendants be directed to pay mesne profits and render accounts of their administration and of the rents etc. realised by them and that the first defendant be restrained from doing any acts as Cathalicos or Malankara Metropolitan and Defendants 1 to 3 be restrained from functioning as trustees.

24. The defendants have filed their written statement denying the contentions of the plaintiffs. In particular they deny that they were guilty of any act of heresy or that even if they were, they ipso facto ceased to be members of the Church. Paras 22 to 26 are denied in paras 36 to 38 of the written statement. It is averred that there were not two different churches or two kinds of faith and that the defendants had not established a separate church and had not separated from the Jacobite Syrian Church. They deny that the meeting said to have been held at Karingasserai in August 1935 was convened by competent persons or was held on notice to all churches. They contend that the said meeting was invalid and the first plaintiff was not validly elected Malankara Metropolitan and the second and third plaintiffs had not been validly elected trustees. It is also pleaded in para 45 of the written statement that it was the plaintiffs and their partisans who had been, from 1085 (equal to 1910 S.D) contending that the Patriarch had temporal power over the properties of the church, that the Patriarch had the power, acting by himself, to excommunicate and ordain Melapattakaren (Bishop), that only the Patriarch might consecrate morone (Holy Oil), that the canon of the church is the book which was marked as Ex. 18 in the suit of 1913 and that the Catholicate had not been validly established and that by thus non-co-operating with and opposing the Malankara Church the plaintiffs had voluntarily separated themselves and had ceased to be members of the Church. In para 46 of the written statement an alternative plea is taken that the plaintiffs and their partisans had lost their rights, if any, to the church properties by adverse possession and limitation. The defendants contend that in the premises the plaintiffs had no title and were not entitled to maintain the suit.

25. The allegations in the written statement are denied and the averments in the plaint are reiterated in the Replication filed by the plaintiffs. It will suffice to refer only to para 32 thereof which is as follows:

“32. The allegations, in paras 42 to 45 of the written statement, are denied. The defendants are barred by reason of res judicata, from contending, in disregard of the findings, in the final decision, in OS 94 of 1088 and the judgment of the Royal Court of Final Appeal, concerning the faith and practices of the Malankara Church the power of the Patriarch over it, and, the canons governing it. These contentions, in para 45 of the written statement, are not available to the defendants, as they had been raised and found against in the said suits. Whatever might have been the views developed among the members of the community, during the controversy, in OS 94 of 88, the decision in the case binds people of all shades of opinion. The contention is not acceptable, in law, that the right of any party may be lost, or, other rights may accrue to any other party, on the strength of the positions adopted, by them, during the said controversy. The facts relied on for such a position are neither correct nor acceptable. It is not true to say that alterations have been made in the ‘Thaksa'.”

Certain clarifications called “pleadings” which are in the nature of interrogatories and answers thereto have been filed by the parties but they need not be referred to at this stage.

26. Not less than 37 issues have been raised on the pleadings. Of them Issues 1 and 2 raise the question of the validity of the respective titles of the three plaintiffs, namely, that of the first plaintiff as the Malankara Metroplitan, and that of the second and third plaintiffs as the trustees of the Church properties and the validity of the Karingasserai meeting of August 1935 and Issues 6 and 9 question the validity of the M.D Seminary meeting of December 1934 at which the first defendant was elected as Malankara Metropolitan and the second and third defendants were elected co-trustees of the first defendant. Issues 11, 14, 15, 19 and 20 were as follows:

“11. Is the Patriarch of Antioch, the ecclesiastical head of the Malankara Jacobite Syrian Church or is he only the supreme spiritual head?

(a) What is the nature, extent and scope of the Patriarch's ecclesiastical or spiritual authority, jurisdiction, or supremacy over the Malankara Jacobite Syrian Church?

(b) Is the Patriarch acting by himself or through the delegate duly authorised by him in that behalf, the only authority competent to consecrate Metropolitans for Malankara? Or is the consecration a Synodical act in which the Patriarch acts and can act only in conjunction with a Synod of two or more Metrans?

(c) Whether ‘kaviappu' or ‘the laying on of hands' which is a necessary and indispensable item in the consecration of a Metropolitan should be by the Patriarch or his duly appointed delegate alone or can it be done by the Catholicos also?

(d) Is the Patriarch alone entitled to and competent to consecrate ‘moron' for use in the Malankara Church? Or is the Catholicos also entitled to do it?

(e) Whether by virtue of long-standing custom accepted by the Malankara Church and rulings of courts, the holy moron for use in the Malankara Churches has to be consecrated by the Patriarch?

(f) Is the allocation of diocesses or edavagais in Malankara a right vesting solely in the Patriarch and whether before exercising jurisdiction in any diocese the Metropolitan ordained and appointed by the Patriarch (by issuing a Stathicon) has only to be accepted by the people of the diocese? Or is the allocation of edavagais, so far as Malankara is concerned not a right which the Patriarch or Catholicos or Malankara Metropolitan has or has ever had, but a right which vests and has always vested in the Malankara Jacobite Syrian Association? Whether a Metropolitan, before he can exercise jurisdiction in any diocese in Malankara, must have been either elected for the office before ordination by the Malankara Jacobite Syrian Association duly convened for the purpose or accepted by the same after ordination?

(g) Is the Patriarch the sole and only authority competent to ordain and appoint the Malankara Metropolitan? Is the issue of a stathicon or order of appointment by the Patriarch either before selection or election by the meeting of the church representatives or after such election or selection essential? Or is such order unnecessary and the election, or acceptance by the Jacobite Syrian Association sufficient?

(h) What is ressisa? Is it a contribution which the Patriarch and Patriarch alone is entitled to levy as a matter of right? Or is it only in the nature of a voluntary gift which may be made to or received by the Patriarch and Catholicos?

(i) Has the Patriarch no temporal authority or jurisdiction or control whatever over the Malankara Jacobite Syrian Church? Or whether as the ecclesiastical head, he could exercise and has all along exercised temporal authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of church assets?

