Full Judgment Text
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PETITIONER:
DISST. COUNCIL OF UNITED BASEL MISSIONCHURCH & ORS.
Vs.
RESPONDENT:
SALVADOR NICHOLAS MATHIAS & ORS.
DATE OF JUDGMENT20/01/1988
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
KANIA, M.H.
CITATION:
1988 SCR (2) 737 1988 SCC (2) 31
JT 1988 (1) 173 1988 SCALE (1)127
ACT:
Challenging resolution proposing merger of United Basel
Mission Church (UBMC) of South Kanara and Coorg with the
Church of South India (C.S.I.), as void, illegal and ultra
vires the provisions of Religious Societies Act.1880.
HEADNOTE:
%
The respondents, members of the United Basel Mission
Church (U.B.M.C.) of South Kanara and Coorg, instituted a
suit in the Court of Munsif, Mangalore, praying for a
declaration that the resolution dated May 9, 1961, passed in
the extraordinary meeting of the District Church Council of
UBMC of South Kanara and Coorg, proposing the merger of UBMC
of South Kanara and Coorg with the Church of South India
(C.S.I.). was void, illegal and ultra vires the constitution
of the UBMC and also the provisions of the Religious
Societies Act, 1880, and not binding on the
respondents/plaintiffs or other members of the UBMC of South
Kanara and Coorg. The suit was contested by the appellants
defendants. The trial Court dismissed the suit, holding that
(i) the suit was maintainable but the respondents were not
entitled to file the suit in a representative character,
representing the UBMC of South Kanara & Coorg, (ii) there
was no fundamental difference between the UBMC and CSI, and
(iii) the impugned resolution was legal and valid. The
respondents filed appeal against the judgment of the trial
court. which was dismissed by the Additional Civil Judge,
who, however, held that the respondents were entitled to
file the suit in a representative character. The respondents
preferred a second appeal to the High Court against the
judgment and decree of the Additional Civil Judge. The High
Court (Single Judge) took a contrary view and allowed the
appeal, holding that there were fundamental differences in
doctrine. faith, tradition, heritage and practices between
UBMC and CSI. and the resolution impugned was illegal and
void. Aggrieved by the decision of the High Court, the
appellants moved this Court for relief by special leave.
Allowing the appeal, the Court
738
^
HELD: It was well-established that the dispute as to
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the right of worship was one of a civil nature within the
meaning of section 9 of the Code of Civil Procedure and a
suit was maintainable for the vindication or determination
of such a right. It must be made clear that maintainability
of the suit would not permit a Court to consider the
soundness or propriety of any religious doctrine, faith or
rituals. The scope of enquiry in such a suit was limited to
those aspects only that had a direct bearing on the question
of right of worship, and with a view to considering such a
question, the Court might examine the doctrines. faith.
rituals and practices for the purpose of ascertaining
whether the same interfered with the right of worship of the
aggrieved parties. In view of section 9 of the Code of Civil
Procedure, the enquiry should be confined to the disputes of
a civil nature. Any dispute, which was not of a civil nature
should be excluded from consideration. [745B,D-F]
Both the churches were Protestant Churches. The
fundamental doctrines, faith and belief appeared to be the
same. Both UBMC and CSI believed in Jesus Christ, the
Incarnate Son of God the Redeamer of the World. Both also
believed that man was saved from sin through grace in Jesus
Christ. Both believed in the Holy Spirit and in the Supreme
Power of Holy Spirit and that there should be free access of
man to God. [745G-H;746A]
U.B.M.C. was a Presbyterian Church and the respondents
did not believe in the concept of Episcopacy or apostolic
succession, associated with historic Episcopacy. UBMC was
opposed to Episcopacy, but Episcopacy, adopted by the CSI
was not that historic Episcopacy, but historic Episcopacy in
a constitutional form. The CSI believed that in all
ordinations and consecrations the true ordainer and
consecrater was God. From all this, the irresistible
conclusion was that there was neither apostolic succession
nor historical Episcopacy in CSI as contended on behalf of
the respondents. [746B-C,E-F]
The respondents placed much reliance on the universal
priesthood. That was said to be prevalent in UBMC. The
submission in this regard, however, did not find support
from the constitution of UBMC. The universal priesthood,
which was said to be prevalent in UBMC, did not permit lay
preachers and Evangelists to administer the sacraments.
[747C,G]
In the CSI, Presbyters had the authority to administer
the sacraments and in the UBMC, the Pastors, who were
ordained ministers, were authorised to administer the
sacraments. There was, therefore, no
739
distinction between a pastor in the UBMC and a Presbyter in
the CSI. As the functions and duties of Presbyters and
Pastors were the same and as both of them were ordained
ministers, no exception could be taken by the respondents if
the sacraments were administered by Pastors instead of the
Presbyters. No objection could also be taken to the Bishops
administering the sacraments, for they did not emerge from
the apostolic succession which was the main characteristic
of historical episcopacy. If the respondents or any members
of the UBMC had any Objection to the administering of
sacraments by the Bishops, the sacraments could be
administered by the Presbyters. The Malabar and Bombay-
Karnataka Units of UBMC had already joined the CSI. The CSI
had accepted already the form of worship followed in the
UBMC before the Union of the two units with the CSI, and
such acceptance was indicated in Rule 12 of Chapter II of
the Constitution of the CSI, and in view of this it was
difficult to accept the contention of the respondents that
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in case of merger or implementation of the impugned
resolution, the right of worship of the impugned resolution,
the right of worship of the members of the UBMC would be
affected. [748A-F]
After a person was appointed a Bishop or a Presbyter in
the CSI or a Pastor in UBMC, he had to be ordained in almost
the same manner. The Court did not think it was within the
purview of the enquiry in this litigation whether such
ordination in the CSI had a spiritual significance of a
transfer of grace or whether it was only a symbol of
conferment of authority, so far as UBMC was concerned. The
mode or manner of ordination or the underlying object of
such ordination had, in the Court’s opinion, nothing to do
with the right of worship of the respondents. [749B-C]
Both UBMC and CSI believed in Apostles Creed and Nicene
Creed. If shorter Catechism, as stated by D.W. t consisted
of the Creeds in the form of questions and answers, the
Court did not think that merely because there was no mention
about Shorter Catechism in the Constitution of the CSI, it
could be said that there was a difference in the faith and
doctrine of the two Churches, as held by the High rt [749F-
G]
There was no cause for apprehension of the respondents
that in case of merger, the Apocrypha would be imposed upon
them which was repugnant to their religious faith, in the
liturgy of the CSI, the prayer from Apocrypha had been made
optional which showed that there was no scope for the
imposition of Apocrypha on the respondents in the case of
Union of UBMC and CSI. [751A-B]
740
As regards the properties of the UBMC, even though
there was merger, the properties or the income thereof would
be utilised only for the benefit of the members of the UBMC
of the South Kanara and Coorg. It was difficult to accept
the contention of the respondents that in the case of
merger, there would be diversion of the properties in the
hands of the UBMC Trust Association to the CSI in breach of
trust. [752B-C]
There was little or no difference between the
doctrines, faith and religious views of UBMC and the CSI.
