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George Davis Mooken Vs. Ollukaran Thomakutty Varied and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 52 of 1971
Judge
Reported inAIR1975Ker163
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(11) and 8 - Order 1, Rule 8; Evidence Act, 1872 - Sections 114
AppellantGeorge Davis Mooken
RespondentOllukaran Thomakutty Varied and ors.
Appellant Advocate S. Easwara Iyer and; E. Subramoni, Advs.
Respondent Advocate K.P. Radhakrishna Menon and; T.S. Venkiteswara Iyer, Advs.
DispositionAppeal allowed
Cases ReferredRamrati Kuer v. Swarika Prasad Singh
Excerpt:
.....paragraph 11 of the plaint are to the effect that on the failure to comply with the command of the patriarch, the metropolitan stood automatically suspended by the canon law, of his powers and functions as metropolitan until such time as he appears before the patriarch and apologises for the default. because the more bishops there are in the council, the better will it be confirmed and purified and trusted (what they are doing). but if the subject is so urgent and necessary that delay till the bishops assemble could not be brooked and if the subject is most important and necessary which does not allow delay and if waiting for the arrival of the bishops will cause destruction, because of the emergency of the case, nothing should be done without a council of at least three bishops, for the..........7-9-1969 at baghdad. thereupon, the 2nd defendant, the appellant in this appeal, was implead-ed as legal representative by order on m. p. no. 813 of 1969 dated 11-3-1970. according to the plaintiff, the patriarch of the church, mar eshai shimum xxiii, is the supreme authority of the church of the east. it was he who had to ordain the metropolitan, and who accordingly ordained, the 1st defendant in 1952 (paragraphs 3 (a) and (b) of the plaint). the 1st defendant was alleged to be creating dissensions and divisions among the followers of the church, and vilifying the patriarch by his writings. for these acts of insubordination and profanity, the 1st defendant was asked to appear before the patriarch in san francisco by ext. p-4 letter dated 2-7-1963 by the first week of september.the 1st.....
Judgment:

Gopalan Nambiar, J.

1. O. S. No. 8 of 1965 on the file of the Additional District Court. Trichur, was a representative suit, under Order 1, Rule 8 of the Civil Procedure Code by two members of the Church of the East in India, -- referred to as the Chaldean Church, -- for a permanent injunction restraining the 1st defendant from functioning as Metropolitan of the Church and for delivery of possession of certain moveable belonging to the Church either to the plaintiffs or to the Receiver appointed by Court. On the allegation that the 1st defendant had brought into being an elected body which was not proper or valid, another suit, O. S. No. 1061 of 1962, Munsiffs Court, Trichur, had been filed, and a Receiver had been appointed in the said suit. The present suit was instituted on 12-8-1965. The sole defendant died on 7-9-1969 at Baghdad. Thereupon, the 2nd defendant, the appellant in this appeal, was implead-ed as legal representative by order on M. P. No. 813 of 1969 dated 11-3-1970. According to the plaintiff, the Patriarch of the Church, Mar Eshai Shimum XXIII, is the supreme authority of the Church of the East. It was he who had to ordain the Metropolitan, and who accordingly ordained, the 1st defendant in 1952 (paragraphs 3 (a) and (b) of the plaint). The 1st defendant was alleged to be creating dissensions and divisions among the followers of the Church, and vilifying the Patriarch by his writings. For these acts of insubordination and profanity, the 1st defendant was asked to appear before the Patriarch in San Francisco by Ext. P-4 letter dated 2-7-1963 by the first week of September.

The 1st defendant replied by Ext. D-2 dated 16-7-1963 that it would not be possible for him to comply with the Patriarch's request within the time indicated. By Ext. P-5 dated 26-8-1963, the 1st defendant was told to proceed to Syria with his existing Syrian passport and funds of the Church, and that thereafter, the responsibility for his further transport to San Francisco would be of the Patriarch To this, the 1st defendant replied by Ext. D-3 dated 4-9-1963 pointing out the difficulties in the way of acceding to the suggestion. Then followed an order of suspension from the Patriarch, Ext. D-4 (same as Ext. P-6) dated 10-1-1964. Injunction was prayed for against the 1st defendant in view of this order of suspension passed by the Patriarch. The 1st defendant pleaded that the Patriarch had no power to suspend the Metropolitan, that the said power vested only in the Synodical Council, and that even if the power were there in the Patriarch, the seme had not been properly or validly exercised. On these pleadings, issues 1 and 2 were raised which were as follows:

'1- Has the defendant been validly suspended by the Patriarch ?

