JUDGMENT : Joseph Vithayathil, J. The defendants who are 11 in number are the appellants. They are members of the London Mission Church at Kadamalakunnu in South Travancore. The plaintiff claims to be the pastor of that Church. The suit is for declaration that the plaintiff is entitled to conduct service in the church as pastor and for a permanent injunction restraining the defendants from obstructing him in the conduct of such service. The main allegations in the plaint are the following: The plaint church belongs to the London Missionary Society Corporation incorporated in England. The Corporation acts in Travancore through its power of attorney-holder, Rev. H. H. Eastaff (P. W. 3). The London Mission Churches in Travancore are in the possession and control of church workers appointed by appropriate councils and committees consisting of elected representatives of the churches. “The supreme body” that governed the churches was the Travancore Church Council (T.C.C.) which is now called the South Travancore Diocesan Council (S.T.D.C.). The London Mission Churches in Travancore were “in association with” the South India United Church (S.I.U.C.) till 26th September 1947 on which date the South India United Church resolved to dissolve itself and unite with the Church of England and the Methodist Church in South India to form the Church of South India (C.S. I.). The Travancore Church Council (T.C.C.) which was one of the eight Church Councils that formed the South India United Church was effectively represented in the negotiations for this union and it resolved by a 75% majority to accept the scheme of union proposed by the three negotiating churches. After the union the London Mission Churches in Travancore are “in association with” the Church of South India (C.S.I.) and the South Travancore Diocesan Council (S.T. D.C.) which has taken the place of the Travancore Church Council (T.C.C.) is now “the Supreme body” that governs the London Mission Churches in Travancore. The first defendant who was the church-worker of the plaint church resigned his office and the plaintiff was appointed pastor of the church by the Bishop of South Travancore Diocese (P. W. 4). The defendants who had secured the key of the Church refused to open the church when the plaintiff wanted to conduct service in the church on 24-12-1123. The service had, therefore, to be conducted on the verandah of the church and the election of deacons also took place there. The defendants who had secured the key of the Church refused to open the church when the plaintiff wanted to conduct service in the church on 24-12-1123. The service had, therefore, to be conducted on the verandah of the church and the election of deacons also took place there. Thereafter, the power-of-attorney-holder of the London Missionary Society Corporation authorised the plaintiff to enter the church and accordingly the plaintiff entered the church on 31-12-1123 and conducted service. While the service was about to finish the - defendants entered the church with the help of the police, caused disturbance there and attempted to assault the plaintiff and others. Consequently the congregation was advised to disperse. According to the plaintiff, he alone has the right to conduct service in the church, and the church and its premises are in his possession in continuity of the possession of the London Missionary Society Corporation through its accredited agents and church-workers for the last 150 years, and the defendants have no manner of right to obstruct him in opening the church and conducting service there. The plaintiff therefore prayed for a declaration that he is entitled to conduct divine worship, administer sacraments and solemnise marriages in the plaint church and for a permanent injunction restraining the defendants from obstructing him in opening the church and conducting such services. The defendants were impleaded in their individual capacity and not as representatives of the congregation of the church. The congregation was not made a party to the suit and no permission was sought by the plaintiff under Order I, Rule 8 of the Code of Civil Procedure. 2. All the defendants contested the suit. Defendants 1 and 2 filed a joint written statement while defendants 3 to 11 filed another joint written statement. Identical contentions were raised in both the written statements. The following were the contentions: The plaintiff has never been the pastor of the plaint church. He was not validly appointed as pastor. The plaint church does not belong to the London Missionary Society Corporation. The Corporation does not own any properties except as trustees. The first defendant is the church-worker and president of the church committee of the plaint church. Defendants 2, 4, 5, 6 and 7 are members of the church committee. The 2nd defendant is the Secretary and the 6th defendant the treasurer of the church. The Corporation does not own any properties except as trustees. The first defendant is the church-worker and president of the church committee of the plaint church. Defendants 2, 4, 5, 6 and 7 are members of the church committee. The 2nd defendant is the Secretary and the 6th defendant the treasurer of the church. The members of the congregation are the beneficiaries of the church and the properties belonging to it. The first defendant did not resign his office as church-worker. The power-of-attorney-holder of the London Missionary Society Corporation has no possession of the London Mission Churches in Travancore nor of the properties attached to these Churches. Neither has he any control over the church-workers. The Churches and properties attached to them are under the control and in the possession of church committees. The Travancore Church Council (T.C.C.) is not the supreme governing body of the London Mission Churches in Travancore. It has only certain limited powers conferred on it under the written constitution. It is not true that the South Travancore Diocesan Council is but a new name for the Travancore Church Council. The South Travancore Diocesan Council is a creation of the Church of South India and it has no authority over the London Mission Christians in Travancore. The South India United Church was only a federal union of certain Churches. Though the associate churches of this federal union could dissolve the union they were not competent to unite with other churches holding fundamentally different principles in matters of faith, doctrine and church government. The Travancore Church Council was not effectively represented in the negotiations for church union. It is not true that it resolved by a 75 per cent majority to accept the scheme of union. In any case it had no authority to accede to the union or to merge into the South Travancore Diocesan Council. The union is repugnant to the constitution, doctrines and rules of the Travancore London Mission Church. The plaintiff could not get admission into the plaint church and no service was conducted by him in the Church as alleged in the plaint. The defendants who are in lawful possession of the church have the right to prevent the entry of any unauthorised person into the church. The plaintiff has no possession of the church. The church was and continues to be in the possession of the church committee. The defendants who are in lawful possession of the church have the right to prevent the entry of any unauthorised person into the church. The plaintiff has no possession of the church. The church was and continues to be in the possession of the church committee. The Episcopal Church of South India to which the plaintiff belongs is different in its fundamental doctrines, church government and other matters from the London Mission Church in Travancore. The plaintiff has become an alien to the London Mission Church and is therefore incompetent to conduct service in the plaint church. The defendants were all along opposing the proposed church union and had expressed their desire to continue as members of the London Mission Church. The plaintiff is not entitled to any of the reliefs claimed in the plaint. The suit is not of a civil nature and the plaintiff has no cause of action. The suit is unsustainable. Proper court fee has not been paid. For these reasons it was prayed that the suit should be dismissed with costs. 3. The contention relating to court fee was not pressed by the defendants. With regard to the contention that the suit was unsustainable it was not stated in the written statement why it was not sustainable. At the time of the final hearing of the case it was argued for the defendants that the suit was unsustainable by reason of the fact that necessary parties were not impleaded in the suit. It was argued that in the nature of the reliefs claimed in the plaint the plaint church, i. e., the congregation, ought to have been made a party to the suit. Learned counsel for the plaintiff replied that the plaintiff did not want any relief against the congregation and that he only wanted a decree against the defendants impleaded in the suit. The court below held that the plaintiff could not be compelled to make the congregation a party to the suit and decided the point in favour of the plaintiff. 4. The next question considered by the court below relates to the ownership and possession of the plaint church. It was held that the land on which the church was built belonged to the London Missionary Society Corporation. It was also held that the London Missionary Society Corporation founded the plaint church. 4. The next question considered by the court below relates to the ownership and possession of the plaint church. It was held that the land on which the church was built belonged to the London Missionary Society Corporation. It was also held that the London Missionary Society Corporation founded the plaint church. But it was held that “the plaint church and the ‘land in actual use’ therefore are held by the L. M. S. Corporation only as trustee for the L. M. Church in Travancore as popularly understood or the T. C. C.”. With regard to possession, it was held that “the plaintiff as the agent of the Corporation and the S.T. D.C. (South Travancore Diocesan Council) has legal possession of the plaint church and the land in actual use”. 5. The court below next considered the question whether the first defendant resigned his office as church-worker and whether the plaintiff was validly appointed as pastor of the plaint church. It was held that the first defendant resigned or vacated the office of church-worker. With regard to the appointment of the plaintiff as pastor it was held that “subject to the finding on the question of the legality of the Church Union” the plaintiff was validly appointed pastor of the plaint church. 6. The learned District Judge then considered the question whether the South India United Church was competent to unite with the Church of England and the Methodist Church in South India so as to form the Church of South India (C. S. I.) and decided the question in favour of the plaintiff. It was held that the General Assembly of the South India United Church was competent to pass the resolution, Ext. O1, agreeing to the union. 7. The next question considered by the court below related to the validity of the resolution, Ext. AC1, passed by the Travancore Church Council accepting the scheme of union. The executive committee of the Travancore Church Council had by resolution, Ext. Ql, recommended that the Travancore Church Council should not go forward with the scheme of union “unless 75% of the members of the council present and voting “were in favour of the union”. This recommendation was accepted by the Travancore Church Council by its resolution, Ext. R1, of July 1942. Ql, recommended that the Travancore Church Council should not go forward with the scheme of union “unless 75% of the members of the council present and voting “were in favour of the union”. This recommendation was accepted by the Travancore Church Council by its resolution, Ext. R1, of July 1942. In the voting on church union by the Travancore Church Council in September 1946, 116 votes were recorded in favour of union and 39 against. This would be only a majority of 74.84 per cent. The president then asked whether the Council agreed to accept this as 75 per cent in favour of union and the council agreed nem con. It was contended on behalf of the defendant that this would not amount to a 75% majority in favour of union required by the resolution, Ext. R1. The court below repelled this contention and held that no illegality was attached to the passing Of the resolution. With regard to the further question whether the resolution was ultra vires the powers of the Travancore Church Council, the finding was that “while the Travancore Church Council had no power under its constitution to decide upon schemes of church union for itself, it had a right to tender its vote thereon to the South India United Church for an amendment of the latter’s constitution” and that, viewed in that light, the resolution of the Travancore Church Council could not be held to be ultra vires or invalid. 8. The last question considered by the court below was whether the Church of South India (C.S. I.) is repugnant to the constitution, doctrines and rules of the London Mission Church in Travancore and whether the plaintiff has become an alien to the Travancore London Mission Church by joining the Church of South India. This question was considered by the learned District Judge in the light of the decision of the House of Lords in the Free Church Case (Free Church of Scotland v. Overtoun - 1904 A. C. 515). As already stated, the learned Judge had held that the London Missionary Society was the founder of the plaint church. On the basis of the decision in the Free Church Case the learned Judge took the view that it was the intention of the founder of the trust that should govern its destination. As already stated, the learned Judge had held that the London Missionary Society was the founder of the plaint church. On the basis of the decision in the Free Church Case the learned Judge took the view that it was the intention of the founder of the trust that should govern its destination. The learned Judge then considered the fundamental principle of the London Missionary Society as embodied it Ext. G1, and held that the Society had no intention to found congregational churches in Travancore and that it allowed full freedom to the churches to assume for themselves such form of church government as in their opinion appeared most agreeable to the ‘Word of God’. It was, therefore, held that the union of the London Mission Church in Travancore with the Church of England and the Methodist Church was not opposed to the fundamental principle of the founder of the trust. Although, according to the learned Judge, it was not necessary to go into the question whether the union was opposed to the fundamental principles of the London Mission Church in Travancore he considered that question also “out of deference to the arguments advanced” before him. The question was considered under the following heads: (1) Autonomy of the churches; (2) The doctrines applicable to the ministry, namely, those relating to (i) the ‘priest-hood of all believers’, (ii) ordination, (iii) gradation of ministry, (iv) equality of ministry and (v) historic episcopate; (3) Sacraments; (4) Membership of church; (5) Creeds; (6) Worship or Order of Service; and (7) Conception of Church. With regard to autonomy of the churches, it was held that their autonomy was but nominal, that it was not a fundamental principle of the London Mission Church and that the absence of autonomy of the Churches under the scheme of union did not amount to a departure on a fundamental principle. With regard to the doctrine relating to the ‘priest-hoed of all believers’ it was held that no change was introduced by the scheme of Union either in theory or in practice. As for ordination it was held that there was a fundamental departure in respect of the doctrine relating to ordination and the mediatorial function of priest-hood. As regards gradation of ministry also it was held that there was a fundamental departure from the principles of the London Mission Church. As for ordination it was held that there was a fundamental departure in respect of the doctrine relating to ordination and the mediatorial function of priest-hood. As regards gradation of ministry also it was held that there was a fundamental departure from the principles of the London Mission Church. With regard to the question of equality of ministry, it was held that there was no departure on a fundamental principle. As for Episcopacy the Uniting Churches were required to accept ‘historic episcopate’ of a constitutional nature and were allowed to hold their own views regarding the doctrine of episcopacy. This, according to the learned Judge, amounted to giving the members of the united Church freedom to hold different views regarding a fundamental religious doctrine and made the union a colourable one. The learned Judge, however, did not regard this as a material factor since, according to him, the only relevant question for consideration was whether the union was opposed to the fundamental principles of the London Missionary Society. As regard’s sacraments, i.e., the sacraments of Baptism and Lord’s Supper, the finding is that the doctrines of the United Church regarding them are opposed to those of the London Mission Church in Travancore. With regard to membership of the Church it was held that no fundamental change was introduced by the union. The same are the findings regarding creeds, worship or order of Service and conception of Church. Thus the finding of the learned Judge on this part of the case is that “there are fundamental differences between the L. M. Churches and the C. S. I. in respect of the doctrines relating to the Ministry and the Sacraments, and that there is no real agreement on the doctrines as to Episcopacy”. 9. After recording this finding the learned Judge came to the following conclusion: “This does not appear to be material for the decision of the case, as the: court is only concerned with the destination of the trust property which is solely controlled and directed by the intentions of the L. M. S. as the author of the trust which, in creating the trust, was as held already, guided by no other consideration than the adherence to its own fundamental principle, evidenced by Ext. G1. G1. The plaintiff cannot therefore by his acceptance of the principles of the C. S. I, be deemed to have become incompetent to enter the plaint Church or hold services in it. It has already been found on issue 7 that the legal possession of the plaint church and the land ‘in actual use’ vests in the plaintiff under the attorney of the L. M. S. Corporation and that the defendants have no right except to use the: church for worship. Consistently with these findings it has to be held that by entering the church and conducting services, the plaintiff would not infringe any right: of the defendants. The plaintiff does not seek to drive away the defendants from the church or prohibit their use of it for worship; but on the contrary he insists on their remaining in it, if they care, to participate in the services. He only seeks the assistance of the court in order that the defendants may not interfere with his rights. I think, on the findings he is entitled to this protection.” Accordingly, the plaintiff was given a decree in terms of the plaint with costs. 10. In the appeal the defendants attacked all the findings recorded by the learned District Judge against them. The plaintiff, while supporting the decision, objected to the findings that were against them. Very learned and elaborate arguments were addressed to us by counsel appearing on both sides on the various questions that arose for consideration in the appeal. The two main questions for decision are those relating to the possession of the plaint church and to the validity or binding character of the church union so far as the plaint church is concerned. For a proper appreciation of these questions it is necessary to have an idea about the London Missionary Society, the London. Mission Churches in Travancore and the Church Union Movement. 11. The London Missionary Society was founded in the year 1795 by an association of Protestant Christians of different denominations for the purpose of propagating the Gospel of Christ in non-Christian countries. In order to mark its undenominational character it took its name from the city of London where it was founded. 