IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/04/2003
CORAM
THE HONOURABLE MR.JUSTICE R.JAYASIMHA BABU
and
THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN
L.P.A.No.80 of 1998
and Cross Objection
and
C.M.P.Nos.10403 & 11741 of 1998 & 1434 of 2003
1. C.S.Robert
2. A.S.Arokiaraj
Trustees and representatives of Catholic
public of Vakampatti. ... Appellants.
-Vs-
1. M.Kanagappan
2. Parish Priest of
St.Sacred Heart Church,
N.Panchampatti,
Dindigul taluk.
3. Parish Priest of
St.Joseph Church,
Main Road, Dindigul.
4. The Arch Bishop of
Trichy Diocese,
Melapudur,
Trichy Town.
5. M.John Stephen.
6. A.Vimala
7. Jeevamani
8. Jayaseelan
9. P.Xavier
... Respondents.
L.P.A. filed against the judgment and decree dated 15.7.1998
in A.S.No.1174 of 1994 of this Court reversing the judgment and decree dated
31.8.1994 in O.S.No.396 of 1993 on the file of Addl. Sub Judge, Dindigul.
!For appellants :: Mr.T.R.Mani, Sr.counsel
for Mr.K.Srinivasan.
^For respondents :: Mr.P.Peppin Fernando for R1 to R4.
Mr.D.Saravanan for R5 to R9.
:JUDGMENT
N.V.BALASUBRAMANIAN,J.
The question regarding administration of a church, to be
precise, a Catholic Church, by name, St.Mary Magdalin Church situate in a
village called, Vakkampatti in Dindigul taluk is the subject matter of the
appeal. There is no dispute regarding the exercise of spiritual power of the
church by Papacy through its local representatives, the Episcopate and the
local Parish Priest as the plaintiffs have conceded that the spiritual power
should be exercised by the Parish Priest of the Church. The question is only
with reference to the temporal or administrative power over the Church and the
exercise of the said administrative power.
2. The plaintiffs, who are the appellants in the Letters
Patent Appeal, have instituted the suit for declaration that the suit Church
and the suit properties belong to the entire Catholic public of Vakkampatti
village with consequential injunction restraining the defendants 2 to 4 from
interfering with the management and administration of the suit Church and its
properties by the plaintiffs as trustees and for removal of the first
defendant from trusteeship and for directing the first defendant to deliver
the management of the Church and its properties to the plaintiffs and also for
certain other reliefs. The suit was instituted by the plaintiffs as trustees
of the church and as representatives of the Catholic Public of Vakkampatti
village. Though a point was raised whether the suit is maintainable without
obtaining the leave under section 92 of the Code of Civil Procedure, we find
that necessary prior permission to institute the suit has been obtained by the
plaintiffs in the trial Court itself before the institution of the suit.
3. The case of the plaintiffs is that the suit Church was
constructed in a Village Natham more than 200 years prior to the institution
of the suit by the Catholic public of Vakkampatti by collecting donations and
taxes from the public and by contributing their physical labour and on this
fact, there is no dispute between the parties. It is pleaded that the Church
was constructed by the entire Catholic public under the supervision of
Nattanmais and Periyathanams of the said village. It is stated in the plaint
that for the proper administration of the church and its properties, a
Committee of five members headed by the Nattanmai, C.Savarimuthu, father of
the first plaintiff was formed 90 years prior to the institution of the suit.
It is also stated that though a Parish Priest was there, he never exercised
any right, ownership or control over the Church at any point of time. It is
further stated that for the administration and management of the church and
its properties, out of the five members of the Committee, three were appointed
by public and the office of trusteeship has been made hereditary. (However,
the plaint does not disclose how those three persons elected by the public can
hold the office hereditarily. The plaint does not also disclose how the other
two members were appointed. The evidence of P.W.1 also does not disclose
anything about the mode of appointment of other two members of the Committee).
It is the case of the plaintiffs that during the long and continuous usage of
the institution, the management vested in the trustees of the Committee and
the period of management of the Managing Trustee is stated to be one year and
the change in management of the Managing Trustee was coincident to the Church
festival held in the month of June, every year. It is stated that at the end
of the Festival, the amount collected for the festival would be shown to the
public in a General Body Meeting and accounts would be approved and the
balance amount would be shared by the trustees. It is stated that the two
plaintiffs and the first defendant are the three trustees and they are in
management of the Church and its properties. It is their case that the first
plaintiff has spent a sum of Rs.40,000/- for the construction of a portion of
the Church and he has to get reimbursement of the said sum and the first
defendant also agreed for the same. According to the plaintiffs, the first
defendant who is one of the trustees, is not maintaining a true and correct
account of the income and expenditure of the Church and its properties and he
is misappropriating the income from the Church and its properties. The case
of the plaintiffs is that the first defendant has been making arrangements to
transfer the Church and its properties to the Arch Bishop of Trichy Diocese,
the fourth defendant in the suit. It is stated that the fourth defendant is
superior to the defendants 2 and 3 and the defendants 2 and 3 have been, in
the ordinary course, acting on the instructions of the fourth defendant. It
is stated that the first defendant has no right to execute any document
transferring the right or title of the Church and its properties to anybody as
they belong to the entire Catholic public of Vakkampatti village, nor he has
the power or authority to make any encumbrance over the properties without the
consent and permission of other trustees and the Catholic public of
Vakkampatti village. It is stated that the management has been throughout
with the trustees by inheritance and by rotation among themselves. It is
stated that the defendants 2 to 4 have no right to conduct the festival of the
Church. Hence, the plaintiffs, as trustees of the Church as well as
representatives of the Catholic public of Vakkampatti village, have filed the
suit for necessary declaration and injunction as set out earlier.
4. The first defendant has filed a written statement denying
all the averments and the case of the first defendant is that the plaintiffs
are not the trustees and after the consecration of the Church by the Arch
Bishop of Trichy Diocese in the year 1902, the Church, its properties and the
management of the Church were left to the control of the Bishop and the first
defendant has been in the management of the Church only as a Manager and the
plaintiffs has only acted as his Secretaries sometimes. According to the
first defendant, he was only the manager of the Church and its properties and
no trustees have been appointed. It is his specific case that the control,
management and maintenance of the Church have been under the control of the
defendants 2 to 4. It is stated that the festival would be conducted under
the control of the Bishop in the month of July every year and the plaintiffs
are not trustees. It is the case of the defendants that the property
described as item No.2 in A-schedule belonged to the first defendant and he
sold the same to the fourth defendant and it is not a property of the Church.
