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Pichaimuthu and ors. Vs. Savariappa Kavandan and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1927Mad1119
AppellantPichaimuthu and ors.
RespondentSavariappa Kavandan and ors.
Cases ReferredIn Louis v. Gonsalves
Excerpt:
- .....keeping of a hundial or collection box, the first plaintiff admitted in his evidence that it was a roman catholic church within the parish of karungulam and that the village children were being baptized, confirmations held, marriages solemnized, and masses performed by the local roman catholic priest, who at the time of suit was the defendant 8. he is not a resident priest but comes to this church twice a year at festival times and he blesses the tombs of deceased parishioners in the cemetry. in fact, the sarveswaran koil appears to be a place of public worship undergoing a process of assimilation into the roman catholic church; but there is no evidence that the church has ever been consecrated as a christian church. the plaintiffs cannot in this suit, on the statement contained in their.....
Judgment:

Spencer, J.

1. I agree with the judgment of my learned brother. Plaintiff 1 claims to be the descendant of the founder of the Christian Church or temple at Nallathambigonndanpatti in the Trichinopoly District. The other plaintiffs belong to the family of the founder and there are said to be 20 families of goundars in the same village similarly interested in the plaint properties. Although this church is called Sarveswaran Koil--Sarveswaran being one of the attributes of Siva besides meaning Lord of All and although it came out in evidence that certain practices generally associated with Hindu notions of worship are kept up in this church-such as the holding of a car festival, letting off fireworks, exhibiting swarupams (images) and keeping of a hundial or collection box, the first plaintiff admitted in his evidence that it was a Roman Catholic Church within the Parish of Karungulam and that the village children were being baptized, confirmations held, marriages solemnized, and masses performed by the local Roman Catholic priest, who at the time of suit was the defendant 8. He is not a resident priest but comes to this church twice a year at festival times and he blesses the tombs of deceased parishioners in the cemetry. In fact, the Sarveswaran Koil appears to be a place of public worship undergoing a process of assimilation into the Roman Catholic Church; but there is no evidence that the Church has ever been consecrated as a Christian Church. The plaintiffs cannot in this suit, on the statement contained in their plaint and the evidence of plaintiff 1, ask for any relief that would be inconsistent with the ordinances of the Church of Rome and the ordinary control exercised over Church affair by the Bishop of the diocese and the priest of the parish to which the church in question belongs. Vide the judgment of Ayling and Coutts-Trotter, JJ., in Louis v. Gonsalves [1918] 8 M. L. W. 208.

2. The reliefs asked for in the plaint are:

(1) A declaration that the plaintiffs and other goundars have the exclusive right of managing the plaint temple and its properties and that neither the, defendants nor any other have any right therein;

(2) A permanent injunction restraining the defendants from causing any obstruction at any time against the right of the plaintiffs in the school site;

(3) A direction that defendants 3 and 8 should deliver the school site to the plaintiffs.

(4) costs and;

(5) further reliefs as the Court may deem fit.

3. The plaintiffs are not entitled to a permanent injunction against the defendants including the defendant 8, who is the parish priest, from interference in management of the inam which was registered in the name of the Church with the plaintiff's ancestor as worshipper or Church warden, seeing that they have not asked in their plaint for that relief, and they have not shown that they have been obstructed in these matters or that they are in danger of being obstructed, and plaintiff 1 admitted in his evidence that the Rev. Fathers never appointed anyone to manage the church or its lands and never objected to members of the plaintiffs' families doing so. The District Judge should not have granted them an injunction in this matter. They are, however, entitled to a simple declaration of their right to manage the inam and collect the rents, and to the care of the church and its site, seeing that their right of management was denied in the defendant's written statement and that plaintiff 1 asserts that defendant 8 tried to coerce him into executing a document handing over the church to him by refusing to solemnize four marriages, if he did not do so, and defendant 8 in his evidence asserted that the plaintiffs had no right in the church.

4. The plaintiffs are liable to account for offerings given by worshippers at the Church services held according to the rites of the Church so long as the Church is one maintained for worship according to the Roman Catholic religion if they receive and collect those offerings. Such collections must be kept and disposed of under the priest's directions subject to the Bishop's control. The plaintiffs must submit in matters of ritual, such as the setting up of a tabernacle in Church and the conduct of processions of saints' days when the priest is present, to the directions of the Parish Priest. The school building was found by the District Judge to have been constructed upon the Church premises originally for use as a guest house, but the Judge further found that there was no evidence as to who provided the funds for its construction. The plaintiff admitted in his plaint that the school had been conducted for the past five years at the costs of the priest with-the plaintiffs' permission. The plaintiffs stated their cause of action in the plaint to be an obstruction and disturbance in 1915 and 1916 when they received notice to vacate the school building, but they have not proved that their management of the inam land registered in the name of the Church has ever been interfered with.