11. The London Missionary Society was founded in the year 1795 by an association of Protestant Christians of different denominations for the purpose of propagating the Gospel of Christ in non-Christian countries. In order to mark its undenominational character it took its name from the city of London where it was founded. This undenominational character of the Society was regarded as its fundamental principle as is clear from the resolution passed by the Directors on May, 9, 1796, which was to the following effect:- “As the Union of God’s People of various denominations in carrying on this great work, is a most desirable object, so to prevent, if possible, any cause of future dissention, it is declared to be a fundamental principle of the Missionary Society, that our design is not to send “Presbyterianism, Independency, Episcopacy, or any other form of Church order and Government [about which there may be differences of opinion among serious persons], but the Glorious Gospel of the Blessed God to the heathen, and that it shall be left [as it ever ought to be left] to the minds of the persons whom God may call into the fellowship of His Son from among them to assume for themselves such form of Church Government as to them shall appear most agreeable to the Word of God “ [Vide History of the London Missionary Society by Lovett, Vol. I, [Ext. XCVI-A] page 49]. But not long after the formation of the Society other missionary societies were formed by Protestant denominations attached to Episcopacy and Presbyterianism and consequently the London Missionary Society became practically identified with the body of Nonconformists known as Congregationalists. This is clear from the report of a committee appointed by the Directors of the Society in the year 1866. The committee reported:- “During the last thirty years the Society has been gradually becoming, and is now almost absolutely become, restricted for its support to the congregational body, though at its origin it embraced a much wider area.............................................The growing influence of the Church Missionary Society in England and the organisation of missionary institutions by the Established and other Presbyterian Churches in Scotland, accounts for the gradual secession of many former supports of the London Missionary Society”. [Ext. XCVI-B-Lovett, Vol. II. pp. 688-689]. To the same effect is the observation of Machenzi in his book, Christianity in Travancore (Ext. [Ext. XCVI-B-Lovett, Vol. II. pp. 688-689]. To the same effect is the observation of Machenzi in his book, Christianity in Travancore (Ext. XCIV) published in the year 1901:- “The London Missionary Society has now become identified almost entirely with the congregational or Independent body of English Non-conformists”. [Page 50]. In an article published in the ‘Chronicle’ of March 1949 by the Home Secretary of the London Missionary Society we find the following passage:- “Is the L. M. S. Congregational? It certainly does not bear the name Congregational, but it is Congregational in life and practice”. [Ext. XXII, page 40], But the Society still adhered to its Fundamental Principle which was re-affirmed in all its annual reports. Ext. T is the report for the year 1943 and Ext.T (1) is the Fundamental Principle of the Society reproduced in Ext. T. This aspect is emphasised by Lovett. He says:- “Whatever appearance of alteration a hundred years have brought has been due, not to any charge of view on the part of Directors or supporters of the Society, but to the fact that those attached to Episcopacy and Presbyterianism have very naturally thrown, for the most part, their sympathy and their support into those special denominational societies which have sprung into existence since 1796.” [Ext. XCVI - A. page 50]. Although the missionaries that were sent out by the Society in the beginning belonged to different Protestant denominations the natural result of the Society becoming in course of time identified with the Congregational denomination was that the missionaries sent by the Society also happened to be Congregationalists. They interpreted the Gospel according to the Congregationalist point of view and the form of worship and church government introduced by them were also of the Congregationalist type. 12. It is necessary in this connection to refer to the chief characteristics of Congregationalism. The Congregationalists are one of the Non-conformist Protestant denominations. The distinguishing features of Congregationalism are thus described in Encyclopaedia Britannica: Congregationalism is “the name given to that type of church organisation in which the autonomy of the local church, or body of persons wont to assemble in Christian Fellowship, is fundamental. Varied as are the forms which this idea has assumed under varying conditions of time and place, it remains distinctive enough to constitute one of the three main types of ecclesiastical polity, the others being Episcopacy and Presbyterianism. Varied as are the forms which this idea has assumed under varying conditions of time and place, it remains distinctive enough to constitute one of the three main types of ecclesiastical polity, the others being Episcopacy and Presbyterianism. It regards church authority as inherent in each local body of believers, as a miniature realisation of the whole church, which can itself have only an ideal corporate being on earth. But, while in practice it is religious democracy, in theory it claims to be the most immediate form of theocracy, God himself being regarded as ruling His people directly through Christ as Head of the Church, whether Catholic or local. So viewed Congregationalism is a “high Church”- theory as distinct from a high clerical one. It springs from the religious principle that each body of believers in actual Church Fellowship must be free of all external human control, in order the more fully to obey the Will of God as conveyed to conscience by His Spirit”. (Encyclopaedia Britannica, 14th Edition, Vol. VI, page 246). The essential feature of Congregationalism is the autonomy or independence of the individual church or congregation. But there may be matters in which the individual churches are interested as a whole and in order to enable the churches to effectively fulfil their responsibilities in respect of those matters they may enter into unions. The Congregational Churches of England and Wales have such a Union. Ext. DE is the Year Book of that Union for the year 1948. But the Union gets only those powers that are voluntarily surrendered by the individual churches. In this respect Congregationalism is opposed to Presbyterianism, the distinguishing feature of Presbyterianism being the highly centralised system of administration. In the Presbyterian Church the General Assembly of the Elders is the Governing Body and the local churches have no real independence. Both Congregationalists and Presbyterians are opposed to Episcopacy, i. e., Government of the Church by Bishops. They do not believe in the institution of Episcopacy nor in what is called Apostolic Succession, the doctrine that the Bishops are the successors of the apostles of Christ. We shall have to consider this matter in detail when we deal with the question whether the union of the London Mission Church in Travancore with the Episcopalian Church of England in South India amounted to a deviation from the fundamental principles of the London Mission Church. We shall have to consider this matter in detail when we deal with the question whether the union of the London Mission Church in Travancore with the Episcopalian Church of England in South India amounted to a deviation from the fundamental principles of the London Mission Church. Before going into that question it is necessary to have an idea about the history of the London Mission Church in Travancore. 13. The London Mission Churches in Travancore are so called because they were founded by the missionaries sent out by the London Missionary Society. The first missionary of the London Missionary Society that preached the Gospel in Travancore was a Prussian, Rev. Ringeltaube. He began his mission work in South Travancore in the year 1806 and converted a good number of Shanars to the Christian faith. With regard to the form of church service adopted by Ringeltaube for the use of the converts what we are able to gather from Angur’s Church History of Travancore is that for baptisms, marriages and funerals he followed the forms laid down in the ritual of the Church of England. (Angur, History of the Christian Church in Travancore, page 597). Ringeltaube left Travancore in 1816. Before leaving Travancore he ordained as pastor an Indian Catechist, Vedamanickam, who was given charge of the mission until a missionary was sent by the London Missionary Society. Mr. Mead who was sent by the Society took charge of the Mission in 1817. He is the founder of most of the mission stations of the Society in Travancore. He was trained as a Church of England man, but did not take orders in the Established Church. He associated himself with the Methodists (Angur, page 649). He brought into use in Travancore the Methodist ways and forms of worship although he did not altogether do away with the Church of England forms (Angur, page 701). He had as his colleague a Congregationalist missionary, Mr. Mault, who was given charge of a station in 1827. In a report sent by Mr. Mault to the London Missionary Society in 1830 it is stated thus about the form of worship adopted by the converts. “In our absence they conduct the public worship of God “nearly on the same plan as in our Congregational Churches in England” (Ext. XCVI-B, page 156). The mission made great progress under Mr. In a report sent by Mr. Mault to the London Missionary Society in 1830 it is stated thus about the form of worship adopted by the converts. “In our absence they conduct the public worship of God “nearly on the same plan as in our Congregational Churches in England” (Ext. XCVI-B, page 156). The mission made great progress under Mr. Mead and was in a well-established position when he retired in 1853. By this time the London Missionary Society had come to be identified with the Congregationalist denomination and, as stated already, the missionaries that were sent out to Travancore happened to be mostly Congregationalists. Consequently the form of government of the London Mission Churches in Travancore “drifted towards Congregationalism” (Angur, p. 701). This is what Lovette says about the nature of the London Mission Churches in India: “The Society has made no attempt in India, for example, to build up an Indian Congregational Church. But it has formed, wherever possible, native Christian Churches, and these have almost necessarily, as the missionary influence is bound to be very considerable, been organised upon congregational lines, with here and there a leaning towards Presbyterianism.” [Ext. XCVI-B, p. 260]. 14. In order to co-ordinate the work of the missionaries and to ensure the efficient working of the missions the London Missionary Society directed their missionaries to form in all mission centres District Committees of the missionaries. The directions regarding the formation and working of those committees are contained in the General Regulations of the Society (Ext. XCII). Clause 3 of the Regulations reads thus: “With a view to secure a wise conduct of their missions, including a judicious division of common labours, the missionaries of the Society shall be associated together in committies, and as such shall maintain direct correspondence with the Board at home.” One such committee was constituted for Travancore and it was known as the Travancore District Committee (T.D.C.). All important questions relating to the missions in Travancore were settled by the T.D.C. 15. A new stage in the growth of the L. M. Churches in Travancore was reached when in the year 1866 four Indians were ordained as pastors and put in charge of four churches. The Society also encouraged the establishment of independent self-supporting pastorate churches. In course of time more pastorate churches were formed and more Indians were ordained as pastors. 16. The Society also encouraged the establishment of independent self-supporting pastorate churches. In course of time more pastorate churches were formed and more Indians were ordained as pastors. 16. The next stage in the development of the Travancore L. M. Churches was reached when the South Travancore Church Council (S.T.C.C.) was formed in the year 1874. Ext. L (50) contains the constitution of this Council. The members of the council were all the native ministers, one evangelist, two catechists and two communicants from each District of the Mission, one seminary teacher and one deacon or communicant from each Pastorate. The function of the Council was more or less of an advisory character, the T.D.C. having the power to veto its recommendations. Rule VII of Ext. L provided that all resolutions of the Council should be forwarded to the District Committee to be dealt with by the committee in the way which might seem best to them. Rule IX provided that the T.D.C. had power to “alter, add to, or subtract from” the rules from time to time as might be deemed necessary. 17. A further step in the development of the Churches was the formation of the Travancore Church Union in the year 1904. Ext. XXVIII is the constitution of the Union. The members of the union were the missionaries in the L.M.S. stations in Travancore, all ordained ministers in connection with the Society in Travancore, and the representatives of all pastorate churches. The object of the union was the “general oversight and control of all the churches over which pastors have been appointed in all matters concerning the call, examination, appointment, ordination, discipline, and dismissal of pastors” and in other “matters concerning the relation of the Pastors and Churches”. It was expressly provided that “such matters as the examination of candidates for baptism, admission to church fellowship, and discipline of members” would not come within the purview of the union except in so far as they might affect the relation between the Pastor and the Church. It was also provided that a church or the churches composing a Pastorate might have their corporate conduct judged and might for a time be deprived of pastoral care and of Christian privileges for just cause shown and proved to the Union. 18. It was also provided that a church or the churches composing a Pastorate might have their corporate conduct judged and might for a time be deprived of pastoral care and of Christian privileges for just cause shown and proved to the Union. 18. Soon after the formation of the Travancore Church Union, the L. M. Churches in Travancore together with other London Mission Churches in South India formed into a Union with the Madura and Jaffna Missions of the American Foreign Missions. The first General Assembly of this union was held in 1905. This was only a step in the direction of wider union. In 1908 these united Churches formed into a union with another united body of Presbyterian Churches known as “The South India Synod of the Presbyterian Church”. The United Church was called “The South India United Church” (S.I.U.C). Ext. DU (1) is the Declaration of Union. It also contains the constitution of the united Church. Ext. J also contains the constitution and the Rules of S.I.U.C. In the Declaration of Union it was stated that the uniting Churches agreed to unite organically into one body. But it is argued for the appellants that the union was really only a federal union. This is one of the questions that have to be considered in the appeal. The General Assembly of the S.I.U.C. consisted of the representatives of eight Church Councils, i.e., Jaffna Church Council, Kanarese Church Council, Madras Church Council, Madura Church Council, Malabar Church Council, North Tamil Church Council, Telugu Church Council and Travancore Church Council which was at that time known as the Travancore Church Union. 19. The Travancore Church Council (T. C. C.) which took the place of the Travancore Church Union was formed in 1920. The constitution of the S. I. U. C. provided that each Church Council should “adopt its own system of rule?, subject to the approval of the General Assembly”, Ext. XXX is the first constitution of the Travancore Church Council. While the Travancore Church Union of 1904 related only to Pastorate Churches the T. C. C. brought the non-pastorate churches also within the union. The constitution,’ Ext. XXX, of the year 1920 was modified in 1922 by Ext. XXXI and in 1928 by Ext. I which was again modified in 1939 by Ext. H. Ext. While the Travancore Church Union of 1904 related only to Pastorate Churches the T. C. C. brought the non-pastorate churches also within the union. The constitution,’ Ext. XXX, of the year 1920 was modified in 1922 by Ext. XXXI and in 1928 by Ext. I which was again modified in 1939 by Ext. H. Ext. H was the constitution that was in force on the date of the union into the C. S. I. 20. With the formation of the Travancore Church Council which exercised jurisdiction over both pastorate and non-pastorate Churches the Travancore District Committee (T.D.C.) ceased to function and another body called “The Travancore Mission Council” was brought into existence in 1939 for supervising and co-ordinating the educational, industrial, medical and other institutional work of the L. M. S. in Travancore which was not handed over to the T. C. C. and which had formerly been carried on by the Travancore District Committee (T. D. C.). Besides the Missionaries, representatives of the (T. C. C.) were also members of this Council. This Council also was functioning along with the T.C.C at the time of the union. 21. We shall next consider briefly the history of the Church Union Movement which resulted in the formation of the Church of South India. From the beginning of the 20th century there was a movement for union among the various Protestant Churches. In 1901 two Presbyterian Churches in India, one connected with the American Arcot Mission and the other with the United Free Church of Scotland Mission, joined together to form one Church. This union was followed by another between Churches in South India and Ceylon which had a congregational origin. We saw that these two bodies united together in 1908 and formed the South India United Church (S. I. U. C.). The question of further union among the Protestant Churches in India was discussed in a conference of the South Indian Ministers at Tranquebar in 1919. The representatives of the Anglican Church and those of the South India United Church drew up an agreed statement during that conference which later on came to be known as the Tranquebar Manifesto. The relevant portion of the statement relating to the proposed united Church was this: “In this United Church we believe that three scriptural elements mast be conserved - the Congregational, the Presbyterian and the Episcopal elements. The relevant portion of the statement relating to the proposed united Church was this: “In this United Church we believe that three scriptural elements mast be conserved - the Congregational, the Presbyterian and the Episcopal elements. By the Congregational element is meant that element which represents ‘the whole church” with ‘every member’ having immediate access to God, each exercising his gift for the development of the whole body, ‘ We believe this Church should include the delegated, organised or Presbyterian element, whereby the Church could unite in a General Assembly, Synods or Councils, in organised unity. We believe it should include also the representative, executive or episcopal element. Thus all the three elements, no one of which is absolute or sufficient without the other two, should be included in the Church of the future; for we aim not at compromise for the sake of peace, but at comprehension for the sake of truth. “In seeking this union, the Anglican members stand for one ultimate principle - namely, the Historic Episcopate. The members of the South India United Church believe that it is a necessary condition that the episcopate should resume a constitutional form, on the primitive, simple, apostolic model. The latter further make one condition of union - namely, the recognition of the spiritual equality, of the universal priesthood of all believers, and of the rights of the laity to their full expression in the Church. They ask that this principle of spiritual equality shall be maintained throughout at every step of the negotiations. Upon this common ground of the historic episcopate, and of the spiritual equality of all members of the two Churches, we propose Union on the following basis:- 1. The Holy Scriptures of the Old and New Testaments as containing all things necessary for salvation. 2. The Apostles’ Creed and the Nicence Creed. 3. The two Sacraments ordained by Christ himself; Baptism and the Lords, Supper. 4. The Historic Episcopate, locally adapted. “We understand that the acceptance of the fact of the Episcopate does not involve the acceptance of any theory of the origin of episcopacy nor any doctrinal interpretation of the fact. It is further agreed that the terms of union should involve no Christian community in the necessity of disowning its past, and we find it no part of our duty to call in question the validity of each other’s orders. It is further agreed that the terms of union should involve no Christian community in the necessity of disowning its past, and we find it no part of our duty to call in question the validity of each other’s orders. “Fully recognising that we do not commit our respective bodies to any action, we individually and unofficially agree upon the following plan for union, After full deliberation, let the South India United Church, if it desires union, choose from its own members certain men who shall be consecrated as bishops. In the consecration of these first bishops it is suggested that three or more bishops of the Anglican Church shall lay their hands upon the candidates, together with an equal number of ministers as representatives of the South India United Church. “As soon as the first bishops are consecrated, the two bodies would be in intercommunion, but the further limitation of existing ministers with regard to celebrating the communion in the churches of the other body might still remain. In accordance with the principle of spiritual equality we desire to find some means to permit ministers of either body to celebrate the communion in the churches of the other body. As one possible solution, we would suggest that a special “Service of Commission should be held. All ministers of both sides desiring authority to officiate at the communion throughout the whole Church should present themselves to receive at the hands of all the bishops of the United Churches a commission for such celebration of the Communion. Ministers of either body not desiring to officiate at the communion in the other Church would be under no obligation to present themselves, as full liberty would be claimed for individuals on the extreme wing of each body to maintain their present views and practices. “While not committing our respective bodies, we, unofficially and individually with the blessing of God, agree to work toward union on such a basis.” [Church Union in South India, Arangadan, Ext. LXXI, pp. 11-\2}. Although there have been many movements for Church Union in different parts of the world this was the first attempt of its kind to unite together Episcopal and non-episcopal Churches. 22. LXXI, pp. 11-\2}. Although there have been many movements for Church Union in different parts of the world this was the first attempt of its kind to unite together Episcopal and non-episcopal Churches. 22. The General Assembly of the South India United Church which met at Calicut on 29th September 1919 expressed its sympathy with the idea and sought the opinion of its Church Councils on the proposal The Episcopal Synod of the Church of England “in India which met in February 1920 also expressed its sympathy with the proposal and appointed Its representatives to work on a joint committee. The S. I. U. C. also appointed its representatives to work on the committee. The Methodist Church in South India also took part in the negotiations that followed and appointed its representatives on the joint committee. The Travancore Church Council considered the proposal and besides directing its executive committee to study the scheme in all its aspects appointed sub-committees at different times to report on particular aspects of the scheme. It is not necessary to refer to the various suggestions for amendment of the scheme proposed by the various Church Councils or the protracted negotiations that were carried on between the negotiating Churches. The T. C. C. sought the advice of the London Missionary Society also on the question. The Board of Directors of the Society took the view that consistent with the fundamental principles of the Society it could not give any direction in the matter although the attitude of the Society was one of sympathy with the union movement. The T. C. C. again sent a letter Ext EE (2) to the Board of Directors seeking their advice. The London Missionary Society then invited the Congregational Union of England and Walefy the Congregational Union of Scotland and the Union of Welsh Independants to join with representatives of the Society in forming a joint commission to consider the scheme of union. Ext LXI is the report of the joint commission. In that report the ‘Fundamental Principle’ of the London Missionary Society was reiterated and ‘the perfect liberty of the Christians of any community to adopt their own form of church organisation was emphasised. The scheme was however criticised from the Congregational point of view and certain amendments were suggested. 