It is stated that the plaintiffs have no right over the properties. His case
is that he is only in management of the Church and the defendants 2 and 3 are
having the legal rights to manage the Church and to perform the festivals. It
is stated that the plaintiffs are not entitled to any decree directing the
first defendant to hand over the management of the Church and its properties
and call for its accounts. He also denied that the plaintiffs are entitled to
other reliefs.
5. The second defendant has filed a separate written
statement stating that the Church was consecrated and dedicated to worship of
the general public. It is his case that the ancestors of the first defendant
were allowed to manage the affairs of the Church by the Church authorities.
It is stated that the representatives of the Arch Bishop of Trichy Diocese
used to perform the religious part of the festivals and ceremonies and holy
masses. It is stated that the festivals were celebrated with the moneys
collected from the public and if any surplus money was available, that would
be credited to the second defendant and the surplus money was never shared by
anybody. It is his case that the entire Catholic community people of
Vakkampatti village admit and acknowledge the rights of the defendants 2 to 4
over the Church. It is stated that the second defendant is in management and
control of the Church. According to the second defendant, the religious part
of the festival must be performed only by an ordained Priest and the suit
Church belongs to the defendants 2 to 4 and the people of Vakkampatti are
entitled to the right of worship.
6. It is, on the above pleadings necessary issues were framed
and evidence has been let in, and the trial Court decreed the suit as prayed
for. An appeal was preferred against the judgment and decree of the trial
Court. A learned Single Judge of this Court, by an elaborate judgment, held
that the first defendant was carrying on the secular administration of the
Church as Manager, assisted by the plaintiffs, who are called, Nattanmaidars
and the plaintiffs have no right in the secular administration either as
Kariasthars or Nattanmaidars and hence, the plaintiffs are not entitled to the
declaration that the suit Church and its properties belong to the entire
Catholic public of Vakkampatty village. Learned Single Judge also considered
other matters and held that the plaintiffs are not entitled to other reliefs,
and allowed the appeal preferred by the defendants. It is against the
judgment and decree of the learned Single Judge, the present appeal has been
preferred.
7. There is no dispute and it is seen from the evidence of
P.Ws.1 and 2 that the suit church was constructed 200 years ago with the funds
raised from the public and some additional construction has also been made by
getting contributions not only from the Catholic public of the village, but
also from the Hindus and one Chinnasami Nadar had donated stones and borne the
expenditure for laying the stones in the church premises. It is also not in
dispute that the church is situate in Government Poramboke land. The first
defendant, in his evidence, has also admitted that the church was constructed
by collecting donations from the general public of the village and there is no
difficulty in holding that the church has been constructed in Government
Poramboke land with the funds raised from the general public and mostly from
the catholics belonging to the village.
8. The appellants filed C.M.P.No.1434 of 2003 to receive the
document, namely, copy of the order of the Bishop of Trichy showing that the
church was consecrated in the year 1902 itself. There are no serious
objections to receive the document, and by taking the document on file, no new
point is sought to be introduced, but, on the other hand, the document is
taken on file in proof of an already existing fact. The petition in
C.M.P.No.1434 of 2003 is ordered and the document is marked as Ex.B-16 on the
defendants’ side. The additional document filed by the defendants in this
appeal, Ex.B-16 also shows that the church was consecrated by the Arch Bishop
of Trichy Diocese on 4 .3.1902 and the Parish Priest signed the declaration
and as such, it is a consecrated church.
9. We have already noted that in so far as ecclesiastical
jurisdiction or religious functions and ceremonies to be performed in the
church in question are concerned, there is no dispute that they are looked
after by the Parish Priest who is under the control and supervision of the
Arch Bishop of Trichy Diocese. The first plaintiff in his evidence as P.W.1
admitted that in so far as ecclesiastical jurisdiction of the church is
concerned, it is vested with the defendants 2 and 3, and in view of his own
categorical admission, the plaintiffs have no right to have a declaration
regarding the ecclesiastical or religious functions of the church.
10. As far as secular administration of the church is
concerned, it is necessary to notice the relevant provisions of the Canon Law.
Can.1214 defines the term, ‘church’ to mean a sacred building intended for
divine worship, to which the faithful have right of access for the exercise,
especially the public exercise, of divine worship. Can.1215 provides that no
church is to be built without the express and written consent of the diocesan
Bishop and before granting the permission, the diocesan Bishop is required to
consult the council of priests and the rectors of neighbouring churches and
then, he is to decide that the new church can serve the good of souls and that
necessary means will be available to build the church and to provide for
divine worship. Can.1217 provides that as soon as possible after completion
of the building the new church is to be dedicated or at least blessed
following the laws of the sacred liturgy and churches, especially cathedrals
and parish churches are to be dedicated by a solemn rite. Can.1218 provides
that each church is to have its own title and once the church has been
dedicated this title cannot be changed. Can.12 1 9 provides that all acts of
divine worship may be carried on in a church which has been lawfully dedicated
or blessed, without prejudice to parochial rights.
11. The Supreme Court in MOST REV. P.M.A. METROPOLITAN v.
MORAN MAR MARTHOMA ( 1995 Supp. (4) SCC 286) held as under:-
” A church is formed by the voluntary association of
individuals. And the churches in the commonwealth are voluntary body
organised on a consensual basis – their rights apart from statutes will be
protected by the courts and their discipline enforced exactly as in the case
of any other voluntary body whose existence is legally recognised. Therefore,
all religious bodies are regarded by courts of law in the same position in
respect of the protection of their rights and the sanction given to their
respective organisations.”
The Supreme Court held that the canons are principles of scriptural bases for
the religious practice to be observed in a church.