5. The decree given by the lower appellate Court is too vague and reads rather more like a finding than a decree.

6. In substitution for it we order the decree to be drawn up, on the finding of the District Judge that while the Church services and sacraments are under the spiritual control of the Bishop of Trichinopoly, its temporal affairs, its property its lands and its funds, have not yet been voluntarily surrendered to the Church of Rome, the decree to declare that the Sarveswaran Church building at Nallathambigoundanpatti and the inam lands granted for its upkeep and for the expenses of conducting worship in it, and the site on which the building now used for school stands and the building itself are the property of the Church represented by plaintiff 1 as present manager, and to declare that plaintiff 1 is entitled to manage the lands, the site and the building without interfering with the conduct of the school or the appointment of the teachers, etc., and to direct delivery of possession to the plaintiffs by defendants 3 and 8 of the site and the building thereon, and that the other reliefs asked for in the plaint be refused. Seeing that both sides have made extravagant claims to more than what they are entitled to we direct that the parties do each bear their own costs in this Court. The decree of the lower appellate Court will stand as to costs in the Courts below.

Odgers, J.

7. In this case the plaintiffs sued for a declaration that they and certain other Goundars had the exclusive right to manage the plaint temple and its properties and for an injunction restraining the defendants from causing them any obstruction in the maintenance of their rights in the school site and also for delivery of the school site to them. This last prayer has been modified and the learned vakil for the respondents intimated that he would be content with an acknowledgment of the plaintiffs' title on the part of the defendants. The defendants state that the building referred to in the plaint is a Roman Catholic Church in the Parish of Karunkulam in the diocese of Trichinopoly and that the plaintiffs have no rights to the management of the Church or of its properties which vested in the Church and their management in the Pope of Rome. The issues framed included questions as to what further reliefs the plaintiffs were entitled to, and, if there are any, whether the suit was maintainable; but the most important was whether the plaintiffs were entitled to the exclusive management of the Church and its properties. It appears from the judgment of the learned District Judge, from which the appeal is taken, that issue 1 was. not argued before him. It, therefore, appears to me that any question as to the succession in management or as to how the manager for the time being is to be appointed from among the 20 Goundan families who are alleged to have the right of management in their hands, cannot now be raised in second appeal. The sole question agitated in the lower appellate Court was the second of the issues set out above, namely, the right of management of the plaintiffs. It is admitted that the plaintiffs have no right nor can they take any part in the sacraments which are administered as far as this Church is concerned by a duly appointed priest of the church of Rome. But the question is whether the fact that these sacraments are under the control and within the ministrations of that Church deprives the plaintiffs of any rights that they may possess over the temporalities.

8. The Sub-Judge found that it was not proved that plaintiff 1 was looking after the affairs of the Church and its properties as representative of the 20 Goundan families, nor was there any hereditary right in these families to so manage. He also found that the Parish Priest interfered with the temporal affairs of the Church and that none of the villagers had any hereditary right in connexion with it capable of recognition in a Court of law, but they were simply persons of influence in the village whose services were utilized by the authorities of the Church of Rome for looking after the temporalities and also that Parish Priests of the Church of Rome have officiated in the Church ever since its foundation. The District Judge held that the question whether the Church was completely part and parcel of the Roman Church so as to be governed as to its temporal affairs by the Canon Law was a matter of fact to be proved by evidence, and on that he comes to the conclusion: (1) that the Parish Priest never managed the inam or the other funds of the Church nor appointed any person to manage them; (2) that the Parish Priest never controlled the collection or disbursements of the trust funds; and (3) that the management by the plaintiff's family has never been under the control, or by the specific consent of the Parish Priest. The District Judge set out his other findings in the clearest way in para. 15 of his judgment and concludes that the Roman Church has never exercised any right of management over the plaint Church funds and properties and has produced no specific evidence to show that she possessed any such right. He also comes to the conclusion that the plaint building only very gradually came to be used as an ordinary Roman Catholic Church, the original temple of the Omnipotent, the original pooja having gradually transferred into the Church, and its customary services, that the Roman Church has never for over a century attempted to apply the Canon Law and that in this case the Church has all along respected the custom and title exercised by the plaintiff's family, nor is there anything in the Canon Law which would justify the Court in depriving the plaintiffs of the civil rights of management that they have exercised for a very long time.