23. As a result of negotiations that followed some more amendments were made to the original scheme of union. The scheme was however criticised from the Congregational point of view and certain amendments were suggested. 23. As a result of negotiations that followed some more amendments were made to the original scheme of union. The scheme as it stood in 1935 was considered by the Travancore Church Council in that year and by the resolution, Ext. P(l), the Council held that without substantial changes in various matters the scheme would be unacceptable. The General Assembly of the South India United Church also suggested further changes in the scheme in its meeting held in October 1937. The scheme which was further modified was considered by the Travancore Church Council in 1939 and by the resolution, Ext. P(2) the Council again refused to accept it. One of the points insisted on by the Travancore Church Council was the recognition of the principle of ‘priesthood of all believers’ and lay celebration of sacraments. The General Assembly of the South India United Church suggested further modifications of the scheme in September 1939 by its resolution, Ext. L. In September 1941 the Travancore Church Council resolved by 104 votes to 6 that if the Church Council should at any time be in favour of any scheme of union, it should not ‘go forward’ unless 75 per cent of the members of the Council present and voting were in favour of it. It was further resolved that if the vote in favour of the union was less than 75 per cent the Council should consider the proposal once more in its next meeting. The Council then voted on the scheme as it stood then and resolved in favour of entering into union on the basis of it by 65 votes in favour and 38 against. The question had, therefore, to be considered again in the next meeting of the Council. The Council also suggested further changes in the scheme. The demand for recognition of lay celebration of sacraments was however given up. Ext. R(1) contains the proceedings of the Council. 24. On the basis of the reports of the various Church Councils the General Assembly of the South India United Church suggested further changes in the scheme in its meeting of September 1941 (Ext M). The demand for recognition of lay celebration of sacraments was however given up. Ext. R(1) contains the proceedings of the Council. 24. On the basis of the reports of the various Church Councils the General Assembly of the South India United Church suggested further changes in the scheme in its meeting of September 1941 (Ext M). The 1942 edition of the scheme came up for consideration before the Travancore Church Council in August 1942 and 54 members voted in favour of the scheme while 92 members voted against it (Ext S). After the scheme was thus turned down by the Travancore Church Council the Northern District Council passed a resolution (Ext IV) in March 1943 requesting the Travancore Church Council to reconsider the matter. Although the executive committee of the T.C.C. refused to reconsider the question the Council by its resolution, Ext. T(2), of August 1943 resolved that the Church Union question should be reconsidered at the next ordinary session of the Council in 1944. In August 1944 the T. C. C. passed a resolution by a majority of over 76 per cent suggesting a few more changes in the scheme and agreeing to accept the scheme if these changes would be made (Ext. N, page 25). In its meeting of August 1945 the T.C.C. accepted the scheme of union subject to certain reservations by a 53.8 per cent majority. But the resolution was treated as inoperative as there was not the required 75 per cent majority (Ext. AB). 25. The T.C.C. took up the question for final consideration in its meeting of September 1946 and passed the following resolution by 116 votes in favour and 39 against: “The Travancore Church Council of the S.I.U. C. agrees to enter into organic union with the Methodist Church and the Church of India, Burma and Ceylon in South India on the basis of the proposed scheme of Church Union contained in the latest edition of the scheme, 1942, including the pledge as accepted by the Joint Committee as part of the Basis of Union and including the Joint Committee’s 1934-35 interpretation thereof”. Ext AC is the 1942 edition of the scheme of union. It contained the draft basis of union and the draft constitution. Ext AC is the 1942 edition of the scheme of union. It contained the draft basis of union and the draft constitution. Since the votes in favour of union were only 74.84 per cent and not 75 per cent the President asked whether the Council agreed to accept this as 75 per cent in favour, and the Council agreed nem con (vide Ext AC(1). Although the correctness of the latter portion of the minutes of the meeting was questioned at the next meeting of the council it was confirmed by an overwhelming majority, only eight members voting against. (Vide Ext AD(6). 26. The General Assembly of the S. I. U. C. also considered the question finally in its meeting of 28th September 1946 and passed the following resolution, Ext. O(l), by 103 votes to 10, 7 being neutral: “The South India United Church agrees to enter into organic union with the South India Province of “ the Methodist Church and the Dioceses of Madras, Dornakal, Tinnevelly and Travancore and Cochin in the Church -of India, Burma and Ceylon on the basis of the proposed scheme of church union contained in the latest edition of the scheme (1942) including the pledge as accepted by the Joint Committee as part of the Basis of Union and including the Joint Committee’s 1934-1935 interpretation thereof”. By another resolution the Assembly authorised the Joint Committee as soon as the 1934-35 interpretation of the pledge would be accepted by the Church of India, Burma and Ceylon, to take all necessary steps to inaugurate the union. The North Tamil Church Council did not accept the scheme of union and therefore it kept out of the union. The Church of India, Burma and Ceylon accepted the 1934-35 interpretation of the Pledge by the resolution passed by its General Council in January 1947. Since the condition upon which the S.I.U. C. accepted the scheme of union was thus satisfied the General Assembly of the S.I.U. C. dissolved itself on the 26th September 1947 by the following resolution:- “The 21st General Assembly of the S. I. U. C. meeting at Thambaram on September 26, 1947, hereby resolves, subject to the powers conferred on the S. I. U. C. continuation committee, that the South India United Church shall be dissolved at the close of this meeting by virtue of the resolution passed by the 20th General Assembly on September 28. 1946, agreeing to enter into organic union with the South India Province of the Methodist Church and the Dioceses of Madras, Dornakal, Tinnevelly and Travancore and Cochin in the Church of India, Burma and Ceylon on the basis of the proposed scheme of church union contained in the latest edition of the scheme [1942] including the Pledge as accepted by the joint committee as part of the Basis of union and including the joint committee’s 1934-35 interpretation thereof”. The Church of South India was inaugurated on the 27th September 1947 at St. George’s Cathedral, Madras. The new Church was divided into a number of dioceses one of which is the South Travancore Diocese. Pw. 4 was consecrated bishop of that diocese. The Council of the diocese is called the South Travancore Diocesan Council (S.T.D.C). The Travancore Church Council (T.C.C.) and the Travancore Mission Council merged in the South Travancore Diocesan Council. Ext. AP is the constitution of the South Travancore Diocesan Council. 27. With this brief sketch of the history of the London Missionary Society, the London Mission Church in Travancore and the church union movement which resulted in the formation of the Church of South India we shall proceed to consider the questions that arise for decision in this appeal. In deciding these questions we shall rely mainly on historical records and constitutions of the London Mission Churches, the S.I.U.C. and the C.S.I. and not on the oral evidence adduced in the case by either party. That does not mean that we are altogether discarding the oral evidence. Most of the witnesses examined in the case are respectable persons whose veracity cannot be impeached. But they are persons who have taken an active part in the controversy that lasted for more than a quarter of a century on the question of church union, a controversy that divided the London Mission Christians into two parties. Learned counsel for the appellants relied very much on the evidence of Pw. 2 (Mr. Gunamony) and Pw. 3 (Rev. Eastaff). Pw. 2 is the Secretary and Pw. 3 the Treasurer of the South Travancore Diocesan Council of the C. S. I. It cannot be denied that their evidence, particularly that of Pw. 2, supports the defendants on many points. But it is clear that these two witnesses were against the union. 2 (Mr. Gunamony) and Pw. 3 (Rev. Eastaff). Pw. 2 is the Secretary and Pw. 3 the Treasurer of the South Travancore Diocesan Council of the C. S. I. It cannot be denied that their evidence, particularly that of Pw. 2, supports the defendants on many points. But it is clear that these two witnesses were against the union. In a special meeting of the Southern District Council of the S.T.D.C. held on 26-4-1948 the following resolution was passed: “As the attitude of Rev. Eastaff and Mr. A. Gunamony, the important officers of the Diocesan Council, in respect of the Church of South India is not helpful to the progress of the C. S. I., and doubts appear among our Christians, resolved to request them to make a statement of their position, in order that these doubts may be cleared”. It does not appear that they made any statement in pursuance to this resolution. Of the other witnesses Pw. 1 is the plaintiff. Pw. 4 is the bishop of the South Travancore Diocese. Pw. 5 is the District Chairman of the Central District of the South Travancore Diocese. Dw. 1 is one who was conducting a vigorous campaign against the church union. Dw. 2 is the second defendant. In the circumstances it may not be proper to base our conclusions on the evidence of these witnesses which is mostly of the nature of opinion evidence. We shall, however, be referring to the evidence of some of these witnesses also when discussing the documentary evidence in the case. 28. Of the two main questions that arise for decision in this appeal, one relates to the possession of the plaint church. It is true that there is no prayer in the plaint for declaration of the plaintiff’s possession of the church. The prayer is for declaration of the plaintiff’s right to conduct service in the church and for an injunction restraining the defendants from obstructing the plaintiff in the conduct of such service. But it is alleged in the plaint that the plaintiff is in possession of the church and its premises and the plaintiff’s right to conduct service in the church is based on such possession also. It is therefore necessary to go into that question. But it is alleged in the plaint that the plaintiff is in possession of the church and its premises and the plaintiff’s right to conduct service in the church is based on such possession also. It is therefore necessary to go into that question. The plaintiff’s case is that the church and its premises are in the possession of the London Missionary Society Corporation through its accredited agents and church workers for the last 150 years and that he got into possession of the church on the authority of the power of attorney-holder of the Corporation. The defendants deny the fact that the London Missionary Society Corporation has possession of the church. According to them the members of the congregation of the church are the beneficiaries of the church and the church and its premises are in the recession of the Church Committee on behalf of the congregation. It is not necessary to decide in this suit the title to the plaint church. There is no suit fat that purpose and no court fee has been paid on the market value of the church building and its site. Neither the congregation nor the London Missionary Society Corporation is a party to this suit. The question as to who founded the church will have to be considered only incidentally for the purpose of deciding the question of possession. 29. It is not disputed by the defendants that the land on which the plaint church is built belongs to the London Missionary Society. It is an extensive property and was purchased in the year 1838 in the name of Rev. Mead for and on behalf of the Mission. Ext. CL is the sale deed. Ext. CM, Pathivucheetu, is also in the name of Rev. Mead. It is admitted by the defendants that the Kadamalakunnu Church has not paid the tax for the property. The pattah, Ext. LXXX, was issued in the name of Rev. Hacker, the successor of Rev. Mead. Exts. CN to CN (3) and CN (5) to CN (14) are memoranda of sale deeds executed by Rev. Sinclair on behalf of the London Missionary Society Corporation for portions of the property. Exts. CO, CP, CQ, CR and CS are similar sale deeds executed by the attorney of the L. M. S. Corporation. Ext. CN (5) and Ext. CP are in favour of the wife of the second defendant and Ext. Sinclair on behalf of the London Missionary Society Corporation for portions of the property. Exts. CO, CP, CQ, CR and CS are similar sale deeds executed by the attorney of the L. M. S. Corporation. Ext. CN (5) and Ext. CP are in favour of the wife of the second defendant and Ext. CS is in favour of his son. Ext. EG series, entries in Ext. EG, pattom account book of the Southern District Council, show that portions of the property have been taken on lease from the Society by the 2nd defendant. Ext. EG (6) shows that the first defendant also has taken a plot on lease. Ext. EG (6) shows that the previous pastor of the plaint church, Rev. Gabriel, had also taken a plot on lease. There is a Middle School in the property which is conducted by the Southern District Minister. It is therefore clear that the property on which the plaint church is built belongs to the London Missionary Society Corporation. 30. But the fact that the property on which the church is built belongs to the L.M. Si Corporation does not necessarily mean that the church is in the possession of the Corporation. The plaintiffs case is that the church belongs to the L. M. S. Corporation. The defendants denied this in the written statement. They further contended that the Corporation does not own any properties except as trustees. They also contended that the members of the congregation are the beneficiaries of the church and its properties and that the Church Committee is in possession of the same. It was not contended by the defendants that the church was founded by the congregation. But at the trial the defendants tried to make out that the church was founded by the congregation and not by the L. M. Society. As already stated, it is not necessary to decide in this suit the question of title to the plaint church. The Court below, however, went into the question as to who founded the church and held that the church was founded by the L. M. Society. But it was also held that the “church and the land in actual use” therefor are held by the L.M.S. Corporation only as trustees of the “L. M. Church in Travancore as popularly understood or the T.C.C.”. But it was also held that the “church and the land in actual use” therefor are held by the L.M.S. Corporation only as trustees of the “L. M. Church in Travancore as popularly understood or the T.C.C.”. In other words, according to the court below, the T.C.C. and not the congregation of the plaint church is the beneficiary of the church. With regard to the question of possession, the finding of the court below is that “the L. M. S. Corporation, as trustee, must be deemed to be in legal possession” and that “the members of the church have only the right to use the church for worship under Ext. H with the liability on the part of the Church Committee to care for and repair the building”. It was therefore held that “the plaintiff as the agent of the Corporation and the S.T.D. C. has legal possession of the plaint church and the land in actual use”. It is not clear what the learned District Judge means by the expression “legal possession”. Apparently, he does not go to the extent of holding that the plaintiff or the S.T. D. C., is in actual possession of the church. But what we are concerned with in this suit is the question of actual possession. 31. The plaintiff’s case is that he is in possession of the church “in continuity of the possession of the London Missionary Society Corporation through its accredited agents and Church workers”. Pw. 3, the attorney of the L. M. S. Corporation, does not swear that he was ever in possession of the church. He was not even questioned about it. The plaintiff claims possession on the authority of Ext. AY executed in his favour by Pw. 3. What is stated in Ext. AY is this: “I write to inform you that the London Missionary Society Corporation Directors have instructed me, as their Attorney for Travancore and India, to see that the property of the Corporation is enjoyed by the accredited representatives of the Church of South India [South Travancore Diocese] and by no others. 3. What is stated in Ext. AY is this: “I write to inform you that the London Missionary Society Corporation Directors have instructed me, as their Attorney for Travancore and India, to see that the property of the Corporation is enjoyed by the accredited representatives of the Church of South India [South Travancore Diocese] and by no others. “Accordingly, as attorney of the London Missionary Society Corporation, holding full legal power to act in Travancore on behalf of that Corporation, I authorise you to enter the Kadamalakunnu Church building by opening the door for the purpose of conducting Divine Worship for the members of the congregation of the Kadamalakunnu Church, which is a constituent part of the Church of South India, tomorrow, Sunday, August 15th 1948, and on subsequent days so long as you are the Acting Pastor”. It is not stated in Ext. AY that the church is in the possession of the L.M.S. Corporation. The allegation in paragraph 2 of the plaint is that “all the Churches in Travancore are in the possession and control of the various church workers”. The question, therefore, for consideration is whether the church worker of the plaint church is in possession of the church on behalf of the L. M. S. Corporation or on behalf of the congregation, or in other words, whether the possession of the Church worker is the possession of the L. M. S. Corporation of that of the congregation. The defendant’s case is that the Church Committee is in possession of the church on behalf of the congregation. The Church Worker is the president of the Church Committee and, therefore, his possession is virtually the possession of the Church Committee. There is no express provision in the constitution, Ext. H, relating to the possession of the church. The only provisions that have some bearing on the question are those contained in the note to section 4 and in clauses V and VI of section 16. The note to section 4 reads thus:- “A local congregation is in the Charge of a Pastor or Evangelist, or Catechist. The name ‘Pastor’ is applicable to any ordained minister engaged in congregational work. For the sake of brevity the term “Church Worker” is used in the following pages to indicate the person in Charge of a Congregation, whatever his status”. The name ‘Pastor’ is applicable to any ordained minister engaged in congregational work. For the sake of brevity the term “Church Worker” is used in the following pages to indicate the person in Charge of a Congregation, whatever his status”. Clauses V and VI of section 16 which relates to the functions of the Church Committee provide thus: “V. To be responsible for the collection, expenditure and remittance of all Church funds and to send to the Circle Council, or in the case of pastorates, to the District Council, such estimates and accounts as it may require”, “VI. To care for and repair all the buildings and properties used by the Church, whether owned by the L. M. S. or the Church”. These provisions in a way indicate that the Church Committee and the church worker are to be in possession of the church and its properties. 