2. Is his Holiness Patriarch by him self competent to suspend the defendant from his office as Metropolitan ?'

2- The material prayers in the plaint are;

'24. It is therefore prayed that the Hon'ble Court may be pleased to pass a decree:--

(a) restraining the defendant from acting or functioning as Metropolitan or from exercising any of the powers appertaining to his status as Metropolitan of the Church of the East including Ordi-nation of Clergy and using any of the Church Properties like the Sceptre, Crown, Gold Cross. Chain and Robes and religious books which have come to the custody of the defendant in his capacity as Metropolitan;

(b) directing the defendant to deliver possession of the articles mentioned in para. 18 above to the plaintiffs on behalf of the Church or to Receiver appointed by the Court as aforesaid'.

(The Receiver referred to herein is the Receiver appointed in O. S. 1061/62. Munsiff's Court, Trichur).

3. The court below held that as, on the death of the 1st defendant, no relief of injunction was claimed against the 2nd defendant, the plaintiff was not entitled to this relief. It held that the suspension of the 1st defendant was valid and proper but left open the question of the validity of the appointment of the Administrator (C. I. Antony) by the Patriarch. In view of the suspension of the 1st defendant, it held that he had no power to ordain the 2nd defendant as Metropolitan, and on this short ground held that the 2nd defendant was not competent to act as Metropolitan or to retain custody of the religious books of the Church. A decree was granted against him to deliver possession of these books to the two Receivers in O. S No. 1061 of 1962.

4. We should have thought that on the death of the 1st defendant, the prayers (a) and (b) and issues 1 and 2 alike, became academic. Neither of these were amended. But it was said that the 2nd defendant was impleaded as legal representative of the 1st defendant, and the litigation was continued against him as such, and therefore, no amendment of the plaint and the issues was necessary, Thus, controversies which should ordinarily be regarded as having been set at rest, were sought to be kept alive and agitated by hanging them on a convenient peg of the legal representative character of the 1st defendant.

5. In the affidavit filed in support of M. P. No. 813 of 1969 it Was said that the 2nd defendant claims to be ordained as the Priest. Bishop and Metropolitan by the 1st defendant after the institution of the suit, and to be entitled to manage the affairs of the Church as Administrator of the Church, in the absence of the defendant, and is in possession of the moveable properties mentioned in prayer (a) in the plaint- Therefore, it was submitted that he was a 'legal representative' of the deceased defendant. In the counter-affidavit, the 2nd defendant, claimed to have been appointed Administrator of the Church of the East while the 1st defendant was in Baghdad, and after his death, appointed Administrator by the Sabhayogam of the Church. He pleaded that it would not be correct to describe him as a legal representative of the 1st defendant. Possession of the plaint properties in prayer (a) was denied. It was stated that there is a library in the Bishop's house where the 2nd defendant was residing,

On these allegations, and having regard to the provisions of Order XXII. Rule 5 of the Civil Procedure Code, and the weighty contentions sought to be hung on a slender peg as noticed earlier, the court below should have 'determined' the question whether the 2nd defendant was, or was not, the legal representative, after careful consideration. It did so by far too laconic an order: 'Heard; implead-ing allowed'. The plaintiff's contention that the appointment of the 2nd defendant by the 1st, after the latter was placed under suspension, was invalid, and that therefore the 2nd defendant was one without lawful authority or title, more or less in the position of a executor de son tort, and was an intermeddler with the estate of the 1st defendant, and therefore his legal representative, required a closer consideration than it has received.