12. We have gone through the Canon Law and also the
Commentaries on the Canon Law. Can.1214 makes it clear that the faithful have
the right of access to the church for divine worship. The submission of
Mr.T.R. Mani, learned senior counsel is that the administrative control of
the church remains with the Roman Catholic public of Vakkampatti village and
we are of the view that the effect of accepting the said submission would be
that there will be a possibility of dual authority in the administration of
the church one on the religious matters and another on administrative matters
and the vesting of dual authority in a Roman Catholic Church would be contrary
to the Canon Law. Further, we have seen the effect of consecration. A sacred
building would not become fit for worship immediately after its construction
and only after the sacred building is dedicated or blessed following the laws
of the sacred liturgy, it would become fit for divine worship. If the dual
authority is recognised, then a situation may arise that the church and its
properties may be put to use by the person who constructed the church, not for
the objects intended to be carried on in the church. It may also lead to a
situation that there may be transfer of property to third parties thereby
endangering the very existence of the church itself. Can.1222 provides that
if the church cannot be used for divine worship and there is no possibility of
its being restored, the diocesan Bishop may allow it to be used for some
secular, but not unbecoming purpose.
13. A reading of various provisions of the Canon Law
postulates that a detailed procedure has been made for the administration of
the church and its properties and so long as the church retains the status of
a Roman Catholic church, in our view, the diocesan Bishop alone would have the
right in both the spiritual and the temporal matters in respect of the church
and its properties. The church in question, by its very nature, has been
constructed only from the donations made mostly by the members following
Christian religion and from the fact of contribution for the construction of
the church by the public, it does not mean that the properties should be
transferred to the public or held by the public. When a building is
constructed for the purpose of divine worship, it would become a church only
after the fulfilment of certain formalities prescribed in the Canon Law and
there must be an express and written consent of the diocesan Bishop and there
must be dedication or blessing following the law of sacred liturgy. Once a
sacred building becomes a church under the Canon Law, the faithful will have a
right of access for divine worship. The Canon Law contemplates the complete
existence of a church.
14. The submission of Mr.T.R.Mani, learned senior counsel for
the appellants is that the above canons do not touch the matters relating to
the administrative control. Learned senior counsel referred to can.1254 which
says that a catholic church has the inherent right, independently of any
secular power, to acquire, retain, administer and alienate temporal goods, in
pursuit of its proper objectives. Learned senior counsel also referred to
can.1257 which provides that all temporal goods belonging to the universal
church, to the Apostolic See or to other public juridical persons in the
church, are ecclesiastical goods and are regulated by the canons which follow,
as well as by their own statutes. He referred to sub-clause (2) of can.1257
and submitted that the sub-clause provides that unless it is otherwise
expressly provided, temporal goods belonging to a private juridical person are
regulated by its own statutes, not by these canons, and therefore since the
church has the goods belonging to private juridical persons, namely, the
public of Vakkampatti village, the Canon Law cannot prevail.
15. Chapter II of Title VI of the Canon Law deals with
juridical persons and can.116 provides that public juridical persons are
aggregates of persons or of things which are established by the competent
ecclesiastical authority so that, within the limits allotted to them in the
name of the church, and in accordance with the provisions of law, they might
fulfil the specific task entrusted to them for the public good and other
juridical persons are private. Sub-clause (2) of can.116 provides that public
juridical persons are given this personality either by the law itself or by a
special decree of the competent authority expressly granting it and the
private juridical persons are given this personality only by a special decree
of the competent authority expressly granting it. In other words, private
juridical persons are given the juridical personality not by law, but only by
a special decree of the competent authority expressly granting it. Subclause
(3) of Can.114 provides that the competent ecclesiastical authority is not to
confer juridical personality except on those aggregates of persons or of
things which aim at a genuinely useful purpose and which, all things
considered, have the means which are foreseen to be sufficient to achieve the
purpose in view. Therefore, the submission of the learned senior counsel,
Mr.T.R.Mani that with regard to the temporal goods belonging to private
juridical persons, the Canon Law cannot prevail is not acceptable, as the
expression, ‘private juridical person’ in Canon Law has a significant meaning
and to regard a group of persons as private juridical persons, the juridical
personality should be given that status by a special decree of the competent
authority expressly granting it. Learned senior counsel also referred to
other provisions of the Canon Law.
16. Before considering the effect of the Canon Law, it is
necessary to refer to the decision of the Supreme Court in MOST REV. P.M.A.
METROPOLITAN v. MORAN MAR MARTHOMA (1995 Supp. (4) S.C.C. 286) wherein the
Supreme Court explained the Canon law. After considering the Black’s Law
Dictionary and the Encyclopaedia of Religion, it held as under:-
” Canon is explained in Black’s Law Dictionary as under:
‘A law, rule or ordinance in general, and of the church in
particular. An ecclesiastical law or statute. A rule of doctrine or
discipline. A criterion or standard of judgment. A body of principles,
standards, rules, or norms’.
Canon means both a norm and attribute of the scripture. The term ‘ canon law’
is explained in the Encyclopaedia of Religion, Vol.3, as under:
‘The term canon is based on the Greek word Kanon. Originally
signifying a straight rod or bar, especially one used to keep something else
straight, canon came to mean something that is fixed, a rule or norm. The
term has several applications in church usage: the canon of scripture, or
that fixed list of books that are determined to belong a sacred scripture; the
canon of the Mass, the fixed portion of the eucharistic prayer; the process of
declaring a deceased person to be among the fixed list of saints in heaven, or
canonisation. From the third century, directives for church living and norms
for church structures and procedures have been issued as canons.
Canon law refers to the law internal to the church. In the early
centuries of Christianity, canon was used for internal church norms, to
distinguish them from the imperial nomos (leges in Latin) or laws. Church
norms have also been known as sacred or divine, to distinguish them from civil
or human laws. At times they are referred to as the ‘sacred canons’ or the
‘canonical order’. The term ecclesiastical law is used synonymously with
canon law, although at times ecclesiastical law also refers to the civil law
adopted in various nations to regulate church affairs. The term canon law is
used in the Roman Catholic, Anglican, and Orthodox communions.
Canon law is drawn from sources in scripture, custom, and various
decisions of church bodies and individual church authorities. Over the
centuries these have been gathered in a variety of collections that serve as
the law books for various churches.’
55. Canons are thus the principal scriptural bases for the
religious practices observed in a Church.”