14. Do all or any of the following acts of the 1st defendant and his partisans amount to open defiance of the authority of the Patriarch? Are they against the tenets of the Jacobite Syrian Church and do they amount to heresy and render them ipso facto heretics and aliens to the faith?

(i) Claim that the 1st defendant is a Catholicos?

(ii) Claim that he is the Malankara Metropolitan?

(iii) Claim that the 1st defendant has authority to consecrate Moron and the fact that he is so consecrating?

(iv) Collection of ressisa by the 1st defendant?

15. (a) Have the 1st defendant and his partisans voluntarily given up their allegiance to and seceded from the Ancient Jacobite Syrian Church?

(b) Have they established a new Church styled the Malankara Orthodox Syrian Church?

(c) Have they framed a constitution for the new Church conferring authority in the Catholicos to consecrate moron, to ordain the higher orders of the ecclesiastical hierarchy, to issue stathicons allocating dioceses to the Metropolitans and, to collect ressisa?

(d) Do these functions and rights appertain solely to the Patriarch and does the assertion and claim of the 1st defendant to exercise these rights amount to a rejection of the Patriarch?

(e) Have they instituted the Catholicate for the first time in Malankara? Do the above facts, if proved, amount to heresy?

19. (a) Have the plaintiffs and their partisans formed themselves into a separate Church in opposition to Mar Geeverghese Dionysius and the Malankara Jacobite Syrian Church?

(b) Have they seperated themselves from the main body of the beneficiaries of the trust from 1085?

20. I. Do the following acts and claims of the plaintiffs constitute such separation?

(a) (i) The claim that Patriarch alone can consecrate moron?

(ii) That the Canon of the Church is Ex. XXIII in OS 94?

(iii) That the Catholicate is not established?

(iv) That the Patriarch by himself can ordain and excommunicate Metropolitans?

(b) Have the plaintiffs been claiming that the Patriarch has temporal powers over the Church?

(c) Have they been urging that Mar Geeverghese Dionysius was not the Malankara Metropolitan?

(d) Have they made alterations in the liturgy of the Church?

(e) Has the 1st plaintiff executed an udampady to the Patriarch conceding him temporal powers over the Jacobite Syrian Church and its properties?

(f) Have the plaintiffs been acting against the trust?

II. Have the plaintiffs and their partisans by virtue of the above acts and claims become aliens to the church and disentitled to be trustees of beneficiaries of the church and its properties?”

27. The suit was heard by the District Judge who by his judgment delivered on the 18-1-1943 held, amongst other things, that the acts and conduct imputed to the defendants did not, for reasons elaborately discussed by him, amount to heresy or schism or to voluntary separation form the church and that in any event, according to canon law, there could be no ipsofacto going out of the Church in the absence of a decision of an ecclesiastical authority arrived at on proper notice to and after hearing the person accused of heresy or schism. He further held that although the plaintiffs and their adherents, by taking up the position which they had adopted in 1085 (=1910 A.D) and persistently maintained up to date, had unlawfully and unjustifiable created a split in the Church and been guilty of schism, nevertheless, the plaintiffs could not be said to have become aliens to the Church or formed a separate Church or voluntarily separated from the Church as they had not been punished with removal or excommunication and consequently they had not lost their rights in and to the Church properties as members of the Malankara Church and as beneficiaries. The learned District Judge came to the conclusion that the Karingasserai meeting of August 1935 had not been convened by competent persons and that as the defendants and their partisans were still members of the Church it could not be said that notice of that meeting had been given to all the churches and that consequently the proceedings of that meeting culminating in the elections of the first plaintiff as the Malankara Metropolitan and of the second and third plaintiffs as trustees were not valid or binding on the defendants and their partisans. The learned Judge also held that the M.D Seminary meeting of December 1934 wherein the elections of the defendants took place was convened by competent persons and that invitations to that meeting had been sent to all churches. In the result, the learned District Judge came to the conclusion that the plaintiffs were not entitled to maintain the suit which was, therefore, dismissed accordingly.

28. Being aggrieved by the said judgment of the trial court the plaintiffs appealed to the High Court of Travancore. That appeal (being Appeal No. 1 of 1119) was heard by a Full Bench of that Court consisting of Krishnaswamy Iyer, C.J and Nokes and Sathyanesan, JJ. And on the 8-8-1946 was allowed by a majority of the Judges, the Chief Justice Dissenting. Nokes and Sathyanesan, JJ. held that by adopting the written constitution (Ex. AM) the defendants had repudiated the fundamental principles and tenets of the Malankara Jacobite Syrian Church and had established a new church and had thereby voluntarily separated from and ceased to be members of the Malankara Jacobite Syrian Church. They further held that as the defendants had voluntarily gone out of the Church before the Karingasserai meeting of August 1935 they were not entitled to receive any invitation for the said meeting and accordingly the said meeting was validly convened, for notices were given to all churches entitled there to. The majority judges held that the plaintiffs had been validly elected as trustees and as such were entitled to possession of the church properties. They accordingly allowed the appeal and passed a decree for possession and other reliefs in favour of the plaintiffs.

