1. The church, which is the subject of dispute, is called the Church of the Blessed Virgin Mary of Assumption, and is situated in Big Parcherry in Black Town. It appears to have been built about 1640, and in the list of Boman Catholic Churches (Exhibit C) it is described as supported by the See of Saint Thome and by private contributions. There is no endowment, and as far as can be gathered it was built by Native Christians with the assistance of a Mr. D'Souza, a rich Portuguese merchant. There appear to have been quarrels from time to time about its management, but for a long time--at any rate more than a century--it has been within the jurisdiction of the Bishop of Mylapore. At the time of the concordat between the Pope and the King of Portugal in 1886, it was placed within the territorial jurisdiction of the Archbishop of Madras. But, subsequently by a decree of 1887, it was transferred back again to the jurisdiction of the Bishop of Mylapore.
2. The present suit is by the Bishop of Mylapore and the vicar of the church. It appears that the defendants, who style themselves churchwardens or dharmakartas--they claim to be hereditary dharmakartas--have taken forcible, possession of the church and its property. They claim a right to dismiss the vicar, to appoint a schismatic priest, to exclude the Bishop of Mylapore and the present vicar from the church at their pleasure, and, in fact, they maintain that the proprietary right of the church is vested in them, and that the building is their own property.
3. It is not denied that for 250 years the church has been used for the purpose of divine worship according to the doctrine and discipline of the Church of Rome. Not a scrap of evidence exists to show that defendants are proprietors of the building in the sense that they might devote it to any other use than that for which it has been dedicated since it was built. Nor is there any evidence to show that defendants or any of them have succeeded by hereditary right to the office of churchwardens or dharmakartas. There is no evidence of endowment or of the constitution of a trust, and if the defendants are wardens and trustees of the church, it is manifestly absurd to allege that they in such capacity are at liberty to use the property entrusted to their care for purposes not only inconsistent with, but antagonistic to, the objects of the trust. If, therefore, the defendants are churchwardens, the Court would be justified in removing them for such acts as seizing the church by force, expelling the vicar, repudiating the ecclesiastical authority of the bishop, and claiming the right to appoint a schismatic priest. But in order satisfactorily to determine the rights of the parties, it is necessary to consider whether the defendants are dharmakartas at all, and, if so, what are the limits of their powers It is evident that for more than a century--at any rate from 1792--some of the Native Christians, under the designation of headmen, dharmakartas or directors, have been associated with the priest in charge in matters relating to the upkeep of the fabric and the keeping of the accounts of the church. It is not denied by the plaintiffs that there has been such a committee of directors; but it is contended that these headmea or directors have been appointed by the bishop to assist the vicar, and that they are in no sense proprietors of the church, and no trust property is vested in them.
4. Exhibit B is an edict issued by the then Bishop of Mylapore on the 10th August 1792. It shows that in earlier times, when the church was under the authority of the Capuchins, the superior of that order was at liberty to nominate directors subject to the approval of the Bishop of St. Thome. The edict goes on to recite that various misappropriations and peculations have been committed by different headmen, amounting in all to 1974 pagodas, which sum is ordered to be recovered from them. Seventeen directors are appointed for the functions of the said chapel, and it is provided that in the event of a vacancy by death or other cause, the superior shall nominate any director for the approval of the Bishop. The care of the money received by subscriptions, etc., is vested in the superior, the President of the Committee, and two of the headmen, and it is provided that disputes shall be settled by the body of the directors, whose decision, however, shall not be effectual if not in conformity with the opinion of the reverend superior.
5. The position of the directors as shown in this document is consistent with that shown in Exhibit O. This is a petition presented to the Episcopal Governor of Mylapore by the Pariahs of Big Parcherry, dated the 27th May 1817, and the order thereon. In the petition the Pariahs state that by a special miracle they have obtained possession of the church from the Reverend Jaao Fidelis, and in order that the Christians may not be deprived of divine worship, the petitioners, as dharmakartas of the church and describing themselves as 'regularly appointed by the Bishop of St. Thome and by your Lordship,' pray that the church may be re-opened for mass and divine service. In the order, dated the 29th May 1817, the Episcopal Governor gives a certificate authorising the opening of the church and appointing a vicar for the same.
6. Exhibit V is a letter from the Vicar-General of St. Thome, dated the 9th October 1871, cancelling a rule that had been issued by the directors of the church and ordering that the rule which had been previously in force shall be observed. This letter is addressed to Marian Pillai and other dharmakartas of the church and shows that the discipline which was existent in 1792 and 1817 was still observed. This pastoral letter refers to an arrangement for the conduct of church affairs, dated the 30th June 1838, which had been made by Bishop Texeira, but this document was not produced. A document which was alleged to be a true copy of that arrangement was produced by the defendants, but we will consider this later on in dealing with the defendants' documents. Exhibit L is another pastoral letter from the same Vicar-General, dated the 4th July 1872, giving directions to the headmen regarding the monthly meeting and the income of the church. Exhibit Q is a letter, dated the 25th January 1873, addressed by MarianPillai as churchwarden to the Vicar-General complaining of the conduct of the vicar and his ecclesiastical superiors and claiming that beyond performing the services of the church the vicar has no further power, but that the administration of it is vested in the churchwardens. Upon this letter the Vicar-General has endorsed the following order: 'I do not acknowledge any authorized churchwarden in the Church of the Blessed Virgin Mary of Assumption, Big Parcherry, which was by mutual consent of the headmen and dharmakartas put in 1840 under the control of the prelates of the Bishopric of St. Thome for onerous title besides the present headmen, president confirmed by me and dharmakartas who obey my orders.' Two of the documents produced by the defence, Exhibit XXI, dated the 5th January 1831, and Exhibit XIX, dated the 14th November 1847, goto confirm the contention of the Bishop as to the position and duties of the headmen, President and Directors of Mathuranaiyagiammals church.