17. The Supreme Court in the same case considered the
well-marked distinction between the episcopal church and congregational church
and held as under:-
“A Church is either episcopal or congregational. It cannot be
episcopal in spiritual matters and congregational in temporal matters. That
would be against the basic characteristic of such a Church. It would be
against specific provisions in the Constitution. The temporal matters or
administration of churches flows from its establishment for religious
purposes, namely, ‘the cure of souls’. Where a building is consecrated as a
Church, ‘it continues to exist in the eye of law as a church and the body
corporate which had been endowed in respect of it remains in possession of the
endowment even though the material building is destroyed’. Every Parish
Church of Malankara acknowledges the Patriarch of Antioch as the spiritual
head. They have been paying Ressissa to Patriarch. The ordination,
consecration and every spiritual or temporal power has always been exercised
by the Patriarch of Antioch so long it was not decided on basis of the Synod
held at Mulunthuruthy that the Patriarch was only the spiritual head and the
temporary powers vested in the Metropolitan. This division of power could not
destroy the basic characteristic of episcopacy. The Church in England is also
an episcopal church. In Halsbury’s Laws of England, vol.14, para 562, the
right of parishioners has been described ‘to enter the church, remain there
for purpose of participating in divine worship to have a seat and to obey the
reasonable directions of the church to ordain’. The property vests in the
endowment. That is the fundamental difference in congregational and
episcopal. In the former it vests in the parishioner. But in the latter in
endowment. Once it is conceded that the Syrian Churches are episcopal in
character then the distinction between spiritual and temporary is of no
consequence. Therefore, the property of the Church vests in the endowment and
not the parishioners.”
18. A Division Bench of this Court consisting of Mr.Sadasiva
Ayyar and Mr.Napier, JJ., as early as in the year 1915, in MICHAEL PILLAI v.
RT.REV. BARTLE (39 ILR (Mad.)1056) held as under:-
“According to Canon Law a Roman Catholic Church becomes, as
soon as it is consecrated, the property of the church authorities,
irrespective of the fact that any particular worshipper or worshippers
contributed to its construction. (underline supplied)
The Bishop and other church authorities have the exclusive
right to the internal management of the church, whether relating to secular or
religious matters, such as accommodating the congregation inside the church
and prescribing the part to be taken by the congregation in the services and
the ceremonies.”
Though the above case dealt with the question of custom prevailing among the
Roman Catholic people, this Court held that where a certain section of Roman
Catholic converts of a place claimed an exclusive right to sit in and worship
in a particular portion of the church during time of the service and to take
part in certain duties connected with the church services, such a claim was
held to be legally unsustainable. It was held that as soon as a Church is
consecrated, the church becomes the property of the Bishop and other church
authorities irrespective of the fact that any particular worshipper or
worshippers contributed to the construction of the church.
19. Another Division Bench of this Court consisting of
Mr.Ayling and Mr.Coutts Trotter,JJ., in GASPARI LOUIS v. GONSALVES (35 MLJ
407) held that if a person voluntarily joins in a particular association, the
person would be bound by the rules which have been framed for the internal
discipline and for the management of its affairs. The Court held as under:-
“We may say at once that we think any analogies drawn from the
decisions relating to the property of the English Established Church are not
really applicable to the present case. The Church of England is properly
described as ‘established’ just because of this unique feature about it, that
it is subjected to the ordinary courts of law not only as to matters temporal
but even as to matters of doctrine. This is due to a variety of historical
causes which need not now be examined. The Roman Catholic Church is not an
Established Church. It is what is described as a voluntary association in the
English cases; and the result of those cases of which the most important are
Long v. The Bishop of Cape Town (1863) 1 Moo. P.C.(N.S.)411) and Merriman v.
Williams (1882) L.R.7 A.C.484) seems to be this: If you join a voluntary
association you will be bound by any rules which it had framed for its
internal discipline and for the management of tis affairs.”
20. Mr.T.R.Mani, learned senior counsel referred to the
decision of another Bench of this Court, presided over by Sir Alfred Henry
Lionel Leach, C.J., in the case of ROMAN CATHOLIC BISHOP OF TRICHINOPOLY v.
AMIRTHASWAMI PILLAI (1944 (I) MLJ 157). The facts of that case are, a Roman
Catholic Church was constructed in the place called, Varaganery and was
dedicated for the religious worship in accordance with Roman Catholic rites.
It was also found as fact that the church was built by the Roman Catholics of
Vellala community and it was used by all Roman Catholics as being dedicated to
the general public of Roman Catholics. A dispute arose when minority of the
Vellala community obtained possession of the church and arranged for masses
according to the rites of the Syrian church. Other Vellala community people
filed a suit and when the matter came up before this Court on appeal, this
Court held that the minority or even the majority of the Vellala Roman
Catholics of Varaganeri would not be allowed to use the church for worship
which is not in accordance with the Roman Catholic ritual and therefore, could
not be allowed to introduce therein priests of another Church for the purpose
of conducting worship. The Court held that the plaintiffs in the suit which
was filed in the representative capacity are entitled to injunction
restraining the defendants and their adherents from interfering with the
Church and the conduct of the religious services held therein. The Court,
while granting injunction, also directed for the handing over of possession of
the church to the representatives of Roman Catholics of Varaganeri village,
subject to the spiritual authority of the Bishop of Trichinopoly.
21. Placing reliance on the above decision, T.R.Mani, learned
senior counsel submitted that this Court has held that a particular community
people residing in a particular place were held to be entitled to possession
and the administration of the church and its properties and the same analogy
should be extended to the plaintiffs who have filed the suit in the
representative capacity of the Roman Catholic public of Vakkampatti village
for declaration that the suit church and its properties belong to the entire
Catholic public of Vakkampatti village. Learned senior counsel therefore
submitted that in so far as secular administration of the church is concerned,
it vests in the Roman Catholic public of Vakkampatti village.
22. We are unable to accept the submission of Mr.T.R. Mani,
learned senior counsel for more than one reason. Firstly, in Amirthaswami
Pillai’s case (1944 (1) MLJ 157) this Court was considering the religious
aspects of the matter and the question arose when the church was taken over by
minority community people, and whether it was necessary to issue any direction
for the handing over the possession of the church to the plaintiffs in the
suit. Secondly, the facts of that case make it clear that the church was not
consecrated, but only dedicated in accordance with the Roman Catholic rites
and it was found as a matter of fact and on the basis of subsequent agreement
between the community people and the Bishop that the Bishop was authorised
only to depute a priest for the conduct of daily masses and on days of
obligation and for the conduct of other religious services. In other words,
on the basis of settlement of dispute, the church was dedicated for general
public of Roman Catholic and maintained by a committee of Vellala Roman
Catholics who had control over it for that purpose. In that factual
situation, this Court held that since the church was maintained by a committee
of Vellala Community people who had control over the church and its affairs,
the possession should be handed over to the plaintiffs, the representatives of
that community. Therefore, the decision in Amirthaswami Pillai’s case (1944
(1) MLJ 1 57) hardly assists the case of the appellants herein.