32. But in the absence of a clear provision in the constitution relating to the matter it is necessary to consider the question from the point of view of the policy adopted by the London Missionary Society with regard to the Churches founded in Travancore under the auspices of the missionaries of the Society and of the distinguishing features of those Churches. It is true that in the beginning the Churches were built by the missionaries and managed by them. But it was the definite policy of the London Missionary Society to help the churches to develop into self-supporting independent churches, and when the churches became mature the missionaries interfered as little as possible in the internal management of the affairs of the church. There could, therefore, be no question of the missionaries or the Society having anything to do with possession of a self-supporting pastorate church even if it was originally founded by the Society. This is clear from the report of the committee appointed by the Society in the year 1849 to enquire into the question as to whether any modification of the constitution or mode of administration of the Society was desirable. This is clear from the report of the committee appointed by the Society in the year 1849 to enquire into the question as to whether any modification of the constitution or mode of administration of the Society was desirable. The committee reported thus: “Anxious to ascertain whether any, and, if any, what grounds exist for an investigation, which appeared to imply that some Mission Churches connected with the Society were no: possessed of that perfect Independency which is required by its Fundamental Law, the Committee, at considerable length, inquired into the practice of the Society and the actual position of the Churches which had been formed by its instrumentality; and upon these points, they were supplied with ample information, which satisfied them, that, although few Mission Churches were as yet self-supported, their dependence on the Society for pecuniary aid did not affect their freedom and self-government and that, in all ecclesiastical matters, their liberty had been most scrupulously respected by the Directors, and held as inviolate as that of any Churches in this country. The Committee were conducted to this conclusion by the concurrent testimony of several Missionaries, who in terms the most unqualified, declare that, to their knowledge and belief, no instance had occurred in which the Directors had interfered in the slightest degree with the Independence of the Churches over which they presided, or of those of the Brethren with whom they had been associated. This statement was confirmed by various important facts, which, in the view of the Committee, clearly evinced the honour and integrity with which the Directors had respected the rights and recognised the freedom of the several Mission-Churches. “To prove that provision had also been made for recognising, not only the Independency of those Churches, but their entire separation from the Society, should they desire it, the following Regulation of the Directors, together with evidence that it had been acted upon, was laid before the committee:- “Assuming the numbers and pecuniary resources of any Church and congregation to be adequate for the maintenance of the Ministry, and all other purposes of self-support, the Society most readily recognises the right of such Church and Congregation to form its own Constitution, and conduct its own affairs. It must, however be understood that in the event of any Church and congregation wishing to be separated from the Society, such desire must be formally expressed by the members assembled for that purpose; at which meeting at least two agents or representatives of the Society, nominated by the Directors, shall be present, for the purpose of giving friendly counsel and reporting the proceedings “to the Board; and, in case the Society has made pecuniary advances for such Church and Congregation, by way of loan or otherwise, the same shall be the subject of equitable adjustment”. “Whereupon it was resolved, that, from the information now given, this committee is convinced that the Society does not interfere, and, in consistency with its fundamental principle never can interfere in any way, with the self-government of the Mission-Churches”. Ext. 96-B, pp. 680-681]. - The policy adopted by the Society in the years 1867 to 1869 in respect of churches established by its missionaries was “that all large and prosperous native churches should cease to look to the Society for aid in maintaining their religious life and work, beyond the help afforded by a resident superintendent missionary. In other words, the native Church was to pay all cost of working except the salary of the missionary”. (Ext. XCVI-B, page 707). It is on the basis of this policy that the Society framed its General Regulations (Ex. XCII) in the year 1873. In the General Regulations the missionaries were given the following directions regarding the erection of churches and chapels: “[b]. At important places, where the mission judges it advisable to open chapels for preaching to the heathen, the native Christians may be freely granted the use of such chapels; but they should be expected to contribute, according to their ability, to keep the chapels in repair and provide for the incidental expenses of their own services. [c] In other places, until there are from twelve to twenty members, we may expect the converts to meet in private houses, according to the ancient usage of the Christian Church. The mission should not assist any native church in fitting up a separate chapel until there are at least twelve members. [c] In other places, until there are from twelve to twenty members, we may expect the converts to meet in private houses, according to the ancient usage of the Christian Church. The mission should not assist any native church in fitting up a separate chapel until there are at least twelve members. [d] to the erection of churches, school, and other buildings, intended for their own benefit, all the converts should contribute; the funds of the Society should only be given as a grant in aid of such efforts made by the people themselves. And after their erection the converts should keep these buildings in repair, and provide for all the incidental expenses of worship”. [Ext. XCII, Page 48]. Rule 56 of the Regulations provided thus:- “It is desirable that the Society’s property in foreign countries shall be restricted, as far as practicable, to dwelling-houses for their missionaries, to the buildings necessary for their evangelistic work among the heathen, and to the land required for both. When chapels and school-houses are needed for the native converts and their families, the District Committees shall make such arrangements as will secure the land and buildings for the use of the converts, on whose behalf they should be put in trust”. [Ext. XCII, page 21], 33. What the result of this policy was so far as the Churches in Travancore were concerned can be seen from a paper read by Rev Duthie of the Nagercoil Mission in a conference held in Banglore in 1879 which is reproduced by Lovette. Rev. Duthie said: “Formerly all our churches and chapels were constructed with foreign money. But it is otherwise now. At the present time, when new churches have to be built, the very first matter to be settled is the amount which the people of the particular congregation in question are prepared to raise. This arranged, the mission, or a general building fund, or some friend makes up the deficiency; and the work is done usually, as befits the condition of people, inexpensively, and with little or no preventions to style. In central stations, good, substantial, neat churches have been built - some such in Travancore, quite recently; bat even to these the native Christians have contributed a considerable proportion of the outlay both in money and in work. In central stations, good, substantial, neat churches have been built - some such in Travancore, quite recently; bat even to these the native Christians have contributed a considerable proportion of the outlay both in money and in work. In nearly every case, the entire cost of repairs to churches and schools is now met by the people”. [Ext. XCVI-B, pp. 267-268]. 34. The position in 1883 is thus described by another congregationalist missionary, Rev. Mateer in his book ‘Native Life in Travancore’, Ext. XCV:- “The mode of working which was demanded by these circumstances, and which naturally sprang from them, was to form the multitudes of adherents into local congregations, placing over them native scripture-readers or catechists to instruct them, These numerous congregations are visited frequently by the missionary for inspection, instruction, and discipline; the English missionaries being thus placed in a peculiar position as the trusted and accredited messengers and representatives of the English Churches, and the leaders and directors of the native Churches. This whole scheme of English administration is intended to drop off by degrees, and is already yielding in proportion as the native church arrives at maturity for the purpose of self-support, self-government, and self-propagation”. [Page 416]. “When I arrived in the beginning of 1859, there were then in our mission nearly 17,000 adherents of all ages; now there are 41,347 worshipping in 253 congregations. Of those, there were but 980 in full communion as church members; these now number 4,124. There was not a single ordained native minister in 1865, now there are 18; and their annual meetings for mutual consultation and united prayer are an interesting feature of the time. The native converts having been regularly instructed in the duty of giving to the cause of God, their contributions have steadily advanced from Rs. 3500 in 1858 to Rs. 12,165 in the past year. Corresponding progress has been made in the education of males and females, both children and adults. There are now 10,6996 children learning in our schools of whom 2,375 are girls. Eleven native pastorates or sub-districts have been formed, with their own distinct churches, pastors, and agencies, largely self-supporting; one of them has not received any pecuniary help from any quarter for upwards of twenty years”. [Page 417]. There are now 10,6996 children learning in our schools of whom 2,375 are girls. Eleven native pastorates or sub-districts have been formed, with their own distinct churches, pastors, and agencies, largely self-supporting; one of them has not received any pecuniary help from any quarter for upwards of twenty years”. [Page 417]. “The state of transition through which the mission is now passing, from its former almost entire dependence on foreign aid to a measure of vigour and maturity - from looking solely for direction to their European instructors, to the formation of independent character and opinion - from the payment by the Society of most of the native teachers, to the beginning of a union of Congregational churches, supporting their own chosen ministry and Christian Ordinances - is not without its trials and dangers to the missionaries and the native converts”. [Page 418]. This is what Machenzie says about the condition in 1901: “The work of the London Missionary Society in Travancore is remarkable for the extent to which churches founded by its agency have become self-supporting and, to a great extent, self-governing”. [Christianity in Travancore, Ext. XCIV, page 53]. 35. How the Travancore District Committee (T.D.C.) and the South Travancore Church Council (S. T. C. C.) tried to bring into effect the policy of the London Missionary Society with regard to the churches in Travancore can be seen from the resolutions passed by those bodies. In the meeting of the S.T.C.C. on 6-10-1875 the topic for consideration was: ‘what are the most effective ways for increasing self-supporting churches (Native Pastorates)”. The S.T.C.C. resolved: “The deacons should endeavour with their whole heart to raise the churches to the status of self-supporting churches [Native Pastorates]. A deacons’ association should be formed in each district and the deacons should be called together to meet periodically and they should be encouraged and also instructed as to their duty. It is best that this association be conducted by the European Missionaries”. The resolution of the T. D. C. was to the following effect: “The T. D. C. approves all that the Council has resolved upon this important topic in a general way, and desires to invite special attention to clause [3] above of the Resolution which states that the efforts of the deacons are essential for this end. The resolution of the T. D. C. was to the following effect: “The T. D. C. approves all that the Council has resolved upon this important topic in a general way, and desires to invite special attention to clause [3] above of the Resolution which states that the efforts of the deacons are essential for this end. The increase and prosperity of self-supporting church under native pastors will mostly be in proportion to the deacons fulfilling their duties”, [Vide Ext. L, page 8b - English Translation]. The topic for consideration for the meeting on 4-3-1897 was “What are the best ways to secure regular liberal church income from Christians which will help to create still more self-supporting Native Pastorates”. The resolutions of the S.T.C.C were: “[1] Every one, each according to his ability, should endeavour to pay special donations and thank-offerings besides usual Sunday, monthly and sangam gifts, [2] It will be good to encourage those who would like to do so to give a tenth part of their income”. The T. D. C. approved the resolutions and suggested some methods for bringing the resolutions into effect. (Vide Ext. L, page 15). Another subject considered was: “Appointment of church committee in every church. The management of all church affairs, attending to repairs of church buildings etc., distribution of charity to the poor and such things should not be in the hands of the missionaries, bat should be in the hands of the people.” The resolution of the S.T.C.C. was to the following effect: “In the same way as in self-supporting Native Pastorates and in some other Churches church affairs are being managed by the church worker, deacons and other important leaders of the church, will be good to encourage all churches to manage their affairs in like manner in course of time. This resolution was passed unanimously by the Council ‘. The T.D.C, resolved: “The repairs of church buildings and church houses are attended to by the catechists sometimes now; we wish to emphasise that it is important that deacons alone should manage these”. [Ext. L, page 16]. Another topic considered by the S.T.C.C. on 14-3-1877 was: “We understand that the directors are deeply desirous of bringing into being self-supporting Native Pastorates under Native Ministers. [Ext. L, page 16]. Another topic considered by the S.T.C.C. on 14-3-1877 was: “We understand that the directors are deeply desirous of bringing into being self-supporting Native Pastorates under Native Ministers. This matter should be seriously taken for consideration and the larger churches among us should be made to realise the importance of forming themselves into self-supporting churches with Indian ministers as soon as possible” The S.T. C.C. resolved: We perfectly agree with this idea and feel that it will be good to advise the larger churches to come to this stage as soon as possible. For this purpose they should be educated through sermons and writings”. The T. D. C. approved this resolution (Vide Ext. L, page 17). Similar resolutions were passed in the meetings of 17th and 18th of March 1886 (Vide Ext. L, page 56). 36. The Annual Report of the Travancore District Committee for the year 1885 (Ext. XVII) contains the following particulars about the building of chapels in the Nagercoil District: “Several new chapels have been erected in this District within the past few years, and efforts in this direction are being made at present by not a few of our congregations. Some exert themselves very praise worthily to do this work without lessening their regular contributions towards the church fund; others lessen their subscriptions towards the support of their Catechist, and thus practically causa the erection of their chapel to be paid for out of the general church fund”. [Ext. XVII, page 23] “In a number of cases as for example, at Anandanandangudi, Kotteiyadi, Kalliangadu, and Kulattuvilei, this work of chapel building is simply deferring the time when the congregations can be pat on a self-supporting basis”. [Page 25]. 37. It is clear from the above historical records that the policy of the L.M. Society with regard to the churches in Travancore was to help the development of self-supporting independent churches. It was the fundamental principle of the L.M. S. not to exercise any control over the churches when they reached the stage of maturity and become self-governing pastorates. The independence of the church evidently implies the right of the congregation to be in possession of the church and to manage its affairs. It was the fundamental principle of the L.M. S. not to exercise any control over the churches when they reached the stage of maturity and become self-governing pastorates. The independence of the church evidently implies the right of the congregation to be in possession of the church and to manage its affairs. This accounts for the fact that the plaintiff has not been able to produce any evidence to show that the L. M. S. Corporation or its agents have ever been in possession of any of the pastorate churches in Travancore. 38. The fact that the L.M. Churches in Travancore grew up as Congregational Churches also supports the case of the defendants that the congregation is in possession of the churches. Autonomy of the individual churches is the essential feature of Congregationalism. Autonomy implies the right to possess the church and to manage its affairs without external control. It is true that the formation of the Travancore Church Union (Ext. XXVIII), the union into the S. I. U. C. (Ext. J) and the constitution of the T.C.C. (Ext. H) affected the independence of the pastorate churches to some extent. But these did not in any way affect the right of the congregation to be in possession of the Church. The constitutions Ext. XXX, XXXI and I expressly provide that the funds of each church, are its own. That the L.M. Churches in Travancore were regarded as congregational Churches even after the union into the S.I.U. C. and the formation of the T.C.C. is clear from the records relating to the Church Union movement. The pamphlet, Ext. XX, published by Pw. 4, and the report of the joint commission appointed by the Congregational (Churches of Britain, Ext. LXI, make this clear. It was to ascertain how far the scheme of union would affect the Congregational principles of the L.M. Churches that the Joint Commission of the Congregational Churches was appointed at the instance of the London Missionary Society which had become identified with the Congregational denomination. 39. The court below has on the basis of Ext. VI (c) held that the plaint church and the land ‘in actual use therefor’ are held by the L.M. S. Corporation as trustee for the T.C.C. Ext. VI (c) is one of the resolutions passed by the Board of Directors of the L.M.S. in 1935 defining the Society’s attitude concerning the properties in Travancore. VI (c) held that the plaint church and the land ‘in actual use therefor’ are held by the L.M. S. Corporation as trustee for the T.C.C. Ext. VI (c) is one of the resolutions passed by the Board of Directors of the L.M.S. in 1935 defining the Society’s attitude concerning the properties in Travancore. Resolution 1 (c) was to the following effect: “That property in actual use for the purpose of a Church, including its cemetry, or for elementary schools, be held in trust for the Travancore Church Council. [The phrase ‘in actual use’ may cover a reasonable amount of land round a church building but is not to cover the use of land merely for revenue to support churches or schools, and the amount of land actually in use is to be defined by the Committee constituted for the purpose”, Resolution 1 (d) reads: “That when all those properties to which this resolution applies have been scheduled as held in trust for the Travancore Church Council, the Society will desire to receive the advice of the Church Council from time to time as to any action that should be taken concerning these or any of these”. [Vide Ext. VI, page 24] The London Missionary Society Corporation was formed in 1929. Ext. XXXII is the Memorandum of Association of the Corporation. Clause 3 (L) of the memorandum contained the following provision:- “In case the Corporation shall take or hold any property which may be subject to any trusts, the Corporation shall only deal with the same in such manner as allowed by law, having regard to such trusts”. Ext. VI (c) resolution taken along with this provision in Ext. XXXII amounts only to a definition of the title of the L. M. S. Corporation in respect of “property in actual use for the purpose of a church, including its cemetry or for elementary schools”. In respect of such property the position of the L.M. S. Corporation will be that of a trustee for the T. C. C. This has nothing to do with the question of possession of the churches. If a church was in the possession of its congregation this resolution of the Board of Directors of the L.M. S. could not transfer possession of it to the T.C.C. Moreover, there is nothing in the constitution of the T. C. C. (Ext. If a church was in the possession of its congregation this resolution of the Board of Directors of the L.M. S. could not transfer possession of it to the T.C.C. Moreover, there is nothing in the constitution of the T. C. C. (Ext. H) to show that the churches are in its possession. It has also to be remembered that the L. M. S. Corporation was formed only in 1929 and that the resolution, Ext. VI(c) of the Board of Directors was passed only in 1935 while it will be seen that the plaint church was a pastorate church even in the year 1879 and that the present church building was constructed in 1890. Ext. XXXII and Ext. VI(c) cannot, therefor, affect in any manner the possession of the plaint church. 40. So far as the foundation of the plaint church is concerned, there is no clear evidence in the case to show who founded it. It is seen that Kadamalakunnu was a pastorate even in the year 1879. In Zacharia’s History of the London Mission Churches (Ext. LV) we find a reference to Kadamalakunnu, Church. Referring to the year 1879 the author says: “Finding that several churches in the districts of Nagercoil and Neyyur have grown fit to become pastorates by the Grace of the Almighty the committee resolved to make Santhapuram, Zionpuram, Agastheeswaram in the Nagercoil District, and Kadamalakunnu and Devokodu in the Neyyur District into Pastorates” xxx xxx xxx xxx “On the 25th of April 1879 they ordained Mr. Nathaniel as pastor of Santhapuram and Mr. Sathyanathan Evangelist as the Assistant Missionary of the District at Santhapuram. Mr. Samuel Evangelist was ordained as pastor for Zionpuram. Though Agastheeswaram was a Pastorate from 1857 as there was not agreement between the Pastor and the congregation Mr. Solomen Evangelist was ordained as the 2nd Pastor of that church. On May 19th of the same year, the next day Mr. Jacob evangelist as the Pastor of Devocodu Church and Mr. Manasseh evangelist as pastor of Kadamalakunnu were ordained in their respective churches.” [Ext. IV pages 104 and 105] In the Annual Report of the Travancore District Committee for the year 1885 (Ext XVII) Kadamalakunnu is included in the Table of Native Pastorates (Table V) and the year of commencement of the pastorate is mentioned as 1879. The plaint church was built in 1890. IV pages 104 and 105] In the Annual Report of the Travancore District Committee for the year 1885 (Ext XVII) Kadamalakunnu is included in the Table of Native Pastorates (Table V) and the year of commencement of the pastorate is mentioned as 1879. The plaint church was built in 1890. It is not clear whether the old church existed on the same site. With regard to the construction of the plaint church Zacharia gives the following account. Referring to the year 1890 he says:- “A big church was built this year in the centre of the congregations lying close to Kadamalakunnu which belong to the Neyyoor District. Providentially money came for this work. For, Rev. Lawe of Tasmania, a school-mate and friend of Rav. Baylis who had served in this District, Feat Rs. 3000/- to the Home Board with a request to spend half of it to build a church or school as a memorial to his deceased son in the District where Rev. Baylis had served. Accordingly the Home Board sent Rs. 1500/- to Rev. Hacker. At that time Rev. William Roby Fletcher M.A. of Adelalde and his wife were here to see the work of the mission in Travancore. Rev. Hacker therefore requested this minister of God to lay the foundation of this church. This was done with great ceremony and after prayers and thanks-givings, before an assembly consisting of some Europeans and numerous natives. The church to be erected was named the Lawe Memorial Church” [Ext. LV, pages 152 and 153]. The report of the Deputation of the London Missionary Society to India (1906-1907) (Ext XCIII) contains the following account about the construction of the plaint church: “There are seventy-five churches and fifty-eight schools in the Neyyoor District. They differ as much in their outward appearance as in their inner character. Indeed, the latter has not a little to do with the former. Christian life in the true working affects the whole condition of communities as well as of individuals. They differ as much in their outward appearance as in their inner character. Indeed, the latter has not a little to do with the former. Christian life in the true working affects the whole condition of communities as well as of individuals. The simple building of half-mud wall, with a kind of rude lattice and roofs thatched with palm leaves, with a beaten mud floor, without any benches, which was a building fit for the earliest days, is felt to be unfit as years advance and the change is made, until a church, the centre of a group, such as that at Kadamalakunnu is built, of which, a European travelling that way said “that for the first time for a long while he felt inclined to sing a hymn”. Lawe, of Launceston, Tasmania, gave money to be expended at the place where his fellow-student, Baylis, laboured, and this is the Laws Memorial Church. It is placed upon ground amidst lovely scenery of wooded valley and hill, the centre of extended work. On the morning of our visit five congregations were represented. It is Gothic, stone with brick facings and seven years were taken to build it. The cost was rs. 4000, half of which was from the people themselves in gifts aid labour”. [Pages 136 aged 137], If this statement is true there is little justification for holding that the plaint church was founded by the London Missionary Society. But, apart from the question as to who founded the church, there can be little doubt that the church was from the beginning in the possession of the congregation. We, therefore, decide this question in favour of the defendants and hold that the plaint church was in the possession of the congregation through its church-worker., It is admitted by the plaintiff that the first defendant was the church-worker of the plaint church. He was appointed church-worker by the District Chairman of the L.M. S., Rev. Paul Nesamoni on 15-8-1946 before the formation of the C.S.I. The order of appointment (Ext. LXXIII) is to the following effect:- “You are appointed to be in temporary charge of the Kadamalakunnu Church from the 16th of August 1946. Please take charge of the church from Mr. W. R. Stephen, Secretary of the church’. 