K. Sankaran, J.

1. The longstanding disputes between two sections of the Malankara Jacobite Syrian Christian Community relating to the right to the possession and management of certain trust properties endowed for the benefit of the Malankara Jacobite Syrian Church and Community, led to the institution of the present suit which has given rise to this appeal. Plaintiffs 1 to 3, claiming to be properly and legally elected trustees entitled to the possession and management of the trust properties, instituted the suit for recovery of possession of the properties from defendants 1 to 3 on the allegation that they have gone out of the Church and are in wrongful possession of the trust properties. Even apart from the position of the plaintiffs as trustees, they sought to sustain their claim for recovery of the properties as members of the Community suing with the sanction of the court under Rule 8 of Order I of the Code of Civil Procedure. The suit was instituted in the year 1938, and after an elaborate and protracted trial the first court dismissed the suit in the year 1943. The present appeal is by the plaintiffs against that decision. A Full Bench of the Travancore High Court which heard the appeal allowed it by a majority of 2:1, on the 8th August 1946. That decision is reported in 1946 Travancore Law Reports 683. The defendants-respondents filed a petition on 22nd August 1946 seeking a review of that judgment. A Full Bench of the Travancore-Cochin High Court heard that application and it was dismissed on 21st December 1951. The respondents application for leave to the Supreme Court was also rejected. But special leave was granted by the Supreme Court and accordingly the respondents preferred an appeal to the Supreme Court against the order dismissing the review petition. Ultimately the Supreme Court allowed that appeal and accepted the review petition and set aside the decree dated 8th August 1946 passed by the Travancore High Court allowing this appeal. The case was remitted to the High Court with the direction that the entire appeal should be reheard on all the points unless both the parties accept any of the findings recorded in the earlier decision. There has been no such agreement by the parties, but on the other hand they have chosen to argue afresh all the points involved in the appeal. The grounds raised in the appeal memorandum and those raised in the memorandum of objections filed on behalf of the respondents, cover the entire field of controversy in the suit.

2. For a clear understanding of the important points that arise for decision in this appeal it is necessary to briefly advert to the contentions of the parties. According to the plaintiffs all the properties scheduled to the plaint are trust properties endowed to the Malankara Jacobite Syrian Church and they have to be managed by three trustees of whom one is to be Metropolitan, and the others, a clergyman and a respectable lay-member of the Church, to be elected by the Church. The Patriarch of Antioch is the ecclesiastical head of the Malankara Jacobite Syrian Church, and only a person duly ordained by the Patriarch or his delegate and accepted by the Malankara Jacobite Syrian Community could become the Malankara Metropolitan. This position has all along been accepted by the Community and affirmed by the decisions of courts, the earliest of such decisions being the decision of the Travancore Royal Court of Final Appeal in S. A. No. 3 of 1061. Copy of the judgment in that case has been produced and marked as Ext. DY. That decision was in favor of Mar Joseph Dionysius who had been ordained and appointed as Malankara Metropolitan by the Patriarch of Antioch and who had been accepted by the Community. The trust properties involved in that suit were recovered by him from Mar Thomas Athanasius, who had claimed himself to be the Malankara Metropolitan in defiance of the authority of the Patriarch of Antioch over the Malankara Church. Mar Joseph Dionysius along with two other joint trustees elected by the Community continued management of the trust properties. On the demise of Mar Joseph Dionysius, he was succeeded by Mar Geevarghese Dionysius as Malankara Metropolitan who got his ordination from Abdulla II, the ruling Patriarch at the time. The two other joint trustees, who were associating themselves with Mar Geevarghese Dionysius in the management of trust, were Kora Mathan Kathanar and C. J. Kurian. In the year 1085 Patriarch Abdulla II arrived at Malankara and stayed there for about two years. During this period disputes and misunderstandings arose between himself and Mar Geevarghese Dionysius and the matter reached a crisis when Abdulla II passed an order of excommunication against Mar Geevarghese Dionysius on certain alleged improper acts and misconduct on his part and appointed Mar Kurilos as the Malankara Metropolitan. The validity of the excommunication order was challenged by Mar Geevarghese Dionysius and his supporters. Since Kora Mathan Kathanar and C. J. Kurian were not prepared to support Mar Geevarghese Dionysius in defiance of the Patriarchs excommunication order, the party supporting Mar Geevarghese Dionysius elected Mani Poulose Kathanar and Kora Kochu Korulla as joint trustees. Thus there were two rival sets of trustees. An important item of trust property consisted of an investment of 3000 Star Pagodas with the British Government, the interest on which could alone be received from time to time by the trustees. In view of the existence of two rival sets of trustees, the Secretary of State for India instituted an interpleader suit O. S. No. 94 of 1088 in the Trivandrum District Court impleading both sets of trustees and seeking a verdict as to which of the rival sets of trustees was entitled to receive the accumulated amount of interest deposited in the suit. Mar Geevarghese Dionysius and his co-trustees, Mani Poulose Kathanar and Kora Kochu Korulla, were defendants I to 3, and Mar Kurilos and his co-trustees, Kora Mathen Malpan and C. J. Kurian, were defendants 4 to 6 in that suit. Pending decision of the suit, Mar Kurilos died and the present 1st plaintiff who was appointed as Malankara Metropolitan by the Patriarch, was impleaded as additional 42nd defendant. The main point of controversy in that suit was whether the order excommunicating Mar Geevarghese Dionysius was valid and whether he had lost his status as the Malankara Metropolitan. The District Court answered the question in the negative and held that Mar Geevarghese Dionysius and his co-trustees were legally entitled to draw the interest on the trust fund. Defendants 5, 6 and 42 filed an appeal against that decision to the Travancore High Court. By the first decision in that appeal the trial courts decree was reversed. Copy of the judgment in that appeal has been marked as Ext. DZ in the present suit. That decision is also reported in 41 Travancore Law Reports 1. Defendants 1 to 3 of that suit applied for a review of that decision. The review was admitted subject to certain conditions and limitations. Finally the application for review was allowed by upholding the applicants contention that the order excommunicating Mar Gheevarghese Dionysius was bad in law in so far as it did not satisfy the rules of natural justice. Accordingly, the earlier decision allowing the appeal was set aside and the trial courts decree upholding the status of defendants 1 to 3 as trustees continuing in office was confirmed. The final decision in that appeal is reported in 45 Travancore Law Reports 116. Copy of the judgment is marked as Ext. CCLVI in the present suit. While defendants 1 to 3 of the said interpleader suit were thus continuing in office as trustees, the third defendant, Kochu Korulla, died in the year 1106. The present third defendant is said to have been elected as the lay trustee in the place of Kochu Korulla. These trustees and their partisans continued to defy the authority of the Patriarch of Antioch as the ecclesiastical head of the Malankara Church. They also maintained that the Catholicate of the East had been re-established in Malankara and that the powers of the Patriarch could be validly exercised by the Catholicos. The creation of the Catholicate in Malankara or the existence of a Catholicos, was not recognized by the Patriarch. In the kalpana issued by the Patriarch to his followers it was declared that those who were supporting and following the Catholicos in defiance of the authority of the Patriarch, were aliens to the Malankara Jacobite Church. The members of the Church were also advised not to co-operate with such aliens in matters pertaining to the Church. The split between the two sections had thus become very acute. It was in such a situation that Mar Geevarghese Dionysius died in Kumbhom 1109 (early in 1934). At a meeting held by his partisans on 11-5-1110/26-12-1934, the present first defendant whom they had accepted as the Catholicos, was elected as the Malankara Metropolitan. The validity of this meeting has been challenged by the plaintiffs on several grounds, and it is contended that the resolutions passed at that meeting are not binding on the Malankara Jacobite Syrian Church. The first defendants eligibility for the Metropolitans place is also questioned by the plaintiffs on the main ground that he has not been ordained as a Metropolitan by the Patriarch of Antioch. The position claimed by the first defendant as a Catholicos installed in Malankara is also questioned by the plaintiffs who maintain that the Catholicate as an institution never existed in Malankara and that the first defendant has not been ordained as a Catholicos by the Patriarch of Antioch. It is further contended that one and the same individual cannot be the Catholicos and also the Malankara Metropolitan at the same time. It is the faith of the Church that only the moron or sanctified oil consecrated by the Patriarch can be used in the Churches at Malankara for sacraments and other rites and the longstanding custom in that direction has been recognized by decisions of courts. The first defendants act in consecrating moron and causing it to be used in the churches under his influence, is alleged to be a flagrant denial of the authority of the Antiochian throne, just as his claim that he possesses the dignity and authority as Catholicos and Malankara Metropolitan even without any ordination by the Patriarch of Antioch. Ressisa, which is a contribution legitimately due from the Malankara Church to the Patriarch of Antioch, is stated to be unlawfully collected and appropriated by the first defendant. On account of such acts and pretensions against the tenets of the true faith, the first defendant is alleged to have ipso facto become a heretic and an alien to the Malankara Jacobite Syrian Church. By supporting the first defendant and co-operating with him in his heretical acts and pretensions, defendants 2 and 3 have also become heretics and aliens to the Church. Defendants 1 to 3 did not stop with the commission of such acts of heresy. They and their partisans have voluntarily separated themselves from the ancient Jacobite Syrian Church and have constituted for themselves a new church called Malankara Orthodox Syrian Church and have accepted Ext. AM as the constitution of this new Church, at the meeting held on 11-5-1110/26-12-1934. Defendants 1 to 3 are stated to have thus become disqualified and unfit to be trustees of, or to hold any other position in, or enjoy any benefit from the Jacobite Syrian Church. The plaintiffs claim to be the lawful trustees elected by the representatives of the Church at a meeting held on 6-1-1111/ 22-8-1935. At this meeting the first plaintiff was elected as the Malankara Metropolitan and plaintiffs 2 and 3 were elected as the clergyman trustee and lay trustee respectively, in place of defendants 2 and 3 who were removed from trusteeship. Even though the plaintiffs are thus fully entitled to sue in their capacity as trustees, they have sought the permission of the court to file the suit in their personal capacity as members of the community. The plaintiffs have sought for a decree declaring that the first plaintiff is the lawful Malankara Metropolitan, that the second plaintiff is the lawful Kathanar trustee and that the third plaintiff is the lawful layman trustee, and that the defendants have no right to retain possession of and administer the properties belonging to the Malankara Jacobite Syrian Church and also for compelling these defendants to surrender possession of the plaint schedule properties to the plaintiffs. It is also prayed that the defendants may be compelled to pay mesne profits at the rate specified in the schedule and also the profits accruing from the movable items of properties and that they may be compelled to render accounts of all the profits realized by them from the immovable properties and other assets belonging to the Church and also to restore to the plaintiffs the assets in their possession along with all the documents and accounts. There is also the prayer for the issue of a perpetual injunction restraining the first defendant from doing any act in his professed capacity as Catholicos of the Malankara Jacobite Syrian Church or as the Malankara Metropolitan and defendants 1 to 3 from functioning in their professed capacity as trustees of the said Church.

3. In resisting the suit the first defendant has traversed all the allegations in the plaint. Though defendants 2 and 3 have filed separate written statements, their contentions are the same as those raised by the first defendant. According to defendants 1 to 3, the institution of the Catholicos of the East which existed in the Syrian Church, remained vacant for a few centuries and it was re-established at Malankara in the year 1088 M. E. (1912-13) by Moran Mar Abdul Messiah who was Patriarch of Antioch, with the co-operation of the Metropolitans in Malankara. The institution of the Catholicate and the installation of the Catholicos have been lawfully and canonically performed with the co-operation of Mar Geevarghese Dionysius who was the Malankara Metropolitan at that time. It is further stated that the Malankara Church has submitted to the jurisdiction of the Catholicos from 1088 M. E. (1912-13). It is said that the first defendants ordination as a Metropolitan was also performed by Abdul Messiah who was Patriarch of Antioch, with the co-operation of the Metropolitans who were at Malankara at that time and that therefore the first defendants ordination cannot be said to be invalid. He also maintains that he has been installed as Catholicos by the Metropolitans in Malankara with the consent of the Malankara Church. After the death of Mar Geevarghese Dionysius, a meeting of the Malankara Association which is the assembly of the representatives of the Churches in Malankara, was held on 11-5-1110/26-12-1934 at the M. D. Seminary, Kbttayam, and at this meeting the first defendant was elected as the Malankara Metropolitan. The objections levelled against this meeting are all stated to be untrue and untenable. The first defendant, in his turn, has challenged the truth and the validity of the meeting at which the plaintiffs claim to have been elected as trustees. It is contended that if any records evidencing the holding of such a meeting have been created, they could only be fabrications. If any meeting had been held, it was one held by a few partisans of the plaintiffs, claiming to be a meeting of the representatives of the Malankara Church without inviting the representatives of all the churches and at the same time intentionally excluding the large majority of the churches and the people of the Malankara Church from that meeting. The validity of this meeting is attacked on other grounds also and it is stated that the proceedings of that meeting do not bind the Malankara Church or the defendants and that the plaintiffs cannot claim to have been lawfully elected as trustees. They are not entitled to claim recovery of possession of the properties from defendants 1 to 3 who are in possession of the same as lawful trustees. To maintain that the first defendant has in him the dignities of Catholicos and Malankara Metropolitan, does not constitute a defiance of the throne of Antioch, As Catholicos the first defendant is competent to consecrate Morone and to do so cannot amount to a negation of the authority of the Patriarch. There has been no faith or custom that Morone consecrated by the Patriarch alone can be used in the Malankara Church and even if there has been any such faith or custom, the same has ceased to have force after the establishment of the Catholicate. The Patriarch is not entitled to a levy called Ressisa as of right and it has not been customary to pay any such dues. Occasional payments, if any, have been only voluntary contributions. Non-payment of such dues to the Patriarch will not amount to misappropriation. The first defendant is exercising only the powers pertaining to his status as Catholicos and Malankara Metropolitan, and is not doing anything opposed to the faith of the Church. The charge that the first defendant is guilty of having committed several unlawful acts amounting to heresy is baseless and untrue. It cannot also be said that by virtue of such acts the first defendant has ipso facto become an heretic and alien to the Malankara Syrian Church. Defendants 2 and 3 cannot also be said to have become heretics and aliens to the Church by supporting the first defendant and co-operating with him in his alleged acts of heresy. It is further contended that the court is not competent to go into the question of heresy. The allegation that the defendants and their partisans have voluntarily separated from the Malankara Jacobite Syrian Church by establishing a new Church called the Malankara Orthodox Syrian Church is also denied and it is contended that these are not different Churches. The defendants maintain that the new constitution embodied in Ext. AM does not amount to a negation of the authority of the Patriarch of Antioch and that it does not contain anything opposed to the faith and doctrines of the Malankara Jacobite Syrian Church. The defendants have a further contention that the members of the group represented by them have become the sole beneficiaries of the trust to the exclusion of the group supporting the plaintiffs. It is stated that the Malankara Association, the defendants and the large majority of the people of the Malankara Church supporting them believe that the Patriarch of Antioch has no temporal power over the properties belonging to the Malankara Church, that the Patriarch, Catholicos and Metropolitan may according to the canons consecrate Morone, that the canon of the church is one written by Bar Hebreus and marked as Ext. A in O. S. No. 94/1088 of the Trivandrum District Court and that the canons embodied in it constitute the law and ordinances of the Malankara Church and that in accordance with the above belief they have decided to deal with and are dealing with the properties belonging to the Malankara Church. The Malankara Association, the defendants and the large majority in the Malankara Church supporting them, believing that the Catholicate re-established in the Malankara Church in 1088 has been properly and canonically instituted, owe allegiance and are subject to the Catholicos. It is alleged that the object of the foundation of the Malankara Church and the nature of the trust relating to its properties, have become subject to the laws and ordinances already referred to and to the Catholicate and that whatever may have been the object of the foundation and the nature of the trust, the defendants and others have believed from 1085 onwards that the object of the foundation and the nature of the trust are as contended for by them and the properties of the Church are being administered accordingly. This contention is further amplified by stating that the properties of the Church have therefore become subject to a trust as mentioned above and even if the terms of the trust prior to 1085 were otherwise, the trust has subsequently become altered and the properties of the Church are not to be used for purposes contrary to such trust as altered. It is also asserted that the defendants have been administering and utilizing the properties of the Church included in the schedule and conducting the worship in the churches, solely in accordance with such belief, treating the defendants and their supporters as the sole beneficiaries of the properties of the Church and treating the plaintiffs and their supporters as non-beneficiaries of the Church properties from the year 1088 onwards. It is accordingly contended that the plaintiffs and their partisans have lost, by limitation and adverse enjoyment, their rights, if they had any, over the properties of the Church. The plaintiffs are also accused of being guilty of heresy in so far as they have been contending from the year 1085 onwards that the Patriarch has temporal power over the properties of the Malankara Church, that only the Patriarch can consecrate Morone, that the canon of the Church is the book marked as Ext. XVIII in O. S. No. 94 of 1088 of the Trivandrum District Court and that the Catholicate had not been validly instituted in the Malankara Church. The plaintiffs and their partisans have been non-co-operating with the Malankara Metropolitan and his supporters, and have been acting against the trust and contrary to the object of the foundation of the Malankara Church and have thus voluntarily separated themselves from the Church and have ceased to be members of the Malankara Church and to be beneficiaries of its properties. The Patriarchs who are supporting the plaintiffs and their partisans, are also alleged to have become aliens to the Church. The defendants have also contended that the plaintiffs suit is out of time and that section 92 of the Code of Civil Procedure is also a bar to the suit. The dismissal of the earlier suit, O. S. No. 2 of 1104, on the file of the Kottayam District Court instituted by some of the partisans of the plaintiffs, is also stated to be a bar to the present suit. The plaint averment that all the items scheduled to the plaint are trust properties, has also been denied by these defendants. A separate statement has been appended to the first defendants written statement and the particulars of the properties admitted to be trust properties are given in that statement. These trust properties are classified into two categories. It is stated that only the properties covered by the Cochin Arbitration Award of the year 1840 and those acquired with the income of such properties from the joint trust are to be administered by the three trustees as per the terms of the Cochin Award. It is contended that other items of properties belonging to the Church or the community are to be in the sole possession and control of the Malankara Metropolitan and to be administered by him as the sole trustee.