23. As observed by the Supreme Court in Moran Mar Marthoma’s
case (1995 Supp. (4) SCC 286), admittedly there are no separate laws framed
in respect of the church in question and the church is not governed by
statutory laws. As the Roman Catholic Church in question is governed by the
episcopal law, the jurisdiction of the Court would depend upon either the
statute or the common law.
24. The above decisions make it clear that the Canon Law has
made some distinction between the spiritual and temporal powers of the Papacy
and the temporal powers of church vest in the Pope whose authority might be
delegated to a Bishop to the extent of a particular diocese. Therefore we
hold that once the church in question was constructed and consecrated by a
Arch Bishop of Trichy Diocese, the church and its properties would vest in the
Pope and the fourth respondent, Arch Bishop as a delegate of the Pope, is
entitled to the spiritual and temporal powers over the church and its
properties. As already observed, though the church was constructed with the
funds mostly provided by the Roman Catholic public of Vakkampatti village,
when the church was consecrated according to the Roman Catholic rites, the
church and its properties would vest in the fourth respondent.
25. Can.1254 and 1257 make it clear that the catholic church
has the inherent right, independently of any secular power to acquire, retain,
administer and alienate temporal goods, in pursuit of its proper objectives
and all temporal goods would be regulated by the canons as well as by their
own statutes. Sub-clause (2) of Can.1257 provides that unless it is otherwise
expressly provided, temporal goods belonging to a private juridical person are
regulated by its own statutes, not by these canons. Sub-clause (2) of
can.1257 deals only with the temporal goods belonging to a private juridical
person, and a body of Roman Catholic public in the village are not private
juridical persons within the meaning of Canon Law.
26. It is, no doubt, true that it will be open to the church
authorities and the Roman Catholic public of a particular village to regulate
or to enter into an agreement with the villagers as to the mode of control
over the church and its properties and in the absence of any agreement
produced by the appellants herein, it must be held that the church and its
properties vest only in the authority of the fourth respondent, viz., Arch
Bishop of Trichy Diocese and the respondents 2 and 3 are the delegate of the
Arch Bishop to exercise the spiritual and temporal powers over the church in
question and its properties.
27. Mr.T.R.Mani, learned senior counsel submitted that the
Canon Law cannot bind the Roman Catholic people of Vakkampatti village.
Learned senior counsel referred to several dictionaries, namely, Pocket Law
Lexicon, Mozely & Whiteley’s Law Dictionary, Whartons Law Lexicon, K.J.Aiyer’s
Judicial Dictionary, Judicial Dictionary by Justice L. P.Singh &
P.K.Majumdar, The Chambers Dictionary, Osborn’ Concise Law Dictionary,
Dictionary of Law by L.B.Curzon Barrister, The Code of Canon Law and A
commentary of New Code of Canon Law, and on the basis of the above, he
submitted that the Canon Law would only be binding the churches.
28. We have gone through the various dictionary meanings and
some text books on Canon Law. The Supreme Court in Moran Mar Marthoma’s case
(1995 Supp. (4) SCC 286) held that the canons are principles of scriptural
bases for the religious practice to be observed in a church. We have already
found that the church is a voluntary association and if any person of the
association desires to be a member or continues to be a member, he is bound by
the rules framed for the association both in the matter of discipline and the
internal management of the association. Further, some of the passages relied
upon by Mr.T.R. Mani, learned senior counsel relate to the English
established churches. It is found that a church of England is an established
church because of its unique features about it, that it is subjected to the
ordinary courts of law not only to matters temporal but even as to matters of
doctrine and this is due to variety of historical reasons and therefore, it
would not be profitable to apply the principles relating to the established
churches to the Roman Catholic churches which are governed by their own rules.
Therefore, on the basis of the law, particularly, the law governing the church
in question, we hold that the church and its properties vest only in the
fourth respondent herein and it is open to him to exercise his power through
his delegates, namely, respondents 2 and 3. It is true that it would be open
to the fourth respondent to authorise villagers to administer the secular
affairs of the church, but the plaintiffs have not established that they were
authorised by the fourth respondent to administer the secular affairs of the
church and even if there were so authorised, they would exercise the power of
administration as authorised agents of the fourth defendant and not de hors
the authorisation. Equally, it would have been open to the villagers to form
a trust to retain the administrative control over the church and its
properties at the time of consecration of church subject to the grant of
consent by the fourth respondent for retaining such a control.
29. We are also conscious of the fact that when we have held
that the church has vested with the fourth respondent, it does not mean the
vesting of property in a person in the normal sense. We meant that so long as
the authority of the fourth respondent continues over the catholic church and
its properties, the church and its properties would vest in the fourth
respondent.
30. It is, no doubt, true that it is open to the plaintiffs
to show that notwithstanding the provisions of the Canon Law, the temporal
affairs of the church are being governed by the custom of the Roman Catholic
public of Vakkampatti village. If the custom is established, then, the Roman
Catholic people of Vakkampatti village can claim right over the church and its
properties by way of custom. To decide this question, it is necessary to
refer to the averments made in the plaint wherein it is stated that the church
is owned by the entire public and the church is open to worship for all and
for the administration of the church and its properties donated by the
Catholics, a committee of five members headed by Nattammai, the father of the
first plaintiff was formed about 90 years ago. It is also the case of the
plaintiffs that the Parish Priest has exercised no right over the functioning
of the trust and the entire management of the trust and the properties vested
in the five members of the committee of whom, three trustees were appointed by
the public and their office is hereditary in nature. We have already observed
that if the three members were appointed by the public and the term of their
office is one year, it is not hereditary in nature as the concept of election
is antithesis to the devolution of rights hereditarily. We have also observed
that though the plaintiffs have claimed that there are five members and out of
them, three were elected by the public, but, the plaint is completely silent
as to the appointment or mode of devolution of trusteeship of other two
trustees. It is also stated that the plaintiffs and the first defendant are
the three trustees who have managed the church and its properties. According
to the plaint, for conducting annual festival the committee collected money
and after the festival was over, the accounts would be approved and the
balance amount would be shared by the three trustees.