7. Passing now to the documentary evidence adduced by the defendants, we find that it is of two kinds, first, documents adduced in order to prove that the ecclesiastical authorities have admitted the claims made by the defendants, and, secondly, documents from which it may be shown that defendants have asserted their rights.
8. In the first class are Exhibits VI, IV and VIII. Exhibit VI purports to be a Tamil translation of the agreement of the 30th June 1838, authenticated in 1871 by Father Amarante, Vicar-General of Saint Thome, which it is said was furnished to the headmen, together with letter IV, in which they were told that the original had been sent to the Archbishop of Goa. The genuineness of both these documents is denied by the plaintiffs, and the learned Judge has found that they are not proved, to be genuine. We may observe, in the first place, that Exhibit VI purports to be a copy only; no reason is assigned why the original should not have been procured either from the archives of the Bishop of Mylapore or from those of the Archbishop of Goa. Nor is it clear why defendants themselves should not have made and kept a copy of the original document before transmitting it to the Vicar-General. The learned Judge has set out his reasons for discrediting the document. It is ungrammatical and almost untranslateable, and its alleged contents are such as to raise a very strong presumption against its genuineness. Bearing in mind the high state of discipline always maintained in the Roman Catholic Church, it is inconceivable to us that a Bishop of that church should really bind himself, in the event of his failing to follow the regulations of headmen appointed by himself, not only to forfeit his interest in the church, but to recall the Vicar appointed by him. We have no hesitation in saying that the, internal evidence of the letter is to us conclusive against its genuineness. Exhibit VIII is a letter addressed to Marian Pillai by the vicar acknowledging receipt of the key of the harmonium and informing him that on his transfer from the church, he, the vicar, will return it. The letter concludes with the words 'and will subject the rules of your church.' The contention of the plaintiffs is that these words are an interpolation, and the learned Judge has so found. We agree with him for the words added are neither grammar nor sense.
9. Finding then that Exhibit VI is unproved, we find no trace of assumption of proprietary right in the church by the dharmakarthas until the letter (Exhibit Q) in 1873, and that claim was then repudiated by the Vicar-General. The next occasion on which we find it brought forward is in 1886, and on that occasion it was rather hinted at than distinctly stated. The year 1886 was, as we have before mentioned, the year in which the concordat was concluded between the Pope and the King of Portugal. Exhibit XVI is a petition addressed by the church-wardens and congregation of this church to His Most Faithful Majesty the King of Portugal, in which the petitioners set forth their objections to the territorial boundaries fixed by the concordat and their strong attachment to the See of St. Thome, whose jurisdiction over them, they pray, may be maintained. But the last paragraph contains a hint that if the prayer be not granted, the petitioners may not submit themselves to the orders of the Pope and the King. It is stated that should the five churches be possibly made over to the Irish missionaries, the members of the said churches will be under the painful necessity of seeking other redress. As we understand these words it is hinted that petitioners may have recourse to the Courts in British India to avoid submission to the authority of the Pope and of His Majesty. This was followed on the 17th January 1887, by a letter (Exhibit XXVIII) from Marian Pillai to the Vicar-General in which the same threat is repeated. Marian Pillai there states he cannot resist the removal of the priest, but he adds 'you must know that any interference with the church and its property will be legally proceeded with. For this I must inform you that as soon as the orders for the removal of the priest are known here the church will be closed.' Whether any action would have been taken upon these threats it is impossible to say, but the claims of the dharmakarthas were not at that time repudiated by the Mylapore Mission, possibly because, if the transfer was carried out, their control and authority exercised by them would have passed to the Archbishop of Madras. We find, however, from Exhibit XXIX, that the petition was successful and the church was re-transferred to the jurisdiction of the Bishop of Mylapore. The conclusion we have come to, therefore, is that the documents put forward to show the admission of the defendants' claim of right by the Mylapore Mission are not proved to be genuine, and that the evidence only proves there has existed for a long time a committee of Directors appointed by the Bishop and permitted to choose a President from among themselves, but whose orders were subject to the control of the Bishop and the Vicar.
10. It appears to have been the duty of these headmen to assist the priest in the secular affairs of the church, in return for which they were allowed certain advantages in the payment of half-fees for marriages, funerals and other ceremonials. We agree with the learned Judge that the appointment of such a committee could give the members thereof no right to close the church or to oust the vicar, and still less to appoint a schismatic priest not under discipline and obedience to the Church of Rome.
11. We dismiss the appeal with costs.