4. As already stated, the plaintiffs wanted to sustain the present suit in their individual capacity as members of the Malankara Church. By a separate application they moved the court for sanction under rule 8 of Order I of the Code of Civil Procedure permitting the plaintiffs to maintain the suit on behalf of the Malankara Syrian Christian Community. The court caused the notice of the institution of such a suit to be published in the Government Gazette. As a consequence of such a notification, defendants 4 to 7 got themselves impleaded as additional parties to this suit. Defendants 4 and 5 did not file any separate written statement. But on their behalf a statement was filed to the effect that they adopt the contentions of defendants 1 to 3 and that they have no additional contentions to be raised. The 7th defendant filed a written statement almost on the lines of the written statement of defendant 1 to 3. The sixth defendant also adopted the contentions of these defendants and raised certain special claims in respect of items 16 and 17 of the B schedule in the plaint and contended that these items do not form part of the common trust properties belonging to the Malankara Jacobite Syrian Community as a whole.

5. The plaintiffs filed a replication controverting the several points raised in the defendants written statements. It was also pleaded by the plaintiffs that the defendants are barred by reason of res judicata from raising contentions against the findings in the final decision in O. S. No. 94 of 1088 and in the judgment of the Royal Court of Final Appeal, concerning the faith and practices of the Malankara Church, the powers of the Patriarch over it and the canons governing it.

6. Separate pleadings were also recorded specifying the points in controversy between the parties. On the basis of such pleadings, as many as 37 issues were raised in the case with sub-divisions for several of these issues. On these numerous issues a considerably large volume of evidence both oral and documentary, has been adduced by both parties. In the nature of the questions involved in the suit, oral evidence cannot be of much help in the matter of arriving at a correct decision of those questions. In fact learned counsel on both sides did not place much reliance on the evidence of the witnesses examined on either side. Pws. 17 and 18 are the important witnesses for the plaintiffs, just as D. Ws. 27 and 28 are the important witnesses for the defendants, and naturally, therefore, the evidence of these witnesses plays an important part in resolving the controversy in the suit. The evidence given by most of the other witnesses is seen to be either irrelevant or unhelpful, and hence the bulk of the oral evidence has to be rejected as useless. Coming to the documents also exhibited on either side, it has to be stated that a good many of them have no real bearing on the questions arising for decision and inspite of the very elaborate arguments addressed by learned counsel on both sides, they have not made any reference at ail to several of such documents. These aspects relating to the evidence on record will be apparent from the discussions to follow which have necessarily to be confined to the relevant and useful evidence pertaining to the important questions arising for decision.

7. All the properties scheduled to the plaint are not admitted to be trust properties. Along with the first defendants written statement he has filed a statement specifying the items admitted to be trust properties and also those which are claimed to be not trust properties. The question as to which are the items of trust properties, will be considered later. The question raised by the first defendant that the trust properties fall under two categories to be managed differently will also be considered at a later stage. Subject to these reservations it may be stated here that it is common ground that the beneficiaries of the trust properties involved in this suit are the members of the Malankara Church, i. e., the members of the Jacobite Syrian community of Malankara. The controversy between the parties centers round the position of the Patriarch of Antioch in relation to the Malankara Church and the plaint trust. There is no deed of endowment defining this position or the exact terms and objects of the trust. But these matters can very well be gathered from certain important documents produced in this case. Exs. 223, DY, FN, FO and AO are the more prominent among such documents. It may also be mentioned here that both sides have placed great reliance on Exs. 223, DY and AO.

8. For some time during the early part of the 19th century the Malankara Church and the Church Missionary Society in Travancore were in joint management of the trust properties owned by them and worked in co-operation with each other for the advancement of their religious undertakings. But In view of the radical differences that existed in the tenets and faith which governed these two denominations, it became impossible for them to pursue their joint enterprises and it became necessary for them to part company and to have the trust properties belonging to each sect separated. Their disputes were accordingly referred to arbitration and the arbitrators gave their award on 4th April 1840. Ex. 223 is copy of that award. The items of properties which were under the joint management of the two sects were classified and separately allotted to each of the sects. Provision was also made in the award as to how the future management of the trust properties of the Malankara Church should be carried on. That provision is to the effect that the properties should be under the joint management of the Metropolitan for the time being of the Syrian Church and two others, an ecclesiastic and a respectable lay man of the same persuasion, to be elected by the Syrian Community itself. That the community of the particular persuasion contemplated by this award is the Jacobite Syrian Christian Community of Malankara owing unwavering allegiance to the Patriarch of Antioch, has been clearly established by the proceedings embodied in Ex. FO and by the decisions recorded in Exs. DY, FN and AO. Mathews Athanasius who got his ordination from the Patriarch of Antioch, functioned as Malankara Metropolitan for a few years. His attempt to introduce certain changes in the liturgy and prayers of the church provoked opposition by the members of the Malankara Church who complained of the same to the Patriarch and also deputed one Joseph Kathanar to Antioch to get his ordination as Metropolitan. Joseph Kathanar was duly ordained as Metropolitan under the title of Mar Joseph Dionysius. But on his return to Malankara in the year 1865, Mathews Athanasius, who had in the meantime been excommunicated by the Patriarch, refused to surrender office. The dispute between Mathews Athanasius and Mar Joseph Dionysius dragged on for a number of years and in the year 1875 Patriarch Peter III himself came to Malankara for settling the disputes in the Malankara Church. He called together a meeting of the representatives including pries ts and laymen of the several churches in Malankara. This meeting was held at Mulanthuruthy and it was accepted as a Synod presided over by the Patriarch. Ex. FO is a printed copy of the proceedings of that Synod. Even though great reliance was placed by both sides on the resolutions passed by this synod, neither the original proceedings nor a copy of the same had been produced in the lower court. Both sides agreed at the hearing of the appeal that a copy of the proceedings would be very helpful for a proper decision of the main points in controversy in this suit. Accordingly the printed copy of the proceedings available with the appellants was produced in this Court and the same was admitted on behalf of the respondents. On the basis of such admissions, the printed copy of the proceedings has been marked as Ex. FO. From Ex. FO it is seen that the proceedings of this synod went on for a few days commencing from 15-11-1051 (1876 A.D.) At the opening address the Patriarch referred to the disastrous effects of the dissensions in the Church and exhorted the members of the Synod to take due note of the same and to make a final decision on the course they preferred to follow. They were specially asked to decide whether they liked to keep the faith of their churches and to obey as in the past the kalpanas of the Patriarch. The resolutions passed have to be read and understood in the light of the preamble to the same. The translation of the preamble runs as follows:

We have been summoned to this synod by His Holiness the Patriarch Moran Mar Ignasius Peter III who is the Holy Father of ours-the Jacobite Syrians of Malankara and the authority on the Apostolic throne of Antioch; and we have all heard His Holiness stating the reasons for the gathering. We all requested the Holy Father to preside over this synod. The Holy Father acceded to our request and read his missive before this assembly and it is befitting that the solutions and guarantees be made as soon as possible in order that our Church in Malankara be firm and obedient for ever in the orthodox faith and discipline of the Apostolic throne of Antioch....

9. It is not necessary at this stage to refer to all the resolutions passed by the synod. The first two resolutions are in themselves sufficient to show that the synod representing the several churches in Malankara had pledged unwavering allegiance to the Apostolic throne of Antioch. The first resolution was to the effect that in order to prevent for ever the rising of oppositions to the directions of the throne of Antioch and the orthodox Jacobite faith, deeds of agreement shall be executed and got registered by all the members of each parish and kept in the safe room of the church and a copy of the same shall be given to the Holy Father. It was next resolved that in order to guarantee that the members of the church will be firm in the orthodox faith and will obey the directions of the Apostolic throne of Antioch, a list of members of each parish together with an affirmation of their faith in the tenets of the orthodox church shall be prepared and submitted to the Holy Father as early as possible so that the list may be helpful for the confirmation of the faith of the members of each parish and may also serve as a basis for the collection of ressisa due to the Patriarch. The responsibility for collecting and remitting the ressisa due to the Patriarch was cast on the committee formed by another resolution passed by the synod. The necessity to have a book containing the canons binding on the Church prepared and got printed with the approval of the Holy Father and for supplying a copy of the same with his seal to each church to serve as a guide for the future conduct of its members was also emphasized by another resolution. An association of the representatives of the church was also formed with the Patriarch as its patron and the Malankara Metropolitan as its President. Mar Joseph Dionysius who thus became president of the association was authorized to conduct the litigations on behalf of the church.

10. Since Mathews Athanasius persisted in his defiance of the authority of the Patriarch and refused to surrender management of the trust properties to Mar Joseph Dionysius, the latter was forced to institute Ex. DY suit in the year 1878 A.D. Prior to the institution of that suit Mathews Athanasius died after consecrating his brother Thomas Athanasius as Metropolitan who was also appointed as successor to Mathews Athanasius as Malankara Metropolitan, under a will executed by Mathews Athanasius. Ex. DY suit was therefore instituted against Thomas Athanasius and two others who were in joint management of the trust properties of the Malankara Church. The position claimed for the Patriarch in relation to the trust and to the Malankara Church by Mar Joseph Dionysius was made clear in paragraphs 2 to 4 of the plaint in that suit which are extracted at pages 2 and 3 of the minority judgment in Ex. DY. They are as follows

2 The aforesaid movable and immovable properties were under the control and in the possession of the successive Metropolitans who held their place under the Holy Patriarch of Antioch, the supreme head of the Syrian Christians; and following this practice, the aforesaid properties were lastly under the control and in the possession of the person known as Mar Athanasius, Metropolitan, deceased, by right derived in virtue of his consecration as Metropolitan by the said Patriarch of Antioch.

3. The aforesaid Mar Athanasius departed this life on the second day of Karkadagam 1052, since which date, the first defendant and the second and third defendants who have joined him as persons favoring him, are unlawfully retaining possession of the properties described in the said schedules A to C.

4. Being the Metropolitan who was vested, with this sthanam by the Patriarch of Antioch and has been appointed President of the Syrian Association Committee and who has also been accepted by the Syrian Community, we, in pursuance of past practice, have thus become fully entitled to the control and possession of the entire properties described in the aforesaid schedules.

The contentions raised by the first defendant in that suit are enumerated in paragraph 4 of the majority judgment at page 4 of Ex. DY. Among the several contentions raised by him he had taken up the position that "the See of Malankara and the Syrian Christian Community under its jurisdiction, having been subject to the rule of their own successive Metropolitans, were altogether independent of the See of Antioch, that the Patriarch of Antioch had no authority of any kind over the Syrian Church in Malabar and that the consecration by the Patriarch of Antioch of the late Mar Athanasius, the last admitted Metropolitan, was almost accidentally brought about". These questions were fully enquired into by the court which ultimately came to the conclusion that the case as put forward by the plaintiff is the true one and accordingly passed a decree in his favor for the recovery of trust properties involved in that suit from Thomas Athanasius. That decree was confirmed by the High Court and also by the Royal Court of Final Appeal in Travancore. In the majority judgment of the Royal Court the final conclusions of the court are recorded in paragraph 347 at page 147 of Ex. DY and there the extent of the Patriarchs authority over the Malankara Church has been stated as follows:

that the ecclesiastical supremacy of the See of Antioch over the Syrian Church in Travancore has been all along recognized and acknowledged by the Jacobite Syrian Community and their Metropolitans; that the exercise of that supreme power consisted in ordaining, either directly or by duly authorized delegates, Metropolitans from time to time to manage the spiritual matters of the local church, in sending Morone (holy oil) to be used in the Churches in this country for baptismal and other purposes and in general supervision over the spiritual Government of the church; that the authority of the Patriarch has never extended to the Government of the temporalities of the church which in this respect has been an independent church; that the Metropolitan of the Syrian Jacobite Church in Travancore should be a native of Malabar consecrated by the Patriarch of Antioch or by his duly authorized delegates and accepted by the people as their Metropolitan to entitle him to the spiritual and temporal Government of the local church.