31. Mr.T.R.Mani, learned senior counsel referred to the
relevant portions of the written statements as also the evidence of P.Ws.1 and
2 and D.Ws.1 to 4 and submitted that the first defendant in his evidence has
admitted that the management of the church was throughout in the hands of the
manager and he has also admitted that the key for the church was with him and
he was keeping the accounts of the church. Learned senior counsel also
referred to the evidence and submitted that the defendants 2 and 3 are not in
the management of the church affairs and D.W.1 has admitted that the plaintiff
was performing the functions as Kariasthar and he also admitted that he
(D.W.1) handed over the management of the church to the defendants 2 to 4 only
after the filing of the suit and only the religious part of the festival was
done by the defendants 2 to 4 and the defendants 2 to 4 had not contributed
any funds for the construction of the church and the priests were not directly
involved in the management or maintenance of the church and the first
defendant’s family is looking after the affairs and the improvement of the
church. Learned senior counsel referred to the evidence of D.W.1 in extenso
and submitted that he has admitted that there is no permanent priest in the
church and sometimes, the festival was conducted without the priest. Learned
senior counsel referred to the evidence of D.W.2 and submitted that D.W.2 has
admitted that after the festival was over, the accounts would be shown to the
public and the balance amount was credited to the accounts of the manager and
he has also admitted that the first plaintiff has collected the money from the
public. Learned senior counsel submitted that the evidence of D.W.2 shows
that the Priest and the Bishop are not directly managing the church. He has
also referred to the admission made by D.W.2 that the first plaintiff and the
first defendant were in the management of the church for the past 30 to 40
years. He referred to the evidence of D.W.3, the Parish Priest where he has
stated that the public used to bear the expenditure of the festival by way of
donations and he has admitted that there is no written record to show that the
church belongs to the defendants and he also admitted that the powers of the
defendants 2 to 4 only relate to religious ceremonies. Learned senior counsel
submitted that D.W.2 has stated that there is no written consent to show his
power to manage the church. He relied upon the admission of D.W.2 that he is
not staying in Vakkampatti village and he referred to Ex.B-15 and submitted
that it cannot be stated that Vakkampatti village church comes within the
ownership of the fourth defendant. He also referred to the evidence of D.W.4
where he has admitted that secretaries and managers were conducting certain
festivals and the first defendant’s father administered the church. He also
referred to the evidence of D.w.4 and submitted that he has clearly admitted
that the invitations for the festivals were printed only by the secretaries
and managers and they would issue receipts for the annual collections. On the
basis of the above pleadings and evidence, learned senior counsel submitted
that the defendants have admitted that the administration of the church as far
as secular matters are concerned is with the Roman Catholic public of
Vakkampatti village and the administration is carried on through the managers
and karisasthars.
32. Mr.Peppin Fernando, learned counsel for the first
respondent, on the other hand, referred to the evidence of the first plaintiff
where he has admitted that 90 years ago, his father appointed three trustees
and submitted that the suit was instituted in the year 1990 and the evidence
of P.W.1 was recorded on 7.4.1994 and if 90 years is calculated from that
date, that would be 1904 in which year the father of the first plaintiff must
be aged 7 years. He further referred to the evidence of P.W.1 wherein he has
stated that his father C. Savarimuthu and the first defendant’s father
K.S.Maria Santhanam and the second plaintiff’s father, A.Savarimuthu were the
said trustees and submitted that the second plaintiff’s father A.Savarimuthu
was not even born on that date. He also referred to the evidence of P.W.1
where he has stated that after the performance of festival, the remaining
amount would be divided into three parts and P.W.1 would take one share and
submitted that the above evidence clearly shows that the plaintiffs have come
forward with a false case, and according to him, it is impermissible for the
trustees to take the surplus money collected for the church. He also referred
to the evidence of P.W.1 wherein he has stated that either in the festival
notices or in any other document he was not shown as a trustee and he also
admitted that trustee means manager and submitted that his evidence clearly
discloses that the first plaintiff is not a trustee and his ancestors were not
trustees at all. Learned counsel referred to the admission made by the first
plaintiff that the Parish Priest is residing in the church and the first
defendant is his own brother-in-law. He also referred to the evidence of
P.W.1 where he has admitted that he was only a kariyasthar. Learned counsel
submitted that the first plaintiff’s name was not found in the exhibit,
namely, the invitation printed for the church festival and there is no
evidence to show his management and there is no written proof to show that
there was a committee of five members and when the system of appointment of
trustees was introduced. He referred to the admission made by the first
plaintiff that he kept the accounts for 14 years and the second plaintiff also
looked after the management and there are no accounts for the period when the
management was with his father and Rev.Father is the representative of the
Arch Bishop. He also referred to the evidence of P.W.2 that the second
defendant is the Priest of Panchampatti who would attend the festival and
collect his fees and the first plaintiff has not effected improvements in the
church funds.
33. We have gone through the oral evidence as well as
relevant documentary evidence. We find that the learned Single Judge has
analysed the evidence in detail. We also find that the admission of the first
plaintiff shows that he was not a trustee, nor was he a manager and the first
defendant was the church manager. The first defendant was the Church manager
and the evidence is that the first plaintiff assisted the Church manager. The
plaintiffs are not able to establish that the secular administration of the
church was handed over to the committee and there is absolutely no evidence to
show that the secular administration of the church was handed over to the
committee consisting of five trustees. Further, there is no proof regarding
the mode of election or selection of trustees or the mode of administration by
the said trustees. The first plaintiff himself admitted that he was a
nattanmaidar and he was not conferred with any right to do the secular
administration of the church. If the case of the plaintiffs that as
nattanmaidar the first plaintiff is entitled to the management is accepted,
then, it is not open to him to file the suit in a representative capacity for
the Roman Catholic public of Vakkampatti village. The case of the plaintiffs
is that the management of the church was with the committee consisting of five
trustees is not established by any acceptable evidence. The so-called
admissions of D.Ws.1 to 4 do not advance the case of the plaintiffs and they
have not admitted anywhere that the secular administration of the church was
with the committee of trustees and their admission is only to the effect that
the first defendant was acting as a manager and he was collecting money for
the performance of the festival and after the performance of the festival, the
surplus amount would be handed over to the church. The above admission does
not mean that they have admitted that the secular administration was with the
committee of trustees. The documents, namely, Exs.A1 to 10 show that the
invitations were printed in the name of Rev.Father and the first defendant was
shown only as church manager and others were shown as nattanmaidars. Though
in some of the invitations, the name of the Priest was not shown, the
documents Exs.A1 to A-10 do not establish that the plaintiffs as the trustees
took part in the conduct of the church festivals. On the other hand, it is
clear from the evidence that the first plaintiff was recognised as
nattanmaidar. In view of the clear admission of P.W.1 that they are not
trustees, not much reliance can be placed on Exs.A-1 to A-10.
