Canon Law Can't Supplant General Law : Kerala High Court Laments Lack Of Endowment Legislation To Deal With Church Properties

The Kerala High Court on Thursday ruled that Canon law cannot be applied in derogation of the requirement of the general law, particularly in matters relating to property owned or managed by a trust or an endowment. On similar lines, the Bench found it unfortunate that the country lacked an endowment legislation to address the grievances and legal implications revolving around the legal status of Church authorities and charitable institutions they run. Justice P.Somarajan while dismissing a batch of petitions filed by Cardinal Mar George Alencherry, the Major Archbishop of Syro Malabar Church, seeking to quash the criminal cases over the alienation of properties belonging to Syro Malabar Church, observed as such:"It is so unfortunate that no endowment legislation has so far been enacted to address the various issues connected with the legal status of church authorities in so far as the properties which are held not as part of their religious belief, faith or observances and to even address the legal status of a charitable institution run by the church authorities."The Court was hearing a matter in which the dispute pertains to the execution of various sale deeds in respect of properties held by the Syro Malabar Church, a religious congregation allegedly without compliance with the requirements as per the bye-laws of the Church causing heavy financial losses to the church and its parishioners.It also emphasised that although in the Episcopal church, the prime authority is vested with the spiritual head regarding the temporal and spiritual affairs of the church and they are governed by the Canon law, the religious supremacy vested with the Bishop or apostolic succession should be understood confined to religious matters both temporal and spiritual governed by ecclesiastical law viz., the Canon law. Hence, it was observed that the Canon law cannot be applied in derogation of the requirement of the general law, when the property held is either in an endowment or in trust.Lack of Endowment Legislation:While delivering the order, the Bench noted that the theory of the apostolic succession of Jesus Christ was entirely spiritual and ecclesiastical in its nature. Therefore, what is vested with the Bishop of the Archdiocese based on this theory was the supremacy of faith, belief, religious observances, supervision, and administration of its own affairs pertaining to apostolic succession. It would include even the appointment, control, and administration of priests, deacons, vicars, and those involved in and are closely connected with spiritual and religious observances and maintenance, protection, upkeep of places of worship under the said theory.However, the Bench observed that this was not governed by any general law, but purely by the personal law viz., the provisions of Canon law. Drawing a fine line between what property will be governed under which regulations, it was laid don that as far as other properties are concerned, either held or possessed by the church, which is not the subject of any religious observances or places of worship based on the theory of apostolic succession, the possession, right and title over such properties would be governed by the general law and not by the Canon law. This implies that a separate legal entity to the person who holds the property has to be recognized for the general law applicable.The Court made thereby made an attempt to sort out all the legal provisions that could be made applicable to such situations. Another aspect noted by the bench was that the theory of apostolic succession does not permit the sale or transfer of immovable property, presumably for the reason that there cannot be any sale or transfer of a place of worship. In case any property is subjected to a sale or transfer, it would be beyond the scope of religious or spiritual observances or a place of worship and the theory of apostolic succession and religious supremacy cannot be applied as such. Hence, the Court noted that there would be an implied creation of public trust regarding the other properties which are not the subject of religious faith, belief or observances or the place of worship for the benefit of parishioners since a section of people would also come under the ambit of term "public". As such, it was concluded that the Canon law or the Constitution, which was either adopted or evolved in course of time in the administration and observance of spiritual, religious, ecclesiastical, and temporal affairs, hence cannot be applied to matters which stand outside its purview.Necessarily, those properties held in public trust would stand amenable to Section 92 CPC, and clauses (d) to (h) of Section 92(1) C.P.C. dealing with "corporeal" rights will retain its application.Therefore, in the case of religious endowments of a public nature, the Religious Endowments Act would apply. in such cases, a suit charging the trustee, manager, superintendent, or a member of a committee of a mosque, temple, or...

Canon Law Can't Supplant General Law : Kerala High Court Laments Lack Of Endowment Legislation To Deal With Church Properties

Hannah M Varghese

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