The objection of the respondents to historical Episcopacy
had no solid foundation inasmuch as historical Episcopacy
was not in existence in the true sense of the term in the
CSI, and it was none in a constitutional form. In other
words, the Bishops were elected and Apostolic succession
which was associated with historical Episcopacy, was totally
absent. The observations made in General Assembly of Free
Church of Scotland v. Lord overtoun, [1904] AC 515, could
not in any event be applicable to the facts of this case,
which are different from the said Free Church Case. [753F-H]
As regards the question whether the District Church
Council had the authority to pass the impugned resolution,
it was true that the District Church Council had only the
power of amendment of the Constitution and no power had been
conferred on it to pass a resolution relating to the union
of the UBMC of South Kanara and Coorg with the CSI, but the
Synod was the highest authority and the Synod of UBMC had
the power to sanction merger of any unit of UBMC in the CSI,
and the Synod passed a resolution, permitting the District
Church Council of South Kanara and Coorg to join the Church
of South India-CSI. As the Synod was a representative body
of the units, it stood dissolved after passing the said
resolution, but until such a resolution was passed, it
existed as the highest authoritative and administrative body
of the UBMC. [757A-B, E-F]
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The challenge to the validity of the resolution
impugned on the ground of violation of the provisions of
section 6 of the Religious Societies Act, 1880, was
misconceived and without any substance. The section dealt
with the dissolution of societies and adjustment of their
affairs. There was no question of dissolution of UBMC of
South Kanara and Coorg and disposal of settlement of its
property, claims and liabilities, etc., and as such the
provision of section 6 was not at all applicable to this
case. [758C-D]
The Court disagreed with the High Court that the
impugned
741
resolution violated the provision of section 6 of the
Religious Societies Act, and in view of the fact that the
Synod had unanimously accorded permission for the merger,
the High Court was not justified in striking down the said
resolution. On the ground that it was beyond the authority
of the District Church Council to pass such a resolution.
The impugned resolution was legal and valid. [758E-F]
Ugamsingh and Mishrimal v. Kesrimal, [197l] 2 S.C.R.
836; Thiru-venkata Ramanuja Pedda Jiyyangarlu Valu v.
Prathivathi Bhayan Karam Venkatacharlu, A.I.R. 1947 PC 53;
General Assembly of Free Church of Scotland v. Lord
overtoun, [1904] AC 515 and N.P. Barwell v. John Jackson,
A.I.R. 1943 All. 146.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 84 of
1975
From the Judgment and order dated 19.4 1974 of the
Karnataka High Court in R S A. No. 741 of 1971.
T.S. Krishnamurthy Iyers, ATM Sampath and Srinivasa
Anand for the Appellants
B.P. Halda, S.S. Javeli and Ranjit Kumar for the
Respondents.
The Judgment of the Court was delivered by
DUTT? J. This appeal by special leave at the instance
of the defendants is directed against the judgment and
decree of a learned Single Judge of the Karnataka High Court
whereby the learned Judge reversed the judgment and decree
of the Additional Civil Judge, Mangalore, affirming those of
the Munsif, Mangalore, dismissing the suit filed by the
plaintiff-respondents.
The respondents, who are the members of the United
Basel Mission Church (for short ’UBMC’) of South Kanara and
Coorg, instituted a suit in the court of the Munsif,
Mangalore, praying for a declaration that the resolution
dated May 9, 1961 passed in the extraordinary meeting of the
District Church Council of UBMC of South Kanara and Coorg
proposing the merger of UBMC of South Kanara and Coorg with
the Church of South India was void, illegal and ultra vires
the Constitution of UBMC and also the provisions of the
Religious Societies Act, 1880 and not binding on the
respondents or other members of UBMC of South Kanara and
Coorg. The respondents also prayed for a permanent
injunction restraining the defendants-appel-
742
lants from implementing the said resolution.
The Evangelical Missionary Society in Basel (Basel
Mission), which is a religious Society, consisting of
missionaries of different denominational churches of
Switzerland and Germany constituted UBMC in South Kanara,
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Coorg, Malabar and North Karnataka for the purpose of
spreading the Gospel. The UBMC has a written constitution
(Ex. A-1). Under the Constitution, the UBMC is divided in
three Ecclesiastical Districts, namely, the South Kanara and
Coorg, Bombay-Karnataka and Malabar. Each District had its
own representative body known as the District Church Council
to supervise the work of the churches. The District Church
Board was the Executive body consisting of a few members of
the District Church Council. The highest authority of UBMC
is a body known as Synod which is constituted with the
representatives of the District Church Councils, the Basel
Mission and certain ex officio members.