29. On 22-8-1946, that is to say, within a fortnight after the High Court judgment was pronounced, the defendants filed a petition for review of that judgment on the ground that it contained several mistakes or errors apparent on the face of the record and that in any event there were sufficient reasons for the rehearing of the appeal. At this date Sathyanesan, J. had reverted to his substantive post of a District Judge. Not less than 92 grounds were set forth in the petition of review. In February 1947 an affidavit affirmed by Sri E.J Philipose who was one of the advocates for the respondents was filed stating that the statement made by Nokes and Sathyanesan, JJ. that the respondents advocate conceded that the plaintiffs had not left the Church and that they were as good members of the Church as anybody else were inaccurate, incomplete and misleading. Along with that affidavit were produced two letters written to the deponent by his leading advocate Shri T.R Venkatrama Sastri whose signature was duly proved by him as genuine. The application came up for ex parte hearing in March 1947 before the Chief Justice, Nokes and Krishnaswamy Pillai, JJ. and orders were reserved. In April 1947 Nokes, J. retired. On 4-12-1947 an order was made directing a notice to issue to the respondents to show cause why review should not be granted. The said petition came up for hearing before a Full Bench of three Judges. The learned advocate for the respondents raised a preliminary point to the effect that as one learned Judge (Nokes, J.) had retired and another (Sathyanesan, J.) had reverted to his substantive post of a District Judge, the application for review could not be maintained, and submitted that application should, therefore, be dismissed in limine. That preliminary point was referred to a Bench of five Judges and was rejected on 29-6-1949. The court of review thereafter took up the hearing of the application on its merits. The petitioners for review confined their objections to fifteen grounds. The court of review on 21-12-1951 rejected all of them and dismissed the application holding that there was no error apparent on the face of the record and that there were not sufficient reasons for the rehearing of the said appeal. The High Court having declined to grant a certificate under Article 133 of the Constitution, the defendants applied for and on the 14-4-1952 obtained special leave of this Court to prefer this appeal. The appeal has now come up before us for final disposal.

30. It will be convenient at this stage to discuss and deal with a preliminary point raised by the learned Attorney-General appearing for the plaintiff-respondents. In order to appreciate and deal with the point so raised it will be necessary to take note of the changed conditions that had been brought about in the matter of the judicial administration in the State by the recent political changes culminating in the adoption of the new Constitution of India. It will be recalled that the present review application was made on 22-8-1946 and a notice to show cause was issued on 4-12-1947. The preliminary question as to the maintainability of the review application was decided on 29-6-1949. During all this period Regulation 4 of 1099 was in force in the State of Travancore. Section 11, omitting the explanations which are not material for our present purpose, and Section 12 of that Regulation provided as follows:

“II. (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 not less than five thousand rupees and the amount or value of the matter in appeal is not less than that sum. The judgment of the Full Bench or the judgment of the majority, if there be difference of opinion together with the records of the case, shall be submitted to us in order that the judgment may be confirmed by Our Sign Manual.

(2) Notwithstanding anything in the provisions of the Civil Procedure Code, the date of the decree shall be the date on which the judgment is declared in open court after being confirmed by Our Sign Manual.

Explanation I. * * *

(a)-(c) * * *

Explanation II. * * *

12. In cases decided under Section 11 of this regulation a Full Bench of the High Court may admit a review of judgment subject to the provisions of the Code of Civil Procedure. If, on review, a fresh judgment be passed, the provisions of Section 11 shall, as far as may be, apply.”

It will be seen that under Section 12 if a fresh judgment be passed then the provisions of Section 11 shall, as far as possible, apply, that is to say, the judgment shall have to be submitted to the Maharaja for 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 of June 1949. In the meantime on 29-5-1949 came the covenant of merger between the Rulers of Travancore and Cochin with the concurrence and guarantee of the then Governor-General of India for the formation as from the 1-7-1949 of the United State of Travancore and Cochin with a common executive, legislature and judiciary. Article 3 provided that as from the appointed day (i.e 1-7-1949) all rights, authority and jurisdiction belonging to the Ruler of either of the covenanting States which appertained or were incidental to the Government of that State would vest in the United State. Article 4 enjoined that there should be a Rajpramukh of the United State, the then Ruler of Travancore being the first Rajpramukh during his lifetime. Broadly speaking, Articles 6 and 11 vested the executive and legislative authority of the United State in the Rajpramukh subject to the conditions and for the period therein specified. Article 21 preserved the power of the Rulers to suspend, remit or commute death sentences. In exercise of the powers conferred on him by Article 11 of the covenant the Rajpramukh on 1-7-1949 promulgated Ordinance 1 of 1124. Clause 3 of that ordinance continued in force for that portion of the territories of the United State which formerly formed the territory of the State of Travancore all existing laws until altered, amended 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 Cochin. On the 7-7-1949, however, came Ordinance 2 of 1124. Clause 4 of this ordinance repealed the Travancore High Court Act (Regulation 4 of 1099). The relevant part of clause 8 which is important for the purpose of the present discussion was in the terms following:

“8. All proceedings commenced prior to the coming into force of this Ordinance in either of the High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be continued and depend in the High Court as if they had commenced in the High Court after such date….”

The jurisdiction and powers of the High Court were defined thus:

“18. Subject to the provisions of this Ordinance, the High Court shall have and exorcise all the jurisdiction and powers vested in it by this and any other Ordinance and under any law which may hereafter come into force and any power or jurisdiction vested in the existing High Courts by any Act or Proclamation in force in the States of Travancore and Cochin immediately prior to the coming into force of this Ordinance.”

Clause 25 leaving out the two Explanations which are not material for our present purpose and clause 26 ran as follows:

“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 Court in Suits in which the amount or value of the subject-matter is not less than five thousand rupees and the amount or value of the matter in appeal is not less than that sum.

Explanation I-II —

26. In cases decided under Section 25 of this Ordinance, a Full Bench of the High Court may admit a review of judgment subject to the provisions of the Travancore and Cochin Codes of Civil Procedure.”

Clauses 18, 25 and 20 have been substantially reproduced in Sections 18(1), 25 and 26 of the United State of Travancore and Cochin High Court Act 1125 (Act 5 of 1125) which repealed, amounts other things, Regulation 4 of 1099, Ordinance 2I of 1124. Then came the Constitution of India in 1950 which 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 the Part B States. Under Article 214 the High Court of the United State of Travancore and Cochin became the High Court of the Part B State of Travancore-Cochin and Article 225 continued the jurisdiction of and the laws administered in the then existing High Court.