41. After the formation of the C.S.I. Rev. LXXIII) is to the following effect:- “You are appointed to be in temporary charge of the Kadamalakunnu Church from the 16th of August 1946. Please take charge of the church from Mr. W. R. Stephen, Secretary of the church’. 41. After the formation of the C.S.I. Rev. Paul Nesamoni became the District Minister under the South Travancore Diocesan Council (S.T. D. C.). The Kadamalakunnu Church was opposed to the Church Union from the beginning and would not recognise Rev. Paul Nesamoni as the District Minister of the C.S.I. They continued to treat him as the District Chairman of the L. M. S. and their acting pastor and sought permission for notices of marriage from him in that capacity. He insisted on giving such permission only as the District Minister of the C.S.I. The Church Committee therefore resolved on 27-6-1948 that if Rev. Paul Nesamoni refused to give permission for notices of marriage in his capacity as the District Chairman of the L.M. S. such permission might be obtained from two other ministers who did not join the C.S. I. (Ext. LXXIX-B). Rev. Paul Nesamoni still insisted on giving permission of notices of marriage in his capacity as the District Minister of the C.S.I. Thereupon the first defendant sent the letter, Ext. BD, to Rev. Paul Nesamoni on 17-7-1948. Ext. BD reads thus:- ‘As the Kadamalakunnu Church which I am serving is standing out without joining the Church of South India and as it is according to my conscience to continue still in the faith and doctrines which I have followed from my infancy and as you who have appointed me have joined the new Church of South India. I inform you that I have severed my connection with you and with the; C. S I. Church which you have joined, and have decided to work in the Kadamalakunnu L. M. Church as the I.. M. Church Worker from 28-6-1948". The date 28-6-1948 must have been put on the basis of the resolution of the Church Committee, Ext. LXXIX-B dated 27-6-1948. The effect of the resolution was taken to be that the Kadamalakunnu Church severed its connection with Rev. Paul Nesamoni from 28-6-1948 on his refusal to comply with the demand contained in the resolution of 27-6-1948. With respect to the letter Ext. BD the church committee passed the following resolution (Ext. LXXIX-B dated 27-6-1948. The effect of the resolution was taken to be that the Kadamalakunnu Church severed its connection with Rev. Paul Nesamoni from 28-6-1948 on his refusal to comply with the demand contained in the resolution of 27-6-1948. With respect to the letter Ext. BD the church committee passed the following resolution (Ext. FN) on 18-7-1948: “Subject: The razinama sent by the catechist to the District Minister. Resolutions:- [a] The razinama was accepted. [b] He should be accepted as the Church Worker of our London Mission Kadamalakunnu Church as from 28-6-1948 and in continuation of his previous service. [c] This matter should be informed to the President of the Travancore Church Council L. M. S. and his permission obtained. [d] The Secretary is authorised to put into effect the above said affair”. 42. “Pw. 4; the Bishop of the South Travancore Diocese (C.S.I.) treated the latter, Ext. BD, as resignation by the first defendant of the office of Church Worker and appointed the plaintiff as temporary pastor of the church by the order, Ext. AW, dated 4-8-1948. Subsequently, Pw. 3, the Attorney of the London Missionary Society Corporation authorised the plaintiff by the letter, Ext. AY dated 14-8-1948 to enter the church building by opening the door. The case of the plaintiff is that the letter, Ext. BD, amounted to resignation by the first defendant of the office of church-worker. But we fail to see how the first defendant can be said to have vacated the office of church worker by sending the letter Ext. BD. He only severed his connection with Rev. Paul Nesamony who had appointed him on account of the fact that Rev. Paul Nesamony joined the C. S. I. It was expressly stated in the letter that the first defendant “decided to work in the Kadamalakunnu L. M. Church as the L. M. Church Worker from 28-6-1948”. There can be no doubt that the first defendant did not vacate the office of church worker. On the other hand, he wanted to make it clear that he was continuing as the church-worker of the L. M. Church from 28-6-1948. The learned District Judge has relied on the fact that in the resolution (Ext. FN) of the Church Committee Ext. BD was described as ‘razinama’. We do not think that much importance can be attached to the use of the word ‘razinama’ in the resolution. The learned District Judge has relied on the fact that in the resolution (Ext. FN) of the Church Committee Ext. BD was described as ‘razinama’. We do not think that much importance can be attached to the use of the word ‘razinama’ in the resolution. The purport of the resolution is that the first defendant was accepted as the church-worker of the London Mission Kadamalakunnu Church as from 28-6-1948". We are of opinion that Ext. BD and Ext. FN do not show that the office of church worker was vacated by the first defendant and that the place became vacant. We hold that the first defendant was functioning as church worker of the plaint church when the plaintiff was appointed as pastor by Pw. 4. 43. The further question for consideration is whether the plaintiff got possession of the church. We have found that the first defendant was in possession of the church as church-worker on behalf of the congregation It will be seen that the majority of the congregation were opposing the church union and that they were repeatedly declaring their determination not to join the C. S. I. In the circumstances it is not at all likely that the plaintiff would have secured possession of the church. It is admitted in the plaint that on the first Sunday, ie., on 24-12-1123, the plaintiff was not able to enter the church. Although he entered the church on 31-12-1123 it is clear that he was not able to conduct service in the church. Even according to the plaintiff the congregation had to be dispersed. The plaintiff has not adduced any independent evidence to prove his alleged possession of the church. It was after filing this suit and obtaining an order of temporary injunction that the plaintiff was able to conduct service in the church. Even after the order of injunction the defendants continued to conduct service in the church at a time when the plaintiff was not conducting service. There was an enquiry into that question by the court below at the direction of this Court and the finding was in favour of the defendants. That finding was upheld by this Court. We hold that the plaintiff did not get possession of the plaint church and that the congregation was in possession of it through its church worker, the first defendant, on the date of suit. 44. That finding was upheld by this Court. We hold that the plaintiff did not get possession of the plaint church and that the congregation was in possession of it through its church worker, the first defendant, on the date of suit. 44. The next question for consideration is whether the plaintiff is entitled to officiate as pastor in the plaint church on the basis of the appointment made by the bishop of the South Travancore Diocese of the C. S. I. That depends on the question whether the plaint church is bound by the union into the C. S. I. There can be no doubt that the majority of the members of the congregation of the plaint church were opposed to the union. The plaintiff has no case that the majority of the members are in favour of the union. Neither has the plaintiff let in any evidence to show that the majority of the members of the congregation are in favour of the union. On the other hand the resolutions passed in the meetings of the Church Members and of the Church Committee show that the majority of the members are opposed to the Union. On 21-8-1942 the Church Committee passed the following resolution (Ext. LXXVIII-A). “It was resolved to send the following resolution to the President of the Travancore Church Council. Resolution:- We do not agree to the proposed scheme of union as it stands, and there, fore request the Church Council not to accept the fame. If, however, the Church Council of the S. I. U. C. enter into the proposed union, we hereby declare that we shall remain as L. M. S. Christians as hitherto”. Ext. LXXIX-A is the minute of the meeting of the Church Members held on 8-12-1946 after the T.C.C. passed the resolution accepting the scheme of union. It reads thus:- “Minute No. 5. Church Union. As the previous Church Committee has stated this matter affects the whole church. So it was unanimously resolved that this matter be finally resolved at a meeting of all the members of the whole Church, and the wording of the resolution should be as follows:- This resolution must be sent to the Travancore Church Council and Mr. Zacharia B. A., L. T. [1] The Kadamalakunnu Church will not give up its independent, evangelical, pure faith, whatever happens. Zacharia B. A., L. T. [1] The Kadamalakunnu Church will not give up its independent, evangelical, pure faith, whatever happens. [2] The resolution passed in the last Church Council contrary to our wish and without our representative will not in any way be binding on our Church. [3] Kadamalakunnu Church will not for any reason cut off its connection from the L. M. Society. [4] Kadamalakunnu Church will not recognise any scheme or constitution which is contrary to the pure, independent, church government which the Church Council may bring up. Compulsion will not make them to accept it also. [5] If the Churches which believe in historic episcopacy alone are true Churches [is a fact] what is the fate of our parents ? Without making arrangement for the peace of their souls if some would rush selfishly to save themselves we have no part with them. [6] We greatly deplore that the London Missionary Society whose Tripple Jubilee we saw celebrated so recently has followed it up with the introduction of superstitious belief in the London Mission Churches in Travancore. [7] What we want to tell the T. C. C. is that the Kadamalakunnu Church [Pastorate] will follow the same faith and government it had when it was established and will worship God who is the same yesterday, today and for ever directly, and shall not accept any mediator excepting Jesus Christ. The Secretary is authorised to forward these resolutions”. Ext. XXXV shows that the resolution was forwarded to the T.C.C. On 27-9-1947 a meeting of the L. M. Christians who were opposed to the union was held in the plaint church and the expenses of the meeting were met by the church (Vide Ext. FK (1) ). Two churches that formed part of the Kadamalakunnu pastorate accepted the union and the Church Committee passed a resolution on 12-10-1947 (Ext. FO) to the effect that those two churches had separated from the Kadamalakunnu pastorate. It was also resolved in that meeting that Rev. Paul Nesamony should not be accepted as an episcopal pastor but only as L. M. S. pastor as before the union. On 12-2-1948 the Church Committee resolved that money belonging to the church should be invested in the name of ‘Kadamalakunnu London Mission Congregational Church’ (Ext FL). On 27-6-1948 it was resolved by the Church Committee that if the District Minister Rev. On 12-2-1948 the Church Committee resolved that money belonging to the church should be invested in the name of ‘Kadamalakunnu London Mission Congregational Church’ (Ext FL). On 27-6-1948 it was resolved by the Church Committee that if the District Minister Rev. Paul Nesamony raised any objection regarding marriage bans and permission to issue notices of marriage they should be obtained from two ministers of the L. M. Church who did not join the C. S.I. (Ext. LXXIX-B). On 15-7-1948 the Church Committee passed the following resolutions:- “[1] All the minutes were accepted unanimously without any discussion. It was stated that we should stand steadfast as L. M. S, Congregational Church and that we should appreciate the firmness of the catechist in his stand. [2] The secretary proposed that the church should consider the troubles caused by some who have gone over to the C. S. I. Many members expressed their opinion. It was stated finally that their having gone over from our group should be taken as a sign that they have left us. The assembled church gave their unanimous consent that money for the expenses that have been caused and that may be caused hereafter through these people can be taken from any of the moneys of the Church. It also authorised the Church Committee by an unanimous vote that the Church Committee should stand boldly and oppose all attempts that may be aimed against the Christian liberty of the church”. [Ext. LXXIX-C] The resolution, Ext. FN, already referred to, by which the first defendant was accepted as the church worker of the ‘London Mission Kadamalakunnu’ Church’ from 28-6-1948 was passed by the Church Committee on 18-7-1948. It was argued for the respondent that the meetings in which these resolutions were passed were not held according to the rules contained in Ext. H and that the resolutions are therefore not valid. Whatever technical irregularities there might have been in the passing of these resolutions they clearly indicate what the attitude of the plaint church is towards the church union. In the absence of any evidence on the part of the plaintiff to show that the majority of the congregation are in favour of the union the natural inference to be drawn from these resolutions is that the majority are opposed to the union and that the plaint church did not accept the union. 45. In the absence of any evidence on the part of the plaintiff to show that the majority of the congregation are in favour of the union the natural inference to be drawn from these resolutions is that the majority are opposed to the union and that the plaint church did not accept the union. 45. The important question to be decided in the appeal is whether the plaint church is bound to accept the church union or in other words whether the resolution of the T. C. C. or that of the General Assembly of the S. I. U. C. accepting the union is binding on the plaint church. The answer to this question depends on the findings on four points, viz., (1) whether the T.C.C. had authority to pass the resolution (Ext. AC-1) accepting the scheme of union; (2) whether the General Assembly of the S. I. U. C., was competent to pass the resolution (Ext. O-1) agreeing to the union; (3) even if the General Assembly had authority to pass the resolution whether the local churches have not got the freedom to keep out of the union if they choose to do so and (4) whether the scheme of union (Ex. AO) is opposed to the Fundamental Principles of the London Mission Church in Travancore. 46. As regards the authority of the T. C. C. to pass the resolution accepting the scheme of union we have seen that the finding of the court below is really against the plaintiff. This finding was objected to by the respondent. The question has to be decided entirely on the basis of the provisions of the constitution ...of the T.C.C., Ext. H. It was argued for the appellants that the London Mission Churches are Congregational Churches, the distinguishing feature of which is independence, while according to the respondent they are more Presbyterian in character than Congregational. So long as there is a written constitution defining the powers of the local churches and the T. C. C. we have only to go by the provisions of that constitution for deciding the question, and it is not necessary to enter into a discussion regarding the origin and growth of the London Mission Churches in Travancore in order to find out what powers the local churches possessed at the time of the proposed church union. We shall, therefore, confine the discussion to the provisions of Ext. H so far as this question is concerned. It cannot be denied that the effect of the resolution, Ext. AC-1 is to put an end to the London Mission Church in Travancore as an associate member of the S. I. U. C, and to form a new Church. The question is whether the Church Council had authority to pass such a resolution so as to bind the local churches. We find no provision in Ext. H conferring such authority on the Church Council. The object of the formation of the T.C.C. is thus described in Ext. H: “2. Object. As an ecclesiastical organisation forming part of the S. I. U. C., and in association with the L. M. S., to control, carry on and develop the pastoral, evangelistic and educational work which belongs to it or which it may hereafter undertake”. [Ext. H, page 1] It cannot be seriously argued that the resolution (Ext. AC-1) will come within the scope of developing “pastoral, evangelistic or educational work”. The functions of the Church Council are enumerated in clause 65. They are the following:- “1. To do everything in its power to advance the spiritual, intellectual and social life of all the churches [including the Church Workers] by retreats, conventions, meetings, schools and any other method; and to conduct all its own proceedings in the spirit of Christ. II. To foster evangelistic effort whether carried on officially or otherwise. III. To assist the work of the Evangelistic Missionaries of the L. M. S. in Travancore. IV. To encourage the work of the H. M, S. [Home Missionary Society] which is an integral part of the Church Council work; to receive from it a report each year; to decide, after hearing the recommendations of the Church Council Executive Committee, upon any changes proposed by the H. M. S. in its rules and constitution and upon any disagreement that may arise between the H. M. S. and any District Council; and to appoint at the beginning of each triennium one person to the Managing Committee of the H. M. S. V. To determine the boundaries of the Districts and of the Circles. VI. To co-ordinate the work of the District Councils, and to receive from each District Council a report of each year’s working. VII. To promote self-support in the churches. VIII. VI. To co-ordinate the work of the District Councils, and to receive from each District Council a report of each year’s working. VII. To promote self-support in the churches. VIII. To consider communications from the L. M. S. or any of its councils or committees, and to send to the L. M. S. copies of all its minutes and reports. IX. To consider representations from the General Assembly of the S. I. U. C. and to elect representatives to that Assembly. X. To appoint an executive Committee and to receive its minutes and through it the minute and reports of all other committees and sub committees appointed by the Church Council or the Executive Committee; to decide upon such minutes of the Executive Committee as are not reported merely for information, and to refer back to the Executive Committee any minute on which the Church Council disagrees; to receive in its next meeting, or later in the same meeting a further minute of the Executive Committee on any matter in which there is such disagreement, and then finally to dispose of it in any way that seems to the Church Council to be desirable. XI. To appoint delegates to the Travancore Mission Council of the L, M. S.; the Madras representative Christian Council, the Kerala Regional Conference and other bodies which include representatives of the Church Council. XIII. To decide the Constitution and Rules for itself and for all its subsidiary bodies, subject to the limitation that no change may be made in any part of the Constitution and Rules as they exist at any time except in an annual meeting of the Church Council after notice given in the preceding annual meeting. Such notice may be given by any member or group of members and shall give such details as the President may judge to be desirable. Any change voted by the Church Council shall only be valid if supported by the votes of two-thirds of the members present at the time of voting. XIII To do such other things as may be in harmony with its Constitution and Rules” We do not think that the power exercised by the Church Council in passing the resolution accepting the scheme of union comes within any of the functions enumerated in clause 65. Pw. XIII To do such other things as may be in harmony with its Constitution and Rules” We do not think that the power exercised by the Church Council in passing the resolution accepting the scheme of union comes within any of the functions enumerated in clause 65. Pw. 2 swears that excepting the powers conferred under the constitution on the Church Council, District Councils and Circle Councils the residuary powers were with the local churches. In the circumstances the resolution can at best be taken to be only an expression of opinion by the T. C. C. on a matter on which the General Assembly of the S.I. U. C. sought its opinion. It cannot have the effect of an authoritative decision binding on local churches. The fact that the representatives of the local churches were in the Church Council cannot make the resolution binding on those churches which were opposed to the union. It is significant that the local churches were not called upon to vote on the scheme of union. We are, therefore, of opinion that the T.C.C. had no authority to pass the resolution Ext. AC-1, so as to bind the local churches. 