On the strength of these findings the court held that Thomas Athans us who had no ordination from the Patriarch and who had repudiated the authority of the Patriarch over the Malankara Church, was not entitled to retain possession of the trust properties and accordingly a decree was passed in favor of Mar Joseph Dionysius who had been ordained and appointed as Malankara Metropolitan by the Patriarch and whose appointment was accepted by the people, for recovery of the properties involved in the suit. It may be mentioned here that those properties form the bulk of the properties involved in the present suit also and that the rival claims put forward by the plaintiffs and the defendants are for possession and management of the properties which were thus secured for the Malankara Church by Mar Joseph Dionysius in the manner already stated. These parties are therefore not entitled to take upany stand inconsistent with the findings recorded in Ext. DY.

11. Ex. FN is copy of the judgment of the Royal Court of Final Appeal in a similar case which Mar Joseph Dionysius had to institute in the Cochin State to establish his authority as Malankara Metropolitan over certain churches and trust properties situated in Cochin. That suit originated as O. S. No. 56 of 1069 (1893 A. D.) of the Trichur District Court. The questions involved in that suit were almost similar to those involved in Ext. DY suit and naturally therefore Ext. FN judgment also went into an elaborate investigation to find out the extent of the authority and supremacy of the Patriarch of Antioch over the Malankara Church. The final conclusions reached by the court have been recorded in paragraph 56 of Ext. FN and they are the following:-

1. that the Patriarch of Antioch is the spiritual head of the Malankara See; 2. that the plaint churches are included in that See; 3. that the churches and the properties shown in the plaint schedule are "bound by a trust in favor of those who worship God according to the faith, doctrine and discipline of the Jacobite Syrian Church in the communion of His Holiness the Patriarch of Antioch" and 4. that the plaint churches and properties are therefore subject to the spiritual, temporal and ecclesiastical jurisdiction of the first plaintiff as the Metropolitan of Malankara for the time being.

12. Ex. AO is copy of the judgment in another suit, O. S. No. 25 of 1075 (1900 A. D.) of the Trivandrum District Court where also there was a rival claim to receive the interest due under a trust fund. In the year 1808 Mar Thoma VI who was Metropolitan of Malankara, invested with Colonel Macaulay, the then British Resident of Travancore and Cochin, a sum of 3000 Star Pagodas as a loan in perpetuity at 8% interest per annum. Such interest was being received by successive Metropolitans. But during the time of Mar Joseph Dionysius disputes arose about the right to receive the interest on the said loan. Such disputes led to the institution of O. S. No. 25 of 1075 by the Secretary of State for India, impleading the rival claimants for the accumulated amount of interest, as defendants. That suit was also decreed in favor of Mar Joseph Dionysius and others of his persuasion. In paragraph 35 of the judgment the findings are recorded as follows:-

Thus the investor Bishop or the Bishop who was the immediate cause of the plaint fund, the Bishop in whose name the bond Ext. 34 and the receipt Ext. I stand, the Bishops that received the interests from the Residency (Thomas Athanasius, perhaps excepted) and the Bishop in whose favor the award of 1840 (Ext. 36) was made, were all Jacobites owing allegiance to foreign supremacy, viz., the Patriarch of Antioch. It is admitted that only the followers of the faith of the investor are entitled to the benefit of the fund invested. It therefore follows that 1 to 3 defendants, or rather 1, 2 and 8 defendants who are the Metropolitan and the trustees of the Jacobite Syrians, and not 4 to 7 defendants who claim themselves as of the autonomous or independent Church are entitled to the plaint interest on the 3000 Star Pagodas invested with the plaintiff.

13. In both Exts. DY and FN it has been definitely found that unwavering allegiance to the throne of Antioch had become part of the faith of the members of the Malankara Church at least from the beginning of the 17th century by which time they were able to free themselves completely from the control of the Portughese. Such a conclusion was arrived at after a careful consideration of reliable historical publications and other documents which were proved in these cases. We do not think it necessary to refer to them in detail once again in this judgment. All the same, a few significant incidents prominently dealt with in those judgments may be adverted to. Paragraphs 79 and 80 of the majority judgment in Ext. DY refer to the arrival of Patriarch Mar Ignatius at Mylapore in Madras about the year 1653 or 1654 A. D. and about his arrest and detention there by the Portughese who feared that if he came to Malankara the Syrians might revert to their faith. It is also stated that two Deacons of the Syrian Church were able to contact Mar Ignatius at Mylapore and to get his approval of the appointment of Arch-Deacon Thoma as Metropolitan. The Portughese, however, brought Mar Ignatius to Cochin and there he is believed to have been done to death. The Jacobite Syrians became highly enraged at this news and a huge gathering of them, numbering about 25,000, assembled and resolved that they should never again unite themselves with the Portughese who had without any scruple or fear of God murdered their Holy Patriarch. They also resolved that Arch-Deacon Thoma should be consecrated as Metran in accordance with the station given by Ignatius Patriarch and that their ancient and spotless doctrine should be followed. After drawing up these resolutions all of them with one voice swore to their determination to abide by these resolutions and to separate for ever from the followers of the Roman faith. They took this oath by holding on to a long rope attached to the Koonan Cross at Mattancheri. This was in the year 1654. Even though in such an emergency they chose to accept Arch-Deacon Thoma as their Metropolitan, they had no peace of mind on account of the feeling that the Metropolitan had not been ordained by the Patriarch. Mar Thoma himself was worrying about the irregularity and invalidity of his consecration. After various endeavours, he was able to perfect his consecration at the hands of Mar Gregorius, the 5th Patriarch of Jerusalem, who came to Malankara under the command of the Patriarch of Antioch. This was in the year 1665. These matters are referred to in paragraphs 81 to 85 of the majority judgment in Ex. DY. In 1809 Mar Thoma VIII became the Malankara Metropolitan. But he was not consecrated by the Patriarch or his delegate. The Syrian Community questioned his competency to function as Malankara Metropolitan for the reason that he has had no consecration in accordance with the tenets of the Jacobite Syrian Church. In dealing with such a complaint, the Madras Government called upon Mar Thoma VIII to answer certain specific questions formulated and sent to him. A few of these questions and answers are extracted in paragraph 126 of the majority judgment in Ex. DY and also in paragraph 21 of Ex. FN and they are reproduced here:

Second question.

As subject to the authority of what superior have the Syrians been obeying laws and rules

Answer.

In Malayalam it is as subject to the authority of Mar Ignatius, Patriarch of Antioch, that the ordinances are recognized. Metrans "come from Antioch and consecrate members of the family which have derived ordination from Apostle Mar Thoma and these conduct all routine affairs; and important affairs are conducted informing the Patriarch of Antioch thereof.

Fourth Question.

What is the rule as to the succession of Metropolitans in the Syrian Churches and what are all done on ones death

Answer.

In 1653 Mar Ignatius Patriarch was arrested in Mylapore by the Portughese on his way to Malayalam from Antioch. At that time two Deacons had gone to Mylapore. Fearing that the Portughese might kill the Patriarch, he sent Patent of Consecration through the aforesaid Deacons to consecrate the Arch-Deacon as Metran. The Portughese then brought the Patriarch to Cochin and drowned him in the sea. Thereon the Arch-Deacon and people met at Mattancheri and swore, holding the cross (Koonan Cross already noticed), that the Portughese shall not to the end of their race be obeyed. And then all met in the Allengad Church and consecrated the Arch-Deacon as Metran in pursuance to the Warrant of Office sent by the Patriarch through the Deacons, and thus Metrans functions were exercised. Subsequently, in 1665, Mar Gregorius Patriarch of Jerusalem came to Malayalam and made perfect the ordination of the then Metran; and gave him the books, Morone, and Sythe that had been sent from Antioch. In "those days the Anandaravan of Arch-Deacon Thoma was made Metran and empowered to exercise the functions thereto appertaining. Towards the close of his career, his Anandaravan was consecrated as Metran. It is thus that the office of Metran has been vested in succession in members of this family.

Fifth Question.

What are the forms of worship of the Syrians

Answer.

The Jacobite Syrians observe the practices mentioned in the books sent by Mar Ignatius, Patriarch of Antioch.

These answers given by Mar Thoma VIII against his own interest in the matter of retaining office as Malankara Metropolitan, show how deep-rooted was the faith of himself and members of the Community that consecration by the Patriarch or his delegate would alone confer the necessary dignity and authority on a Metropolitan.

14. Two other documents may also be referred to in this connection. The first of these documents is a letter sent by Punnathra Mar Dionysius to Lord Gambier, President of the Church Mission Society in England. This letter was sent in the year 1821 when Punnathra Mar Dionysius was the Malankara Metropolitan. This letter is published at page 375 of the book "The Malabar Syrians and the Church Missionary Society" by P. Cherian. The opening sentence of the letter is very significant. It runs as follows:

In the Name of the Eternal and Necessary Existence, the Almighty. Mar Dionysius, Metropolitan of the Jacobite "Syrians in Malabar, subject to the authority of our Father, Mar Ignatius, Patriarch, who presides in the Apostolic See of Antioch of Syria, beloved of the Messiah.

The letter refers to the faith of the Community in the following terms:-

We, who are called Syrian-Jacobites, and reside in the land of Malabar, even from the times of Mar Thomas, the holy Apostle, until the wall of Cochin was taken in the reign of King Furgisr kept the true faith according to the manner of the Syrian Jacobites of real glory, without division or confusion.

Then the letter proceeds to refer to the persecution by the Portughese and to the events that led up to the oath at Koonan Cross and states:-

Again, in the year of Our Lord, 1753, came to us some holy Jacobite Syrian Fathers from Antioch, who turned us to our true ancient faith, and set up a High Priest for us.

The next document is the declaration made by the Synod held at Mavelikkara in the year 1836, in which the then Malankara Metropolitan and the other Priests under him participated. This declaration is known as the Mavelikkara Padiyola, a translation of which is published at page 390 of the aforesaid book. This document gives a comprehensive idea of the faith of the Malankara Church and also of the nature of the plaint trust, and hence the whole of the document is reproduced here.

In the name of the Father, Son Holy Ghost, the one true God: Padiyola (agreement) drawn up in the year of Our Lord 1836 corresponding to 5th Makarom 1011 at the Church dedicated to the Virgin Mother of the Lord, at Mavelikkara, between Mar Dionysius Metropolitan of the Jacobite Syrian Church of Malankara subject to the supremacy of Mar Ignatius Patriarch, the Father of Fathers, and the Chief of Chiefs, ruling on the throne of St. Peter at Antioch, the Mother of all Churches; and his successor Mar Kurilos; and the vicars, priests and parishioners of Ankamali and other Churches under the charge of the said Metropolitan.

That whereas at an interview held at Kottayam between the Rt. Rev. Daniel Lord Bishop of Calcutta and the Metropolitan, in Vrischikam last, it was proposed by the former that certain changes should be introduced in the Liturgies and ordinances of our Syrian Church, and whereas it was stated in reply that a conference of all the Churches would be held on the subject and its determination made known: we, the Jacobite Syrians being subject to the supremacy of the Patriarch of Antioch and observing, as we do, the Liturgies and ordinances instituted by the prelates sent under his command, cannot deviate from such Liturgies and ordinances and maintain a discipline contrary thereto; and a man of one persuasion being not authorized to preach and admonish in the Church of another following a different persuasion without the permission of the respective Patriarchs we cannot permit the same to be done amongst us; and our Churches being built by the aid of the prelates sent under orders of the Patriarch and on the wishes of the people of each parish, and ornamented by their money, and as the accounts of the annual income accruing to our Churches under the head of voluntary contributions, offerings etc., are as required by the rules, furnished to our bishops, as is the custom in the Churches of Antioch, as well as in the Churches of this and other countries following different persuasions we are Without the power, and feel disinclined, to follow, and cause to be followed, a different procedure from the above.

That the Honourable Colonel Macaulay having taken a loan of 3000 Star Pagodas from Valia (great) Mar Dionysius who died in 983, gave him a bond for the same. The interest on the amount having fallen in arrears, Mar Dionysius Metropolitan who died in 992 made a representation to Colonel Munro and received the interest with which he (Dionysius) built the Seminary at Kottayam. Having also collected at the Seminary the money brought by the prelates that had come here from Antioch and the property left by the late bishops of the Pakalomattom family, Mar Dionysius laid out a portion of this together with the donation made by His Highness the Maha Rajah on behalf of the Syrian Christian youths, on kanom, "and therewith met the expense of their education. The Reverend the Missionaries who have come down to Kottayam, in their profuse benevolence taught the youths at the Seminary, English and other languages, protected our children like loving fathers, caused books to be printed for the benefit of all classes, rendered all necessary help in maintaining the prevailing discipline of the Syrian Church, caused the annual interest due, to be drawn on the receipt of the Metropolitan, had superintendence over the affairs of the Seminary, and caused ordinations to be made agreeable to the request of the people and the power of the prelates. While affairs were being thus conducted, the Missionaries took to managing the Seminary without consulting the Metropolitan, themselves expended the interest money drawn annually on the receipt of the Metropolitan, dispersed the deacons instructed in the Seminary, conducted affairs in opposition to the discipline of our Church and created dissensions amongst us, all of which have occasioned much sorrow and vexation. For this reason, we do (would) not follow any faith or teaching other than the orthodox faith of the Jacobites Syrian Christians, to the end, that we may obtain salvation through the prayers of the every happy, holy and ever-blessed Mother of God, the redresser of all complaints, and through the prayers of all Saints.

It is this determination of the Malankara Church not to deviate from its faith, discipline, liturgies and doctrines that led to the Cochin award Ex. 223, under which the management of its trust properties was brought under the exclusive control of the Malankara Metropolitan and two other representatives of the Church. The aforesaid documents prove and establish beyond doubt such an unwavering allegiance to the supremacy of the Patriarch of Antioch had become a settled fact during the early period of the 17th century.

15. The cardinal principles of faith to which the members of the Jacobite Syrian Community of Malankara were steadfastly adhering are (1) that direct connection to the Apostolic throne of Antioch should be maintained by getting their Metropolitans ordained by the Patriarch himself or by his duly authorized delegate and (2) that only Morone consecrated by the Patriarch can be used in the Churches at Malankara for baptismal and other purposes. The power of the Patriarch as the ecclesiastical head of the Church to exercise general supervision over the spiritual government of the Church was also recognized and upheld in Ex. DY judgment. But it was pointed out that the authority of the Patriarch did not extend to the government of the temporalities of the Church. To this extent alone the independence of the Malankara Church was upheld in Ex. DY. This could only mean that the Patriarch has no authority to interfere in the internal management of the Church. All the same, it is obvious that his power of general supervision over the spiritual government of the Church may to some extent affect the Metropolitans jurisdiction to carry on the temporal government of the Church. If, on a proper enquiry the Metropolitan is found guilty of ecclesiastical offences and if he is properly and validly excommunicated, his powers of temporal government would come to an end and such powers could only be exercised by his successor duly ordained and appointed to the place and accepted by the Community. Metropolitans who asserted absolute independence for the Church and maintained that the Patriarch of Antioch had no manner of authority, spiritual or temporal, over this Church were found not to belong to the Syrian Community of the particular persuasion contemplated by the award Ex. 223 and accordingly their claims for possession and management of the trust properties in their capacity as Metropolitans were negatived in Exs. DY, FN and AO. The question of the obligation of the members of the Church to pay ressisa to the Patriarch had also come up for consideration in Ex. DY, but in paragraph 218 of the majority judgment it was found that the evidence regarding the payment of ressisa was very meagre and inconclusive and therefore the court was unable, upon such evidence, to decide the question one way 6r the other. It was also stated that a decision on that question was not necessary in that suit.