31. The contention of the learned Attorney-General is 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 jurisdiction and power defined therein, the review application has become infrustuous, for, even if it be allowed, there will be no authority which will have jurisdiction and power to pronounce an effective Judgment after rehearing the appeal. It is pointed out that a review may be admitted under Section 26 of the United State of Travancore and Cochin High Court Act, 1125 only in cases decided under Section 25 of the Act. This case was not decided by a Full Bench under Section 25 of the Act and, 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 (4 of 1099), the application for review must be dealt with under Section 12 of that Regulation then, says the Attorney-General, if after the review is admitted, a fresh judgment has to be passed after rehearing the appeal the provisions of Section 11 would have to be complied with, namely, the fresh judgment will, under Section 11, have to be submitted to the Maharaja to be confirmed by his Sign Manual and the decree will have to be dated as of the date on which the judgment will be declared in open court after such confirmation. It is pointed out that the Maharaja of Travancore no longer possesses the power to consider and to confirm or reject judicial decisions 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 in limine. In our opinion, this contention is not well-founded. The application for review was properly “made to the Travancore High Court and the Travancore High Court had to decide whether to admit or to reject the application. The judgment to be pronounced on 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 pending on 1-7-1949 and consequently under Section 8 of Ordinance 2 of 1124 had to be continued in the High Court of the United State as if it had commenced in the said High Court after the coming into force of the said Ordinance. In this case, the application for review was rejected by the High Court. If, however, the High Court had admitted the review then such admission would have had the effect of reviving the original appeal which was properly filed in the Travancore High Court under Section 11 of the Travancore High Court Regulation (4 of 1099). That appeal, so revived, having been commenced prior to the coming into force of Ordinance 2 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 this Court now admits the review, for, upon such admission the appeal filed in the Travancore High Court will be revived and then, having been commenced in the Travancore High Court and continued in the High Court of the United State by virtue of Section 8 of Ordinance 2 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 other words, the old appeal, if restored by this Court on this appeal, will, by the combined operation of Section 8 of Ordinance II of 1124 and Section 8 of the Act of 1125, be an appeal pending in the High Court of 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 the jurisdiction of and administer the law administered by the High Court of the United State. Such appeal must, accordingly, be disposed of under Section 25 of the last mentioned Act. That section does not require any confirmation of the judgment passed on the rehearing of the appeal by the Maharaja or Rajpramukh or any other authority. Assuming, however, that the appeal, if restored, will have to be governed by Section 12 of the Travancore High Court Regulation (4 of 1099) even then the provisions of Section 11 would have to be applied “as far as may be” and it may well be suggested that the portion of Section 11 which requires the confirmation by the Maharaja will, in the events that have happened, be inapplicable. In our opinion, therefore, the preliminary objection cannot prevail and must be rejected.

32. Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified 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 the 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 that the words “any other sufficient reason” must mean “a reason sufficient on grounds, at least analogous to those specified in the rule”. See Chhajju Ram v. Neki. This conclusion was reiterated by the Judicial Committee in Bisheshwar Pratap Sahi v. Parath Nath and was adopted by on Federal Court in Hari Shankar Pal v. Anath Nath Mitter (1949 FCR 36 at pp. 47-48. Learned counsel appearing in support of this appeal recognises the aforesaid 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 already observed, out of the 99 objections taken in the grounds of review to the judgment of the majority of the High Court only 15 objections were urged before the High Court on the hearing of the application for review. Although most of those points have been referred to by learned counsel for the appellants, he mainly stressed three of them before us. We now proceed to examine these objections.

33. The first objection relates to the validity of the election of the first plaintiff as the Malankara Metropolitan and as such the ex officio trustee and the elections of Plaintiffs 2 and 3 as his co-trustees at the Karingasserai meeting. This meeting is pleaded in paras 13 and 14 of the plaint. In para 18 of the plaint the plaintiffs refer to the meeting said to have been held at the M.D Seminary in December 1934 on which the defendants rely, the plaintiffs' contention being that that meeting was not convened by competent persons nor after due notice to all the churches according to custom. In para 20 of their written statement the defendants deny the factum or the validity of the Karingasserai meeting relied upon by the plaintiffs. They contend that that meeting was not convened by competent persons nor was invitation sent to the large majority of the churches. In para 29 the defendants repudiate the allegations pleaded in para 18 of the plaint, and maintain that their meeting was convened properly and upon notice to all the churches in Malankara. In paras 16 and 18 of their replication the plaintiffs reiterate the allegations in the plaint. Issue 1(b) raises the question of validity of the Karingasserai meeting of August 1935 and Issue 6(a) raises the question of the validity of the M.D Seminary meeting of December 1934. As the suit is for possession of the church properties the plaintiffs, in order to succeed, must establish their title as trustees and this they can only do by adducing sufficient evidence to discharge the onus that is on them under Issue 1(b) irrespective of 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 title. It will be noticed that the defendants' objection 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 to all the churches. The District Judge in para 164 of the judgment held, for reasons stated by him, that that meeting had not been convened by competent persons and in para 165 he found that notice of the said meeting had not been given to all the churches. It having been conceded by the plaintiffs' Advocate at the time of the final argument before the District Judge that there is no evidence on the plaintiffs' side to prove that all the churches in existence prior to 1086 had been issued notices, the position was taken up that in the view of the plaintiffs' party, the defendants and their partisans by adopting the new constitution Ex. AM had become aliens to the Church and as such were not entitled to be invited to that meeting. Their argument was that Karingasserai meeting was only a meeting of the representatives of those churches which stood by the Patriarch Abdulla II and the succeeding Patriarchs and as the defendants and their partisans had become aliens to the Church no notice 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, that the defendants and their partisans had not gone out of the Church it followed, according to him, that they were entitled to notice and as it was not proved that notices were sent to them but on the contrary as it was contended that no notice was necessary to be sent to them, the District Judge felt it to be quite clear that the said meeting was not duly convened. In this view of the matter it was not necessary for the learned District Judge to go further into the matter and enquire whether notices had been given to churches which had not adopted the new constitution Ex. AM.

34. Coming to the judgment of the High Court it appears that the majority of the Judges dealt with the question of the validity of the meeting in a superficial and summary manner. Nokes, J. said:

“The lower court held that the meeting was not duly convened, mainly because notice was not given to the defendants' party (judgment paras 166, 167). The want of notice was not disputed, but was justified in accordance with the Patriarchal monition (Exhibit Z). In view of the conclusion stated above, that the adoption of the new constitution was clear evidence of the defendants' repudiation of the Patriarchs' church, and of the fact that the adoption took place in 1934 about 8 months earlier than the meeting at Karingasserai, the want of notice was justifiable apart from the monition. The lower court's conclusion that the meeting formed only a minority of the church is thus erroneous as is the conclusion (judgment, paras 164, 167) that the meeting was not convened by competent persons.”