47. The next question for consideration is whether the General Assembly of the S.I.U. C. had authority to pass the resolution, Ext. O-l, accepting the scheme of union. According to the plaint the T.C.C. is the “Supreme Body” governing the L. M. Churches in Travancore and it was the resolution of the T. C. C. that brought those churches within the C. S. I. union although reference is made in the plaint to the fact that the S. I. U. C. resolved to dissolve itself and to form the C. S. I. The question whether the General Assembly of the S. I. U. C. had authority to pass the resolution, Ext. O-1, will have to be considered with reference to the constitution of the S. I. U. C., i. e., Ext. J-1. The effect of the resolution was to dissolve the S.I U. C. itself. In fact the S.I.U.C. passed a resolution dissolving itself in order to give effect to the resolution, Ext. 0-1. The question is whether power to pass such a resolution is conferred on the General Assembly under the constitution, Ext. J-1. J-1. The effect of the resolution was to dissolve the S.I U. C. itself. In fact the S.I.U.C. passed a resolution dissolving itself in order to give effect to the resolution, Ext. 0-1. The question is whether power to pass such a resolution is conferred on the General Assembly under the constitution, Ext. J-1. There is dispute between the parties as to whether the S.I.U.C. is an organic union of churches or only a federal union. That question will be considered afterwards. Apart from that question we do not think that the General Assembly of the S.I.U. C. had authority under its Constitution to pass the resolution accepting the scheme of union. 48. The Object Clause of the Constitution of the S.I.U.C. is to the following effect: “To bind the Churches together into one body with a view to developing a self-supporting, serf-governing and self-propagating Indian Church, which shall present a united, living testimony to Christ, and worthily represent to the world the Christian ideal” [Ext J-1]. The object was only to bind together the Churches that formed the union. Uniting with other Churches into organic union and thereby putting an end to the S.I.U.C. itself cannot come within the scope of the clause. The Constitution and powers of the General Assembly are mentioned in clause IV, sub-clause 4. It reads-thus: “The General Assembly, which shall meet once in two years is composed of representatives, ministers and laymen, appointed by the Church Councils, each Council being entitled to one minister and one lay delegate for every three regularly organised Churches. The General Assembly is the representative body of the South India United Church, and its counsellor. It assumes no direct authority over the Churches; bat will consider references that come to it through and with the approval of the Church Councils. Its general duties are: to advise regarding the organisation and boundaries of Church Councils, and to decide all matters referred to it by such Councils; to co-operate with the missions in carrying on evangelistic and other Christian work; to unite in cordial fellowship all the ministers of the Churches; and promote their intellectual and spiritual development; to tabulate statistics of the Churches and publish a biennial report; to devise ways and means for strengthening and advancing the interest of the whole Church”. “It is also empowered to take authoritative action in regard to the following matters:- [a] Framing of regulations regarding the qualifications of ministers for ordination, [b] Framing of regulations regarding marriages. [c] Framing of regulations for comity and relationship with other Churches. [d] Arranging for the transfer of ministers connected with those Councils which desire the Assembly so to act. [d] Legislation on any other matter regarding which legislation is asked for by one or more Church Councils, provided that no rule is adopted which does not have the approval of two-thirds of the United Church”. There is nothing in this clause conferring authority on the General Assembly to pass a resolution for entering into organic union with other churches, a resolution which, as already stated, had the effect of putting an end to the S.I.U.C. itself. The General Assembly of the S. I. U. C. is essentially an advisory body and not an authoritative body except in respect of matters specifically mentioned in Sub-clause V of Clause IV. It was argued for the respondent that the passing of the resolution Ext. O-1 will come within the ambit of “framing regulations for comity and relationship with other Churches”. We do not think that merging into other Churches is the same as entering into comity and relationship with those churches. Comity presupposes the existence of the Church that enters into comity. Here what the S. I. U. C. did was to dissolve itself and enter into organic union with other Churches so as to form a new Church. 49. The learned District Judge held 011 the basis of the provisions in Ext. J-1 relating to the revision of the Confession of Faith and to the amendment of the Constitution that the General Assembly of the S. I. U. C. had authority to pass the resolution, Ext. O-1. Note 2, to clause III is the provision relating to revision of the Confession of Faith. It reads thus: “The South Indian United Church reserves to itself the right to revise its Confession of Faith whenever the consensus of opinion of the United Body demands it”. In the first place we do not think that what the General Assembly purported to do when passing the resolution, Ext. It reads thus: “The South Indian United Church reserves to itself the right to revise its Confession of Faith whenever the consensus of opinion of the United Body demands it”. In the first place we do not think that what the General Assembly purported to do when passing the resolution, Ext. O-1, agreeing to enter into organic union with the Anglican and Methodist Churches to form the Church of South India was to revise the Confession of Faith of the S. I. U. C. What the General Assembly purported to do was to put an end to itself as a Church and to form a new Church. If it is a question of the S.I.U. C. revising its Confession of Faith the S.I. U. C. should continue to exist as such with a revised Confession of Faith. Here that is not what happened. The result of the resolution, Ex. O-1, was that the S. I. U. C. dissolved itself and ceased to exist when the new Church was formed. Note 2 to clause III of Ex. J-1 has to be read along with Note 1 which is to the following effect:- “As the Confession is a human instrument, it is understood that persons assenting to it do not commit themselves to every word or phrase, but accept it as a basis of union, and as embodying substantially the vital truths held in common by the uniting Churches.” That shows that there was no complete unanimity among the uniting Churches with regard to the Articles of Faith and that the Confession of Faith contained in Ex. J-1 only embodied “substantially the vital truths held in common by the uniting Churches”. The idea obviously was that if at any time there would be consensus of opinion among the uniting Churches with regard to the Articles of Faith the Confession of Faith embodied in the Constitution could then be revised. Note 2 appears to have been inserted for the purpose of providing for such a contingency. The wording of the Note also, particularly the clause “whenever the consensus of opinion of the United Body demands it” lends support to this interpretation. In any case we do not think that the Note is intended to cover a case of the S. I. U. C. putting an end to itself and merging into a totally different Church. 50. The wording of the Note also, particularly the clause “whenever the consensus of opinion of the United Body demands it” lends support to this interpretation. In any case we do not think that the Note is intended to cover a case of the S. I. U. C. putting an end to itself and merging into a totally different Church. 50. Again, the Note does not refer to the General Assembly of the S.I.U.C. It is not clear what is meant by the term “United Body”. In the subsequent clause the name given to the representative body of the S.I.U.C. is ‘General Assembly’. It is true that if the reference was to the eight Church Councils of the S.I.U.C. the expression ‘United Body’ will not be quite correct grammatically. At the same time, the words “whenever the consensus of opinion of the United Body demands it” indicate that the consensus of opinion that is required is that of the uniting Churches (i. e., their Church Councils) and not of the General Assembly of the S.I.U. C. The provision relating to the amendment of the Constitution says that the Constitution may be amended by a vote of two-thirds of the Church Councils connected with the Assembly. In that case the voting must be by the Church Councils separately. It is not clear whether the same method of voting will apply in the case of a resolution to revise the Confession of Faith. 51. According to the learned District Judge the expression ‘consensus of opinion’ does not necessarily mean ‘unanimous opinion’. The difficulty in accepting this interpretation is that it may not be possible to draw the line at which consensus of opinion ceases to be such and becomes merely the opinion of the majority. It is possible that even if there is a very large number of votes in favour of a resolution for revising the Confession of Faith the majority of the representatives of a particular Church Council are opposed to the revision. In this particular case one of the eight Church Councils, i. e., the North Tamil Church Council, voted against the union. It is doubtful whether in such a case it can be said that there has been ‘consensus of opinion of the United Body’ in favour of the union. 52. As for the argument that the passing of the resolution, Ex. It is doubtful whether in such a case it can be said that there has been ‘consensus of opinion of the United Body’ in favour of the union. 52. As for the argument that the passing of the resolution, Ex. O-1, by the General Assembly is only an exercise of the power vested in the Assembly to amend the Constitution of the S.I.U. C. we fail to see how a resolution by which the Assembly dissolved the S.I.U.C. itself and caused, it to be merged into a new Church can be regarded as an amendment of the Constitution of the S.I.U.C. If the resolution amounts only to an amendment of the Constitution of the S.I.U.C. that Church should continue to exist although with an amended constitution or in other words the identity of the Church should be preserved. That is not what happened in this case. What the Assembly did was to dissolve itself and to form a new Church with a different constitution and with a different form of church government. In passing the resolution, Ex. O-1, the Assembly itself did not purport to amend its constitution. 53. In the Free Church Case (Free Church of Scotland v. Overtoun- 1904 A.C. 515) to which we shall have to refer in detail afterwards, one of the arguments advanced on behalf of the respondents was that the General Assembly of the Free Church of Scotland had power under what is called the Barrier Act to pass the resolution to join the United Presbyterian Church and form the United Free Church of Scotland. Lord. Alverston C. J. who did not accept this argument observed thus:- “I agree that the Barrier Act, upon which so much reliance was placed by the respondents, though it confers no new powers, recognises that the General Assembly possessed some powers of alteration with reference to doctrine, worship, discipline, and Government but such powers do not, in my opinion, include a power to subvert or destroy fundamental and essential principles of the Church. [page 719]. What the General Assembly of the S.I.U. C. did in this case was to destroy the S.I.U.C. itself. [page 719]. What the General Assembly of the S.I.U. C. did in this case was to destroy the S.I.U.C. itself. Lord Lindley who was of opinion that the General Assembly of the Free Church of Scotland had power to alter its Confession of Faith observed thus in the course of his dissenting judgment:- “I take it to be clear there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bonafide for the purpose for which they are conferred. If, therefore, a Synod or Council, under colour of exercising their authority were to destroy the Church which they were appointed to preserve, or were to abrogate the doctrines which they were appointed to maintain, their acts would be ultra vires and invalid in point of law.” [page 695] As stated already, the effect of the resolution, Ex. O-1, so far as the S.I.U.C. was concerned, was that that Church was put an end to. 54. For these reasons we hold that the General Assembly of the S.I.U. C. had no power to pass the resolution, Ex. O-1 accepting the scheme of union. 55. The next point for consideration is whether, even if the General Assembly of the S.I.U.C. had power to pass the resolution, the local Churches have not got the freedom to keep out of the union if they choose” to do so. This depends on the question whether the S.I.U.C. was an organic union or only a federal union. If it was an organic union the local Churches which formed integral parts of the united Church would be bound by the resolution. According to the appellants, although it was stated in the Declaration of Union, Ex. DU-1, that it was anorganic union it was in fact only a federal union. It was also argued that the union was of two federal bodies and that therefore it could not be an organic union. According to the appellants, although it was stated in the Declaration of Union, Ex. DU-1, that it was anorganic union it was in fact only a federal union. It was also argued that the union was of two federal bodies and that therefore it could not be an organic union. The declaration of union was to the following effect: “Whereas the Churches of the Madura and the Jaffna Missions of the American Board of Commissioners for Foreign Missions, and those of the South India District Committee and the Travancore Mission of the London Missionary Society, in their organised capacity as “The United Churches of South India and Ceylon” on the one part, and Churches of the Arcot Mission of the Dutch Reformed Church and those of the United Free Church Mission of Madras in their organised capacity as “The South India Synod of the Presbyterian Church” on the other part have determined for the Glory of God to unite organically into the body.” It is not clear whether the unions of the two bodies that united to form the S. I. U. C. were organic or only federal. According to Pw. 5 those unions were federal. This is what he says in Ex. EQ:- “The South India United Church, 1908-A Federal Union. From the beginning of the twentieth century, missionaries, particularly in South India, began to take an interest in union enterprises. In 1901, under the auspices of the South India Missionary Conference, and under the leadership of Dr. Jacob Chamberlain, a federal Union was formed between two Presbyterian Churches - the American Hutch Reformed Church and the United Free Church of Scotland Mission. In 1904 another federal union was formed between the Congregational Churches of the American Mission in Madura and Jaffna, and the Congregational Churches of the London Mission in South Travancore, under the leadership of Dr. James Duthie of Nagercoil and Dr. J. P. Jones of Madura. In 1908 these two bodies of the Presbyterian and Congregational forms of Church Government came together and formed the South India United Church, ‘to bind the Churches together into one body with a view to developing a self-supporting, self-governing and self propagating Indian Church which shall present a united living testimony to Christ and worthily present to world the Christian ideal.’ It was an organic union - a truly Indian and a missionary Church.” [Ext. EQ, page 18]. EQ, page 18]. The speech of Rev. J. H. Mclean on the occasion of the inauguration of the S.I. U.C. also goes to show that the prior unions were not organic. He spoke thus about the S.I.U.C. Union: “We have entered today a road by which no Church; so far as we know, has as yet travelled; for though unions have been effected in India and elsewhere, this is the first time that the different Church polities which we represent have been actually fused into one.” ‘ [Ex. DU. p. 16] But whatever may be the nature of the unions of the two bodies that united to form the S.I.U.C. the object of the union into the S.I.U.C. appears to have been to effect an organic union. The words ‘unite organically into one body’ in the Declaration of Union make this clear. Moreover, according to the Declaration of Union it was the Churches of the two uniting bodies in their organised capacity that agreed to unite organically into one body. In the Plan of Union the ‘Object’ mentioned is ‘To bind the Churches together into one body”. Rev. McLean’s speech also makes it clear that the object of the union was to unite the Churches organically into one body. The report of a committee appointed by the Second Assembly of the S.I.U.C. on Church Union (Ex. DW-1) and the resolution of the eighth Assembly on Church. Union (Ex. DY-1) also go to show that the object of the S.I.U.C. union was the formation of an organic union of Churches and not a federal union. In the report of the Joint Commission on Church union (Ex. LXI) the S.I.U.C. union is referred to as an organic union. In the 1929 Edition of the Scheme of Union also (Ex. DD) the S.I.U.C. is described as an organic union. We are of opinion that the object of the S.I.U.C. union was to form an organic union and not a federal union. 56. But the question for consideration is whether the S.I.U.C. was really an organic union according to its constitution and whether the L. M. Church in Travancore treated it as an organic union, in the sense that the decisions of the General Assembly would have binding force on the Churches that constituted the union. The Constitution of the S.I.U.C. (Ex. J-1) cannot be said to be that of an organic union. The Constitution of the S.I.U.C. (Ex. J-1) cannot be said to be that of an organic union. We have already seen what the powers of the General Assembly are. It is described as the ‘Counsellor’ of the S.I.U.C. and it is expressly stated in the Constitution that the General Assembly “assumes no direct authority over the Churches.” It will only, “consider references that come to it through and with the approval of the Church Councils.” Its main function is advisory. It is an authoritative body only in respect of certain specified matters which are not really connected with the government of the churches. Under the Constitution “to the local church belongs authority to manage its affairs” and “to the Church Council belongs the oversight and care of the churches within its bounds.” The Church Council can even disband churches. It is the only appellate authority under the Constitution. In the circumstances we do not think that under the Constitution the General Assembly of the S.I.U.C. can be said to be an authoritative body in the real sense of the term. The provisions of the Constitution show that although the uniting Churches desired to unite organically they were not really prepared to sacrifice their independence and to surrender their powers in favour of the union. Even with regard to the Confession of Faith of the United Church it was expressly stated in the Basis of Union that it only embodied “substantially the vital truths held in common by the uniting Churches.” We do not think that the union disclosed by the Constitution, Ex. J-I, is in any real sense an organic union. 57. It is useful in this connection to refer to the speech of the President of the Assembly, Dr. Wyckoff, on the occasion of the inauguration of the S.I.U.C. He said: - “Turning to the Constitution of the Church, we see that it well fulfils the injunction of the Apostle, ‘Let all things be done decently and in order’. The local Church is defined to be a ‘company of believers regularly organised with a Pastor set apart by ordination to preach and administer the sacraments, and Elders or Deacons chosen by the Church.’ Above the local Church stands the Council, having the oversight and care of the Churches, but possessing no arbitrary power. The local Church is defined to be a ‘company of believers regularly organised with a Pastor set apart by ordination to preach and administer the sacraments, and Elders or Deacons chosen by the Church.’ Above the local Church stands the Council, having the oversight and care of the Churches, but possessing no arbitrary power. It gives counsel and aid to the Churches, decides references and appeals regularly presented, and maintains order. The General Assembly, which meets but once in two years, is the representative body of the churches and its counsellor. Its duties are chiefly to unite in cordial fellowship all the churches, and devise ways and means for strengthening and advancing the interests of the whole Church. At first sight a stranger, in looking at the constitution, would say that with a provision, for three courts it is Presbyterian. Viewing it more closely he would pronounce it Congregational; for the Council only possessed such power as is delegated to it by the Churches. Let him put on his glasses and study it with care, and he will decide that it is neither, but a scheme specially adopted to the South India United Church, steering between over-centralisation on the one part, and unrestricted individualism on the other. It is simple but scriptural; flexible, but not lax.” [Ex. DU. page 52] 58. After the S.I.U.C. Union was formed there was a proposal by the General Assembly to have a legislative body, i. e., a Synod, established for the United Church. This proposal was considered by a committee of the T. C. C. in 1917. Ex. DT is their report which was accepted by the T.C.C. That shows that the S.I.U.C. was not functioning as an organic union in the real sense. It is useful to refer to the following passages in the report. The committee said: “Our Church Council and the missionaries are engaged in working out a system by which all our churches will be drawn together in an organised body under the Council .....................We do not think that legislative authority should be given to anybody higher than the Church Council.” 59. The plaintiff’s case in the plaint is that the Travancore Church Council was the “supreme body that governed” the L. M. Churches in Travancore. The plaintiff’s case in the plaint is that the Travancore Church Council was the “supreme body that governed” the L. M. Churches in Travancore. What is stated in paragraph 4 of the plaint about the S. I. U. C. is that the “London Mission Churches in Travancore were in association with the South India United Church till the 26th September 1947.” The plaint does not disclose a case that the S.I.U.C. was an organic union with the General Assembly as the central authority. 