Kerala High CourtK.T.Simon vs M.V.George on 19 March, 2015Author:P.B.Suresh KumarBench:P.B.Suresh KumarIN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                  PRESENT:

                     THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

          THURSDAY, THE 19TH DAY OF MARCH 2015/28TH PHALGUNA, 1936

                                        RFA.No. 114 of 2006 (F)
                                             ------------------------
               OS 19/2003 of I ADDITIONAL DISTRICT COURT, ERNAKULAM


APPELLANTS/PLAINTIFFS:
-----------------------------------

      1. K.T.SIMON, AGED 54,
           S/O.THOMAS KONAMPURATH HOUSE, MANNAMANGALAM
           MURIKKUMPARA, THRISSUR-14.

      2. K.M.CHERIAN, AGED 48,
           S/O.MATHAI, KOLLAMPADIYIL HOUSE, KOLANKUNDU
           MANNAMANGALAM, THRISSUR.

      3. P.U.POULOSE,
           AGED 55, S/O.ULAHANNAN, PARACKAL HOUSE
           MANNAMANGALAM, THRISSUR.

           BY ADVS.SRI.BIJU ABRAHAM
                        SRI.B.G.BHASKAR

RESPONDENTS/DEFENDANTS:
---------------------------------------------

       1. M.V.GEORGE, AGED 50,
           S/O.VARKEY, MUNDASSERI HOUSE, KOLANKUNDU
           MANNAMANGALAM, THRISSUR.

        2. O.U.ELIYAS,
           AGED 42, S/O.ULAHANNAN, OONNUKALLINGAL HOUSE
           MANNAMANGALAM, TRICHUR DISTRICT.

        3. K.A.BABU, AGED 40,
           S/O.ABRAHAM, KOCHUNKOONAM MAMOOTTIL HOUSE
           ASARIKADU, TRICHUR.

        4. P.U.MATHACHAN,
           AGED 43, S/O.ULAHANNAN, PARACKAL HOUSE
           DARBAYIL, MANNAMANGALAM, TRICHUR.

       5. REF.FR.PAULOSE,
           VAKKANAMPADATHIL, AGED 66, S/O.KURIAN
           VICAR OF THE ST.MARY'S ORTHODOX SYRIAN, CHURCH
           MANNAMANGALAM, THRICHUR.

RFA.No. 114 of 2006


     6. T.S.BOSE, AGED 35,
       S/O.SCARIA, TACHERLIKKARA PUTHENPURAYIL, HOUSE
       PUTHANKADU, P.O., VETTUKAD
       TRICHUR DISTRICT.

       R1-4&6 BY ADV. SRI.K.J.KURIACHAN
       R5 BY ADV. SRI.ISAC SANJAY

       THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON
       19-03-2015, THE COURT ON THE SAME DAY DELIVERED THE
       FOLLOWING:



                       P.B.SURESH KUMAR, J.

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                        R.F.A.No.114 of 2006

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                Dated this the 19th day of March, 2015.


                            J U D G M E N TThe plaintiffs in O.S.No.19 of 2003 on the file of the             1st

Additional District Court, Ernakulam have come up in this appeal

aggrieved by the dismissal of the said suit.2. The plaintiffs are the parishioners of       St.Mary's    Orthodox

Syrian Church, Mannamangalam ('the church'). Defendants 5 and 6

are the duly appointed Vicar and Kaikkaran respectively of the church.

According to the plaintiffs, the church is a constituent Parish church of

Malankara Syrian Orthodox Church, hereinafter referred to as 'the

Malankara church', and is liable to be administered in accordance with

its 1934 constitution. It is alleged by the plaintiffs that defendants 1 to

4 and others had formed an organisation called Yacobaya Suriyani

Christian Church with a separate bye-law and are attempting to

oppose the administration of the church in accordance with the 1934

constitution of the Malankara Church.         It is also alleged by the

plaintiffs that defendants 1 to 4 are attempting to compel defendants

5 and 6 to administer the church in accordance with the bye-law of the

Yacobaya     Suriyani  Christian   Church.      The     plaintiffs, in  theR.F.A.No.114/20062circumstance, claimed the following reliefs in the suit:(A) For a declaration that the St.Maray's Orthodox Syrian Church,

         Mannamangalam is a Parish Church of the Malankara Orthodox Syrian

         Church, liable to be administered under the 1934 Church Constitution

         and for consequential injunctions.(B) Prohibiting defendants 1 to 4 and their supporters from passing

         any    resolution   denigrating   the   1934   constitution  and   the

         constitutionally selected Thrissur Diocesan Metropolitan, approving the

         applicability of the 2002 byelaws created at Puthencruz to the

         St.Maray's Orthodox Syrian Church, and for remembering the names

         of anyone other than that of the only true and rightful Catholicos, HH

         Moran Mar Baselios Marthoma Mathews II and the Thrissur Diocesan

         Metropolitan HG Yuhanon Mar Miletius in the Tubdein.


         (C) And injunction against defendants 5 and 6 prohibiting them from

         preparing the list of members eligible to attend the Parish assembly

         except strictly in accordance with Section 7 of the 1934 constitution

         and prohibiting them from admitting parishioners other than duly

         qualified Parish Assembly members from entering the venue of the

         Parish Assembly meeting.3. The defendants contested the suit, contending mainly that

the church is a public trust and the suit filed without obtaining leave of

the court as provided underSection 92of the Code of Civil Procedure

is not maintainable.4. The court below found that the church is a public trust andR.F.A.No.114/20063the suit filed without obtaining the leave of the court as provided

underSection 92(1)of the Code of Civil Procedure is not maintainable.