6. In the grounds of appeal, ground No. 8 generally raised the contention that the suit should have been regarded as having abated on the death of the 1st defendant. By. C. M. P. 423 of 1974, which was allowed by us, additional grounds were raised specifically attacking the order on M. P. No. 813 of 1969 impleading the 2nd defendant as legal representative.

7. The court below found in paragraph 35 that out of the various moveables referred to in paragraph 18 of the plaint, only religious books have come into custody of the 2nd defendant, and that the Sceptre, Crown and Gold chain had been taken by the 1st defendant with him, when he went to Baghdad, where he died, and they had not come into possession of the 2nd defendant. But in order to be a legal representative he should have 'intermeddled' with the estate. If his appointment by the 1st defendant was lawful and proper, we do not think he can be regarded as an 'intermeddler'. In Andhra Bank Ltd. v. R. Srinivasan, AIR 1962 SC 232 the Supreme Court, while rejecting the contention that a legatee who obtains only a part of the estate of the deceased under his will, cannot be said to represent his estate, observed that in regard to inter meddlers, they are said to represent the estate even if they are in possession of parcels of the estate, and hence the term 'legal representative' would include different legatees under the will. It was ruled that there is no justification for holding that 'estate' in the definition of 'legal representative' in Section 2(11) of the Civil Procedure Code must mean the whole estate.

Counsel for the respondents, also relied on the decision in Mt. Kammon v. Allah Bakhsh, AIR 1941 Lah 36. There, a mutawalli nominated his successor while suffering from diarrhoea and general debility owing to old age. According to Mohomedan Law, the nomination of a successor by a Mutawalli would be valid only if made during a death illness (Marz-ul-maut). It was held that the nomination was invalid, as diarrhoea and general debility, did not amount to a death illness, and that the nominated person could be treated as a legal representative for prosecuting an appeal filed by the predecessor Mutawalli. The decision is in point for holding that an appointment or nomination of a successor by the predecessor, if invalid, and followed by possession of the estate or part thereof, is sufficient to constitute the nominee a legal representative. To show that the appointment of the 2nd defendant was not valid-ly made, the only ground urged by counsel for the respondents was that it was made after the Metropolitan had been suspended by the Patriarch, and he therefore had no power to appoint the 2nd defendant as Administrator, or to ordain him as Metropolitan. This contention requires to be examined.

8. Ext. P-6, the order of suspension, refers to the earlier communication, Ext. P-4, and the 1st defendant's explanation Ex. D-2, and finds that there was deliberate refusal to abide by the orders of the Patriarch directing the Metropolitan to be in San Francisco in the first week of Sept. for the purpose of explaining the charges of insubordination, breeding dissensions in the Church, and vilifying the Patriarch. Certain other allegations were also made against the 1st defendant. It wound up as follows:

'In view of these facts, by virtue of the authority vested in us by Christ and His Holy Church, as prescribed by the Holy Synods and especially by the Synod of Dadisho (424 A. D.) from the time ofthe arrival of this our Epistle into your hands, we hereby suspend you from your office as Metropolitan, thereby withdrawing from you all the authority granted you at the time of your consecretion, whether spiritual or administrative over that diocese or within the Apostolic structure of the Church of the East universally. But in justice to your plea, though atterly false and unfounded, namely, that you wish to present your case before a Synodical Council, we do hereby declare that you may do so at any time that it be possible, God Willing, to hold such a council; assuring you that you will be given every opportunity to present your case in accordance with the Canon Law of the How Apostolic and Catholic Church of the East.'

It .strikes us that what was inflicted was suspension as a punishment, and not. as found by the court below, a suspension pending enquiry. The averments in paragraph 11 of the plaint are to the effect that on the failure to comply with the command of the Patriarch, the Metropolitan stood automatically suspended by the Canon Law, of his powers and functions as Metropolitan until such time as he appears before the Patriarch and apologises for the default. These are consistent with suspension as a substantive punishment and not as one pending enquiry. It appears also a little difficult to conceive of a supension by the Patriarch, pending enquiry by the Synodical Council into the charges as vouchsafed by Ex, P-6. Counsel for the respondents referred to Ext. D-l constitution, (Clauses (1) and (25)), Ext. D-39 letter by the 1st defendant to the Patriarch, Ext. D-19 Ext. P-43, and to Ext. P-l oath (the translation of this oath is disputed by Counsel for the respondents. But paragraph 3 of the plaint has extracted the oath and there has been no denial that the same, as extracted, is not correct). All these aP-pear to make out that the Patriarch is the supreme head of the Church, and the Metropolitan derives his appointment, investiture, and authority, from the Patriarch. We shall assume, that this is so. A final pronouncement on the question is unnecessary, in the view that we take.