In 1905, a number of Congregational Churches under the
London Mission Society united with the Congregational
Churches and the Presbyterian Churches in South India and
such union came to be called the South Indian United Church.
Subsequently, the South India United Church and the Anglican
Church in South India came to be united and this union
brought into existence the Church of South India (for short
’CSI’) in 1941.
After the creation of CSI, there had been a move that
the churches in the three Districts of UBMC should join the
CSI. Indeed in 1943, the Malabar District Church of UBMC
joined the CSI with the approval of the Synod. Further, it
appears that the Bombay- Karnataka Unit of UBMC had also
joined the CSI. The only Unit of UBMC that remained is the
South Kanara and Coorg Unit. By the impugned resolution
dated May 9, 1961, the majority of members of the District
Church Council of UBMC of the South Kanara and Coorg decided
to join the CSI. Being aggrieved by the said resolution and
to get rid of the same, the respondents instituted the said
suit in a representative character under order I, Rule 8 of
the Code of Civil Procedure as representing the members of
UBMC of South Kanara and Coorg.
The case of the respondents is inter alia that they are
Protestant Christians belonging to the Ecclesiastical
Districts of South Kanara and Coorg of UBMC. Every member of
UBMC has a right vested in him under its Constitution to be
a member of a District Church Board
743
and District Church Council and to administer the properties
vested in them and to manage their affairs. These rights
guaranteed under the Constitution cannot be altered or
abridged except under Rule 14 of the Constitution providing
for amendment. According to the respondents, the CSI is
fundamentally different in doctrine, faith, worship,
tradition, heritage and practices from UBMC of South Kanara
and Coorg. An important distinguishing fundamental principle
is the principle of Episcopacy adopted by the CSI, but
rejected by the UBMC, which cherishes as a great treasure
the principle that priesthood is given to all believers. It
is the case of the respondents that the Union of UBMC and
CSI would be colourable one, since there can be no union of
two bodies holding fundamentally different doctrines and
believing in different declarations of faith. It is
contended that the impugned resolution is ultra vires Rule
14 of the Constitution of UBMC. The resolution is also bad,
since it is beyond the power of the District Church Council
to dissolve the Constitution. It is alleged that the funds
and properties of UBMC are held in trust for the propagation
and advancement of the faith and doctrine of UBMC and, as
such, they cannot be diverted to different purposes. It is
contended that the majority who disagree with the doctrine
and faith of UBMC cannot impose on the minority fl ritual, a
ministry, and a Constitution opposed to the doctrinal faith
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of UBMC. Upon the said pleadings, the suit was instituted
for the reliefs aforesaid.
The suit was contested by the appellants by filing a
written statement. It was contended that the suit was not
one of a civil nature within the meaning of section 9 of the
Code of Civil Procedure and, accordingly, it was not
maintainable. Further, the contention of the appellants was
that the respondents did not represent the members of UBMC
and so the respondents were not entitled to sue the
appellants in a representative capacity as representing the
members of UBMC in South Kanara and Coorg. It was denied by
them that there was any fundamental difference between UBMC
and CSI in doctrine, faith, worship, tradition, heritage and
practices. It was averred that the Constitution of the CSI
and the doctrinal faith, the ministry and the form of
worship adopted by the CSI were in no way fundamentally
different from those adopted and practised by the UBMC. The
Protestant Churches were not committed to any doctrine
regarding historic Episcopacy. The constitutional Episcopacy
adopted by the CSI was not contrary to the Presbyterian
heritage and the ministers of UBMC were also ordained. The
freedom of interpretation given with regard to the Creeds
was not opposed to the union. The contention of the
respondents that in case of merger, there would be diversion
of the
744
properties of the UBMC was emphatically disputed by the
appellants. It was averred that as the impugned resolution
was passed by an overwhelming majority of the members of
UBMC it was binding upon the respondents. They denied that
the resolution was ultra vires Rule 14 of the Constitution
of UBMC. The appellants, accordingly, prayed that the suit
should be dismissed.
The respondents examined the 4th plaintiff as P.W. 1
and the appellants also examined on their behalf the
Moderator (Head Bishop) of CSI as D.W. 1. Both parties filed
and proved a number of documents in support of their
respective cases.
The learned Munsif, after considering the evidences and
the sub missions made on behalf of the parties, came to the
findings that the suit was maintainable but the respondents
were not entitled to file the suit in a representative
character as representing the UBMC of South Kanara and
Coorg. Further, the learned Munsif found that there was no
fundamental difference between UBMC and CSI in matters of
doctrine, faith, worship, tradition, heritage and practices.
The impugned resolution was held by the learned Munsif to be
legal and valid. Upon the said findings, the learned Munsif
dismissed the suit. On appeal by the respondents, the
learned Additional Civil Judge came to the same findings as
that of the learned Munsif except that it was held by him
that the respondents were entitled to file the suit in a
representative character. The appeal preferred by the
respondents was, consequently, dismissed by the learned
Additional Civil Judge.
Being aggrieved by the judgment and decree of the
learned Additional Civil Judge, the respondents preferred a
second appeal to the High Court. A learned Single Judge of
the High Court took a contrary view and held that there were
fundamental differences in doctrine, faith, worship,
tradition, heritage and practices between UBMC and CSI. The
impugned resolution was held by the learned Judge as illegal
and void. The learned Judge, accordingly, allowed the appeal
of the respondents and set aside the judgments and decrees
of the first appellate court and of the trial court and
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dismissed the suit. Hence this appeal.
The first point that has been urged by Mr.