16. The position of the Patriarch of Antioch as the supreme spiritual head of the Jacobite Syrian Church of Malankara is not disputed even by the defendants. According to the Jacobite faith, the true Church is that which has been presided over by St. Peter and his apostolic successors as the vicars of Christ. This position is made clear by the following passage, in Ex. 265 D:-

The Apostles received priesthood from our Saviour and they handed it on to us. When our Lord sent them out two by two, and gave them power to heal the sick, to cast out devils, to cleanse the lepers and commanded them to do so, He made them deacons which means those who make clean. When he preached over to them and told them "receive ye the Holy Ghost", He whose sins are forgiven by you shall be forgiven", He made them Kassisas. When at the time of His ascension He raised His hands and blessed them, He made them episcopal. When the Holy Ghost, who is the comforter, rested over them when they were in the upper floor of the house, He perfected them as Patriarchs.

It is in this manner that the Apostles are stated to have received priesthood from Jesus Christ who perfected them as Patriarchs when the Holy Ghost came on them. It is also the belief of the Jacobite Church that St. Peter, otherwise called Simeon, was the head of the Apostles and on him the Church was built. In Ex. 265 B (translation) the following passage occurs:-

The ministry which have been entrusted to Simeon, the head of the Apostles is entrusted to him. Like him, he became a worthy stone on which the Church may be built. Like him (Simeon) he confesses "Thou art the Christ, the son of the Living God.

Thus it is believed that the hierarchy, with St. Peter and his successors at its head, is a divine institution founded by Jesus Christ. It is the faith of the Jacobite Church that the Patriarch of Antioch is the true successor of St. Peter. It is because of this traditional belief in the Apostolic succession that the members of the Malankara Church have all along been insisting that the Malankara Metropolitan should be one who has had his ordination from the Patriarch of Antioch and that the Morone to be used in the Churches must be the Morone consecrated by the Patriarch. There can be no doubt that these are fundamental matters of faith of this Church.

17. The origin of the plaint trust has to be examined in the background of what has been stated above. The trust originated with the investment of 3000 Star Pagodas as a loan in perpetuity with the British Resident at Trivandrum in the year 1808, so that the interest at 8% accruing due on the said loan may be drawn and utilized for the welfare of the Malankara Church. This investment was made by Mar Thoma VI who was at that time the Malankara Metropolitan. Since he died soon after making this investment, the bond was issued in the name of his successor. These facts have been found in Exs. DY and AO. Paragraph 99 of Ex. DY shows that in the year 1751 the Patriarch of Antioch had issued a command to Mar Thoma V, impressing upon him the necessity of getting proper ordination by the Patriarch or his delegate. The following passage quoted in paragraph 99 from the said communication is very significant.

By that authority vested in US through the Holy Ghost, being the power of Jesus "Messiah, the Lord who has empowered Our Weakness in the Supremacy of the Apostolic Throne of Peter at Antioch, I now command unto you: By that authority We command unto you that you should acknowledge the Supremacy of the Apostolic Throne of Antioch, that you should obey all commands and that you should root-out from among you all alien and foreign customs and practices.. Behold, you must obey the Brothers, the Venerable Mar Basselios and Mar Gregorius who are in your midst and all that they command or counsel unto you, for we have placed the word given unto US into their mouth, you should become obedient and go to the aforesaid Venerable Father and get your Episcopal title confirmed and that you should be on terms or reciprocal union and amity.

In obedience to this command, Mar Thoma V submitted to the aforesaid delegates of the Patriarch and got his ordination perfected. The position of his successor Mar Thoma VI is dealt with in paragraph 104 of the majority judgment in Ex. DY as follows:-

Thoma VI soon made himself a friend of the Bavas and was consecrated by them on the 29th Mithunam 945/1770 A. D. at Niranam as the Metropolitan at Malankara with the title of Mar Dionysius. They gave him the Staff, Mitre, Crosier, Station and Morone that had been brought from Antioch.

He was commonly known as Valia Mar Dionysius or Dionysius the Great. The station issued to him on his appointment as Malankara Metropolitan was produced in Ex. AO case and its contents have been extracted in paragraph 20 (page 7) of that judgment. It runs as follows:-

By the command of the Exalted Moran Mar Ignatius Patriarch ruling in the throne of Antioch, the feeble and meek Gregorius Metropolitan of Jerusalem and Ivanios Episcopa of India, delegate consecrated Joseph of name Mar Thoma as the Metropolitan of Our Jacobite Syrian people residing in the country of Malayalam.

Reference also is made in the same paragraph to the attitude adopted by Mar Thoma VI towards the attempt made by Doctor Buchanan to induce him to effect a union of the Malankara Church with the Church Missionary Society. Mar Thoma VI is stated to have disclosed his mind to Doctor Buchanan in the following words:-

I would sacrifice much to such an union. Only let me not be called to compromise anything of the dignity or the purity of our Church.

It was a Metropolitan of such an uncompromising faith that founded the trust by making the investment of 3000 Star Pagodas as already mentioned. Besides making such an endowment, he is stated to have built a Church at Puthenkavu, vide paragraph 109 of the majority judgment in Ex. DY. The Mavelikkara Padiyola reproduced at pages 390 and 391 of Cheriyans book, states that the interest on the investment of 3000 Star Pagodas was utilized for building a seminary at Kottayam. Reference is also made in that document as to how the trust was being augmented from time to time.

18. Since the Metropolitan who made the endowment referred to above and his predecessors and successors were all members of the Orthodox Syrian Church of Malankara owing unwavering allegiance to the Antiochan throne, it has to be legitimately inferred that only those members of the Church who adhere to the faith of the investor Bishop were Intended to be beneficiaries of the trust. The following passages from Halsburys Laws of England, Third edition (by Lord Simonds), Vol. IV, make this position clear:

One principle applicable to all charities without exception is that the intentions of the founder are to be carried into effect so far as they are capable of being so, and so far as they are not contrary to law or morality" (Paragraph 593 at p. 287).

In the case of a charity for the support of a religious establishment generally or the purpose of religious instruction, two presumptions arise : first, that the founder intended to support an establishment belonging to some particular form of religion, and that he intended some particular doctrine of religion to be taught; and secondly, that this establishment and doctrine were those which he himself supported and professed; and the court will look carefully at his course of life and conduct and spell out expressions not merely in the instrument of foundation, but in his will and works, to ascertain what were the doctrines and opinions entertained and professed by him" (paragraph 595 of the same Volume).

Where the origin of a charity is obscure, or where the instrument of endowment is lost or is ambiguous, usage constitutes presumptive evidence of charitable trusts. The court will presume whatever may be necessary, even an Act of Parliament, to give this usage a legal origin and render it valid.

But when the deed of foundation is produced and is clear, nothing can be presumed to the contrary of that which is established by such evidence.

The court will be guided by the earliest evidence of usage, and will, if possible, presume that what was then done and along afterwards continued was rightly done. (paragraph 631 at pp. 307 and 308).

The principles enunciated in these passages are also gatherable from the cases noted below:-

(1) Craigdallie v. Aikman (4 English Reports (House of Lords) p. 435). In that case the dispute was about the use of a meeting house built by contributions of materials, money and labor and collections on the Church door, of persons professing the principles of those who seceded at that time from the Church of Scotland. The meeting house and the ground on which it was built, were vested in certain persons as trustees for the use of the Society and managers of the house of public worship for the associate congregation of Perth. Subsequently, a schism took place between the members of this religious community and several members separated themselves from the authority of the associate Synod. In dealing with the rival claims of these two groups it was held that

in a case where it was difficult to ascertain who were the legal owners, as representatives of the contributors, the use of the meeting-house belongs to those who adhere to the religious principles of those by whom it was erected; and those who had separated themselves from the Associate Synod, and declined their jurisdiction, were held to have forfeited their right to the property; although it had been judicially declared that there was no intelligible difference of opinion between them and the adherents of the Synod.

(2) Attorney-General v. Pearson (58 English Reports (Vice-Chancellors) p. 848). In that case it was held that

when a gift is made or trust is created by certain persons, of certain funds, for the service and worship of Almighty God, the thing to be regarded is what were the religious tenets in general of those persons Because it would not be a just application of those funds, if they were allowed to be employed for the sustentation of religious opinions which the "donors themselves would have disavowed.

(3) Broom v. Summers. (59 English Reports (Vice Chancellors) p. 909).The facts of that case were the following: A lease of a meeting-house was granted in trust for a congregation of Protestant Dissenters who then met in a house belonging to J. A. in the town of S. The congregation was then in connection with the Secession Church of Scotland, and consequently professed the same doctrines and adopted the same form of worship, government and discipline as that Church. Some years afterwards, the Minister and a large majority of the congregation separated from that connection and joined another religious body which professed the same doctrines and used the same form of worship, but not the same form of government and discipline as the Secession Church; they however retained possession of the meeting-house. The court held that on their separation they ceased to be objects of the trust; and, therefore, were not entitled to keep possession of the meeting-house.

The principles enunciated in the above cases were affirmed by the House of Lords in Free Church of Scotland v. Overtoun (1904 AC 515).

19. Applying the principles stated above to the facts of this case, it is clear that the trust founded by Mar Thoma VI in 1808 and augmented by subsequent additions, was intended to benefit those members of the Malankara Church who were followers of his own faith, the fundamentals of that faith being that the Church is subject to the ecclesiastical supremacy of the Patriarch of Antioch, that the Malankara Metropolitan should be one duly ordained by the Patriarch or his delegate and accepted by the Community, that the Morone to be used by the Churches in Malankara should be the Morone consecrated by the Patriarch, that the Patriarch will have no power over the temporalities of the Church and in its internal management and that the Church has an obligation to pay ressisa to the Patriarch as resolved by the Mulanthuruthy Synod (vide Ex. FO). The Malankara Church had accepted these as fundamental principles governing their faith from very early times and definitely from the beginning of the 17th century and has been firmly adhering to these fundamental principles thereafter also. These principles have become impressed on the plaint trust which originated with the endowment made by Mar Thoma VI in the year 1808. In this view of the matter it is unnecessary for the purpose of this case to examine the early history of the Malankara Church for ascertaining how and under what circumstances the Malankara Church happened to accept the Patriarch of Antioch as its ecclesiastical or spiritual head. We do not therefore propose to enter into a discussion of the controversial historical records relating to the origin and growth of the Malankara Church, in spite of the fact that on this topic much learning and industry have been exhibited at the Bar.

20. According to the plaintiffs, the defendants and their partisans have, by their own conduct, gone out of the Malankara Church and have ceased to be members of the Malankara Community of the particular persuasion, as already explained. Issues 14 to 17 refer to different aspects of this question. The main charges against the first defendant and his partisans are those contained in paragraphs 22 to 26 of the plaint. The charge of voluntary separation from the ancient Jocobite Syrian Church and of having established a new Church by adopting the constitution embodied in Ex. AM is itself a major issue and hence it may be separately considered. The other acts imputed against the defendants are that a Catholicate has been established in Malankara, that the first defendant is the Catholicos and also the Malankara Metropolitan even though he has not obtained any ordination from the Patriarch that the first defendant is consecrating Morone for the use of the Churches in Malankara and that the first defendant is collecting and appropriating himself the ressisa due to the Patriarch. On account of such acts and pretensions, in defiance of the authority of the Patriarch and against the fundamental tenets of the faith of the Church, the defendants are stated to have ipso facto become heretics and aliens to the Malankara Jacobite Church. The question whether the acts complained of constitute heresy, depends mainly on the validity or otherwise of the Catholicate stated to have been established at Malankara. This again depends to a large extent on the further question as to whether Abdul Messiah was the ruling Patriarch at the time of the establishment of the Catholicate relied on by defendants.

21. Before proceeding to consider the validity of the Catholicate, the plea of res judicata raised on behalf of the respondents may be disposed of. Learned counsel for the respondent argues that the question must be deemed to be concluded by the decision in 45 Travancore Law Reports 116 and that the plaintiffs are therefore not entitled to agitate the matter once again. That was a representative suit and if the question as to whether a Catholicate has been validly established at Malankara was an issue in that case, that decision would undoubtedly operate as res judicata in the present suit. Ext. 255 is copy of the trial courts judgment in that case and paragraphs 1 to 7 of that judgment give a summary of the contentions urged by the several parties. These paragraphs do not show that the question of the validity of the Catholicate said to have been established at Malankara, was raised by any of these parties. The first Catholicos had died some time prior to the institution of that suit and the second Catholicos was installed only twelve years later. Thus there was no Catholicos in existence at the time of the suit, and that might probably have been the reason why none of the parties thought it necessary to raise the question of the validity of the Catholicate. Naturally, therefore, there has also been no issue on that question. The only issue which learned counsel for the respondents was able to point out as having some connection with this question is issue 27 in Ex. 255 case. Even this issue did not make any reference to the Catholicate or to any Catholicos. Such being the nature of the issues and pleadings in that case, it cannot be said that the question of the validity of the Catholicate was directly and substantially in issue in that suit so as to attract the principle of res judicata. The final judgment in that case is reported in 45 Travancore Law Reports 116 and it contains no definite finding as to whether any Catholicate had been validly established or not. In the absence of any such decision in that case about the validity of the Catholicate the plea of res judicata urged on behalf of the respondents cannot prevail. Certain observations contained in the final judgment are relied on by learned counsel for the respondents in his attempt to sustain the plea of res judicata. These observations happened to be made in disposing of an alternative contention raised on behalf of the appellants in that case for the first time when the appeal came on for final hearing at the second stage after the application for review had been allowed subject to certain reservations. The question of Mar Geevarghese Dionysius and his co-trustees, who were defendants 1 to 3 in that suit, having become ipso facto heretics and aliens on account of certain specified unlawful acts, and also the question of the status of Abdul Messiah as a lawful Patriarch, have also been dealt with in the observations referred to above. Since the findings on these two questions recorded in 45 TLR 116 are also relied on by the respondents as final and conclusive and as operating as res judicata in the present suit, it will be convenient to consider all these questions also at this stage. The contentions relating to these questions have been dealt with by Chatfield, C. J., at pages 185 to 192 of 45 Travancore Law Reports 116. In paragraph 34 at page 185 the Chief Justice has referred to the contentions urged by the appellants against Mar Geevarghese Dionysius. It was stated that himself and his party had repudiated Abdullah, the lawful Patriarch, and had accepted Abdul Messiah as the lawful Patriarch after he had been deposed and had co-operated with him when he ordained certain persons as Metropolitans and when he ordained one Mar Ivanios as Catholicos. The argument advanced on behalf of the appellants was that on account of such acts Mar Geevarghese Dionysius and his followers had seceded from the Jacobite Syrian Church in the year 1087 (1911 A. D.) and had set up a different Church. After referring to this argument, the learned Chief Justice observed that

The objection to the trusteeship of defendants 1 to 3 does not seem to have been stated in this form in the written statements of defendants 4 to 6 and 42.