Mr Justice Sathyanesan simply observed:

“The only defect pointed out was that no invitation of the meeting was given to the churches under the control of 1st defendant. The short answer to this is that having already become members of a new Church, they were not entitled to any invitation and were rightly ignored.”

It thus appears that the question as to the competency of the persons who convened the Karingasserai meeting was disposed of by Nokes, J. in one single sentence at the end of the para quoted above. The learned Judge does not appear to have seriously applied his mind at all to the question of the competency of the convenors of that meeting. Sathyanesan, J. did not deal with the question and thought, quite wrongly, that the only question raised by the defendants was as to whether notice was given to the churches under the control of the defendants. It is pointed out by the learned Attorney-General that the judgment of Sathyanesan, J. was only a supplementary judgment, for he prefaced his judgment with the observation that he entirely agreed with the findings of Nokes, J. This argument might have had some force 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 that the defendants had gone out of the Church by reason of their adoption of the new constitution, Ex AM and that consequently no notice was due to them. Sathyanesan, J. also in the passage quoted above took the view that the defendants having become members of a new church, the defendants were not entitled to any invitation to the Karingasserai meeting. The learned Judges having reversed the finding of the District Judge and held that the defendants had gone out of the Church by adopting the new constitution Ex. AM it became incumbent on them to enquire whether all churches not on the plaintiff's side had adopted Ex. AM and if not whether such of them who had not adopted Ex. AM had been summoned to the meeting. It may be noted in this context that the learned Judges of the High Court in their judgment seem to indicate that the churches which adopted Ex. AM did so by participation at the M.D Seminary meeting. Reference has been made in the arguments to the various figures set out in the judgment of the District Judge as to the number of Churches which according to the evidence had attended the meeting. It is not clear how many out of 310 churches claimed by the defendants to have been completely on their side according to Ex. 272 had attended the M.D Seminary meeting and formally adopted the new constitution Ex. AM. If adoption of the Ex. AM is the test for determining whether notice is due or not then it becomes important to consider whether all the churches which were not with the plaintiffs but who had not adopted Ex. AM had been served. Apart from the question of the service of the notice there was also the question as to the competency of the persons who had convened the Karingasserai meeting where the plaintiffs are said to have been elected. While Mar Geeverghese Dionysius was alive he, as President of the Malankara Association, used to convene the meetings of the Association. Who, after his death, was competent to issue notice of meeting? There appear to be no rules on the subject. In this situation, says the learned Attorney-General, if all the members of the Association attended the meeting the defect of want of proper notice does not matter. But did all members attend, even if 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 finding on that question. The majority judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the record.

35. The next point urged by learned counsel appearing for the plaintiffs is that the majority decision proceeds on a misconception as to a concession said to have been made by the defendants' advocate. It will be recalled that Issues 14 and 15 quoted above raise the question of the defendants having gone out of the Church, for having committed acts of heresy or having voluntarily given up their allegiance to the ancient Jacobite Syrian Church and establishing a new church and framing a constitution for the same. Likewise, Issues 19 and 20 raise the question as to whether the plaintiffs and their partisans formed themselves into a new church and separated from the old Church by reason of the several acts and claims therein referred to. Here again the suit being one in ejectment it is more important for the plaintiffs to establish their own title by getting Issues 19 and 20 decided in their favour than to destroy the defendants' title by getting Issues 14 and 15 decided against the defendants, for a mere destruction of the defendants' title, in the absence of establishments of their own title carries the plaintiffs nowhere. It is to be remembered that this is a suit by the plaintiffs as the validly constituted trustees and not a suit under the section analogous to Section 92 CPC for removal of defendants from trusteeship or for the framing of a scheme. In para 132 of his judgment the learned District Judge found that the acts and claims imputed to the defendants did not amount to heresy and did not make the defendants or their partisans heretics or aliens to the faith and that such acts and conduct mentioned in Issue 15, even if proved, would not amount to heresy and would not amount to a voluntary giving up of their allegiance to or secession from the ancient Jacobite Church. On the other hand, in para 133 the District Judge held that the plaintiffs and their adherents by taking up the position which they adopted in 1085 and which they had persistently maintained till then had unlawfully and unjustifiably created a split in the Malankara Church and might in a sense be said to have pursued a course of conduct amounting to persistent schism. He held that, nevertheless, the plaintiffs and their partisans had not become aliens to the Church or created or formed themselves into a separate church as they had not been found guilty and punished with the removal from the Church or excommunication from the Church by a proper ecclesiastical authority. It will be noticed that the learned District Judge found the facts imputed to the defendants not proved but the facts imputed to the plaintiffs to have been proved. He made no difference between acts of heresy and merely voluntary separation from the Church but treated them on the same footing. It will be recalled that in the interpleader suit of 1913 the District Judge had held that by accepting Abdul Messiah as their ecclesiastical head or by denying the authority of Abdulla II, Mar Geeverghese Dionysius and his co-trustees had not become aliens to the faith. Finally, in the judgment on rehearing of the appeal reported in 45 TLR 116 from which passages have been quoted above the acts imputed to the defendants in that case which are similar to those imputed to the defendants in the present case, with the exception of the adoption of Ex. AM, were held not to amount to a voluntary separation from the Church by the establishment of a new church and that the Free Church case LR (1904) AC 515 had no application to the facts of that case. Likewise, in the present case the District Judge dealt with Issues 15, 16, 19 and 20 together, which covered issues on both heresy and voluntary separation. Presumbly in view of the decision of the court of appeal in the previous suit the learned District Judge in this case did not make any distinction between acts of heresy and voluntary separation from the Church and held that there was “no case of ipso facto heresy or ipso facto loss of membership of the Church or ipso facto loss of status as Priest and prelates for ecclesiastical offences unless the offenders were tried and punished by a competent authority”. Indeed, the evidence of PW 17, the Pope's delegate, is claimed as supporting this view. It is in the light of this situation that the question as to the misconception of the concession has to be considered. Sathyanesan, J. in para 4 of his judgment, referred to the concession said to have been made by the learned advocate for the defendants in the following terms:

“...However, the learned advocate for the respondents clarified the situation by very fairly conceding 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 appellants that the plaintiffs, whatever might have happened in the past, do not hold that the Patriarch can at all interfere in the internal administration of the Malankara trust properties. Plaintiffs seem to have made their position clear even at the time of pleadings. According to them ‘The Patriarch as the ecclesiastical head of the Malankara Church could exercise that authority by awarding such spiritual punishment as he thinks fit in cases of mismanagement or misappropriation of church properties' — vide pleading 124(1). The concession made by the learned advocate for the defendants has obviated the necessity of a lengthy discussion of several matters. So it is worth pausing a while and understanding the importance and the implications of the concessions. It tends to mean—

(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 that

(a) the Patriarch has only a spritual supervision of the administration of the trust properties by the trustees,

(b) the Patriarch alone can consecrate morone,

(c) that Exhibit BP is the true canon of the Jacobite Church, and

(d) that the Catholicate was not properly established, cannot, on these grounds, be considered to have become aliens to the original church.

So, the question is more properly whether the defendants have seceded from the original church and formed a new church. In the nature of the suit, the plaintiffs can succeed only if they make out,

(A) that the defendants are using the trust properties belonging to Malankara Jacobite Church for the maintenance, support and benefit of another and a different body, namely, Malankara Orthodox Syrian Church, and

(B) that the plaintiffs are the duly elected trustees.”

Likewise, Nokes, J. at pp. 355-356 referred to the concession as follows:

“...In this court the defendants advocate did not seek to disturb the finding that the plaintiffs had not become aliens to the church. Indeed, as previously stated, he based his case on the ground that both parties were still within the church. This abandonment of his clients' contention in the lower court was no doubt due to the fact that the written statement involved an admission of the plaintiffs' case; for the plaintiffs in effect said, ‘we are the trustees of the Patriarch's church', while the defendants said, ‘we are the trustees of a church to which the Patriarch is an alien'. Nor was any attempt made here on behalf of the defendants to challenge the finding that the trust had not become altered; for any contention to the contrary provided no defence and was a further admission of the plaintiffs case. But the existence of this allegation on the pleadings serves to emphasise the defendants' attitude to the trust”.

Further down the learned Judge said:—

“...The learned Judge held against the general allegation of separation (judgment, para 133), but in favour of the special allegation as to the plaintiff's view on temporalities (para 108). He also recorded findings as to the limited scope of the Patriarch's powers in temporal affairs (paras 58, 60), which seem to be based on the erroneous view inter alia that persons who are subject to two systems of law are amenable for different aspects of the same offence only to punishment under one system (see para 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”.

On a plain reading of the two judgments it appears that the majority Judges took the view that even if, as held by the District Judge, the plaintiffs had been guilty of acts and conduct imputed to them it was not necessary for them to i enquire whether those acts were mere heresy or also amounted to a setting up of a new church or whether the canon law requiring the verdict of an ecclesiastical authority applied to both or only to acts of heresy. This attitude they adopted simply because of what they understood was the concession made by the defendants, advocate, namely, that the plaintiffs had not gone out of the church. They, however, felt bound, notwithstanding the contention of the defendants that they were also, for similar reasons, within the church, to consider whether the defendants had voluntarily gone out of the church by setting up a new church as evidenced by their aforesaid acts. Learned counsel for the appellants contends, and we think there is a good deal of force in such contention, that the majority Judges do not appear to have examined the question or considered whether voluntarily going out of the church was a concept separate and distinct from acts of heresy and if so whether the acts and conduct imputed to the plaintiffs apart from being acts of heresy from an ecclesiastical point of view, amounted also to voluntarily going out of the church by establishing a new church. Nor do they appear to have considered whether the canon law requiring verdict of an ecclesiastical authority was required in both cases. There can be no doubt, therefore, the face of the judgment, that the decision of the learned Judges in this behalf proceeds on what they considered was a concession made by defendants' advocate that the plaintiffs had not gone out of the church. Learned counsel for the defendants appellants contends that this was a misapprehension and he relies on the affidavit of Shri E.J Philipose, Advocate, with which were produced two letters written to him by the Senior Advocate. In the first letter it is stated as follows:

“I argued at length of the misconduct of the plaintiffs in going against the basic conditions of the Royal Courts' judgment and said that while the conduct of each party is open to examination neither could be said to have left the church. Their acts may be set aside in both cases but they cannot be said to have left the church. The Judges cannot accept it in one case as a concession and in the other case as my submission. Deciding one part of it as a concession not requiring the decision of court is unjust to my lengthy argument on the misconduct of the plaintiffs in regard to their diversion of property from the trust.”

In the second letter we find the following passages:

“Throughout my argument was that the plaintiffs had steadily and consistently set at naught the fundamental principles of the charity as settled in the judgments of the Royal Court and the Cochin Court.

As between the charge and counter charge of violation of the foundation rules, I expressed it as my view that while their views may be corrected by the court neither party should be treated as having become aliens to the church by reason merely of erroneous views. That is what is explained in para 17 of the grounds. My opinion so expressed is not to be treated as a concession of the one case and a submission as to the other. If my view of the law was not acceptable the learned Judges must decide and not treat one part of a connected statement as a concession not requiring to be considered by the court.”