60. As regards the question of Church union the position adopted by the General Assembly from the beginning was that it could only give its advice to the Church Councils on the matter and that it was for the Church Councils to accept or not to accept the same. The committee appointed by the Assembly on Church union reported thus in 1929: “In accordance with our Constitution and practice it now becomes necessary for the Assembly, which is in such matters an advisory body, to transmit this “Proposed Scheme” to the various Church Councils for their consideration and their expression of opinion.” [Ex. DC, p. 32] The Assembly accepted this report. Another Committee on Church Union stated thus in the report submitted by them to the Assembly in 1943: “The Committee has noted that there appears to be no probability of all eight Councils being willing to enter the proposed union at present. It has noted on the other hand that certain Councils are strongly desirous of going into the union. Taking into account the whole history of the negotiations and the history of union movements in the past, the Committee records its conviction that the six councils which have not rejected the scheme should go forward into the larger union rather than endanger the whole negotiations by awaiting complete unanimity,” [Ex. N, page 16]. That report also was accepted by the Assembly. 61. The attitude of the T. C. C. also on the question of Church union was that the Church Councils had the right either to accept or reject the scheme of union. N, page 16]. That report also was accepted by the Assembly. 61. The attitude of the T. C. C. also on the question of Church union was that the Church Councils had the right either to accept or reject the scheme of union. In reply to a query by the S.LU.C. Committee on church union in 1942 the T.C.C. replied thus: “The general attitude of our Council would be, while claiming freedom for ourselves to stay outside, to extend a like freedom to those councils, who wish to go in...............Should six Councils of the S. I. U. C. go into the Union and we stay outside, we presume that under the principles of the scheme there would still be intercommunion and inter celebration between ourselves and our former partners in the S. I. U. C.” [Ex. T, p. 13] The North Tamil Church which formed part of the S.I.U.C. did not accept the scheme of union and stayed out. (It is represented that Church also recently joined the C.S.I.). If the S.I.U. C. was an organic union and if the North Tamil Church was an integral part of such a Union it is difficult to understand how that Church could keep out when the General Assembly of the S. I. U. C. resolved to enter into organic union with other Churches to form the C. S. I. 62. If the S.I.U.C. were an organic union the properties of the uniting Churches should become the properties of the United Church. But learned counsel for the respondent did not contend for the position that the properties of the Travancore L. M. Church became the properties of the S. I. U. C. This is only another circumstance to show that the S.I.U.C. Union was not an organic union. 63. Pw. 2 and Pw. 3 were long connected with the S. I. U. C. Both of them swear that the S.I.U. C. was only a federal union of Churches. According to Pw. 2 the relation of the Travancore L. M. Church to the other Churches forming the S.I.U. C. was only one of “federation for cooperative work” (Pw. 2, page 19). This is what Pw. 3 swears: “S. I. U. C. was a federal union of eight different Church Councils. It was rather a federal union than a federation............The General Assembly of the S. I. U. C. functioned largely as an advisory body.”. [Pw. 2, page 19). This is what Pw. 3 swears: “S. I. U. C. was a federal union of eight different Church Councils. It was rather a federal union than a federation............The General Assembly of the S. I. U. C. functioned largely as an advisory body.”. [Pw. 3, page 18] He also said that the General Assembly of the S.I.U. C. had no jurisdiction to legislate for the L. M. Church in Travancore.. 64. For the above reasons we hold that notwithstanding the statement in the Declaration of Union that the Churches had decided to ‘unite, organically into one body’ the S.I. U. C. union was in reality only a federal union. 65. It has also to be noted that the S.I.U. C. dissolved itself on the 26th September 1947 by the resolution, Ex. EL. The C.S.I. was inaugurated on the 27th September 1947. Thus the S.I.U.C. was not in existence on the date of the inauguration of the C.S.I. It was in fact the seven Church Councils that joined with the other Churches to form the C.S.I. The resolution, Ex. 0-1, passed by the General Assembly on 28th September 1946 was in effect only an approval of the resolutions passed by the seven Church Councils accepting the scheme of union. If the plaint church is not bound by the resolution of the T.C.C. accepting the scheme of union we do not think that it is bound by the resolution of the General Assembly of the S.I.U.C. 66. The last point to be considered in connection with the question whether the plaint church is bound by the resolutions of the General Assembly of the S.I.U.C. and of the T.C.C. accepting the scheme of union is whether the union is opposed to the fundamental principles of the London Mission Church in Travancore. This question will have to be considered in the light of the principles laid down by the House of Lords in the Free Church Case (The Free Church of Scotland v. Overtoun 1904 A.C. 515). Those principles were discussed in Mathen Malpan v. Oolahannan Geevarghese (45 T.L.R. 116) and were followed in Rt. Rev. Mar Poulose Athanasius v. Moran Mar Basailius Catholicos (1946 T. L. R. 683). The Free Church case related to the union of two Protestant Churches, the Free Church of Scotland and the United Presbyterian Church of Scotland. Those principles were discussed in Mathen Malpan v. Oolahannan Geevarghese (45 T.L.R. 116) and were followed in Rt. Rev. Mar Poulose Athanasius v. Moran Mar Basailius Catholicos (1946 T. L. R. 683). The Free Church case related to the union of two Protestant Churches, the Free Church of Scotland and the United Presbyterian Church of Scotland. The Free Church of Scotland was founded in 1843 by ministers and laymen who seceded from the Established Church of Scotland protesting against the interference of the State in matters spiritual. They, however, believed in what is called the ‘Establishment Principle’ i. e., the principle that it is the duty of the State to establish and endow the Church. At the time of the formation of the Free Church the Moderator of the Assembly of the Church made the position of that Church clear in the following words:- “Though we quit the Establishment we go out on the Establishment Principle - we quit a vitiated Establishment, but would rejoice in returning to a pure one. To express it otherwise, we are the advocates for a national recognition and a national support of religion and we are not Voluntaries” [1904 A. C. 515 at page 619] ‘Voluntaries’ were those who were opposed to the principle of establishment. The Free Church also professed to accept without qualification what is called “The Westminister Confession of Faith which was the Confession of Faith of the Established Church of Scotland. The United Presbyterian Church also consisted of seceders from the Established Church of Scotland. They were, however opposed to the Establishment principle and accepted the Westminister Confession of Faith only with certain modifications. These two Churches united together in 1900 under the name of the United Free Church of Scotland. The Act of Union left ministers and laymen free to hold their own opinions regarding the points on which there was divergence, of opinion between the uniting Churches, i. e., the Establishment Principle and the predestination doctrine in the Westminister Confession of Faith. In the Free Church the union was approved and passed in the General Assembly by a majority of 643 against 27. In the United Presbyterian Church the union was agreed to unanimously. A small number of ministers (24 out of 1100) and some laymen of the Free Church disapproved of the union and refused to join the United Free Church of Scotland. In the United Presbyterian Church the union was agreed to unanimously. A small number of ministers (24 out of 1100) and some laymen of the Free Church disapproved of the union and refused to join the United Free Church of Scotland. They claimed that they and those that adhered to them continued to constitute the Free Church of Scotland and that they were alone entitled to the property that belonged to that Church. Action was brought on their behalf for declaration of their right to the property and for consequential reliefs. They alleged that the General Assembly of the Free Church had no authority to enter into union with the United Presbyterian Church and that the Union was opposed to the fundamental principles of the Free Church. The trial Court held against the plaintiffs on both these points and dismissed the suit. In appeal before the House of Lords this decision was reversed and the House of Lords held by a majority (Lord Macnaughten and Lord Lindley dissenting) that the General Assembly of the Free Church had no authority to pass the resolution accepting the union and that the union was opposed to the fundamental principles of the Free Church. It was accordingly held that those members of the Free Church who did not join the United Free Church of Scotland were alone entitled to the property that belonged to the Free Church. Their Lordships followed the proposition of law laid down by Lord Eldon in Craigdallie v. Aikman (21 R.R. 107) which was to the following effect: “If property was given in trust for A., B,. C., & c., forming a congregation for religious worship, if the instrument provided for the case of a schism then the Court would act upon it; but if there was no such provision in the instrument and the congregation happened to divide, he did not find that the law of England would execute the trust for a religious society at the expense of a forfeiture of their property by the cestui que trust for adhering to the opinions and principles in which the congregation had originally united.” Lord Eldon further held that in such cases the Court would enforce the trust in favour of those who adhered to the original principles of the congregation without reference to the question whether they formed the majority or not. The same principle was held in Attorney General v. Pearson (17 R. R. 100) and in Attorney General v. Shore (1833-6) 7 Sim. 309). 67. In considering the applicability of the principles laid down in the Free Church case to the present case it is useful to refer to some of the observations of Their Lordships which have a bearing on the questions involved in this case. According to Earl Halsbury L. C. the main question to be considered in the case was whether the identity of the Free Church of Scotland was preserved in the United Free Church. His Lordship further observed:- “Now, in the controversy which has arisen, it is to be remembered that a Court of law has nothing to do with the soundness or unsoundness of a particular doctrine. Assuming there is nothing unlawful in the views held - a question, which of course, does not arise here - a Court has simply to ascertain what was the original purpose of the trust. “My Lords, I do not think we have any right to speculate as to what is or is not important in the views held. The question is what were, in fact, the views held, and what the founders of the trust thought important.” [page 613] His Lordship continued at page 626: “I do not suppose that anybody will dispute the right of any man, or any collection of men, to change their religious beliefs according to their own consciences; but when men subscribe money for a particular object and leave it behind them for the promotion of that object, their successors have no right to change the object endowed.” [p. 626], His Lordship also held that so long as the members of the United Church were allowed to hold divergent views on fundamental doctrines there was no real union of the Churches. 68. Lord Macnaughten accepted the principles laid down in Craisdallie v. Aikman but was of opinion that the Establishment Principle was not an article of faith of the Free Church and that the General Assembly of the Church had power to declare that the Establishment Principle would be regarded as an open question in the Church. The same view was taken by His Lordship with regard to the Westminister Confession of Faith also. 69. The same view was taken by His Lordship with regard to the Westminister Confession of Faith also. 69. Lord Davey followed the proposition of law laid down by Lord Eldon in Attorney General v. Pearson (17 R. R. 100) that “where a congregation become dissentient among themselves the nature of the original institution must alone be looked to as the guide for the decision of the Court and that to refer to any other criterion, as to the sense of the existing majority, would be to make a new institution, which is altogether beyond the reach and inconsistent with the duties and character” of the Court. His Lordship then observed: “I disclaim altogether any right in this or any other Civil Court of this realm to discuss the truth or reasonableness of any of the doctrines of this or any other religious association, or to say whether any of them are or are not based on a just interpretation of the language of Scripture, or whether the contradictions or antinomies between different statements of doctrine are or are not real or apparent only, or whether such contradictions do or do not proceed only from an imperfect and finite conception of a perfect and infinite Being, or any similar question. The more humble but not useless, function of the Civil Court is to determine whether the trusts imposed upon property by the founders of the trust are being duly observed. I appreciate and if I may properly say so, I sympathise with the effort made by men of great intelligence and sound learning to escape from the fetters forged by an earlier generation. But sitting on appeal from a Court of Law, I am not at liberty to take any such matter into consideration”. ‘The question in each case is what were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created? I do not think that the Court has any test or touchstone by which it can pronounce that any tenet forming part of the body of doctrine professed by the Association is not vital, essential, or fundamental, unless the parties have themselves declared it not to be so. I do not think that the Court has any test or touchstone by which it can pronounce that any tenet forming part of the body of doctrine professed by the Association is not vital, essential, or fundamental, unless the parties have themselves declared it not to be so. The bond of union, however, may contain within itself a power in some recognised body to control, alter, or modify the tenets and principles at one time professed by the association. Bat the existence of such a power would have to be proved like any other tenet or principle of the association.” [pp. 644-645]. His Lordship further observed at page 651: “If the property was intended to be held in trust for a body of Christians holding such doctrines as the majority acting through the General Assembly might from time to time approve such an intention should be made clear beyond the possibility of question.” According to His Lordship also the substantive question for decision was “whether the United Free Church has preserved its identity with and is the legitimate successor of the Free Church.” (page 654). 70. Lord James held that a Church cannot change its fundamental principles and at the same time preserve its identity and that the “power of change is restricted so as to keep the Church within the limits of identity”, (p. 664). His Lordship further held that the change of name of the Church and the fact of fusion put it on the respondents to prove their identity with the original beneficiaries. It was also held that there was no real union of the Churches. According to Lord Robertson also the real question for decision was whether the identity of the Free Church was preserved in the new Church. 71. Lord Lindley was of opinion that the General Assembly of the Free Church had power to repeal or modify the doctrine relating to the Establishment Principle and to declare that the Confession of Faith did not require absolute uniformity of belief. 72. Lord Alverston C. J. concluded his judgment in the following words:- “It only remains to consider the position of the appellants and their rights as a minority of the ministers and the elders of the Free Church representing congregations or portions of congregations who are not prepared to join the United Free Church. 72. Lord Alverston C. J. concluded his judgment in the following words:- “It only remains to consider the position of the appellants and their rights as a minority of the ministers and the elders of the Free Church representing congregations or portions of congregations who are not prepared to join the United Free Church. It is pot contended that they have changed their principles; it is not suggested that they have departed from any fundamental or essential principle of the new Church; it is not alleged that they are not faithfully carrying out the objects of the protest of May 18. 1843. The respondents are threatening to attempt to eject them from their churches and manses, audio deprive them of any right to participate in any funds of the Church, simply on the ground that they decline to become members of the United Free Church. The decisions of the Court of Sessions in Craigie v. Marshall [12 D. 523] and Couper v. Burn [22 D. 120] unless overruled by Your Lordships’ House, are wholly inconsistent, in my opinion with any such right on the part of the respondents, and I am unable to support a judgment which would deprive the persons forming a minority of their rights simply upon the ground that they are unwilling to become members of a body which has not only abandoned a fundamental principle of the Church to which they belong, but supports a principle essentially different from that on which that Church was founded.” [pp. 720-721]. The appeal was accordingly allowed. 73. It will be seen from the above that the basis of the decision in the Free Church case was that the identity of the Free Church of Scotland was not preserved in the United Free Church since the latter Church differed from the former on certain fundamental principles, i.e., the Establishment Principle and the Westminister Confession of Faith. Those principles were held to be fundamental because the founders of the Free Church of Scotland regarded them as fundamental principles of their Church. Applying the principle laid down in the Free Church case what we have to consider in this appeal is whether the identity of the L. M. Church in Travancore is preserved in the C. S. I. notwithstanding the change in the name of the Church. Applying the principle laid down in the Free Church case what we have to consider in this appeal is whether the identity of the L. M. Church in Travancore is preserved in the C. S. I. notwithstanding the change in the name of the Church. That will depend upon the question whether there is difference between the two Churches in matters which were regarded as fundamental by the members of the L.M. Church. 74. In applying the principle laid down in the Free Church case to the facts of this case what the learned District Judge has done was to consider whether the union into the C. S. I. amounted to a deviation not from the fundamental principles of the London Mission Church in Travancore but from those of the London Missionary Society. As stated already, according to the learned District Judge the plaint church was founded by the London Missionary Society and the learned Judge held that it is the fundamental principles of the founder of the trust that should be taken into account in applying the principle laid down in the Free Church case. We are clearly of opinion that it is the fundamental principles of the Travancore London Mission Church to which the plaint church belonged that should be taken into account in determining the question whether the union of that Church into the Church of South India amounted to a deviation in fundamental principles. The real question to be considered is whether the Travancore London Mission Church continued to preserve its identity in the Church of South India. We saw that the fundamental principle of the London Missionary Society was to give full freedom to the Churches founded by the Society to adopt for themselves whatever form of church government that seemed to them “most agreeable to the Word of God” and that it was not the design of the Society to set up Congregationalism, Presbyterianism, Episcopacy or any other particular form of church order. This fundamental principle the Society adhered to even after it became identified with the Congregational denomination as can be seen from the letters sent by the Society to the T. C. C. when the latter sought the advice of the Society on the question of Church union. This fundamental principle the Society adhered to even after it became identified with the Congregational denomination as can be seen from the letters sent by the Society to the T. C. C. when the latter sought the advice of the Society on the question of Church union. Those letters show that although the Society wished, particularly after the outbreak of the war, that the London Mission Churches in India should make their position stable and secure by uniting with other Churches in India they persistently refused to tender advice on the question whether the scheme of Union should be accepted or not. It is true that the union is not in any way opposed to the fundamental principles of the London Missionary Society. In fact it is not a Church and has no doctrines of its own relating either to faith or to church government. Even if the London Mission Church in Travancore joined with any other Church holding views fundamentally different from those of the London Mission Church in matters of faith and church order the Union could not be said to be opposed to the fundamental principles of the London Missionary Society. We have held that the plaint church was not founded by the London Missionary Society. Even assuming that it was the London Missionary Society that founded the church we are of opinion that it is not the fundamental principles of that Society that should be taken into account in deciding the question in issue. If the Society founded the plaint church it was for the use of the London Mission Church in Travancore. The plaint church formed part of the Travancore London Mission Church and that Church had certain fundamental principles of its own in the matter of doctrines and Church government. The question is whether the decision by a majority of the members of the representative body of that Church to depart from those fundamental principles and to form a new Church will be binding on the minority that chooses to adhere to those fundamental principles. As stated already, the real question for decision is whether the identity of the London Mission Church is preserved in the C.S.I. For deciding that question we have to take into consideration the fundamental principles of the L M. Church and see how far those principles are kept intact in the new Church. As stated already, the real question for decision is whether the identity of the London Mission Church is preserved in the C.S.I. For deciding that question we have to take into consideration the fundamental principles of the L M. Church and see how far those principles are kept intact in the new Church. If the changes brought about as a result of the union are not of a fundamental character it can be said that the identity of the L.M. Church is preserved in the C.S.I. notwithstanding the change in the name of the Church. But if there are changes of a fundamental character - changes in principles which the L. M. Church regarded as fundamental - it cannot be said that the identity of the L. M. Church is preserved in the united Church. As observed by Lord James in the Free Church Case a Church cannot change its fundamental principles and at the same time preserve its identity. His Lordship said: “The retention of the name does not preserve identity, and yet the change of principles might be so great as to have nothing bat the name of the Church. I think, too, it was admitted by way of example, that if change had introduced the doctrines of the Church of Rome the identity of the Free Church would be lost.” [p. 664] If the plaint church was founded for the benefit of the members of the L.M. Church and if the identity of the Church is not preserved in the C. S. I. the members of the latter Church cannot be said to be the persons for whose benefit the Church was founded. The learned District Judge has clearly gone wrong in applying to the facts of this case the proposition of law laid down in the Free Church Case that it is the intention of the founder of a trust that should govern the destination of the trust funds. Even granting that the L. M. Society, was the founder of the trust in this case the intention of the Society was that the trust should enure to the benefit of the L. M. Church. If the identity of that Church is not preserved in the C. S. I. the latter Church cannot claim to be the beneficiary of the trust. If the identity of that Church is not preserved in the C. S. I. the latter Church cannot claim to be the beneficiary of the trust. The fact that the L. M. Society was not pledged to any particular doctrines or church order cannot affect this question. We are, therefore, of opinion that in applying the principle laid down in the Free Church Case to this case the fundamental principles that should be taken into consideration are those of the L. M. Church in Travancore and not those of the L. M. Society. 