9. As for the powers of the Patriarch to order suspension, Ext. P-6 itself would trace it particularly to the Synod of Dadisho (424 A. P.). A copy of the same is Ext. P-7. According to this, the Patriarch will be the judge of all those under him, and his own judgment (judging him ?) will be reserved to Christ. Also, those lower in rank than the Catholics are his disciples, and Qre to be obligated under him and to be judged by him. Ex. P-7 further provides:

'Chapter Eight, Para. Nine. Whosoever is summoned by the Patriarch mustcome without delay, but if there be a very important reason which prevents him from doing so, then he should state his reason in writing and under his own signature.' (Underlining ours.)

The concluding sentence of Ext. P-7 is:

'He who transgresses those rules is under the automatic ex-communication of the Ecumenical Council.'

In addition to Ext, P-7, reliance was placed by counsel for the respondents on Ext. P-8, a Synod of the year 585 A, D, The same directs that any Metropolitan, Bishop, Priest or layman that may belittle, reject or refuse to obey, anything which has been decided upon, or commanded according to the will of the Christ by the Patriarch, such a person we all excommunicate. There is also the following provision in Ext. P-8:

'The Patriarch should also suspend a Bishop or a Metropolitan who is needful of correction in conjunction with a Bishop, but when it is absolutely necessary for the administration and the peace of the Church, he (the Patriarch) is endowed with authority to suspend any Metropolitan or Bishop.'

Ext. P-9, a copy of the Synodical Rules, contains various Canons, on some of which, reliance was placed by counsel for the respondents. Canon 5 of the year 544 A. D, (page 162) enjoins that when the Patriarch seeks the Metropolitan, they shall obey quickly and unhesitatingly. Canon 39 (page 530) is as follows:

'In the Assembly of all of us Bishops it was discussed (said) and decided that this work shall be kept forever.

Whenever a deacon is punished by a priest or a priest punished by a Vicar or a Vicar punished by a Bishop or a Bishop punished by a Metropolitan or a Metropolitan by the Patriarch, even though it may be said by the one punished that he is undeservingly punished, let him remain strictly (carefully) under disciplinary action. He who is under disciplinary measures shall remain bound and pray justice of the one who bound him. in the General Assembly and after the trial in the Assembly, let him take their judgment as final and as justice commands. Canon 23 of the year 554 A. D. (pages 196 and 197) reads:

'When the Deacon is punished by a priest, or the priest by the Vicar or the Vicar by the Coreepiscopas or the Coree-piscopas by Bishop or the Bishop by the Metropolitan or the Metropolitan by the Patriarch even if the says) that he is punished undeservingly the prohibition shall be obeyed (kept) strictly. The one under disciplinary action shall remain so and pray for justice to the General Assembly before those above the one who took disciplinary action and above him-self. When the trial in the Assembly isover, let him take their final decision asbeing ordered by justice'.

Canon 15 (page 223) of the year A. D. 576is:

'Apart from this, when there are necessities and Patriarch writes to those who he pleases they shall come quickly and unhesitatingly. But if some known and essential matters (reasons) happen (prevent) they shall inform explicitly in writing about the same. If there be some who do not send letters out of indolence, they shall be liable to judgment and punishment from the Synod.'