In the review petition Ground 17 is as follows:

“17. Their Lordships' observation that defendants' advocate based his case on the ground that both parties were still within the Church and that defendants' advocate conceded that the plaintiffs have not left the church and that they were as good members of the original Jacobite Syrian Church as anybody else is inaccurate and incomplete, and misleading. The advocate devoted a great part of the argument to showing that the plaintiffs have departed from the Constitution as settled by the Royal Court judgment. The plaintiffs stated that defendants have left the Church. In reply the argument was that there is no such thing as ipso facto secession merely because of differences of views on the powers of the Patriarch or about the canon to be followed. It was in that sense and in that sense only that the argument was advanced that in law it must be taken that both parties were within the Church. The Judges were not justified in taking it out of its'setting and using part of it as an admission in support of the plaintiffs and rejecting the other portion as a mere argument not sustainable in law so far as the defendants are concerned. If it should be treated as an admission at all, it must have been accepted or rejected as a whole. It must not have been torn piece-meal and part used and part rejected.

The reasons assigned for concluding that the defendants have gone out of the Church apply even more strongly to the plaintiffs and the Judges should have dismissed the suit in limine.

Their Lordships failed to note that the basic constitution of the Church had been laid down by the Royal Court judgment and the plaintiffs by disowning and repudiating it had really seceded from it.

If the view of the court was that departure from the rules of the foundation put the parties out of the Church it should apply alike to both the parties and the statement that neither party had gone out of the Church cannot be used to sustain the plaintiff's right and at the same time rejected as untenable to support the precisely similar rights of the defendants.

Their Lordships failed to note 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 in this case.

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.

Their Lordships failed to note that the so-called admission did not in any way affect the defendants' case that the Patriarch and the plaintiffs and their partisans have voluntarily left the Church and had thereby ceased to be members thereof.”

36. Learned Attorney-General strongly objects to any reference being made to the facts contained in the 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. Jawahar Mills Ltd. (1953 SCR 351 at p. 366 and the cases therein referred to and to the case of Reg v. Pestanji Dinsha. It will, however, be noticed that what was deprecated in that case was the fact that no affidavit had been filed before the trial court for the rectification of what, in the appeal court, was alleged to have been wrongly recorded by the trial Judge. The Privy Council in Madhu Sudan Chowdhri v. Mst Chandrabati Chowdhrain (1917) 21 CWN 897 also suggested that the proper procedure was to move the court in whose judgment the error is alleged to have crept in. In this case, as already stated, an affidavit was filed before the appeal court itself while the Chief Justice and Nokes, J., were still in office. Further, if, as laid down in the judgment of this Court to which reference has been made, the proper procedure is to apply to the court whose judgment is said to be founded on a misconception as to the concession made by the learned Advocate appearing before it, by what procedure, unless it be by way of review, could that Court be moved? Indeed, the Madras case referred to in the judgment of this Court freely indicates that the application should be by way of review. Patanjali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in Rekhanti Chinna Govinda Chettiyar v. S. Varadappa Chettiar AIR 1940 Mad. 17 that a misconception by the court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney-General contends that this affidavit and the letters accompanying it cannot be said to be part of “the record” within the meaning of Order 47 Rule 1. We see no reason to construe the word “record” in the very restricted sense as was done by Denning, L.J, in Rex v. Northumberland Compensation Appeal Tribunal Ex parte Shaw (1952) 2 KB 338 at pp. 351-52 which, was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. Further, when the error complained of is that the court assumed that a concession had been made when none had in fact been made or that the court misconceived the terms of the concession or the scope and extent of it, it will not generally appear on the record 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 way of review. The cases to which reference has been made indicate that the misconception of the court must be regarded as sufficient reason analogous to an error on the face of the record. In our opinion it is permissible to rely on the affidavit as an additional ground for review of the judgment.

37. Turning to the affidavit and the letters and the Ground 17 of review it is quite obvious that the defendants had not given up their contention, upheld by the District Judge, that the plaintiffs had been guilty of the acts and conduct imputed to them. What the learned advocate for the defendants did was to accept the canon law as interpreted by the District Judge, namely that nobody goes out of the church without the verdict of an ecclesiastical authority, whether the acts complained of amount to acts of heresy or to the establishment of a new church so as to make the persons who are guilty of such conduct aliens to the faith. If the majority Judges took the view that such was not the canon law and that the same acts and conduct may have an ecclesiastical aspect in the sense that they amount to heresy punishable as such and may also amount to a voluntary separation from the church which is not an ecclesiastical offence and does not require the verdict of any ecclesiastical authority to place the guilty person out of the church then it was clearly incumbent upon the majority Judges to consider whether the acts and conduct of which the plaintiffs had been found guilty had actually been committed by them and whether such acts and conduct also had the dual aspect, namely, amounted to an ecclesiastical offence requiring excommunication and also to a voluntary separation 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 judgment the learned Judges failed to do.

38. Learned Attorney-General, has submitted that the allegations against the plaintiffs are five in number, namely—

(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 the Patriarch may consecrate morone;

(4) The canon of the Church is Ex. XVIII in OS 94 of 1088; and

(5) The Catholicate has not been validly instituted in the Malankara Church;