9. Now the question is whether anything has been shown us on appeal to enable us to say that the judgment of the learned District Judge is wrong in law. Two questions were raised on behalf of the appellants by Mr. Alladi Krishnaswami Iyer before us: (1) Is this Church part of the Roman Catholic Church? For an answer in the affirmative he relies on the plaintiff 1's evidence in which he says that the plaint-mentioned Sarveswaran Koil is a Roman Catholic Church. The learned vakil wishes us to infer from that admission that as it is a Roman Catholic Church the consequence must necessarily be that all its properties and temporal possessions of every sort are under the authority of the government of the Church of Rome. Secondly, he asks what is the government of the Church if the Ministers of the Roman Catholic Church have no power to demand accounts and control offerings. The learned vakil admits that the management may be, even under the Roman Catholic system, in the hands of individuals, but he says that, if it is so, such individuals hold at the will of the Priest or Bishop. Now, there is no doubt to my mind from the record of this case that the learned Judge is right when he says that this Church has been for a long time in an exceedingly primitive state and that it really was for years in the position of a village temple. There are even now signs by which this origin can be traced. There is, for instance, the constant reference to the (pooja in the temple). It is all very well to say that 'pooja' simply means prayer. We have to remember that this Church is visited by the Parish Priest at the utmost twice or three times a year. It is to my mind inconceivable that for the rest of the year these villagers--they nearly all seem to be worshippers in this building--are content simply to do their own private devotions there without any sort of public worship, It is, of course, admitted and perfectly obvious, that nobody but an ordained Minister of the Roman Catholic Church has power to perform any of the sacraments. But it seems to me that this reference to pooja, which is constantly occurring, must mean more than simply private individual prayer. We have not been shown any authority for a layman to conduct any form of service or worship in a Roman Catholic Church. My own knowledge does not allow me to say whether there is any such power; but my impression is that there is either none, or it is extremely limited. Further, much importance is attached to the car festival which is another indication of the origin of the Church. I am aware that on certain festival days processions are held in the Roman Catholic Church; but I have never come across an instance of a car festival previous to this case. The whole record leaves an impression that from the point of view of Christian discipline and Church government, these people are in an exceedingly primitive and indisciplined condition. The original inam describes it:

as for the support of the Sarveswaran Pagoda at Mazara Nallathambigoundanpatti which is worshipped daily.

10. The name of the original grantee is given as Sarveswaran Pagoda. Particulars regarding the current owner are given as Mazara Nallathambigoundanpatti Sarveswaran Pagoda or Catholic Church worshippers (described as) N. Gnanaprasakam Goundan who is said, without contradiction, to be the ancestor of plaintiff 1. The tenure is free and permanently hereditary; the origin is. not known but apparently goes back to Fasli 1213. We have been taken through various canons of the code governing the Roman Church. The learned District Judge has found as a fact that the Canon Law has never up to now been applied to the suit property. Even if it were, Canon 1182 (2) recognizes an exception by custom to the administration of the offerings by the priest; likewise as to the property set apart for repairing or adorning the Church Canon 1182 (1). Hence, the finding by the learned District Judge that there is no general presumption of law that the Canon Law gives control to the representative of the church of Rome of all temporal property belonging to churches used for Church services. Now, for many years, it is clear that there has been no objection on the part of the authorities of the Roman Church to this exercise of control over its properties by the plaintiffs. It is only recently, after some dispute about either the school building, which I understand is located in the Church compound, or the dismissal of a teacher, that this question has arisen with apparently a good deal of bitterness on each side. It seems to me that the Roman Catholic Church has established control over the spiritualities, though administering these spiritualities as I have said, at long intervals, and now tries to assume control of the temporalities as well relying on its Church Law which has been held by the District Judge never to have been applied till now. I am not prepared to say that because these people call themselves Roman Catholics, or even call their Church a Roman Catholic Church, and submit themselves in the matter of baptisms, confirmations, marriages, etc., to the administration of the sacraments of the Roman Church, they must necessarily be held thereby to have surrendered the control they have exercised for many years over the temporal properties pertaining to the Church.