34. It is also relevant to notice that the second plaintiff
was not examined. The other witness who was examined is P.W.2 and his
evidence does not inspire confidence for the acceptance of the Court. The
plaintiffs have not taken any steps to examine any one of the villagers who
are conversant with the affairs and management of the church to establish the
case of the plaintiff that the secular administration of the church was with
the committee of five.
35. We have gone through the evidence of the first plaintiff,
who was examined as P.W.1. As already observed by us, he has not proved that
there was a committee of management headed by the managing trustee from the
public and the administration and management of the church and its properties
were done by five members of the committee of trustees and the trustees were
appointed by the public and the office of the trustee was hereditary in
nature. As a matter of fact, his evidence shows that he was not even shown as
a trustee in the pamphlets printed in connection with the church festivals and
he was shown only as a kariasthar.
36. Mr.T.R.Mani, learned senior counsel relied upon the
following statement made by D.W.1, ‘with the consent of the village public and
under the orders of the Bishop, my grandfather was in the management of the
church as manager’. The statement, in our opinion, does not prove the case of
the plaintiffs that there was a committee of management. The statement of
D.W.1 means that the first defendant’s grandfather was appointed as a Church
manager under orders of the Bishop. The statement does not mean that the
villagers have appointed the grandfather of the first defendant as manager.
The other statement made in the deposition of D.W.1, on which heavy reliance
was placed by the learned senior counsel, is ‘as the public could not unite
themselves and perform the management of this church, the managers were
appointed 90 years ago, but they have been in the office in the capacity as
managers ancestrally’. This statement also does not show that the public have
appointed the managers, and the statement has to be read along with earlier
statement of D.W.1 where he has stated that the managers were appointed under
orders of the Bishop. Though D.W.1 has stated that the managers were holding
the office ancestrally, it does not mean that the the villagers of Vakkampatti
were in the management of the church and its properties through the managers
and there is no such admission by the first defendant in his evidence.
37. Learned senior counsel also referred to the evidence of
D.W.2 where he has stated that the entire management of the church was with
the manager only and the church belonged to the village public. In our view,
the above statement cannot be read in isolation and it has to be read along
with the earlier statements where he has stated that the church was
constructed by the public. He has not admitted that the entire administrative
control over the church was with the public of Vakkampatti village. Further,
the evidence of D.W.2 also shows that the management of the church was with
the managers and the managers, as already observed by us, were appointed by
the Bishop and not by the villagers. Further, the averments in the plaint as
well as the evidence of P.W.1 are to the effect that the trustees would be
collecting money from the public for the performance of festivals of the
church and surplus amount would be divided among the trustees. If the above
averment as well as the evidence that the surplus money would be divided among
the trustees is accepted, it would offend the provisions of the Trust Act and
would also go against the purpose for which the contributions were made by the
public. When moneys have been collected for a particular purpose and if there
is any surplus after the expenditure, the surplus money should go either to
the church or to the public and it is not possible to appropriate or
misappropriate the money collected from the public by the so-called trustees.
Further, the suit has been filed in a representative capacity and it is
surprising to note that no one from the public in the village has come forward
to support the case of the plaintiffs that the management of the church was
with the committee of five trustees of whom three were nominated by the
village public. We find that the plaintiffs have miserably failed to
establish their case that the administration and management of the church was
in the hands of the committee of trustees. There is no proof to support the
case pleaded by the plaintiffs. Therefore we affirm the finding of the
learned Single Judge on this aspect that the suit church and its properties do
not belong to the entire catholic public of Vakkampatti village.
38. Exs.A-11 to A-15 and A-47, as noticed by the learned
Single Judge, are account books maintained by the first plaintiff in
connection with the affairs of the suit church from 1976 to 1991. The
documents disclose that the first defendant was managing the affairs of the
church only as Church manager and the documents do not establish that there
was a committee of trustees which was managing the secular administration of
the church. We affirm the finding of the learned Single Judge that the
ecclesiastical jurisdiction vests with the defendants 2 to 4, and as far as
the secular administration of the church, namely, collecting donations from
public, conducting festivals, administration of the properties of the church,
etc., is concerned, it shall be done only with the knowledge and permission of
the Parish Priest. We also hold that the plaintiffs are not entitled to claim
injunction against the defendants 2 to 4. We also hold that the plaintiffs
are not entitled to the relief of removal of the first defendant from
trusteeship. Equally, the plaintiffs are not entitled for a direction for
rendition of accounts as the first defendant is not shown to be appointed by
the village public as a trustee to manage the church and its properties. On
the other hand, the evidence shows that he has been appointed as a Church
manager by the defendants 2 and 3 and therefore, the plaintiffs are not
entitled to seek direction for rendition of accounts from the first defendant,
nor are they entitled to claim that the first defendant should deliver the
management of the church and its properties to the plaintiffs.
39. As far as the second item in A-schedule properties is
concerned, it consists of certain punja lands. This property, according to
the plaint averments, was purchased in the name of one Kanagappan, grandfather
of the first defendant and the family of the first defendant was enjoying the
property throughout from the date of purchase. It is admitted that the patta
in respect of second item of Aschedule stood in the name of the first
defendant after the death of his predecessors. The plaintiffs claim that it
is a property belonging to the church and the church is in management of the
property, paying kist also out of the income of the church. It is further the
case of the plaintiffs that the property is intended for due performance of
service in the church and any alienation of the property would be invalid.