Krishnamurthy Iyer, learned Counsel appearing on behalf of
the appellants, is that the dispute between the parties is
not one of a civil nature and, as such, the suit was not
maintainable. It has been already noticed that all the
courts below including the High Court have concurrently come
to the
745
finding that the suit was of a civil nature within the
meaning of section 9 of the Code of Civil Procedure and,
accordingly, it was maintainable It is the case of the
respondents that if the impugned resolution is implemented
or, in other words, UBMC of South Kanara and Coorg is
allowed to merge in CSI, the right of worship of the members
of UBMC will be affected. It is now well established that
the dispute as to right of worship is one of a civil nature
within the meaning of section 9 of the Code of Civil
Procedure and a suit is maintainable for the vindication or
determination of such a right. The question came up for
consideration before this Court in Ugamsingh & Mishrimal v.
Kesrimal, [1971 ] 2 SCR 836 where this Court observed as
follows:
"It is clear therefore that a right to worship is
a civil right, interference with which raises a
dispute of a civil nature though as noticed
earlier disputes which are in respect of rituals
or ceremonies alone cannot be adjudicated by Civil
Courts if they are not essentially connected with
Civil rights of an individual or a sect on behalf
of whom a suit is filed "
In the instant case also, there is a question as to
whether the right of worship of the respondents will be
affected in case of implementation of the impugned
resolution. It must be made clear that maintainability of
the suit will not permit a court to consider the soundness
or propriety of any religious doctrine, faith or rituals.
The scope of the enquiry in such a suit is limited to those
aspects only that have direct bearing on the question of
right of worship and with a view to considering such
question the court may examine the doctrines, faith, rituals
and practices for the purpose of ascertaining whether the
same interfere with the right of worship of the aggrieved
parties. In view of section 9 of the Code of Civil
Procedure, the enquiry of the court should be confined to
the disputes of a civil nature. Any dispute which is not of
a civil nature should be excluded from consideration
It is the case of the respondents that there is a
fundamental difference in doctrine, faith, worship
tradition, heritage and practices between UBMC of South
Kanara and Coorg and the CSI and in case of implementation
of the impugned resolution leading to the merger of UBMC
with CSI, the right of worship of the respondents would be
greatly affected. Both the Churches are Protestant Churches.
The fundamental doctrines, faith and belief appear to be the
same. Both UBMC and CSI believe in Jesus Christ, the
Incarnate Son of God and Redeemer of the World. Both also
believe that man is saved from sin through Grace in Jesus
Christ, the Son of God. Both the Churches
746
believe in The Holy Spirit and in the Supreme power of the
Holy Spirit and that there should be free-access of man to
God.
One of the principal objections of the respondents to
the merger of UBMC with CSI is that CSI believes in
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Episcopacy which is said to have been rejected by the UBMC.
The High Court had devoted several pages relating to the
origin, growth and other aspects of Episcopacy. It is not
necessary for us to consider the origin or growth of
Episcopacy and suffice it to say that Episcopacy means
Church ruled by Bishops. UBMC is a Presbyterian Church and
according to the respondents they do not believe in the
concept of Episcopacy or apostolic succession which is
associated with historic Episcopacy. Rule 11 of the
Constitution of CSI (Ex. B-39) provides, inter alia, that
CSI accepts and will maintain the historic Episcopacy in a
constitutional form. Rule 11 further provides that as
Episcopacy has been accepted in the Church from early times,
it may in this sense fitly be called historic and that it is
needed for the shepherding and extension of the Church in
South India and any additional interpretations, though held
by individuals, are not binding on the CSI.
It is true UBMC is opposed to Episcopacy, but
Episcopacy which has been adopted by the CSI, is not that
historic Episcopacy, but historic Episcopacy in a
constitutional form. In other words, the Bishop will be one
of the officials of the Church under its Constitution
performing certain duties and functions. The Bishops are
appointed by election and there are provisions for the
retirement of Bishops at the age of 65 years, and also for
their removal. It is significant to notice that CSI believes
that in all ordinations and consecrations the true ordainer
and consecrator is God. From all this, the irresistible
conclusion is that there is neither apostolic succession nor
historical Episcopacy in CSI as contended on behalf of the
respondents.
The grievance of the respondents is that universal
priest hoodthat is recognised in UBMC is not there in the
CSI. In view of such universal priesthood, a layman can
administer sacraments in UBMC. It is not disputed that there
are two sacraments, namely (1) Lord’s Supper and (2)
Baptism. It is urged that in the CSI a layman cannot
administer these sacraments, and it is only the ordained
minister who can administer the sacraments. It is contended
that the absence of universal priesthood in the CSI is due
to the fact that Episcopacy is still maintained there. The
learned Judge of the High Court observes that Presbyters
under the CSI are ordained persons whereas Presbyters in
UBMC are all unordained elders. In the CSI, only the Bishops
and the
747
Presbyters who are ordained ministers can administer
sacraments of Lord’s Supper. But in UBMC, the sacraments can
be administered by a layman. It is submitted on behalf of
the respondents that in case of union of UBMC with the CSI,
the form of worship will change and that the person doing
the service of Holy Communion, that is Lord’s Supper, will
be changed and only ordained persons will do the service.
This, it is submitted, will affect the right of worship of
the respondents.
Much reliance has been placed on behalf of the
respondents on the universal priesthood that is said to be
prevalent in UBMC. The submission in this regard, however,
does not find support from the Constitution of UBMC. Under
the heading "The Local Church", paragraph 4 of the
Constitution of UBMC (Ex. A-1) provides as follows:
"Church workers are those either paid or honorary
ordained or lay, who are appointed by the church
for a definite piece of work under the supervision
of the church. It is the duty of the Pastors
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appointed to shepherd the churches to teach the
Word of God, to administer the sacraments and to
propagate the Gospel among those who have not yet
come to the saving knowledge of Christ Evangelists
and lay preachers appointed to the charge of
churches shall have no authority to administer the
sacraments. In places where it is impossible for
the pastor to administer the sacraments regularly,
the District Church Board may give evangelists in
pastoral charge authority to fulfil this duty."