This observation in itself is sufficient to show that the court need not have given a decision on the question of the validity of the Catholicate which was not raised in the pleadings. However, the learned Chief Justice went further and stated as follows:

In any case it is not contended that the appointment of a Catholicos is a thing which is in itself forbidden and to work for which is a sign of disloyalty to the Church. In the Canon "of Nicea" as given on both Exs. A and XVIII there is express provision for a great "Metropolitan of the East" who was to have power like the Patriarch, to consecrate Metropolitans in the East. All that can be urged against the first defendant, therefore, is that he co-operated with one who was not a valid Patriarch when the latter was doing acts which could only be done by a Patriarch or at the worst that he caused this unlawful Patriarch to do such acts. It is conceded by defendants that if Abdulla had done these acts there would have been no objection. Therefore the whole matter resolves itself into a personal dispute between two claimants to the Patriarchate in which it is said, the first defendant deserted the Patriarch who had created him Metropolitan and supported his rival. Such conduct might amount to an ecclesiastical offence for which the offender could be deprived by his ecclesiastical superior but it could not be an offence for which the civil courts could try him or express any opinion as to his guilt.

From this passage it is clear that the learned Chief Justice was considering the conduct of Mar Geevarghese Dionysius even on the assumption that Abdul Messiah had ceased to be a lawful Patriarch. From the subsequent portions of the judgment also it is clear that the learned Chief Justice did not think it necessary to record a finding as to whether Abdul Messiah had been validly deposed or not. It is also significant to note that the judgment did not make any reference at all to the establishment of a Catholicate in Malankara, but merely referred to the appointment of a Catholicos. The only definite finding recorded was that the acts attributed to Mar Geevarghese Dionysius and his supporters would not result in their becoming ipso facto heretics or aliens even though they may become heretics and aliens on their being tried and found guilty by their ecclesiastical superior.

22. Still another aspect stressed on behalf of the respondents is that the concessions said to have been made on behalf of the appellants in 45 TLR 116 amounted to an admission that a Catholicate had been established in Malankara. This argument is based on one particular sentence contained in the passage extracted above which is this:

It is conceded by the defendants that if Abdulla had done these acts, there would have been no objection.

The exact form and scope of the concession made by learned counsel for the appellants is not clear from the sentence. In the immediately preceding sentence all that is stated is that Mar Geevarghese Dionysius had co-operated with one who was not a valid Patriarch when the latter was doing acts which could only be done by a Patriarch. Going back still further, it may be seen that the unlawful acts attributed to Abdul Messiah were that he ordained certain persons as Metropolitans and in particular ordained one Mar Ivanios as Catholicos. This inference itself is the result of a speculation in view of the vagueness and ambiguity of the statement regarding the concession said to have been made on behalf of the defendants. A party cannot be concluded or bound by any such vague and ambiguous statement made by his counsel. The counsels authority to make admissions or concessions on behalf of his client is strictly limited to matters directly arising out of the pleadings in the suit. Any opinion expressed by a counsel in the course of his argument on hypothetical questions or extraneous matters cannot be raised to the level of admissions or concessions binding on his client. The so-called concession already referred to falls under this category. The counsels engagement in a particular case will not empower him to make admissions or concessions on behalf of his client in respect of matters falling outside the scope of that particular case. Even apart from these aspects, it is seen that the concession referred to above was only in respect of the powers of Patriarch Abdulla. The utmost limit to which that concession could be pushed up is that it was admitted that there would have been no objection if the ordaining of certain persons as Metropolitans and the ordaining of Mar Ivanios as Catholicos had been done by Abdulla, the ruling Patriarch at the time. This can only mean that the followers of Abdulla would not have questioned his act in conferring such personal dignities on individuals and not that it was within the competence of a ruling Patriarch by himself to establish a Catholicate or that Abdul Messiah was a lawful Patriarch. Chatfield, C. J., and the two other learned Judges who participated in the decision in 45 TLR 116 did not construe the matter in any other light.

23. All the three judges who decided the case in 45 Travancore Law Reports 116 expressed the opinion that the acts and conduct of Mar Geevarghese Dionysius and his followers did not ipso facto make them heretics and aliens to the Church but would only amount to ecclesiastical offences, the consequences of which had to be duly determined by ecclesiastical authorities. They also took the view that the court could not inquire into the question of heresy or schism. In referring to this matter, Chatfield, C. J., stated that

it could not be an offence for which the civil courts could try him or express any opinion as to his guilt.

Thaliath, J., expressed his opinion as follows: "Ordinarily it is for the ecclesiastical tribunals to pronounce whether a person is guilty of an ecclesiastical offence and what the consequences are if one is found guilty. The decisions of secular courts with respect to ecclesiastical matters by the very nature of things, cannot be very satisfactory. We have also to consider the probable inconvenience that will result from the temporal courts determining whether a person is guilty of an ecclesiastical offence in the absence of any declaration made by proper ecclesiastical tribunals.

In referring to the conduct of Mar Geevarghese Dionysius Parameswaran Pillai, J., expressed himself thus:

At best what he did was when Abdulla and Abdul Messiah both claimed to be the Patriarchs of Antioch, he acknowledged the latter as the true Patriarch in preference to the former. If he was wrong in this, he has committed a spiritual offence for which his spiritual superiors might punish him in a proper proceeding. This court has nothing to do with his spiritual offence.

On the strength of these observations it is argued on behalf of the respondents that it was decided in 45 TLR 116 that the court has no jurisdiction to go into the question of heresy and apostasy and that the said finding operates as res judicata in the present suit. All that has been stated in 45 TLR 116 is that the civil court has nothing to do with spiritual offences as such. This view is not open to objection in its broader aspect. But where the commission of spiritual offence has a direct bearing on the question of the offenders right to property, the civil court will have the undoubted jurisdiction to go into the question of the consequence of the commission of the spiritual offences to the extent they affect the offenders right to the property. This aspect appears to have been noticed by Thaliath, J., when he stated that

ordinarily it is for the ecclesiastical tribunals to pronounce on the consequences following from the commission of ecclesiastical offences.

The learned judge appears to have thought that it will be inconvenient for the civil court to inquire into such matters and that the decision of secular courts regarding the same may not be very satisfactory. These observations will indicate that the civil court has jurisdiction to go into such matters in appropriate cases. It cannot therefore be said that a definite decision was recorded that the civil court has no jurisdiction under any circumstance to go into that question. The extent of the civil courts jurisdiction is specified in section 9 of the Code of Civil Procedure where it is stated that "the courts shall, (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred". In the Explanation to that section it is stated that "a suit in which the right to property or to an office is contested a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies". In view of this Explanation, it cannot be said that the court has no jurisdiction to go into the question of heresy or schism where such heresy or schism has a direct bearing on the right of the party concerned to property or to an office. The decision in 45 TLR 116 does not expressly state that such a jurisdiction does not exist. Even if that decision is capable of sustaining such a construction, that decision cannot be a bar to a different court exercising the jurisdiction vested in it under law when the question of heresy and schism is again raised. All that appears to have been done in that case is that the court declined to exercise its jurisdiction to go into the question of heresy and schism, the reasons stated being that it was for the spiritual superiors to deal with such ecclesiastical offences and that an inquiry into that matter by the civil court may be inconvenient and unsatisfactory. The decision not to exercise the courts jurisdiction for such reasons cannot operate as res judicata because it was only a case of refusal to exercise jurisdiction. Reference may be made in this connection to Upendra Nath v. Lall (: AIR 1940 PC 222 [LQ/PC/1940/50] to 225) where the following dictum was laid down:

A court which declines jurisdiction cannot bind the parties by its reasons for declining jurisdiction: such reasons are not decisions, and are certainly not decisions by a court of competent jurisdiction. It would indeed be strange if on a dispute as to the jurisdiction of a court to try an issue, that court by its reasons for holding that it had no jurisdiction, could, upon the principle of res judicata, decide and bind the parties upon the very issue which it was incompetent to try.

Viewed in all these aspects, it is clear that there is nothing in the decision in 45 TLR 116 which would stand as a bar of res judicata against the plaintiffs in the present suit from agitating the question of heresy and schism as against the defendants. All the same, it has to be pointed out that the plaintiffs have not invoked the jurisdiction of the court to go into that matter. There is no prayer in the plaint that the court should inquire into the matter and declare the defendants to be guilty of heresy and schism and thus disentitled to any benefits out of the plaint trust. On the other hand, the definite stand taken in the plaint is that on account of the acts and conduct of the defendants, they have ipso facto become heretics and aliens of the Malankara Church. On this question there is a definite decision in 45 TLR 116 and it is in favor of the defendants. The plaintiffs are barred by the rule of res judicata from raising the same question in the present suit.

24. One other point raised on behalf of the appellants may also be disposed of at this stage and that is about the applicability of the principles laid down in Free Church of Scotland v. Overtoun ( (1904) AC 515) to the facts of the present suit. According to the respondents, the plaintiffs are barred from invoking those principles on account of the decision in 45 TLR 116. We see no force or substance in this argument. Consistent with the finding in 45 TLR 116 that Mar Geevarghese Dionysius and his followers had not ipso facto become heretics and aliens to the Malankara Church, it was found that they continued to be members of the Church and cannot be said to have voluntarily separated from it and to have established a new Church of their own. It was because of these findings in that case that the court held that the principles enunciated in the Free Church case had no application to the facts of that case. That finding cannot have the force of res judicata in the present suit, where the case of voluntary separation is sought to be made out on a different set of facts and circumstances and mainly on the strength of the new constitution embodied in Ex. AM. The question of the applicability of the Free Church case will therefore depend on the question as to how far the voluntary separation and the formation of a new Church is made out in this case.

25. On a consideration of the several aspects dealt with above, we have come to the conclusion that the plea of res judicata urged on behalf of the respondents on the strength of the decision in 45 TLR 116 can prevail only in respect of the finding in that case that on account of the acts and conduct attributed to the defendants, they cannot be said to have ipso facto become heretics and aliens to the Malankara Church and not in respect of the question relating to the validity of the Catholicate said to have been established in Malankara, or as to the question whether Abdul Messiah had ceased to be a Patriarch at the relevant period, or as to the question whether the defendants and their partisans have voluntarily separated from the Malankara Church and established a new Church of their own.

26. Two other questions which have an important bearing on the validity of the Catholicate relied on by the defendants are: (1) which was the canon that was recognized and followed by the members of the Malankara Church at the time of the formation of the plaint trust and (2) whether Abdul Messiah had been effectively removed from his office as Patriarch before Abdulla was appointed as his successor The validity of the Catholicate may be examined after dealing with these two questions also.

27. The 13th issue in the case is the issue pertaining to the canon. The question has been formulated thus: "Which is the correct and genuine version of the Hoodaya Canons compiled by Bar Hebreaus Whether it is the book marked as Ext. A or the book marked as Ext. XVIII in O. S. 94 of 1088" Ex. 255 is the trial courts judgment in the case referred to in the issue, and the final judgment in that case is reported in 45 Travancore Law Reports 116. The book of canons produced in that case and marked as Ex. A, is the same as Ex. XXVI produced in the present suit and relied on by the defendants. This is a book printed and published in Paris in the year 1898. Ex. BP produced in this case and relied on by the plaintiffs, corresponds to the book of canons that had been produced in O. S. No. 94 of 1088 and marked as Ex. XVIII. Neither Ex. BP nor Ex. XXVI is an authorized publication of the canons and there is no conclusive evidence in this case to prove the genuineness or the authenticity of either of them. Excepting Ex. XXVI which was printed and published in the year 1898, all the other books of canons produced in this case on either side are only manuscript books. The book of canons compiled and codified by Bar Hebreaus is not available and neither side can confidently assert that the books relied on by it is a true and correct copy of the canons collected and codified by Bar Hebreaus. Thus the attempt to find out which is the true version of the canons cannot lead to any satisfactory result. It may also be mentioned here that a definite answer to this question is not necessary for the purposes of this case. In fact, neither side has taken the trouble of getting the whole of Ex. BP and XXVI translated and placed before the court for its consideration. Both sides have placed reliance only on certain portions of these books which have some sort of relevancy to the points that arise for consideration in this case. It is also seen that at the time of arguing the case in the lower court the advocates on both sides conceded that the question as to which of the two rival versions of the canons is the true and correct one, need not be decided as a comprehensive question. This is so stated in paragraph 183 of the lower courts judgment. What is really relevant for the purposes of this case is to find out which is the version of the canons that had been accepted and followed by the Malankara Church at the time when the plaint trust originated and thereafter up to the time when dissensions arose among the members of Church. The suits which ended with the decisions in Exs. DY and FN were two of the earliest suits which arose out of the dissensions among the members of the Church, The first of these suits was instituted in the year 1061 M. E. (1885 A. D.) and the next suit was instituted in the year 1069 M. E. (1894). In both these suits there were disputes about the position and authority of the Patriarch of Antioch in relation to the Malankara Church and for the purpose of resolving such disputes, the canons that were accepted and followed by the Malankara Church had to be considered. Ex. XXVI happened to be printed and published only some years later and hence could not be produced and considered in those cases. But the position taken up by the respondents is that manuscript copies which correspond to Ex. XXVI were available to the members of the Malankara Church and were being used by them even during the earlier period. Exs. 68, 104, 153, 156, 157, 216, 217 and 218 are put forward as manuscript copies of canons that were thus available to the members of the Malankara Church. There is no reliable evidence to prove the authenticity of these documents or that they were accepted as genuine by the Malankara Church. Exs. 153, 156 and 157 were produced by D. W. 24 who is the son of deceased Kora Mathan Malpan who figured very prominently in 41 Travancore Law Reports case. These books are stated to have been found in the library of this Malpan and D. W. 24 claims to have come into possession of the library after the death of his father and to have produced this book from that library. Certain notes are seen to have been made in Ex. 153 and these notes have been separately marked as Exs. 153 (a), 153 (b), 153 (c) and 153 (d). The respondents version that these notes were made by Kora Mathen Malpan was sought to be proved through D. W. 24. This witness has not seen his father making these notes in Ex. 153. He was not also in a position to assert that these notes are in the handwriting of his father. All that he was able to state is that the handwriting in these notes looks like the handwriting of his father. Thus it cannot be said that the aforesaid entries have been proved to be made by Kora Mathen Malpan or that the statements contained in those entries are true. The evidence of D. W. 25 who is stated to have been a disciple and an assistant of Kora Mathen Malpan, cannot also be accepted as satisfactory and convincing so far as the genuineness of these entries is concerned. The fact that Exs. 153, 156 and 157 contain the seal of Kora Mathen Malpan is also not of great significance so long as there is no direct proof as to when and by whom the seals were affixed on these books. It could have been done either during the life time of the Malpan or after his death by somebody who had the custody and control of the seal. Even assuming that these books were among the volumes collected in Malpans library, no inference will follow that they are true copies of the canons or that they were accepted and followed by the Malankara Church. Ex. 153 (a) entry is to the effect that the book was given to Malpan by Kadavil Mar Athanasius. No particular inference can be drawn from such an entry. The best that can be inferred is that Kora Mathen Malpan was interested in collecting as many of manuscripts purporting to be copies of the Hoodaya Canons for the purpose of his own research and study. All these manuscripts are in Syriac and D. W. 30 has compared them and has prepared Ex. 263 statement showing the points of similarity and difference noticed in these books. It is stated that on most of the material points these different volumes agree with one another. This also cannot be a circumstance leading to the inference that the books are genuine or that they were being followed by the Malankara Church. As for points of similarity, Exs. BP and 26 also stand on the same footing and it is only in respect of a few of the canons incorporated in them that they are seen to be divergent. Ex. 68 is another manuscript copy relied on by the defendants and stated to have been prepared by Mar Gregorius of Marumala, and the note to that effect at the end of the book is marked as Ex. 68 (a). D. W. 27 has stated at pp. 46 and 63 of his deposition that the book is in the handwriting of Mar Gregorius. At p. 24 of the deposition of D. W. 28 he too has stated so. These witnesses are not expert witnesses and hence their assertion that Ex.68 is in the hand writing of Mar Gregorius is not entitled to much weight. Assuming that the book was written by Mar Gregorius, it is not known from what original document he prepared Ex. 68. All that can be said is that several manuscripts appear to have come into existence purporting to be copies of the Hoodya canons compiled by Bar Hebreaus. One significant fact about these manuscripts is that no two of them agree in all particulars. The variations found in these manuscripts would indicate that the faith and the inclinations of those who prepared the manuscripts have undoubtedly played a great part in shaping some of the canons, at least to fit in with their own faith and inclinations. The basis of Ex. 26 is one such manuscript that was available in the Paris library. The introduction to the book Ex. 26 has been marked as Ex. FM and therein Paul Bedjan, the publisher of the book has given an account of the difficulties he had to face in his attempt to get at the correct version of the canons compiled by Bar Hebreaus. He has stated that the copy that was available in the National Library at Paris was compared with the manuscript kept in the Vatican Library. It is also stated that the manuscript kept in the British Museum does not contain the same text as found in the copy secured from the Paris National Library. In another portion of Ex. FM there is a statement as follows:

We profess the greatest regard for Bar Hebreaus and recognize very high importance of his Nomo Canon as a scientific work. However we ought to admit that his works contain some errors. We have undertaken the task of correcting them to some extent by short notes placed at the bottom of the pages. But it was not possible for us to multiply them in such a manner as to remove all difficulties. We shall content ourselves by making certain observations in the interest of our readers and we recommend them to make its study with the greatest discernment and use the greatest discretion in teaching this work to the students.

These remarks at any rate indicate that it will not be safe to hold that Ex. 26 contains a true and correct version of the canons as compiled by Bar Hebreaus. All the same, it is seen that when printed copies like Ex. 26 became available, they were freely used for reference. There is noting surprising in this because Ex. 26 is the only printed publication of the canons available for general use and excepting for certain canons the correctness of which is disputed, the rest of the book agrees with other manuscripts also. But it has to be remembered that the printed publication became available only in the year 1898. Necessarily, therefore, manuscript copies alone must have been in use prior to 1898. Merely because the manuscript copies like Exs. 153, 156, 157 and 68 agree with Ex. 26 to a larger extent than Ex. BP, it cannot be presumed that the manuscript copies produced by the defendants were those which were accepted and followed by the Malankara Church.

28. As already stated, the earlier litigations evidenced by Exs. DY and FN in relation to the Malankara Church and its properties had commenced some years prior to the printing and publication of Ex. 26. There was great controversy in those cases about the position and power of the Patriarch of Antioch, and for the purpose of determining that controversy the canons that were accepted by the Malankara Church had necessarily to be considered. Mar Joseph Dionysius figured as the plaintiff in both those suits in his capacity as the Malankara Metropolitan. His claim in those suits was opposed by Mar Thomas Athanasius. To substantiate the contentions put forward by Mar Joseph Dionysius in Ex. DY Case that the ordination of the Metropolitan had to be done by the Patriarch of Antioch or his delegate and that the Patriarch alone had the power to consecrate Morone, the book of canons accepted by the Malankara Church was produced on his side and was marked as Ex. EEE. On a consideration of the overwhelming evidence in that case, these contentions were upheld in the majority judgment and it was also found that the faith of the Church in respect of these two matters was quite in conformity with the provisions contained in Ex. EEE of that case. Similar provisions are contained in Ex. BP also produced in the present suit. According to the defendants, great difficulties were being felt by the Malankara Church in getting down Morone from Antioch for use in the Church and it was for solving this difficulty that the Church was making repeated demands for the installation of a Catholicate at Malankara. If really the Church had accepted Ex. 26 or any other manuscript corresponding to it as the book containing the true canons of the Church, there would have been no occasion for the Church to feel any difficulty in the matter of Morone so as to compel them to ask for a Catholicate. As per the provisions in Ex. 26, Morone could be consecrated by the Patriarch or by the Catholicos or even by the Metropolitan. Since Metropolitans were always available at Malankara, they could consecrate the Morone and supply the same to the Churches. The fact that the attention of the Church had at no time turned in that direction, leads to the irresistible inference that the people in Malankara never thought that Morone could be consecrated by the Metropolitan. In other words, Ex. 26 or any corresponding book containing a provision authorizing the Metropolitan to consecrate Morone, had not been accepted by the Malankara Church as the genuine canon binding on the Church. The same is the effect of the decision in Ex. FN where also the contentions put forward by Mar Joseph Dionysius were upheld. Ex. EEE produced in Ex. DY case was not produced in 41 T. L. R. case, nor has it been produced in the present suit. The explanation offered in 41 T. L. R. case for the disappearance of that book has been considered in paragraph 35 at pp. 26 and 27. Kora Mathen Malpan, the fifth defendant in that case, appears to have explained as to how Ex. EEE of that case and another manuscript copy of the canons had been brought to Malankara by Simon Athanasius, a delegate of the Patriarch, and some other Bavas who had come from Turkey. It was the manuscript copy which was available with those Bavas and which had been given to his ancestors that was produced in Ex. DY case according to him. That book again came into the hands of Mar Joseph Dionysius for the purpose of production in another case. Kora Mathen Malpan wanted a return of that book for his own use as a teacher. Since the book was not then available with Mar Joseph Dionysius he obtained the other manuscript copy that was in the possession of Simon Athanasius and handed it over to Kora Mathen Malpan. This is the book which was produced and marked as Ex. XVIII in the 41 T. L. R. case and subsequently produced in the present case and marked as Ex. BP. The source from which the manuscript copy Ex. BP was obtained was thus explained and that explanation was accepted by the High Court in 41 T. L. R. case. The suggestion put forward by the other side that it is a book written in the handwriting of Mar Eustathius, a delegate of the Patriach, was also discarded as baseless. The reasonings adopted in paragraph 35 of 41 T. L. R. 1 appear to us to be convincing and hence we also accept the aforesaid conclusions as correct. The canon book produced as Ex. 18 in that case had been produced in a few other cases on prior occasions, i. e., in O. S. 1402 of 1063 of the Quilon District Munsiffs Court, Sessions Case No. 9 of 1069 of the Quilon Sessions Court, Summary Case No. 1 of 1087 of the Muvattupuzha Magistrates Court and O. S. No. 66 of 1088 of the Trichur District Court, Ex. 68, the manuscript copy prepared in the handwriting of Mar Gregorius, Metropolitan of Niranam, was also produced in 41 T. L. R. case to make out that long prior to the publication of Ex. 26 a similar version of the canons was in use at Malankara. In dealing with this document it was pointed out in paragraph 37 of 41 TLR 1 that the document saw the light of day only after the controversies in that case arose and that no satisfactory explanation was forthcoming for its non-production in Ex. DY case. It was also pointed out that if Ex. 68 was the canon accepted by the Malankara Church Mar Joseph Dionysius would not have suppressed it and would not have been instrumental in fabricating a book of spurious canons and producing the same as genuine and getting the same marked as Ex. EEE in Ex. DY case. One point urged against the reliability of Ex. BP is that it contains erasures and over-writings. This matter was also fully considered in 41 TLR 1 and ultimately the High Court came to the conclusion that the erasures and over-writings were only in respect of certain headings and marginal notes and not in respect of the text of the canons incorporated in the book. Whoever was responsible for such erasures and over-writings, it is clear that the same were done to fit in with his own ideas as to the source of the canons. At the same time it is significant to note that he did not dare to interfere with the text of canons. If the idea was to put forward a spurious document as a genuine one, a book like Ex. BP could have been brought into existence without any erasures and over-writings in it and put forward as the manuscript copy of the canons. But that was not done in the case of Ex. BP. Even though the erasures and over-writings were there even before its first production in court, the document was produced in that condition. This is a circumstance in favor of the truth of the version given by Kora Mathen Malpan that the book brought from Turkey by Simon Athanasius, the delegate of the then Patriarch, and handed over to Mar Joseph Dionysius. Great reliance was placed by the respondents learned counsel on Ex. 28, the kalpana issued by Patriarch Abdullah excommunicating Metropolitan Julious Alwaris. It is pointed out that the provision relied on by the Patriarch in Ex. 28 for sustaining his order of excommunication is that contained in Ex. 26 but not in Ex. BP. From this it is argued that Ex. 26 was accepted as containing the true canons. Ex. 28 kalpana was issued at a time when Abdulla was about to leave Malankara. A printed copy like Ex. 26 must have been readily available and that was made use of for the purpose of framing the charge against Julios Alwaris. From this fact alone it cannot be assumed that the canons incorporated in Ex. 26 are the canons which were accepted by the Malankara Church all through the ages. It has to be remembered that Ex. 28 kalpana was issued as late as in the year 1911. The mere fact that Ex. 26 happened to be relied on for the purpose of issuing the kalpana Ex. 28, cannot be given so great a significance as to outweigh the legitimate inference arising from the other outstanding facts and circumstances clearly indicating that the canons incorporated in the manuscript copy Ex. BP had all along been accepted by the Malankara Church as the true canons binding on the Church. It may also be stated here that even at the time of the Mulanthuruthy Synod held in the year 1876 A.D., it was felt that it would be desirable that for the proper guidance of the Churches, a book containing the canons to be followed by these Churches is prepared by the Patriarch himself and authenticated copies of the same issued to each Church. But it appears that no steps in that direction were taken during the several years that followed. But at the request of P. W. 17 a manuscript copy of the canons was sent to him by the Patriarch in the year 1929. He has deposed to that fact and has produced Ex. BO as the authenticated copy of the canons received from the Patriarch. The lower court in paragraph 186 of its judgment has practically discarded Ex. BO and has gone to the extent of doubting whether it was sent by Mar Elias, the Patriarch, and whether the seal found on the book was really affixed by the Patriarch. The learned judge has also observed that Ex. BO might have been prepared by P. W. 17 himself without the Patriarch having had anything to do with it. We cannot agree that these remarks are justified. Apart from the question whether Ex. BO was received along with the Patriarchs letter Ex. CC. or some time later, there is no reason to doubt the fact that the book was sent to P. W. 17 by the Patriarch. All the same, the issue of such an authenticated copy of the canons at such a late stage cannot be ignored. Ex. BO by itself cannot therefore by of any great importance in making out that the canons accepted by the Malankara Church from very early times are those contained in Ex. BP. The fact that the authenticated copy of Ex. BO issued by the Patriarch agrees with Ex. BP will go to show that the canons contained in books have the approval of the Patriarch. The several circumstances leading to the inference that the canons accepted by the Malankara Church are those contained in Ex. BF have been already delt with. The conclusions reached in all the prior litigations pertaining to the Malankara Church, particularly those evidenced by Exs. DY, FN and 41 TLR 1 about all the aspects relating to Exs. BP and 26 and ultimately the High Court held that the canons accepted and followed by the Malankara Church are those contained in Ex. BP. We have carefully gone through such discussions and we see no reason to differ from the conclusions reached in that case. Accordingly we accept the conclusion recorded therein as also the reasons in support of the same.

29. Apart from the great evidentiary value given to the finding in 41 TLR 1 on the question of the canons accepted and followed by the Malankara Church during the relevant period, the legal effect of that finding may also be considered. The main question that was agitated in that appeal was whether the order of excommunication passed by Patriarch Abdullah against Mar Geevarghese Dionysius was valid and effective. The Metropolitan contended that the Patriarch by himself had no authority under the Canon law governing the Jacobite Church to issue such an excommunication order and that the order was also bad in so far as it had violated the rules of natural justice. In dealing with these contentions it became necessary for the court to consider the question of the canon law binding on the Church and that was how the question whether Ex. A or Ex. 18 of that case contained the canons accepted by the Church loomed so large in that case. The Full Bench answered the question in favor of Ex. 18 and in the light of that finding proceeded to examine the further question whether the rules of natural justice had been complied with while passing the excommunication order. That question was also answered in the affirmative and accordingly the appeal was allowed by holding that Mar Geevarghese Dionysius and his co-trustees had become incompetent to continue as trustees. The court did not therefore think it necessary to express any opinion upon the question whether Mar Geevarghese Dionysius had become schismatic or alien to the Jacobite faith by the repudiation of Patriarch Abdullah and the recognition of Abdul Messiah as Patriarch. Metropolitan Mar Geevarghese Dionysius applied for a review of the decision in 41 TLR 1. The order admitting the review petition is extracted at page 136 of 45 T. L. R. and it shows that the review was admitted subject to certain conditions. Chatfield, C. J., who admitted the review, has stated those conditions in the following terms:

... I would make it a condition as to the admission of the review that on the re-hearing, the findings recorded as to the authenticity of Ex. A and Ex. 18, as to the power of the Patriarch to excommunicate without the intervention of the Synod and as to the absence of an indirect motive on the part of the Patriarch which induced him to exercise his powers of excommunication, must be taken as binding. Subject to these conditions, the review is admitted, and the case will be posted before a Full Bench.

When the appeal thus came for re-hearing before the Full Bench, the respondents filed another application praying that the restrictions and limitations imposed by the order admitting the review may be removed and the whole case treated as reopened. By the order passed by the Full Bench on that application, the conditions already imposed were re-affirmed and Chatfield, C. J., observed as follows:-

On the considerations above mentioned, I would refuse to allow the petitioner to re-open any of the points as regards which the order admitting the review states that the findings contained in the original judgment must be taken as binding, except to the following extent. If it is found that any of these questions is so logically connected with the questions relating to natural justice that the latter questions cannot be properly dealt with without considering such excluded questions, then for this purpose and for this purpose alone the excluded questions may be considered. Subject to this reservation, I would dismiss this petition.

The other two learned Judges, Thaliath, J., and Parameswaran Pillai, J., also concurred in that order. The final judgment passed as a result of the re-hearing of the appeal subject to the restrictions mentioned above and reported in 45 TLR 116, shows that in considering the question of natural justice, it did not become necessary for the court to re-open the findings on the three points, which were treated as final and conclusive, as per the order admitting review. The appellants, however, were allowed to argue the question whether defendants 1 to 3 had become aliens to the faith of the Jacobite Church. This was a matter which was left open by the earlier judgment reported in 41 TLR 1. Regarding the findings expressly excluded from the scope of the review. Chatfield, C. J., has made the following observation in his final judgment (45 TLR 116 at page 139).