and suggests that these charges have been gone into directly or indirectly by the majority Judges and that, therefore no prejudice has been caused. He, however, cannot dispute that the Judges have failed to consider and come to any definite finding on some of them. We do not consider that the contention of the learned Attorney-General is entirely well-founded. Issue 20(1) contains several charges against the plaintiffs and even if charges (a) and (b) have been referred to in the majority judgment, the charges (c), (d) and (e) have certainly not been dealt with. As to the temporal power of the Patriarch the District Judge held in para 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 Government conceded to the Patriarch in Ex. DY did not carry with it by necessary implication the right to interfere in the administration of the temporalities and properties of the Church. The decision to the contrary in 41 TLR 1 cannot be regarded as having any bearing after that judgment was set aside subject only to three points as hereinbefore mentioned. It does not appear that the majority Judges considered whether the plaintiffs imputed full temporal powers to the Patriarch or the limited one as conceded to him in Ex. DY and if they did impute to him full temporal powers whether they had departed from a fundamental tenet of the Church. They do not also appear to have considered whether, if the plaintiffs originally pledged themselves to the tenet of full temporal power of the Patriarch and thereby departed from the fundamental article and such departure involved their having become aliens, any subsequent change in their attitude by limiting it as in Ex. DY would make a difference. Further, as to the power of consecrating Metropolitans Nokes, J. found that a validly appointed Catholics had the power, under both versions of the canon, to consecrate Metropolitans without a Synod and that by so claiming the defendants had not become aliens to the faith. The learned Judge, however, did not consider the implication of this finding so far as the plaintiffs were concerned. This finding may lead to the implication that the claim that the Patriarch alone has got the power of ordination and the Catholicos has not that power cannot but be regarded as a departure from the canon. Issue 20(l)(a)(i) which relates to the consecration of morone has been found in favour of the defendants. If the defendants have not gone out of the Church by making the claim that morone may be consecrated by the Catholicos or the Metropolitan in Malankara then the learned Judge should have considered whether a denial of such right by the plaintiffs constituted a departure by them from the canonical law. This the learned Judge failed to do. Issue 20 (l)(a)(iii) related to the establishment of the Catholicate. In “Pleading” 124 the plaintiffs maintained that a Catholicate had not been established at all. The District Judge held that Abdul Messiah by his kalpana Ex. 80 revived the Jacobite Catholicate. The respondents' ground of Appeal No. 17 assumed that a Catholicate had been established. Nokes, J., held that Abdul Messiah was a Patriarch, that a Patriarch had the power by himself and without the Synod to establish a Catholicate and that a Catholicate had been established by him although the old Catholicate of the East had not been revived. Sathyanesan, J., however, held that the establishment of the Catholicate in Malankara was dubious, surreptitious and uncanonical and that no Catholicate had been established. The two judgments appear to be somewhat at variance in this respect. In any case, Nokes, J. has not considered whether the stand taken by the plaintiffs that no Catholicate had been established at all amounts to a departure by them from the injunctions of the Canon law. On a fair reading of the majority judgments it appears to us that the majority Judges have been misled by a misconception as to the nature and scope of the concession alleged to have been made by the defendants' advocate. If the acts imputed to the defendants amounted to a voluntary separation, the learned Judges should have considered whether the acts imputed to the plaintiffs likewise amounted to a voluntary separation. If the defendants had not gone out of the Church by asserting that a Catholicate had been established, that the Catholicos can ordain Metropolitans and consecrate morone then they should have considered whether by denying these assertions the plaintiffs had not gone 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 that the plaintiffs remained in the Church. Such admission at best was an admission as to the canon law and the decision that the defendants had voluntarily gone out of the Church even in the absence of an ecclesiastical verdict necessarily implies that the concession made by the defendants' advocate requiring an ecclesiastical verdict as a condition precedent to voluntary separation also was obviously wrong and an erroneous concession of law made by the defendants' advocate could not be relied upon for saving the plaintiffs. The fact, therefore, that Cross-objection 11 filed in the High Court by the defendants does not appear to have been pressed makes no difference. In our opinion, for reasons stated above, this head of objection raised by the learned Advocate for the appellants before us is well-founded and the judgments of the majority Judges are vitiated by an error of a kind which is sufficient reason within the meaning of the Code of Civil Procedure for allowing the review.

39. The last point taken up by the learned advocate for the appellants is that although certain matters had been agreed to be left out in connection with Issue 11(a), the learned Judges took an adverse view against the defendants on matters which had been so left out by agreement. Issue 11 relates to the powers of the Patriarch. Clauses (b) to (i) relate to specific powers of the Patriarch. Clause (a) of that issue is vague and is expressed in very general terms. Para 60 of the District Judge's judgment is as follows:

“60. It was stated by the advocates on both sides that it is unnecessary for the purpose of this suit to determine or decide in a general and comprehensive manner or define exhaustively all the powers that the Patriarch may have over or in respect of the Malankara Church as the supreme spiritual or ecclesiastical head of the whole Jacobite Church including Malankara and I also think it is not within the province or competency of 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 the Patriarch in 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 determined 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.”

It will be noticed that after this agreement Issue 11 related only 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. In other words, the general Issue 11(a) being given up, the other issues mentioned above were automatically limited to the specific acts relating to the specific powers of the Patriarch. The majority Judges have, however, certainly gone into three matters which were then agreed to have been left out, e.g (a) obligation to obey the Patriarch whether canonically installed or not, (b) extent of the right of the Patriarch by himself to decide matters of faith, and (c) whether the Patriarch has the right to approve of a Catholicos in the sense that such approval was necessary. These matters are not averred in pleadings and no specific issues have been raised and, in the circumstances, should not have been gone into. The suggestion is that these points are covered by other issues. It is said that the learned Judges held that the new constitution Ex. AM amounted to a repudiation of the authority of the Patriarch on the following grounds:

(1) installation of Catholicos ignoring the Patriarch;

(2) absence of a provision for the approval by the Patriarch or Malankara Metropolitan;

(3) ordination of Metropolitan and the issuing of Staticons by the Catholicos, and

(4) the right to collect reasissa.

These points are said to be covered by Issues 11(b), (c), (g) and (h), and also by Issues 10(b), 14, 15 and 16. Assuming it is so, it is clear that the learned Judges also founded themselves on the three points hereinbefore mentioned which do not appear to fall within any of the issues in the case except Issue 11(a) which was given up. To decide against a party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record. It is futile to speculate as to the effect these matters had on the minds of the Judges in comparison with the effect of the other points.

40. The above discussion, in our opinion, is quite sufficient for the purpose of disposing of this appeal and it is not necessary to go into the several other minor points raised before us. In our opinion the appellants have made out a valid ground for allowing their application for review. We accordingly allow this appeal, set aside the judgment of the High Court and admit the review. As the different points involved in this appeal are intimately interconnected we direct the entire appeal to be reheard on all points unless both parties accept any of the findings of the High Court. The costs must follow the event and we order that the appellants must get the costs of this appeal before us and of the application for review before the High Court.

41. We need hardly add that the observations that we have made in this judgment are only for the purpose of this application for review and should not be taken or read as observations on the merits of the appeal now restored and to be reheard by the High Court.