It is apparent from paragraph 4 that Evangelists and
lay preachers have no authority to administer the
sacraments. It is only in exceptional cases where it is
impossible for the Pastor to administer the sacraments
regularly, the District Church Board may give Evangelists in
pastoral charge authority to fulfil this duty. Thus, the
universal priesthood which is said to be prevalent in UBMC,
does not permit lay preachers and Evangelists to administer
the sacraments.
It is true that in the CSI the Presbyters are ordained
persons, but in UBMC they are unordained, as has been
noticed by the learned Judge. But nothing turns out on that
distinction. In UBMC the Pastor is an ordained minister and
paragraph 4 (Ex. A-1), extracted above, provides that it is
the duty of the Pastors to shepherd the churches to teach
the Word of God, to administer the sacraments and to
propagate
748
the Gospel among those who have not yet come to the saving
knowledge of Christ. While a Presbyter in the CSI is an
ordained minister, in UBMC the ordained minister is a
Pastor. In the CSI Presbyters have the authority to
administer the sacraments and in UBMC the Pastors, who are
ordained ministers, are authorised to administer the
sacraments. There is, therefore, no distinction between a
Pastor in UBMC and a Presbyter in the CSI. As the functions
and duties of Presbyters and Pastors are the same and as
both of them are ordained ministers, no exception can be
taken by the respondents if the sacraments are administered
by Pastors instead of by the Presbyters. No objection can
also be taken to the Bishops administering the sacraments,
for they do not emerge from the apostolic successsion which
is the main characteristic of historical episcopacy. If the
respondents or any of the members of UBMC have or has any
objection to the administering of sacraments by the Bishops,
the sacraments can be administered by the Presbyters. It may
be recalled that units of UBMC, namely, Malabar and Bombay-
Karnataka units have already joined the CSI. The CSI has
accepted the form of worship which used to be followed in
UBMC before the union of the two units with CSI and such
acceptance has been indicated in Rule 12 of Chapter II of
the Constitution of CSI (Ex. B-39). Rule 12 specifically
provides that no forms of worship, which before the union
have been in use in any of the united churches, have been
forbidden in the CSI, nor shall any wonted forms be changed
or new forms be introduced into the worship of any
congregation without the agreement of the Pastor and the
congregation arrived at in accordance with the conditions
laid down in Chapter X of the Constitution. Thus, the CSI
has already accepted the form of worship which the members
of UBMC used to follow before the union of UBMC with the
CSI. In view of this specific provision in Ex. B-39, it is
difficult to accept the contention of the respondents that
in case of merger or the implementation of the impugned
resolution, the right of worship of the members of UBMC will
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be affected.
The learned Judge of the High Court has referred to the
manner of consecration and ordination in the CSI. Clause
(iv) of Rule 11, Chapter II of Ex. B-39, inter alia,
provides that every ordination of Presbyters shall be
performed by the laying on of hands by the Bishops and
Presbyters, and all consecrations of Bishops shall be
performed by the laying on of hands at least of three
Bishops. Clause (iv) further provides that the CSI believes
that "in all ordinations and consecrations the ordainer and
Consecrator is God who in response to the prayers of His
Church, and through the words and acts of its l
representatives, commissions and empowers for the office and
work to
749
which they are called the persons whom it has selected". It
may be mentioned here that in UBMC the method of
consecration and ordinar Action is also the same as in the
CSI. After an elaborate discussion, the learned Judge of the
High Court has come to the conclusion that the laying of
hands on the person to be ordained in the case of Episcopal
Church, meaning thereby the CSI, has a spiritual
significance of a transfer of Grace, whereas it has no such
spiritual significance in UBMC, but is a symbol of
conferment of authority only. After a person is appointed a
Bishop or a Presbyter in the CSI or a Pastor in UBMC, he has
to be ordained in almost the same manner as indicated above.
We do not think it is within the purview of the enquiry in
this litigation whether such ordination in the CSI has a
spiritual significance of a transfer of Grace or whether it
is only a symbol of conferment of authority, so far as UBMC
is concerned. The mode or manner of ordination or the
underlying of such ordination has, in our opinion, nothing
to do with the right of worship of the respondents.
UBMC believes in Apostle’s Creed and Nicene Creed.
Creeds are biographical sketches of Lord Jesus and they are
the main items of all Church Services. Under its
Constitution (Ex. B-39), the CSI also accepts the Apostle’s
Creed and the Nicene Creed. The complaint of the respondents
is that while the Shorter Catechism of Luther is placed on
the same footing as the Apostle’s Creed and the Nicene Creed
in UBMC, there is no reference to this in Constitution (Ex.
B-39) of the CSI. The Shorter Catechism of Luther is the
instruction in the form of a series of questions and answers
to be learnt by every person before he is baptised.
According to W 1, the Shorter Catechism of Luther is a
statement of faith in the form of questions and answers
based upon Scriptures and Creeds intended to be used in
instructing those who are to be baptised. That statement of
D.W. 1 has not been challenged in cross-examination on
behalf of the respondents. Both UBMC and the CSI believe in
Apostle’s Creed and Nicene Creed. If Shorter Catechism, as
stated by D.W. 1, consists of the Creeds in the form of
questions and answers, we do not think that merely because
there is no mention about Shorter Catechism the Constitution
of the CSI (Ex. B-39), it can be said that there is a
difference in the faith and doctrine of the two Churches as
held by the learned Judge. Moreover, this has nothing to do
with the right of worship of the respondents and,
accordingly, we do not think we are called upon to consider
the effect of non-mention of Shorter Catechism in Ex. B-39.