The plaintiffs on the other hand have failed to show that any of the questions which have been declared to be excluded from the consideration at the re-hearing are inseparably connected with those questions and thereupon in disposing of this appeal the excluded questions will not be referred to.

These reservations have to be kept in mind in understanding the observations made by all the three Judges at the concluding portions of their judgment in 45 TLR 116. In view of their decision that rules of natural justice were not observed in passing the order of excommunication against Mar Geevarghese it was stated that it is unnecessary to consider the other questions in the case. It is obvious that this observation was made in respect of the questions which the court was competent to consider at the final hearing and not to any of the three questions expressly excluded from such consideration as per the conditional order admitting the review. The findings on those three questions cannot therefore be deemed to have been re-opened. It cannot also be taken that those questions were left open. In view of the observation at page 139 of 45 T. L. R. that "in disposing of the appeal, the excluded questions will not be referred to", it has to be taken that the findings on the three excluded questions were left in tact even by the final judgment in 45 TLR 116.

30. One of the three findings referred to above was in respect of the authenticity of the books of canons which had been marked as Exs. A and 18 in that case. The finding was to the effect that Ex. 18 contained the version of the Canon law that had been recognized and accepted by the Malankara Jacobite Syrian Christian Church as binding on it. It was also found that under the Canon law the Patriarch had the power of ordaining and excommunicating Metropolitans by himself and without the intervention of a Synod. The question is whether these findings recorded in a representative suit, to which both the rival sections of the Syrian Christian Community of Malankara were made parties, do not operate as res judicata in the present suit where the question of the canons of the Church is again raised. The position in respect of the decision in 45 TLR 116 is not that of an ordinary case where the first decision was reviewed and set aside by the second decision. In such a case it may not be possible that any of the findings in the first decision survives so as to attract the rule of res judicata in a subsequent suit. The rulings governing cases of that type cannot have any application to the peculiar situation disclosed by 45 TLR 116 where the finding recorded in the earlier decision on the question of the canons was accepted as final and as remaining in force even after the final judgment was passed after review of the earlier decision. In fact, the question of natural justice was argued at the final hearing of the appeal on the basis that the earlier decision on the authenticity of the canons embodied in Ex. 18 is maintained. The contention of Mar Geevarghese Dionysius was that a Patriarch by himself has no power to excommunicate a Metropolitan and that such an order of excommunication could be passed only with the concurrence of the Synod. This question had to be decided in the light of the Canon law governing the Church. The court found that the Canon law is that embodied in Ex. 18. If that finding was not maintained and if the court were to uphold that the Canon law was different and that the Patriarch by himself had no power to excommunicate the Metropolitan, the order of excommunication passed by Patriarch Abdulla could have been declared invalid for that very reason and there would have been no necessity or occasion for the court to go into the question whether Abdulla had observed the rule of natural justice in passing the excommunication order. In the final judgment after review the question of natural justice alone was considered and decided and this means that the earlier finding on the question of canons, which was a matter directly and substantially in issue in the suit, was accepted as correct even for the purpose of the final decision on the question of natural justice. Thus by implication the finding on the question of the canons forms an integral part of the final decision in 45 TLR 116 because, without maintaining that finding, the question of natural justice could not have arisen at all. A finding on a question which is so vitally and intimately connected with the final decision passed in the suit, will operate as res judicata just as the final decision itself in a subsequent suit where the same question is raised between the same parties or those claiming under them. The decisions in Kaveri Ammal v. Sastri Ramier ILR 26 Mad 104 and in Mota Holiappa v. Vithal Gopal ILR 40 Bom 662 are in support of this position.

31. In another view of the matter also, the finding recorded in 41 TLR 1 on the question of the canons accepted by the Malankara Church as binding on it, must be held to be conclusive and final for the purpose of this suit also. The order on the review petition expressly stated that such a finding must be taken as binding. That order was confirmed by another order passed on a petition to remove the said restriction. These orders were passed by the final court after fully hearing the parties. Apart from the question as to the validity or the correctness of those orders, the fact is there that they have become final as between the parties to that suit which was a representative suit. Those orders by themselves have the force of res judicata in respect of the findings on the question of canons attempted to be re-agitated in the present suit. Thus in any view of the matter it has to be held that the canons accepted by the Malankara Church as binding on it are those embodied in Ex. BP and not those embodied in Ex, 26.

32. The question as to whether Patriarch Abdul Messiah had been validly and effectively removed from his office before Abdulla II was elected and installed as the successor Patriarch, may now be considered. It is common ground that Abdul Messiah became Patriarch in the year 1895. In July 1905 the Edavaga-patrika, a magazine that was edited and published by E. M. Philip, the Secretary of the Malankara Association, published a report about the news of the deposition of Abdul Messiah. That report has been marked as Ex. III (a). This was followed by another report Ex. III (b) that news had been received that Dionysius Behenam Metropolitan of Mosul, had been elected as Kaimakham to attend to the administrative duties pertaining to the office of the Patriarch pending the election of a new Patriarch. In the Edavagapatrika of Chingom 1081 (August 1905) another report Ex. IV (a) was published to the effect that Abdul Messiah had been deposed under the orders of the Sultan of Turkey and that the Metropolitan of Mosul has since been discharging the administrative functions of the Patriarch. It was also mentioned in that report that on being required to install a Patriarch with full powers, an assembly for the election of a Patriarch had been decided to be convened and notices regarding the same had been received at Malankara also. The purport of the notice was mentioned to be that the Malankara Metropolitan should either attend the meeting or communicate his views. In the next report Ex. V (a) which appeared in the 1906 July issue of the magazine, it was mentioned that Abdullah had been unanimously elected as the Patriarch by the Synod and his election was approved by Government and that his installation as Patriarch would take place soon. The letters Exs. 75 to 77 received by Mar Joseph Dionysius at about the same time also contain references about the arrangements for the election of a new Patriarch and also about the actual election of Abdullah. Ex. BZ report published in the 1906 August issue of the Edavagapatrika, stated that Abdullahs election was unanimous and all people were happy at it. Ex. DW is a letter dated 2-9-1906 by Mar Geevarghese Dionysius and therein he has expressed great joy and satisfaction at the election of Abdullah as Patriarch. Exs. F and BU are other reports published in the Edavagapatrika of September 1906 and December 1907 and therein also specific mention is made about the installation of Abdullah as Patriarch and of the intimation of that matter given to the various Churches. These documents make it abundantly clear that the Malankara Church had timely information about the deposition of Abdul Messiah and of the subsequent election and installation of Abdullah and that at that stage nobody had any complaint about the removal of Abdul Messiah from office or about the installation of Abdullah as successor Patriarch. In fact the report in Ex. F was intended to dispel the feeling in some quarters that it was the Turkish Sultans displeasure that resulted in the deposition of Abdul Messiah. The following extract from Ex. F is significant in that connection.

Information has reached us from other quarters that it is not on account of the resentment of the Government, but that the interference of the Government was in response to complaints from the people and the Metrans expressing the discontentment of the Community. Whatever might have been the reason, that he had to abdicate his position is certain. Thereafter it was Mar Dionysius Behenam, Metropolitan of Mosul who, by virtue of election by Yogam (assembly) was exercising the temporal (administrative) functions of the Patriarch. It is about two years since there had been any one to exercise the spiritual powers pertaining to the Patriarch, such as the ordination of Melpattakkars and the consecration of Morone. Therefore it was decided to convene an assembly for the election of a permanent Patriarch and invitations were issued to all the Idavagas. Among them our Valla Thirumeni (Mar Joseph Dionysius) too has bad two or three letters in succession requesting him to invite the Melpattdkkars in Malankara. But His Grace replied expressing "concurrence (of Malankara) in the decision of the General Assembly to be held at the Thronal Diara.

On meeting being held, it was His Holiness Mar Gregorius Abdullah who was chosen with one accord. This choice having been approved by the Turkish Government, he has been installed as Moran Mar Ignatius Patriarch, on the Day of Ascension of the Virgin, corresponding to 15th Chingom according to the Syrian calendar. We know this, from the telegram received by His Grace, from the Administrator Mar Behenam Metropolitan.

Ex. F (1) Kalpana issued by the Malankara Metropolitan on receiving the news of the installation of Abdullah as Patriarch gives an idea as to how such an installation was accepted by the Malankara Church. The kalpana runs as follows:-

From Mar Dionysius, Metropolitan of Malankara

To The Vicars of all the Churches, clergy of the land, trustees of the Churches, and all people in Malankara; blessings to you all.

Beloved,

We rejoice to inform you that a telegram from Diabucker reached Us yesterday, from Metropolitan Mar Dionysius Behenam, to the effect, that on the 15th instant, the Most Reverend Mar Gregorius, Metropolitan has been installed as Patriarch, on the throne of Antioch. We exhort you to pray that God may vouchsafe to this our Blessed Father, long life and enable him to administer our Churches, in all righteousness. Rest in due course.

May the plenitude of Grace and blessings of God Almighty be with you for ever.

This kalpana was issued on the 24th day of Chingom 1906. The mention of the Malayalam month along with the year according to the Gregorian calendar may appear to be curious. But from the numerous documents produced in this case it is clear that such a curious system was being followed at Malankara. These documents give no room for doubting the validity and the propriety of the election of Abdullah as Patriarch. It was not a case of his being imposed on the Syrian Church by the Turkish Sultan. On the other hand, the Turkish Government had only approved of Abdullahs election by the unanimous vote of the assembly of Metropolitans and had issued the Firman entitling him to exercise full powers, both temporal and spiritual, in his capacity as the Patriarch of Antioch. It has to be taken that the Metropolitans who assembled to elect a new Patriarch were fully alive to their responsibility and to the seriousness of the task they were undertaking. If there had not been a vacancy in the Patriarchal throne, caused by a proper synodical removal of Abdul Messiah from office, these Metropolitans would not have assembled together to elect a successor to the throne. The fact that the election was unanimous gives added strength to the inference that Abdul Messiah had been validly and effectively deposed and that the Synod which met to elect a successor was convinced of that fact. It is therefore no surprise to find that the Malankara Church also accepted Abdullahs election as proper and valid and put his name in Ex. DU the Church Calendar for the year 1908, as the Patriarch ruling from the throne of Antioch from August 1906. It may also be stated that the name of Abdul Messiah does not find a place in this calendar. P. W. 17 who is now functioning as the delegate of the Patriarch at Malankara, has spoken to the practice that prevailed in the matter of electing and installing a Patriarch. He has stated that when the Synod resolves to remove a Patriarch from office, that fact will be intimated to the Turkish Government who, on being satisfied about the validity of the resolution, will recall the Firman granted to that Patriarch. Similarly on getting information that a new Patriarch has been properly elected, such election will be approved and a Firman issued in favor of the new Patriarch. D. W. 27 has also admitted at page 18 of his deposition that such was the normal practice during the Sultans regime in Turkey. This witness is one who was originally on the Patriarchs side, but subsequently went over to the side of the first defendant and hence he cannot be expected to give evidence in favor of the plaintiffs.

33. The unhesitating acceptance by the Malankara Church of Abdulla II as duly installed Patriarch is also evidenced by the conduct of the members of the Church which will be referred to presently. In obedience to a kalpna received from Mar Abdullah that candidates for ordination as Melpattakkars should be sent to Jerusalem, a meeting of the Malankara Association was held and the necessary resolutions were passed. These resolutions are contained in Ex. DC. By the second resolution the previous election of Poulose Ramban and Geevarghese Ramban for ordination as Melpattakkars was confirmed. It was next resolved that the allotment of Idavagas to the Melpattakkars about to be ordained be left to the decision of His Holiness the Patriarch when he arrives and that His Holiness be requested to ordain them as Thebal Metrans until then. It was also resolved that in view of the old age and illness of Metropolitan Mar Dionysius, His Holiness the Patriarch be requested to authorize Geevarghese Ramban (who later on became Mar Geevarghese Dionysius), after his ordination, to attend to the common affairs of the Malankara Diocese under his orders, as assistant and successor to Metropolitan Mar Dionysius. The two persons selected for ordination as Metropolitans went to Syria and got ordination at the hands of Patriarch Abdullah and Geevarghese Ramban was authorized to function as an assistant to Mar Joseph Dionysius. After the death of Mar Joseph Dionysius Mar Geevarghese Dionysiuss election as Malankara Metropolitan was confirmed by Mar Abdullah. Ex. EA is the deposition given by Mar Geevarghese Dionysius in Ex. 255 case and there he has stated in unambiguous terms at page 1396 that he had accepted Abdullah as the lawful Patriarch till his death and that he had never repudiated Abdulla. The present first defendant has put forward a theory in his deposition that Abdulla was functioning as an assistant to Abdul Messiah. But he had to admit in the course of his examination that the Malankara Church had accepted Abdullahs authority as Patriarch. Page 67 of his deposition contains a specific question as follows: "After Abdulla II was installed, were not the spiritual and temporal powers belonging to the Patriarch exercised by him" The answer was: "It must have been he who exercised his functions". The attitude of Mar Geevarghese Dionysius and his followers towards Abdullah II underwent a change only when Abdullah excommunicated Mar Geevarghese Dionysius. Thereafter an attempt appears to have been made by these persons to get at the service of Abdul Messiah in their attempt to discredit Adbullah. The first step in that direction was to get Ext. 79 telegram from Abdul Messiah in the following terms: "Abdullahs excommunication vain, you your followers Blessed". If really Abdul Messiah had not been properly and validly deposed and if he was continuing as the lawful Patriarch, this telegram would have been sufficient to cancel the order of excommunication passed by Abdullah and to nullify its effect. Geevarghese Dionysius got an opportunity to assert this position and to maintain his status as Malankara Metropolitan in Ext. 255 suit (O. S. No. 94 of 1088), the interpleader suit filed by the Secretary of State for India. The trial courts judgment Ex. 355 and the appellate judgment in 41 Travancore Law Reports 1 and 45 Travancore Law Reports 116 show that instead of concentrating on the effect of Ext. 79 telegram, Mar Geevarghese Dionysius was attacking the validity of the excommunication order passed by Abdullah on the grounds that under the Canon law Abdullah by himself was not competent to pass such an order without the concurrence of the Synod and that the order was passed without complying with the rules of natural justice. These contentions were repelled in 41 TLR 1. Mar Geevarghese Dionysius sought for a review of that decision. In that attempt he succeeded and the final decision is reported in 45 TLR 116. The excommunication order was held to be invalid on the ground that it was passed in violation of natural justice. The persistence of Mar Geevarghese Dionysius in impeaching the validity of the ex-communication order on such a ground, is a sure indication that if the order had been properly passed by Abdullah it would have been effective, This betrays the consciousness of Mar Geevarghese Dionysius that Abdul Mesaiah had ceased to be a Patriarch and that Abdullah was the lawful Patriarch from the time of his installation. On 7-9-1911 a meeting of the Malankara Association was held and certain resolutions were passed questioning the validity of Abdullahs order excommunicating Mar Geevarghese Dionysius. These resolutions are contained in Ex. 86. One resolution stated that the order of excommunication was not acceptable to the community. By another resolution the Association decided to depute three persons to Jerusalem and other places in Syria to make the necessary inquiries for finding out the respective positions of Abdul Messiah and Abdullah and to report the result of the inquiry to the Association. It was also resolved that the amount collected by way of Ressisa due to the Patriarch should be sent over to him only after the report of the above-said inquiry was received. These resolutions appear to have intended as mere threats to Abdullah, and that appears to be the reason why nothing came out of these resolutions. If the contemplated inquiry had been held, the result must have been in favor of Abdulla and against Abdul Messiah, and that must be the reason for not disclosing the result of the inquiry. Naturally, therefore, Mar Geevarghese Dionysius and his supporters could not disown the status of Abdullah as the lawful Patriarch even though the telegram Ext. 79 received from Abdul Messiah was followed by his own arrival at Malankara. After coming over to Malankara he ordained the present first defendant, Mar Phelixinos and Mar Ivanios as Thebel Metropolitans with no Idavagas under them. In the deposition Ext. EA given by Mar Geevarghese Dionysius in Ext. 255 case, he has stated that the ordination of these Metropolitans cannot be said to be entirely canonical. This means that the ordination made by Abdul Messiah was uncanonical, obviously for the reason that he had ceased to be a Patriarch. The first defendant and the two others also appear to have realized the defective nature of their ordination and they made an attempt to get the same regularized by Mar Elias who succeeded Mar Abdulla as Patriarch. When the decision in 41 TLR 1 went against Mar Geevarghese Dionysius he too wanted to get the order of excommunication against him cancelled by Mar Elias, and for that purpose he went over to Syria. That occasion was made use of by the first defendant and two others, who were ordained as Metropolitans by Abdul Messiah, to convey their requests to Mar Elias. These requests were embodied in the letter Ext. BC addressed to Mar Elias and which was entrusted to Mar Geevarghese Dionysius. In that letter they have stated their own reasons which led up to the misunderstandings between Abdullah and his supporters on the one hand, and Mar Geevarghese Dionysius and his supporters on the other hand. Reference also was made to the circumstances under which the first defendant and the others happened to take ordination from Abdul Messiah when he visited Malankara. This is stated to have been done "owing to the insistence and pressure of a large number of people and in order that they might be prevented from leaving our Church and embracing other religions". Towards the closing portion of the letter Ext. BC, the appeal to Mar Elias was made in the following terms:

We acknowledge Your Holiness alone as the pride of our race and our Supreme Head and the High Priest in occupation of the exalted throne of Antioch. We accept you and render obedience to Your Holy Commands; we entreat the mercy of your authority and pray that you might accept us as Your Holiness children; that Commands of Blessings and acceptance may be issued to us; that the orders of excommunication promulgated by the High Priest, your Predecessor, be cancelled; and that all other things may be done to restore peace to our Malankara Church. We further pray that Your Holiness may extend your right hand in the plenitude of grace and blessings and bless us; that our trespasses and transgressions, voluntary, involuntary, conscious and unconscious, may be expiated; that our sins and foolishnesses may be pardoned; that our departed may be comforted-all these through Your remembrance of us in Your effective prayers and acceptable Kurbanas. Bless us for the remission of our sins.

It has to be remembered that this letter was written by the first defendant and his associates nearly twelve years after the alleged establishment of the Catholicate in Malankara by Abdul Messiah. The latter unequivocally admits that Abdullah was the lawful Patriarch at that time and that Elias was the successor of Abdullah. The request that the order of excommunication promulgated may be cancelled, implies an admission that Abdullah had the authority to pass such an order. The latter further concedes that Abdul Messiah was not competent to ordain the first defendant and others as Metropolitans and that they accepted such ordination only on account of pressure from a large number of people and also to see that they do not leave the Malankara Church. By requesting Mar Elias to cancel the order of excommunication, the first defendant and others had admitted that the telegram Ext. 79 sent by Abdul Messiah was ineffective in that direction. While Geevarghese Dionysius was on his way to Syria, he sent the letter Ex. BB to Mar Elias and therein he has acknowledged Elias as the Patriarch occupying the Apostolic throne of Antioch. The letter closes with the following prayer:-

Moreover, we pray to Your Holiness that you might stretch forth your right hand of mercy and benediction and bless us and forgive us our trespasses and sins, voluntary as well as involuntary and committed knowingly and unknowingly.

The letter Ext. CD sent by Mar Elias to P. W. 17 the delegate at Malankara gives an idea as to what transpired at the interview which Mar Geevarghese Dionysius had with Mar Elias. That letter states as follows:

For the peace of the people of Malankara in India, We have set you apart to accompany this Geevarghese, who has come to Us and expressed repentance. In Our stead, you should hear both parties carefully and attentively. As Geevarghese is anxious to go back on account of the approaching winter, it has not been possible for Us to hear their views in person, as We desired. In case he and his associates redeem their promises to Us, namely, that they execute registered udampadies and confess that Abdul Messiah was deposed and that he had no spiritual capacity to confer Nalvaram, you will inform Us, so that We may offer the necessary prayers and give them the necessary blessings. Thereafter, you should, as he has requested Us, choose for him a Church or a diara where he can spend his time quietly.

The promises referred to in this letter were not fulfilled after the return of Geevarghese Dionysius to Malankara and hence the idea embodied in Ext. CD did not fructify. All the same, Mar Geevarghese Dionysius was able to achieve his object when the decision in 45 TLR 116 was announced and which declared his excommunication invalid. Thereafter, himself, the first defendant and others began to adopt an attitude of hostility and defiance towards the Holy Patriarch. Soon after the decision in 45 TLR 116, some members of Patriarchs party instituted another suit, O. S. No. 2 of 1104, in the Kottayam District Court to get an order of injunction restraining Mar Geevarghese Dionysius and his co-trustees from drawing the interest on the trust fund. Ext. 44 is copy of the written statement filed by Mar Geevarghese Dionysius in that suit and therein for the first time he openly supported the Catholicate alleged to have been established in Malankara. Nothing came out of that suit which happened to be dismissed for default. The dissensions in the Church continued. Lord Irwin who was Governor General of India at that time desired to bring about unity in the Church. On 7-12-1930 he sent the letter Ext. CH at the instance of the first defendant and others to Patriarch Mar Elias requesting him to make an effort to achieve such unity. Ext. CJ is the reply sent by the Patriarch agreeing to do all that is possible in the matter on 21-3-1931 Mar Elias arrived at Malankara and stayed for some days at the Alwaye Seminary. Mar Geevarghese Dionysius met him at this Seminary on 23-3-1931. According to the plaintiffs, the disputes between these two religious dignitaries were settled at that interview and Mar Elias removed the ban of excommunication on Mar Geevarghese Dionysius. The defendants do not agree to this version. But the versions given by D. Ww. 26 and 29 on the one hand and that given by P. W. 17 on the other, agree in one respect, namely, that Mar Geevarghese Dionysius as the Metropolitan and commanded the other Bishops to embrace him as their brother. P. W. 17 has, at pages 13 and 14 of his deposition, described the manner in which Mar Elias removed the ban of excommunication and accepted Mar Geevarghese Dionysius as Malankara Metropolitan. D. W. 6 was for some time the Secretary of the Malankara Association and later on he entered Government service and retired as a District Judge. He was also present at the Alwaye Seminary when Mar Geevarghese Dionysius met Mar Elias. This witness has also stated at pages 11 and 12 of his deposition that Mar Elias and Mar Geevarghese Dionysius spent some time in the Seminary in private discussion and thereafter both of them came out in a happy mood and then Mar Elias asked the people assembled there that they should accept Mar Geevarghese Dionysius as Metropolitan. There is no reason to doubt the truth of the version given by a respectable witness like D. W. 6. His version substantially agrees with the versions given by P. W. 17 and these versions make it clear that Mar Elias cancelled the excommunication of Mar Geevarghese Dionysius and accepted him as Malankara Metropolitan. In die kalpana Ext. AA dated 27-3-1931 issued by Mar Elias to the Metropolitans, Priests and people of Malankara, the Patriarch himself has statated that on being convinced of the true repentance of Mar Geevarghese Dionysius his excommunication was cancelled and he was accepted as Malankara Metropolitan. Accordingly, the Command was issued that his position must be accepted by all people. But that was not sufficient to fully satisfy Mar Geevarghese Dionysius who was anxious to get recognition of the position of the first defendant and also of all that Abdul Messiah had done at Malankara. Mar Elias was not prepared to go to that extent. On 27-6-1931 he issued the notice Ext. BG for calling together a meeting of representatives of all the Churches at Malankara. As a countermove, Mar Geevarghese Dionysius issued notice for holding a meeting of the Association on 10-7-1931. Suspecting that this was a mischievous move on the part of Mar Geevarghese Dionysius, the Metropolitans who were all along faithful to the Patriarch, issued the notice Ext. I on 1-7-1931 warning the members of the Church not to participate in the rival meeting called by Mar Geevarghese Dionysius, because the Metropolitans who had not been accepted by the Patriarch would also be participating in that meeting. Ext. 98 (b) contains the proceedings of that meeting which was attended by the supporters of Mar Geevarghese Dionysius. Thus the possibility of bringing about peace and concord at Malankara again became difficult. Mar Elias could not achieve the object of his visit to Malankara and on 12-2-1932 he died at a place known as Omolloor.

34. Pending the election of a successor to Mar Elias, Mar Ephraim was appointed as Kaimakham to attend to the administrative functions of the Patriarch. Invitations for the Synod to elect the new Patriarch were duly issued to the several Metropolitans. Regarding the intimations seat to Malankara, the communication Ext. CF was sent to P. W. 17, and therein it was stated that Mar Geevarghese Dionysius and the Metropolitans of Ankamali and Cochin had been invited for the Synod. Copies of the formal invitations sent to these Metropolitans were also sent to P. W. 17 along with Ext. CF. In the English rendering of this letter the reference to such enclosures was incorrectly translated. The dispute regarding the correctness of the translation was resolved at the time of the arguments by placing the original in the hands of a Priest on the respondents side who was well-versed in Syriac. His reading of the original was that the reference to the enclosures was to the copies of the invitations sent to the Metropolitans and not to the original invitations themselves. Both sides agreed that this is the correct reading of Ext. CF. This letter would indicate that invitations had been sent to Mar Geevarghese Dionysius and others. The telegram Exts. 66, 66 (a) and 66 (b) sent by Mar Geevarghese Dionysius to three Metropolitans of Syria and the subsequent letter Ext. 65 sent by him, would also go to show that Mar Geevarghese Dionysius had received the invitation for the Synod. The telegraphic communication was to the following effect.

Malabar Church will not accept Patriarchal election without participation of Catholicos, Malabar Mijilis. Letter follows. Please inform other Bishops.

The letter Ext. 65 confirmed the telegraphic communication and it proceeded to explain why insistence was made that the Catholicos should also be invited for the Synod. It is clear that Mar Geevarghese Dionysius was trying to compel recognition of the Catholicos at Malankara in spite of the fact that successive Patriarchs have been stoutly refusing to recognize any Catholicate or Catholicos at Malankara. Apart from these aspects, it is clear from Exts. 66, 66 (1) and 66 (b) and 65 that the complaint of Mar Geevarghese Dionysius was that the Catholicos was not invited for the Synod. It is significant to note that no complaint was put forward that Mar Geevarghese Dionysius as Malankara Metropolitan was not invited. It can therefore be safely presumed that he had received the invitation sent to him as mentioned in Ext. CF. The Synod which met in pursuance of such invitations elected Mar Ephraim as the Patriarch to succeed Mar Elias. After he was installed as Patriarch, defendants 1 and 4 went to Syria and made one more attempt to get recognition of the first defendants position as Catholicos. Exts. CB and Z give an idea of the discussions which the first defendant had with Mar Ephraim. Ext. CB is a book published by the fourth defendant who has been examined as D. W. 26 giving an account of the trip that himself and the first defendant had undertaken to Jerusalem. The plaintiffs do not admit the truth or the correctness of all that is contained in this book. At the same time it is clear from Ext. CB that defendants 1 and 4 have approached Mar Ephraim and had made an attempt to persuade the Patriarch to accept the Catholicos. This shows that the position of Mar Ephraim as lawful Patriarch was conceded by them. Ext. Z the kalpana issued by Mar Ephraim on the 27th Kanni 1934 states that the first defendant was not amenable even to the most favorable terms offered by the Patriarch. In one portion of this letter, the Patriarch has made the following remarks about the first defendant and his followers:

They are wise in their own eyes. They do not desire to know the truth. Their thoughts are crooked and distorted. They vainly attempt to reconcile lawful subjection to the throne of St. Peter with open revolt against it. They do not wish to realize that the cause of their fall and weakness is separation from the power pertaining to Priesthood. They do not desire to accept the imposition of hands, according to the rules of the Holy Church. On the other hand, in a spirit of revolt they follow Abdul Messiah. As for him, though he was once Patriarch, he had been canonically deposed from the throne for proper reasons particularly on account of mental derangement. Even a rightful Patriarch is not competent to establish a Maphrianate or Catholicate without an oecumenical Synod of the Church. When he (Abdul Messiah) was lawfully on the throne, he did not ordain even an Episcopa for Malankara. It is notorious that this pitiable man, when he had fallen from the Estate, was prevailed upon by Metropolitan Geevarghese to write and act, as a tool in his selfish hands, contrary to rules, without deliberation and in a meaningless fashion. It is known to all that these actions are absolutely illegal.

Finally the following directions were issued to the Faithful at the closing portion of the kalpana, Ex. Z:-

They have cut themselves adrift from the Mother of Life, the Holy Church of Antioch. Therefore they are aliens to us. Hence forward, they shall be, to you, as outside the fold of the Holy Church. None of you have permission from God or from Us to co-operate with them or join them in any worship pertaining to the Church. Deem them as disentitled to anything pertaining to the Church until they repent and obtain absolution from Us and Our Throne.

From the facts so far stated, it is clear that Patriarchs Abdullah, Elias and Ephraim were all properly and validly elected and ordained and that they were accepted as such by the Malankara Church. All these Patriarchs have been consistently maintaining the position that Abdul Messiah had been canonically deposed. The repeated attempts made by Mar Geevarghese Dionysius and the first defendant to induce these Patriarchs to regularize the ordinations made by Abdul Messiah at Malankara and to accept as valid everything done by him, betray a conscious feeling on their part that when these acts were done by Abdul Messiah, he was not a lawful Patriarch but had been synodically removed from office. If there was no such synodical removal, it would have been possible for the defendants to produce reliable evidence of specific acts done by Abdul Messiah in his capacity as Patriarch anywhere in his jurisdiction in Syria after 1905 when his Firman was withdrawn by the Turkish Government. But no such evidence has been adduced in this case and the reason for the same cannot be that they have no burden of proof in this case. The obvious reason is that no such evidence is available. It has also to be remembered that Mar Geevarghese Dionysius himself had gone to Syria to take his ordination at the hands of Abdulla and during that trip he could have had ample opportunities of making inquiries as to how Abdul Messiah had been deposed and Abdulla was installed in his place. A man of the position and ability of Mar Geevarghese Dionysius would not have accepted ordination at the hands of Abdulla before satisfying himself on proper inquiry that it was after a proper synodical removal of Abdul Messiah that Abdulla was elected to succeed him.