10. Counsel for the appellant contended that Ext. P-7 Synod of A. D. 424, on which reliance was particularly placed in Ext. P-6, had been superseded by a later canon marked D-24 (a). Ext, D-24 itself is a collection of some selected canons from the Synod of the Church of the East. Ext. D-24 (a), in so far as it is material, reads:

'Concerning this we have decided that whatever the Metropolitan or Patriarch does, must be done through the General Council of the Bishops. Because the more Bishops there are in the Council, the better will it be confirmed and purified and trusted (what they are doing). But if the subject is so urgent and necessary that delay till the bishops assemble could not be brooked and if the subject is most important and necessary which does not allow delay and if waiting for the arrival of the Bishops will cause destruction, because of the emergency of the case, nothing should be done without a council of at least three Bishops, for the Council of three Bishops may be considered as a General Council according to the saying of our Lord Jesus Christ who has said 'If two or three gather in my name, there in their midst will I be' if any dare to do otherwise he is guilty unto the judgment which will be pronounced against him by the General Council.'

The Court below commented in paragraph l9) that the year of this Synod was not known. As pointed out by counsel for the appellant, the comment is unjustified. The Synod is of Mar Yosip, and there is sufficient evidence that it is later in point of 'time to the Synod of A. D. 424, specially recited in Ext- P-7. This can be seen from Ext. P-40 which shows that the Synods of Mar Ousip range from A D. 552 to A. D. 567. Canon 7 in Ext. P-40 is the same as Ext. D-24 (a) But the mere fact that Ext. D-24 (a) is later than Ext. P-7, is of no avail, as some of the canons in Ext. P-8 are later than Ext. D-24 (a), as noticed earlier. We are also of the view that, as contended by counsel for the respondents. Ext. D-24 (a) does not have any application.

11. Ext. P-7, itself allows any important reason which prevents the Metropolitan from obeying the orders of the Patriarch to be stated in writing. Ext. P-8 allows a suspension only when it is absolutely necessary for the administration and the peace of the Church. Canon 39 of the year A. D. 544, and Canon 23 of the same year, all provide that a substantive punishment meted out by the Patriarch should be implicitly obeyed, till a regular appeal for justice to the General Assembly is disposed of. Canon 15 of the year A. D. 576 (page 223 of Ext- P-9) also contemplates an explanation in writing of the exceptional reasons which prevent compliance with the Patriarch's orders.

12. In the light of these, let us examine the position disclosed. We do not think that the order of the Patriarch in Ext. P-4 dated 2-7-1963 asking the Metropolitan to present himself in San Francisco by the first week of September, was capable of compliance having regard to the difficulty, of obtaining travel documents in time, and of finding the requisite funds for sustenance in the foreign country. This was explained by the Metropolitan in Ext- D-2 letter D/- 16-7-1963. It was stated that the specific allegations against him may be disclosed, whereupon, he was prepared to reply to them pointwise. The plea was raised that the charge of violation of the Canons should be made before a Synodical Council, especially as the Patriarch, was the accuser, and should not be the Judge as well. Readiness was expressed to answer to all questions in the presence of the Synodical Council in any country where the same may be convened. We do not understand this, as the court below has done, as a readiness irrespective of considerations of time and expense to proceed to any foreign country where the Council may meet. We are unable to discern any disobedience to the Patriarch's command in Ext- D-2 letter.

On the other hand, we think that the reason given for the impossibility to travel to a distant place, San Francisco, within the short time allowed, of nearly one and a half months from the date of Ext, D-2, was a special reason stated in writing within the meaning of what the Canons which we have quoted earlier, envisaged. Ext. P-5 dated 26-8-1963 by which the Patriarch replied to Ext. D-2, stated that the charges are matters for personal questions and explanation. Regarding the difficulty of reaching San Francisco in the short time allowed, it was suggested that the Metropolitan may proceed to Syria 'on the passport you now hold'. -- to quote the letter --meeting the expenses for that part of the journey himself, and that thereafter the trip to United States will be arranged by the Patriarch, on information. It may be noted that Ext. P-5 did not grast any extension of time for reaching San Francisco, beyond the limit set by Ext. P-4 as the first week of September, Ext. P-5 was replied to by Ext. D-3 dated 4-9-1963, by which the Metropolitan stated that he had informed the Patriarch while he was in India, that he had no passport of any Government or any country, and that the same had also been intimated to the Patriarch by the Metropolitan's General Trustees, in their 'last letter'. There was no reply to Ext. D-3; but the suspension order evidenced by Ext. P-6, followed.