It is, however, urged on behalf of the respondents that
the right of worship of the respondents will be greatly
affected in case of union
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of the two Churches, as the CSI uses in prayers Apocrypha,
the meaning of which will be indicated presently. The Bible
consists of 66 "Cannonical Books"39 books of the old
Testament and 27 books of the New Testament. Later on 14
additional books were added to the old Testament. These 14
additional books are together named ’Apocrypha’. The Bible
that CSI uses contains not only "Canonical Books", but also
those 14 books known as ’Apocrypha’. It is apprehended by
the respondents that in case of merger, there is a
possibility of their being subjected to accept Apocrypha in
their prayers stated to be prevalent in the CSI. It is
submitted by the learned Counsel for the respondents that as
Apocrypha has been eschewed completely and not at all used
in Church Service by UBMC, it would affect the right of
worship of the respondents by reason of merger, as Apocrypha
would be imposed on them.
In support of the contention, much reliance has been
placed by the learned Counsel for the respondents on a
decision of the Privy Council in Thiruvenkata Ramanuja Pedda
Jiyyangarlu Valu v. Prathivathi Bhayankaram Venkatacharlu,
AIR 1947 PC 53. In that case there was a dispute between two
sections of the Vaishnavites, one known as Vadagalais and
the other as Tengalais. The question that came up for
consideration by the Privy Council was whether in the
Vaishnavite temples, situate in Trimulai and in Tripatti,
worship would be conducted exclusively in Tengalai order or
the Vadagalai ritual would form part of the worship in these
temples. The Privy Council came to the conclusion that
Vadagalai community was not entitled to interfere with
Tengalai ritual in the worship in those temples by insisting
on reciting their own "Manthram" simultaneously with the
Tengalai "Manthram". The suit instituted by the High-Priest
of the Tengalai community was decreed and the Vedagalai
community was restrained from interfering with the Tengalai
ritual in worship in those temples conducted by the
appellant or his deputy by insisting on reciting their own
"Manthram" simultaneously with the Tengalai "Manthram" .
The above decision of the Privy Council only lays down
that if the right of worship is interfered with, the persons
responsible for such interference can be restrained by an
order of injunction. Even if Apocrypha is followed in the
CSI that would not interfere with the right of worship of
the respondents. We have already referred to Rule 12,
Chapter II of the Constitution of the CSI (Ex. B-39), inter
alia, providing that no forms of worship, which before the
union have been in use in any of the united churches, shall
be forbidden in the CSI nor
751
shall any wonted forms be changed or new forms introduced
into the worship of any congregation. There is, therefore,
no cause for apprehension of the respondents that in case of
merger, the Apocrypha will be imposed upon them which is
repugnant to their religious faith. Moreover, in the liturgy
of the CSI, the prayer from Apocrypha has been made optional
which shows that there is no scope for the imposition of
Apocrypha on the respondents in case of union of UBMC and
CSI.
It is vehemently urged on behalf of the respondents
that in case of merger, the property held in trust by the
United Basel Mission Church in India Trust Association,
hereinafter referred to as ’UBMC Trust Association", for
UBMC of South Kanara and Coorg will be diverted to the CSI
and such diversion will be in complete breach of trust and
the court should not allow such breach of trust taking place
by the merger of UBMC of South Kanara and Coorg in the CSI.
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It is the case of the respondents in the plaint that
the properties of UBMC have been vested by the Evenglical
Missionary Societies in Basel (Basel Mission) in the UBMC
Trust Association by a declaration of trust. It appears that
by a deed dated September 18, 1934 (Ex. A-146), the
Evenglical Missionary Society in Basel (Basel Mission)
declared itself as the trustee seized of or entitled to the
lands and premises mentioned in the schedule to the said
deed, holding the same in trust, inter alia, for the benefit
of the members of the Church founded by the Society in the
districts of South Kanara, Bombay, Karnataka and Malabar
known as UBMC in India. Further, it appears that the said
Society appointed the UBMC Trust Association, a Company
incorporated under the Indian Companies Act, 1913, the
managers of the trust properties, which belong to the
Society and not to the UBMC Trust Association. Indeed, it
has been noticed that in the plaint the respondents also
admit that the properties belong to the Society and the
Society holds the same as the trustee for the benefit of
UBMC in India. In case of merger, there cannot be any
diversion of the properties held in trust by the Society and
managed by the UBMC Trust Association. The properties will
remain the properties of the Society which holds them only
for the purposes as mentioned in the said deed (Ex. A-146).
In other words, even though there is merger, the properties
or the income thereof will be utilised only for the benifit
of the memhers of the UBMC of South Kanara and Coorg.
Although the UBMC Trust Association and the Society
have been made parties in the suit as defendants Nos. 9 & l0
respectively,
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no relief has been claimed against either of them and there
is no prayer for restraining them from diverting the
property upon merger. It may be inferred from the absence of
such a prayer that it was known to the respondents that
there would be no diversion of the properties upon such
merger. It has been rightly observed by the learned Munsif
that as the respondents have not prayed for any relief
against the Society and the UBMC Trust Association, they
cannot urge that UBMC of South Kanara and Coorg will lose
their rights in the properties held by the UBMC Trust
Association, if a merger is permitted with the CSI. There is
no material to show that the UBMC Trust Association has
agreed to transfer the properties to the CSI in case of
merger. There is no allegation in that regard in the plaint.
In the circumstances, it is difficult to accept the
contention of the respondents that in case of merger there
will be diversion of the properties in the hands of the UBMC
Trust Association to the CSI in breach of trust.