11. It is curious that records concerning the history of this institution are so scarce. Had the Church been duly dedicated and taken over by the Roman Catholic authorities one would have thought that some record would have been kept of the date when this occurred. It is said that the Bishopric of Trichinopoly, in which diocese this village is situated, has been recently carved out, as I understand, of the larger Bishopric of Madura which in its turn was carved out of the Archbishopric of Mylapore. It is difficult to understand why, in an organization like this, there is not some record of the kind I have referred to. It is possible that in early days some convert to the Roman Catholic faith persuaded the majority of these villagers to adopt that faith and in a primitive way to introduce it in the worship of the village temple, and this was brought to the notice of the Catholic authorities and they proceeded to use the Church occasionally for regular Roman Catholic services. This, of course, is only a conjecture as the history of this Church is in no way recorded, or if it is, it has not been brought to our notice.

12. The cases relied on by the learned vakil for the appellants do not, in my opinion; help us to take the case any further. The case in Marian Pillai v. Bishop of Mylapore [1894] 17 Mad. 447 lays down that the appointment of a Committee by the Bishop to assist in secular affairs does not give that Committee a right to close the Church or oust the vicar. That, of course, is beside the question now, there being no evidence that the plaintiffs were ever appointed by the priest. The District Judge, in fact, disbelieves the Parish Priest's evidence that he appoints the kovilpalli or the monigar. As to the periathanakaran, as the District Judge has pointed out, he is really a village official and there is nothing to support the plea that he is appointed by the Church of Ream. In Ambalam Pakkiya Udayan v. J. M. Bathe [1912] 36 Mad. 418 there was a question of succession to the Syrio-Chaldean Church after it was found that for more than 60 years before the succession the Roman Catholic form of worship prevailed. The judgment contains this passage:

It is, no doubt, the case that in some Churches on the West Coast the parishioners have more or less control over the management of the properties, but we are not concerned with the question how far the Canon Law may be modified by the usage of any particular Church in this country.

13. Kattalai Michael Pillai v. J. M. Barthe [1916] 39 Mad. 1056 was really a suit to establish certain preferential rights to seats or positions in a Roman Catholic Church and has no bearing on the question he decided here. In Louis v. Gonsalves [1918] 8 M. L. W. 208 the defendant contended that the plaintiff, the Parish Priest, could not sue for rent due by tenants of the Church property as he, the defendant, had been appointed its manager. The learned Judges observe:

If this Church is part and parcel of the Universal Catholic Church as apparently he wishes it to be regarded, he must be assumed to be bound by the Law of the Church, i. e., the Canon Law * * * If this Church * * * * has erected certain rules different from the rules of the Catholic Church in matters of discipline and management, etc., then those rules must be proved in the same way that a custom would have to be proved in a Court of Law * * But, at the outset, they (these questions) must necessarily be questions of fact.

14. As I have already stated, the fact that plaintiff 1 in his evidence says that this is a Roman Catholic Church cannot be pressed against him so as to preclude him from asserting his hereditary rights, nor can that admission be taken, in my opinion, as a relinquishment of these rights. The Church is rightly described as a Roman Catholic Church inasmuch as the Roman Catholic services are performed there.

15. A question has arisen with regard to the car procession, as to which I have said something above, and it is this: The appellants claim that they should have the management of the car procession as it is one of the spiritualities of the Church, and it is apparently also in connexion with this that some difficulty by obstruction on the part of the defendants has arisen . The car procession is said to be blessed by the priest, but it is not clear from the evidence that the priest is always present in person when these processions take place as it appears from the evidence that the flags carried in procession are taken to the priest's residence somewhere away from the village, one blessed by him and brought back by the villagers. There is no specific issue about this car procession, and owing to the long absence of the priest I should be inclined, as a matter of convenience and also as a matter of custom, for it is now shown that the plain tiffs have not been managing this and many other matters for many years past, to hold that the plaintiffs are entitled to the management of this car procession; otherwise it seems to me that there is a danger of its being discontinued owing to the absence of the priest; it is all very well to say that the processions are a matter of Canon Law, but, as I have stated above, I can find no warrant for holding that the car processions are part of the ritual of the Roman Catholic Church.

16. I, therefore, think that the plaintiffs are entitled to the declaration set out in my learned brother's judgment. I would refuse an injunction also for the reasons given by him. I, therefore, agree as to the form of decree and as to the order as to costs.


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