The court also found that in so far as the church was not made a party

to the suit, the suit is bad for non-joinder of necessary parties. On

merits, the court found that the plaintiffs are not entitled to the

declaration and injunction sought for in the suit. The plaintiffs are

aggrieved by the said decision.5. The fact that the suit was instituted without obtaining

leave of the court as provided for underSection 92of the Code of Civil

Procedure ('the Code'), is not in dispute.Section 92(1)of the Code

reads thus:"92.  Public charities:-      (1) In the case of any

             alleged breach of any express or constructive trust created for

             public purposes of a charitable or religious nature, or where the

             direction of the Court is deemed necessary for the administration

             of any such trust, the Advocate-General, or two or more persons

             having an interest in the trust and having obtained the leave of

             the Court, may institute a suit, whether contentious or not, in the

             principal Civil Court of original jurisdiction or in any other Court

             empowered in that behalf by the State Government within the

             local limits of whose jurisdiction the whole or any part of the

             subject-matter of the trust is situate to obtain a decree-(a)    removing any trustee;

                    (b)    appointing a new trustee;R.F.A.No.114/20064(c) vesting any property in a trustee;(cc)   directing a trustee who has been removed or a person
           who has ceased to be a trustee, to deliver possession of any trust
           property in his possession to the person entitled to the possession
           of such property;(d) directing accounts and inquires;(e)declaring what proportion of the trust property or of the
           interest therein shall be allocated to any particular object of the
           trust;(f) authorizing the whole or any part of the trust property to be
           let, sold, mortgaged or exchanged;(g) settling a scheme; or(h) granting such further or other relief as the nature of the case
            may require."It is settled that for the application ofSection 92of the Code, the

trust must be an express or constructive trust created for public

purposes of a charitable or religious nature, there must be an

allegation of breach of such trust, the suit must be a representative

one on behalf of the public and the relief claimed must be one of the

reliefs provided for in sub clauses (a) to (h) ofSection 92(1)of the

Code. The specific case of the plaintiffs is that the plaint schedule

church is a constituent Parish church of Malankara church.In St.

Peters Orthodox Syrian Church v. Fr. Abraham Mathews

(2011 (4) KLT 540) a Division Bench of this Court, relying on the

decision of the Apex Court inP.M.A.Metropolitan v. Moran MarR.F.A.No.114/20065Marthoma(AIR 1995 SC 2001), held that constituent Parish churches

of Malankara Church are public religious and charitable trusts to whichSection 92of the Code applies. The said judgment was rendered in

the context of a similar dispute in relation to St.Peter's Orthodox

Syrian Church, Puthencruz.Following the decision of this Court in

St.Peters Orthodox Syrian Church v. Fr. Abraham

Mathews (supra), a learned single Judge of this Court has also held

in A.S.No.768 of 1998 that St.Thomas Orthodox Syrian Church,

another constituent Parish church of Malankara Church, is also a public

trust of religious and charitable nature. Thus, the appellants cannot be

heard to contend that the church which is a constituent Parish church

of Malankara church is not a public trust.6. It is trite that only the allegations in the plaint need to be

looked into to see whether the suit falls within the ambit ofSection 92of the Code. As noticed above, the case of the plaintiffs is that the

church has to be administered in accordance with 1934 constitution

and the defendants who formed a new organisation is attempting to

remove the church out of the 1934 constitution of the Malankara

church. In other words, the plaintiffs are attributing breach of trust

against the contesting defendants.R.F.A.No.114/200667.  It is not in dispute that the suit is one filed by the

plaintiffs in a representative capacity on behalf of the beneficiaries of

the church and not one instituted for vindication of their private rights.

Coming to the reliefs claimed in the suit, the main relief is for a

declaration that the church is a Parish church of the Malankara

Orthodox Syrian Church and is liable to be administered under the

1934 constitution of the Malankara Church. They have also claimed a

prohibitory injunction restraining defendants 1 to 4 and others from

passing any resolution denigrating the 1934 constitution of the

Malankara Church. They have further claimed a prohibitory injunction

restraining defendants 5 and 6 from preparing the list of persons

entitled to participate in the Parish assembly otherwise than in

accordance with the 1934 constitution of the Malankara church.       It is

settled that a suit claiming any relief akin to the reliefs mentioned in

clauses (a) to (g) ofSection 92(1)of the Code, would also fall within

the ambit ofSection 92of the Code. [SeeCharan Singh v. Darshan

Singh(AIR 1975 SC 371)]. Going by the reliefs claimed in the suit,

the purpose of the suit is to ensure the administration of the church in

accordance with the 1934 constitution of the Malankara church. The

said relief would certainly come under clause (g) ofSection 92(1)ofR.F.A.No.114/20067the Code. The finding of the court below that the suit is not

maintainable is, therefore, in order.8. Since it is found that the suit is not maintainable for want

of sanction provided for underSection 92of the Code, I am not

examining the correctness of the finding rendered by the court below

on merits.In the result, the appeal is dismissed.Sd/-P.B.SURESH KUMAR, JUDGE.Kvs



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