Much reliance has been placed on behalf of the
respondents in the decision of the House of Lords in General
Assembly of Free Church of Scotland v. Lord overtoun, [1904]
AC 515 which, in our opinion, has no application to the
facts and circumstances of the instant case, in view of our
finding that there will be no diversion of the trust
properties in the hands of the UBMC Trust Association to the
CSI. What happened in Free Church case was that majority of
the members of Free Church of Scotland united and used the
funds, of which they claimed to be the beneficial owners,
for the use of the new united body. It was contended on
behalf of the minority, who chose to be out of such union,
that the user of such funds constituted breach of trust. The
enquiry in that decision was consequently directed to the
question whether there was a breach of trust or not and it
was held by majority of the Law Lords that there was such a
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breach of trust. As there is no question of such breach of
trust in the instant case, the Free Church case has no
manner of application, even though the High Court had made
elaborate discussions over the case and came to the finding
that certain observations made by Lord Halsbury, L.C. were
applicable. It appears that in considering the question as
to whether there was a breach of the trust or not, Lord
Halsbury made the following incidental observations:
"My Lords, I am bound to say that after the most
careful examination of the various documents
submitted to us, I cannot trace the least evidence
of either of them having abandoned their original
views. It is not the case of two associated bodies
of Christians in complete harmony as to
753
their doctrine agreeing to share their funds, but
two bodies each agreeing to keep their separate
religious views where they differ-agreeing to make
their formularies so elastic as to admit those who
accept them according as their respective
consciences will permit.
Assuming, as I do, that there are differences
of belief between them, these differences are not
got rid of by their agreeing to say nothing about
them nor are these essentially diverse views
avoided by selecting so elastic a formulary as can
be accepted by people who differ and say that they
claim their liberty to retain their differences
while purporting to join in one Christian Church.
It becomes but a colourable union, and no
trust fund devoted to one form of faith can be
shared by another communion simply because they
say in effect there are some parts of this or that
confession which we will agree not to discuss, and
we will make our formularies such that either of
us can accept it.
Such an agreement would not, in my view,
constitute a Church at all, or it would be, to use
Sir William Smith’s phrase, a Church without a
religion. Its formularies would be designed not to
be a confession of faith, but a concealment of
such part of the faith as constituted an
impediment to the union "
The observations extracted above have been strongly
relied upon by the learned Counsel for the respondents.
According to the observations, no objection can be taken, if
there be complete harmony as to their doctrine. As discussed
above, there is little or no difference between the
doctrines, faith and religious views of UBMC and the CSI.
The objection of the respondents to historical Episcopacy
has no solid foundation inasmuch as historical Episcopacy is
not in existence in the true sense of the term in the CSI,
and it is now in a constitutional form. In other words, as
earlier pointed out, the Bishops are elected and apostolic
succession which is associated with historical Episcopacy,
is totally absent. Moreover, the observations in the Free
Church case have been made in connection with the question
whether there was breach of trust or not. Therefore, the
said observations cannot, in any event, be applicable to the
facts of the present case which are different from those in
the Free Church case. We, accordingly, reject
754
the contention of the respondents that following the
observations made by Lord Halsbury, the impugned resolution
should be struck down and the appellants should be
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restrained from effecting any merger.
Now the question that remains to be considered is
whether the District Church Council had the authority to
pass the impugned resolution for the union of UBMC of South
Kanara and Coorg with the CSI. The impugned resolution dated
9-5-1961 (Ex. A-39) runs as follows: .
"61.04. Afterwards Rev. S.R. Furtado moved the
following resolution:
Resolved that the suggestion, appearing in
Minute 60.16 of the District Church Council held
on 12-5-60 that our South Kanara and Coorg
District Church should join the Church of South
India, is adopted, confirmed and finally passed.
Therefore, this District Church Council,
besides resolving to accept the constitution of
the Church of South India, authorises the District
Church Board to proceed to correspond in
connection with this matter with the authorities
of the Church of South India after obtaining
permission of the Synod of the United Basel
Mission Church."
under the Constitution of UBMC (Ex. A-1), Item 9 is the
District Church Council. Paragraph 1 of Item 9 provides as
follows:
1. The governance of the United Basel Mission
Church in India shall in each District be vested
in a body called the District Church Council which
shall be the final authority in all matters
relating to the church except those of faith and
order and the disciplining of pastors, evangelist
and
Thus, the District Church Council is the final
authority in all matters relating to the Church except those
of faith and order and the disciplining of Pastors,
Evangelist and Elders. Rule 14 of the Constitution confers
power on the District Church Council relating to the
amendment of the Constitution. Rule 14 provides as follows:
755
Whenever an amendment to the constitution is
found necessary any member of the Church Council
may propose the same in the meeting of the Council
and if it is duly seconded it shall be included in
the minutes of the Council. When the Council meets
again the proposed amendment shall once more be
moved and seconded and if three-fourth of the
members present vote in favour of the amendment,
it shall be passed and the fact be communicated
immediately to the Synod. "
It is, however, submitted on behalf of the respondents
that Rule 14 only relates to the amendment of the
Constitution, but in case of merger there will be a total
abrogation of the Constitution of UBMC. The Constitution has
not conferred any power on the District Church Council to
abrogate the Constitution. It is contended that amendment of
the Constitution and abrogation of the same are completely
different and, as no such power of abrogation of the
Constitution has been conferred on the District Church
Council, it had no authority whatsoever to pass the impugned
resolution which would mean the complete abrogation of the
Constitution of UBMC.
In support of their contention, the learned Counsel for
the respondents has pressed into service the decision of the
Special Bench of the Allahabad High Court in N.F. Barwell v.