40. In the written statement it has been stated that the
property described as item No.2 in A-schedule belonged to the family of the
first defendant and in the partition, it fell to the share of the first
defendant and he sold the same to the fourth defendant by document dated
29.3.1993 (Ex.A-37). According to the first defendant, it is not the property
purchased for the church and it is a private property of the first defendant’s
family. As far as the evidence is concerned, the first plaintiff has stated,
in his evidence as P.W.1, that the patta for the land stood in the name of the
first defendant and he gifted the land belonging to him in favour of the
church. He has also admitted that the property was purchased by his
grandfather for the church, but, there is no evidence of gift of the property
by the first defendant’s grandfather to the Church. The first defendant, in
his evidence, has stated that the property did not belong to the church. He
has stated that the property may be used for public purpose. D. W.2 has
stated that the property in item No.2 of A-schedule belonged to the first
defendant and the first defendant sold the property to the fourth defendant
and the property belongs to the church.
41. Learned senior counsel relied upon the admission made by
the D.W.2 and submitted that D.W.2 has admitted that the second item in
Aschedule belongs to the church. We have seen Exs.A-49 and A-50. Ex.A-49 is
dated 1.7.1889 and Ex.A-50 is dated 11.10.1900 and both the documents were
executed in favour of Kanagappan, the grandfather of the first defendant. A
reading of the documents does not show that the properties were purchased by
the Church with the funds of the church or from the public money. The
partition deed dated 3.5.1972 (Ex.B-5) in the family of the first defendant
shows that the said property was allotted to the first defendant in the said
partition. Apart from the partition deed, the first defendant has produced
the documents in Exs.B-6 and B-7 to show that the patta stood in the name of
the first defendant and he was paying the kist and he was in possession and
enjoyment of the property. The first defendant has also produced evidence for
payment of tax and payment of electricity charges. All the documents clearly
show that the second item in A-schedule, namely, 27 cents is a property
belonging to the family of the first defendant. The plaintiffs have not
proved that the said property was a property of the church, and they have
failed to prove that the property was purchased by the Church out of its own
funds or by the public of Vakkampatti village.
42. Learned counsel for the respondents referred to certain
decisions on the question of benami. We find that it is not the case of the
plaintiffs that the property was purchased by the Church benami in the name of
the grandfather of the first defendant. On the other hand, the way in which
the first defendant’s family dealt with the property shows that it was treated
as a private property of the first defendant’s family and in the absence of
any evidence to show that the said property is a church property, we hold that
the plaintiffs are not entitled for a declaration that the second item in
A-schedule properties of an extent of 27 cents belongs to the church or the
village public. Further, it is relevant to mention here that the first
defendant sold the property in favour of the fourth defendant by document
dated 29.3.1993 (Ex.A-37).
43. The suit was instituted in a representative capacity and
at the time when the plaintiffs filed the suit, the plaintiffs did not seek
any relief against the fourth defendant. Subsequently, the plaintiffs filed
an application seeking leave to sue against the fourth defendant and that
application was dismissed. Therefore, it is not open to the plaintiffs to
question the deed of sale executed by the first defendant in favour of the
fourth defendant, as the sale has become final and the leave to sue against
the 4th defendant was rejected and the fourth defendant was exonerated. Even
on this ground also, the plaintiffs are not entitled to claim any relief in
respect of 2nd item in A-schedule properties in the suit instituted in a
representative capacity. In the view we have taken, it is not necessary to
discuss the various decisions relied upon by the learned counsel for the
respondents on the topic, benami. Accordingly, we affirm the finding of the
learned Single Judge that the plaintiffs have failed to establish that the
second item in A-schedule properties was purchased by the Church from out of
the church funds or by the public and therefore the claim of the plaintiffs
that the said property belongs to the church is not accepted and is rejected.
44. As far as B-schedule properties are concerned, not much
argument has been advanced before us. It is seen from the evidence of D.Ws.2
and 3 that the descriptions given in the plaint for Bschedule properties are
not correct. Further, for the performance of the ceremonies and the conduct
of holy masses in the church, the vessels, ornaments and clothes would be
necessary and it is not established that they belong to the public of
Vakkampatti village. Therefore the claim of the plaintiffs that the first
defendant is in possession of Bschedule properties and he has to render
accounts for the same is rejected.
45. The plaintiffs also claimed that the first defendant
should be directed to pay a sum of Rs.40,000/- to the first plaintiff from and
out of the income of the suit church as the sum was spent by the first
plaintiff for effecting repairs, renovation and additional construction in the
church. This prayer is rejected as in a suit instituted in a representative
capacity, it is impermissible for the first plaintiff to vindicate his
individual claim that the sum of Rs.40,000 /- should be paid by the first
defendant from and out of the church income. Further, there is absolutely no
evidence to show that the first plaintiff has carried out the repairs,
renovation and additional construction in the Church. He is not able even to
say the year in which the amount was spent or when the construction was done.
The plaintiff has not examined the contractor, nor even a coolie in support of
his case that he had made some additional construction in the Church. In
other words, there is no evidence for the expenditure incurred by the first
plaintiff for the construction and the entries in the account books produced
by the plaintiffs are also not reliable. There is also no evidence to show
that the Priest or the first defendant permitted the first plaintiff to do the
repair and other works in the Church with a promise to reimburse the same.
Further, there is no evidence to show that the first plaintiff has spent money
and hence, the individual claim of the first plaintiff against the first
defendant for payment of Rs.40,000/- from and out of the church income is
rejected.
46. We have already held that in the petition filed to permit
the plaintiffs to file the suit in a representative capacity, the fourth
defendant was exonerated and therefore the plaintiffs are not entitled to
claim any relief against the fourth defendant in the suit as the application
filed seeking leave to sue against the fourth defendant was dismissed.
47. The respondents 1 to 4 have preferred a cross objection.
Mr. Peppin Fernando, learned counsel for the respondents did not press the
cross objection preferred. Therefore, the cross objection fails and is
dismissed.
48. Accordingly, we hold that the learned Single Judge was
correct in holding that the plaintiffs are not entitled to the reliefs as
prayed for in the suit and the learned Single Judge was also correct in
dismissing the suit. Consequently, the Letters Patent Appeal fails and the
same is dismissed. The Cross Objection is also dismissed. C. M.P.No.1434 of
2003 is ordered. C.M.P.Nos.10403 and 11741 of 1998 are closed. In the
circumstances, there will be no order as to costs.
Index: Yes
Website: Yes
na.
Document marked in this appeal:
For respondents/defendants:
Ex.B-16 … Copy of Order of Bishop of Trichirapalli
(with English version)
To
1. The Additional Subordinate Judge,
Dindigul.
2. The Section Officer, V.R.Section,
High Court, Madras.