13. The evidence on record also satisfies us that the Metropolitan was on firm ground in pleading inability to accede to the Patriarch's command or re-quest to be in San Francisco by the first week of September. The Metropolitan was examined as D. W. 1. He stated that he had told the Patriarch that he had no passport of any country. This was when the Patriarch visited India some time 'last year' as mentioned in Ext P-2. In cross-examination he stated that he had not been granted Indian Citizenship, and that he was in possession of documents to show that he had renounced his Syrian Citizenship (page 39 of the deposition). The matter was not pursued further, and he was not asked or challenged to produce the documents. In re-examination, he against stated that he had renounced Syrian citizenship and that he can produce documents of acceptance. Still he was not required to do so. P. W. 4 one of the trustees of the Church of the East, proved Ext. D-30 which is an attested copy of the certificate granted by the Embassy of the Syrian Republic. New Delhi, stating that the authorities of Syria have allowed the 1st defendant to relinquish his Syrian citizenship and to acquire Indian Nationality. We consider these items of evidence strong enough in support of the 1st defendant's claim that he had renounced the Syrian citizenship and was not in possession of any Syrian passport. This latter fact was stated in Ext. D-3. It was also stated to have been intimated to the Patriarch by the General Trustees in their 'last letter'. There is little on the plaintiff's side to rebut the inference to be drawn from this strong volume of evidence.

But counsel for the respondents contended that the documents to prove renunciation of Syrian citizenship, admitted to be with the 1st defendant had not been produced as required by the 'best evidence rule', and that in the absence of production of the said documents, an adverse inference had to be drawn against the 1st defendant. We are unable to agree. True, 'the best evidence rule' would require proof of renunciation to be best afforded by the document itself; but as the 1st defendant more than once stat-,ed that he was in possession of the document, and was not asked to produce document, we are not inclined to attach much weight to its non-production; and on the evidence already referred to. we are of the view that there has been satisfactory proof of renunciation of the Syrian citizenship by the 1st defendant. As for drawing an adverse inference as to the production of the document, the decision of the Supreme Court in Ramrati Kuer v. Swarika Prasad Singh, (AIR 1967 SC 1134) is clear that the same can be done only if the document had been summoned and there was a failure to produce the same. In the light of this evidence, we are of the view that there was 'very important reason', stated in writing, which prevented the 1st defendant from proceeding to San Francisco, within the meaning of the Synod in Ext. P-7 that we have extracted earlier. The other Canons which we haye noticed, also contemplate statement in writing of the essential reasons which prevent compliance with the Patriarch's order. The Patriarch does not seem to have applied his mind to the validity of the reasons given by the Metropolitan for non-compliance with his order to proceed to San Francisco; and Ext. P-4 passed without application of the mind to this aspect, is vitiated for that reason also. We are also not satisfied that Ext. P-9 relied upon by counsel for the respondents allows a suspension by the Patriarch, pending enquiry by the Synodical Council. Read as a whole, it contemplates an implicit submission to the orders emanating from the Patriarch, followed by vindication of the stand of the aggrieved person by a regular appeal to the Synodical Council.

14. For these reasons, we think that Ext. P-6 order of suspension was not valid or proper. If so, the 1st defendant continued to be the Metropolitan at the time when he had appointed the 2nd defendant as Administrator. Therefore, the 2nd defendant in his turn cannot be regarded as one who 'intermeddled' with the estate of the 1st defendant, but only as one who acted in pursuance of a lawful authority of the 1st defendant. In such capacity no relief was prayed against the 2nd defendant. It was prayed for only as legal representative, on the ground of intermeddling, which we find it impossible to sustain. The result is, we think, the suit against the 2nd defendant was not maintainable on the only ground on which it was laid, namely as the legal representative of the 1st defendant.- We therefore allow this appeal, set aside the iudg-ment and decree of the court below, and direct that the suit will stand dismissed with costs both here and in the court below.


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