John lackson, AIR 1948 All. 146 SB. In that case, the
members of unregistered Members’ Club owning certain
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properties passed a resolution by a majority vote that the
Club should be dissolved. It was held by the Special Bench
that in the absence of any provision in the Rules of the
Club laying down the circumstances and the manner in which
the dissolution of the Club could take place, the
dissolution of the Club would not be brought about by a
majority vote. The Club could be dissolved only if all the
members unanimously agreed to such dissolution. We are
afraid, this decision has no manner of application to the
facts of the instant case. Here we are not concerned with
the question of dissolution of UBMC of South Kanara and
Coorg, but with the question of merger. Dissolution
contemplates liquidation of the Club and distribution of all
assets among the members, but in the case of merger, there
is no question of liquidation or distribution of assets.
Moreover, we have already discussed above that the
properties held in trust for UBMC will not be diverted to
the use of the CSI, but will continue to be held in trust by
the UBMC Trust Association for the benefit of the
756
members of the UBMC of South Kanara and Coorg, even if a
merger takes place.
It is the contention of the appellants that the
District Church Council had the authority to pass the
impugned resolution. It is submitted that in any event the
Synod of UBMC having permitted the. District Church Council
of South Kanara and Coorg to join the CSI, the validity of
the resolution is beyond any challenge. Our attention has
been drawn on behalf of the appellants to Rule 13(2) of the
Constitution of UBMC (Ex. A-1) which deals with the
functions of the Synod. Rule 13(2) reads as follows:
"R. 13(2). Its functions shall be:
(a) to hear the reports of church and mission
work of each District:
(b) to suggest such measures of uniformity as may
be necessary for the mission and church work
in the three districts;
(c) to give suggestions on problems pertaining to
(1) the spiritual life and work of the
different churches (2) the common evangelists
activities of church and mission (3) the
church union and (4) the administration of
Church property, funds, etc;
(d) to decide finally all questions of faith and
order in the United Basel Mission Church of
India, provided that all that all such
decisions are arrived at by a majority of
three fourths its total strength."
One of the functions of the Synod, as contained in
clause (c)(3), is to give suggestions on problems pertaining
to the Church Union. Another function is that contained in
clause (d), upon which much reliance has been placed on
behalf of the appellants. Clause (c)(3) and clause (d) read
together confer authority on the Synod to grant permission
for union keeping in view the question of faith and order.
It is the case of the appellants that Synod has accorded its
permission for the merger of UBMC of South Kanara and Coorg
in the CSI. It is also their case that the resolution has
already been implemented. The learned Judge of the High
Court has taken much pains in coming to the conclusion that
there has been no such implementation as alleged by the
757
appellants. The question before us is not whether there has
been any implementation of the resolution or not, but the
question is whether the District Church Council had the
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authority to pass such a resolution. It is true that the
District Church Council has only the power of amendment of
the Constitution. No power has been conferred on it to pass
a resolution relating to the union of UBMC of South Kanara
and Coorg with the CSI. But the Synod is the highest
authority and there can be no doubt that the Synod has the
power to sanction merger of any unit of UBMC in the CSI. On
24-6-1968, the Synod of UBMC passed the following
resolution:
"Resolved unanimously that this Synod of the
United Basel Mission Church permit the District
Church Council of South Kanara and Coorg to join
the Church of South India and that with effect
from the date of affiliation this Synod cease to
exist"
The learned Judge of the High Court has also noticed in
paragraph 19 of his judgment that such a resolution of the
Synod according permission for the union was passed on 24-6-
1968. The resolution was passed unanimously by all the
members present on that date. It is, however, faintly
suggested by the learned Counsel for the respondents that
Synod was not in existence after the merger of Bombay,
Karnataka and Malabar units of UBMC in the CSI. The
suggestion is not correct, for the Synod that existed after
the merger of the said two units in the CSI unanimously
passed the resolution. As the Synod was a representative
body of the units, it stood dissolved after passing the
resolution sanctioning the merger of the only remaining unit
of South Kanara and Coorg in the CSI. But, until such a
resolution was passed, it did exist as the highest
authoritative and administrative body of UBMC.
Another ground challenging the validity of the
resolution that has been urged on behalf of the respondents
is that it violates the provision of section 6 of the
Religious Societies Act, 1880. Section 6 provides as
follows:
"S. 6. Provision for dissolution of societies and
adjustment of their affairs.-Any number not less
than three-fifths of the members of any such body
as aforesaid may at a meeting convened for the
purpose determine that such body shall be
dissolved; and thereupon it shall be dissolved
forthwith, or at the time when agreed upon; and
all neces-
758
sary steps shall be taken for the disposal and
settlement of the property of such body, its
claims and liabilities, according to the rules of
such body applicable thereto, if any, and, if not,
then as such body at such meeting may determine:
Provided that, in the event of any dispute
arising among the members of such body, the
adjustment of its affairs shall be referred to the
principal Court of original civil jurisdiction of
the district in which the chief building o. such
body is situate; and the Court shall make such
order in the matter as it deems fit."
This challenge is misconceived. Section 6 deals with
dissolution of Societies and adjustment of their affairs. It
has been already observed by us that there is no question of
dissolution of UBMC of South Kanara and Coorg and the
disposal and settlement of its property and claims and
liabilities etc., consequent upon such dissolution as
provided in section 6 and, as such, the provision of section
6 is not at all applicable to the facts and circumstances of
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the instant case. The contention made on behalf of the
respondents is without any substance .
We are unable to agree with the finding of the learned
Judge of the High Court that the impugned resolution
violates the provision of section 6 of the Religious
Societies Act and in view of the fact that the Synod had
unanimously accorded permission for the merger, the High
Court was not justified in striking down the impugned
resolution of the ground that it was beyond the authority of
the District Church Council to pass such a resolution. In
our opinion, the impugned resolution is legal and valid.
In the result, the appeal is allowed. The judgment and
decree of the learned Judge of the High Court are set aside
and the judgment and decree of the first appellate court
affirming those of the trial court are restored.
In the facts and circumstances of the case, we direct
the parties to (J hear their own costs in this Court.
S.L. Appeal allowed.
759