75. It has also to be noted in this connection that although the London Missionary Society accepted the Church Union and is ‘in happy and official relationship with the South Travancore; Diocesan Council of the Church of South India’ as stated in the letter Ex. AQ sent by the Foreign Secretary of the Society to Rev. A. Zachariah, the Society was of opinion that” the individual churches had the freedom either to accept or not to accept the union. This is what is stated in paragraph 2 of Ex. AQ:- “The London Missionary Society is not concerned in any way to coerce churches to act against their will or against such convictions as they may hold strongly and clearly. Consequently, if certain churches in Travancore wish to remain outside the Church of South India, and if certain individuals like yourself and others wish also to remain outside the Church of South India, the Society leaves the responsibility for such an attitude and action entirely upon you, and does not seek in any way to persuade you to act against your will.” [p. ii] In paragraph 8 it is further stated: “If the churches you represent conscientiously remain outside the Church of South India, the London Missionary Society will watch with sympathy your life and work. I cannot however, hold out any hope that we can give you any missionary service, nor can I give you any hope that the Society would instruct the Rev. L. J. Thomas to represent the Society at meetings of the Council you have formed. Apart from the fact that our limitation of resources in men and money would make this impossible, we should regard it as undesirable since we are pledged as a Society to the full support of the Church of South India and in particular the South Travancore Diocese. Apart from the fact that our limitation of resources in men and money would make this impossible, we should regard it as undesirable since we are pledged as a Society to the full support of the Church of South India and in particular the South Travancore Diocese. It would not be right or proper for us in the circumstances to encourage a separatist movement, but if there is anything that the Diocesan Council and its Bishop may think we can do to help such Churches as wish conscientiously to stand out of Union, we. should give any relative suggestions sympathetic consideration. All this, of course, used not prevent the churches you represent from remaining free from the Church of South India and independent of both that Church and of the Society, if you conscientiously wish to do so.” It follows from this that if the question is to be decided on the basis of the opinion of the London Missionary Society the alleged founder of the trust, it has to be held that the plaint church has the right to refuse to accept the union. But the determining factor, as stated already, is whether the union is opposed to the fundamental principles of the L. M. Church in Travancore. 76. It was argued for the respondent that it was not stated in the written statement of the defendants in what respects the Church union was opposed to the fundamental principles of the L.M. Church. The learned District Judge has adverted to this fact. What is stated in paragraph 9 of the written statement is that the “associated churches” had no “right or competency to unite with other churches holding fundamentally different principles in matters of faith, doctrine and church government like the Church of England or the Methodist Church”. In paragraph 12 it is stated that the Church is “repugnant to the constitution, doctrines and rules of the Travancore London Mission Churches”. In paragraph 20 it is stated that the new Church is an “Episcopal Church” and “in its fundamental doctrines, rules of government and other matters is different from the London Mission Churches”. It will be seen from this that except for the statement that the new Church is an Episcopal Church the fundamental principles of the L. M. Church which are said to have been departed from, are not specified in the written statement. It will be seen from this that except for the statement that the new Church is an Episcopal Church the fundamental principles of the L. M. Church which are said to have been departed from, are not specified in the written statement. Neither is it stated in what manner the new Church is “repugnant to the constitution, doctrines and rules of the Travancore London Mission Churches”. Issue 5 (c) relating to this question reads thus: “Is the South Travancore Diocesan Council repugnant to the constitution, doctrine and rules of the Travancore L. M. Churches?” Issue 8 relating to the same matter is: “Has the plaintiff become an alien to the Travancore L. M. Church”? Issue 5 (c) was amended by the Court below by substituting ‘C.S.I.’ for ‘S.T.D.C’. It would appear that the defendants’ case from the very beginning was that the L. M. Church in Travancore is a Congregational Church and that the C.S I. which is an Episcopal Church is opposed to the fundamental principles of that Church. This is what the learned District Judge says on the matter in paragraph 49 of the judgment: “The attempt of the defendants’ counsel from a very early stage of the case had been to develop the theory that the L. M. Churches were congregational in principles as well as in practice, and evidence to that effect had been recorded without objection. I am therefore unwilling to rule out a discussion of the evidence bearing on this question.” There can be no doubt that the plaintiff also understood from the very beginning the defendants’ case relating to this matter. Both sides adduced a large volume of evidence, documentary and oral, relating to this question. In the circumstances, it cannot be said that the plaintiff was in any way prejudiced by this defect in the pleadings of the defendants. It has also to be stated that in the face of the contention of the defendants that the C. S. I. is an entirely new Church with a different constitution and with different doctrines and rules of government it is for the plaintiff to make out that the identity of the L. M. Church is preserved in the C.S.I. The plaintiff has in fact adduced evidence for this purpose. We are, therefore, of opinion that the Court below was justified in going into the question whether the union into the C.S.I. is opposed to the fundamental principles of the L.M. Church. 77. In deciding this question what we have to consider is the position of the L. M. Churches at the time of the union into the C. S. I. So far as this question is concerned, an enquiry into the historical origin and growth of these Churches will be Useful only for the purpose of understanding their position at the time of the union. We saw that whatever might have been the form of worship and church order introduced by ‘the first L. M. S. missionaries in Travancore, the L.M. Churches became soon identified with the Congregational denomination and adopted the mode of worship and church government peculiar to that form of church polity. The essential feature of Congregationalism is the autonomy or independence of the local churches. In course of time the local churches surrendered their autonomy to a considerable extent for the sake of efficient administration of the churches and uniformity of religious practices. That was the effect of the formation of the Travancore Church Council (Ex. L) and the Travancore Church Union (Ex. XXVIII), of the union into the S.I.U.C. (Ex. J) and of the constitution of the T.C.C.(Ex. H). Consequently at the time of the union into the C.S.I. the form of government of the London Mission Churches in Travancore was not of the purely congregational pattern. It was to some extent Presbyterian. This is what Pw. 4 says in the pamphlet, Ex. XX, published by him with the approval of 25 leading members of the L. M. Church: “We have, of course, to bear in mind that Congregationalists who have entered the S. I. U. C. have already to some extent modified their Congregational practices.” The evidence of Pw. 2 and Pw. 3 is also to the same effect. Notwithstanding this modification of the Congregational practices the L. M. Church in Travancore was regarded as a Congregational Church even after the union into the S. I. U. C. We have seen that the Congregational Churches in England and Wales have a union of the nature of the Travancore Church Council. The constitution of that union contained in Ex. DE shows that large powers have teen surrendered to the Union by the individual churches. The constitution of that union contained in Ex. DE shows that large powers have teen surrendered to the Union by the individual churches. The Preamble to the Constitution reads thus: “1. Certain powers and duties belong to the individual Church in self-government under the Headship of the Lord Jesus Christ due regard being had to the interests of other Churches of our own and other denominations. For example; the reception and dismissal of members; the discipline necessary to preserve purity of communion; the election of pastor and deacons; the order of worship; financial arrangements; and all that concerns the internal administration of the Church. “2. Certain duties and responsibilities concern Congregational Churches as a whole, and these can be most effectively fulfilled by a union of Churches. For example; Congregational Church extension, and the promotion of missionary work at home and abroad; the assistance of churches needing support; the introduction to the ministry of the properly qualified and suitable men; the support of Congregational Colleges in the training of Ministers; the admission of none but worthy persons to the privileges of the Denomination and of the Union; the provision of facilities for the settlement and removal of Ministers; the adequate support of the ministry; the assistance, when necessary, of Ministers, of good standing disabled by age or infirmity; the bringing of Congregational societies and institutions into closer connection with the Union and with each other and the brotherly co-operation with other Christian denominations in the extension of the Kingdom of God.” . [Ex. DE, page 26] Speaking of the modern history of the Congregational Churches Pw. 4 says in Ex. XX: “But the modern history of the denomination in England [I cannot speak of America] demonstrates that the position of the individual congregation and of the individual member can be maintained alongside of a very close and vital fellowship and co-operation between the various congregations, as witness both the organisation and the practical work of the denomination at home, and the tremendous co-operative effort of Congregationalists in the support of Foreign Missions. The possibility of combining the emphasis on the individual congregation and member with a real union and co-operation between congregations has also been demonstrated with varying degrees of success in those churches in South India which owe their origin mainly to Congregationalists.” [Ex. XX, pp. 4-5]. The possibility of combining the emphasis on the individual congregation and member with a real union and co-operation between congregations has also been demonstrated with varying degrees of success in those churches in South India which owe their origin mainly to Congregationalists.” [Ex. XX, pp. 4-5]. It follows from this that even though the autonomy of the L.M. Churches in Travancore was considerably affected by the formation of the Church Council and by the union into the S. I. U. C. those Churches still continued as Congregational Churches just as the Congregational Churches in England and Wales continue as Congregational Churches even after the formation of the Congregational Union of England and Wales. The negotiation for union proceeded on the basis that the L.M. Churches were Congregational Churches as is clear from the scheme of union, Ex. AO. The Foreword to Ex. AO reads thus: “It is therefore sought to combine in the union three elements - The episcopal, the Presbyterian and the Congregational.” Clause 6 of the Basis of Union says: “The uniting Churches recognise that episcopal, presbyterian and congregational elements must all have their place in the order of life of the united Church, and that the episcopate, the presbyteriate, and the Congregation of the faithful should all in their several spheres have responsibility and exercise authority in the life and work of the Church, in its governance and administration, in its evangelistic and pastoral work, in its discipline, and in its worship.” [Ex. AO., p. 7-8], It is not disputed that the Congregational element in the proposed union is represented by the L.M. Churches. The T.C.C. was criticising the scheme of union from the Congregational point of view. Pw. 4 who was a prominent minister of the L. M. Church criticised the scheme from the Congregational point of view. Ex, XX is described by him as an examination of the proposed scheme “from the Congregational point of view.” Ex. XX proceeds on the basis that the L. M. Church is a Congregational Church. We have already seen that at the request of the T. C. C. a joint commission was appointed by the London Missionary Society and the Congregational Churches of England, Scotland and Wales to consider the scheme of union from the Congregational point of view. The report of the joint commission, Ex. LXI, proceeded on the basis that the L.M. Churches were Congregational Churches. The report of the joint commission, Ex. LXI, proceeded on the basis that the L.M. Churches were Congregational Churches. What the commission considered was the question how far the scheme of union was agreeable to the principles of Congregationalism. It is therefore clear that the L.M. Churches in Travancore were Congregational Churches at the time of the Church Union notwithstanding the fact that the autonomy of those Churches was affected to some extent by the formation of the Travancore Church Council and the union into the S.I.U.C. Except to the extent they surrendered their independence to the Church Council and to the General Assembly of the S.I.U.C. they continued as Congregational Churches. 78. We have already seen what the essential features of Congregationalism are. We saw that it is one of the three main types of ecclesiastical polity, the others being Episcopacy and Presbyterianism. Pw. 4 describes the characteristics of historic Congregationalism, in the following manner in Ex. XX: “One of the most obvious characteristics of historic Congregationalism has been the importance it has attributed to the individual congregation and to the individual church member. The ideal of a congregational Church is a group of sincere believers in Christ, conscious that they are called by Him out of a worldly life, to live in fellowship with Him and with one another. When this fellowship gathers together in solemn meeting they believe their Lord is in the midst of them guiding them by His Spirit. Thus they cannot submit their conscience so guided to any outside authority. Hence such a congregation claims the right to govern itself, to call its own ministers, to decide its own membership to decide its own form of worship, and to formulate its own statement of belief if it desires to do so. It may take advice from outside its own membership, but the responsibility of decision remains with it. In this governance of the Church each adult communicant member has an equal voice. The knowledge and gifts of the members will certainly vary and so will the influence they exert on the common life. But we cannot confine the guidance of the Holy Spirit either to the intellectually gifted or to the theologically learned. Thus we believe we have no right to deny any full church member a voice in all the affairs of the church. But we cannot confine the guidance of the Holy Spirit either to the intellectually gifted or to the theologically learned. Thus we believe we have no right to deny any full church member a voice in all the affairs of the church. Each member should, in fact, feel a personal responsibility to participate in them to the best of his Opportunity and ability.” [Ex, XX, p. 2-3]. 79. It is true that the above description of a Congregational Church will not apply in its entirety to a London Mission Church as it existed on the date of the union. The autonomy of the Church was curtailed to some extent as a result of the formation of the Church Council and the union into the S. I. U. C. We find in the government of the Church an element of Presbyterianism - the system of centralised administration But there can be no doubt that the L.M. Churches were definitely opposed to the Episcopal System of church government. The conception of government of the Church by the Bishop is entirely foreign to the idea of Congregationalism. Congregationalism and Episcopacy represent two vitally different conceptions of church government. Episcopacy means government of the church by the bishop with priests working under him, the bishop being the chief priest and Shepherd of the people. In most of the Episcopal Churches the bishop is believed to be the successor of the apostle of Christ and apostolic succession is regarded as the basis of the authority of the bishop. This idea of church government is entirely opposed to the fundamental principles of Congregationalism. In Congregationalism there is no place for an authority outside the congregation. In fact Congregationalists represent the extreme left wing among the Non-Conformists. If there is anything fundamental in their idea of church government it is the opposition to Episcopacy. Episcopacy implies gradation of ministry and hierarchical government which can have no place in Congregationalism. This is what Pw. 4 says on the point in Ex. XX: “In general we may say that the conception of the Church as a complex organisation with its graduated hierarchies of authorities, in which the individual congregation and the individual member become but cogs in the wheel, is far removed from the Congregational point of view. This is what Pw. 4 says on the point in Ex. XX: “In general we may say that the conception of the Church as a complex organisation with its graduated hierarchies of authorities, in which the individual congregation and the individual member become but cogs in the wheel, is far removed from the Congregational point of view. Such an organisation may seem good from a political or administrative point of view, but it seems to me to be remote from the simplicity of Christ.” [Ex. XX, p. 4] 80. It is true that the Episcopacy that is adopted in the scheme of union, Ex. AO, is historic episcopate in a constitutional form. The ‘Governing Principles’ of the Church contain the following provision relating to episcopacy: “The Church of South India accepts and will maintain the historic episcopate in a constitutional form. But this acceptance does not commit it to any particular interpretation of episcopacy or to any particular view or belief concerning orders of the ministry, and it will not require the acceptance of any such particular interpretation or view as a necessary qualification for its ministry. ‘Whatever differing interpretations there may be, however, the Church of South India agrees 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. Any additional interpretations, though held by individuals are not binding on the Church of South India. Any additional interpretations, though held by individuals are not binding on the Church of South India. “The meaning in which the Church of South India thus officially accepts a historic constitutional episcopacy is that in it: [1] the bishops shall perform their functions in accordance with the customs of the Church; these functions being named and defined in the liter chapters of this Constitution; [ii] the bishops shall be elected, both the diocese concerned in each particular case and the authorities of the Church of South India as a whole having an effective voice in their appointment; [iii] continuity with the historic episcopate will be effectively maintained, it being understood that, as stated above, no particular interpretation of the historic episcopate as that is accepted in the Church of South India is thereby implied or shall be demanded from any minister or member of the Church; and [iv] 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.” [Ex. AO, pp. 31-32]. We do not think that the freedom given in the constitution to the members of the united church to give whatever interpretation they like to the institution of episcopacy can affect the question whether adoption of episcopacy by the L.M. Congregational Church does not amount to a deviation from the fundamental principles of that Church. There can be no doubt that episcopacy, i. e., the system of government of the Church by bishops, is opposed to the fundamental principles of the L. M. Congregational Church. The fact that the members of the Church are free to interpret episcopacy in whatever manner they like cannot make the change in the form of Church Government any the less real. It is undoubtedly a change of a fundamental character. With ‘the adoption of the episcopal system of government the L.M. Churches cease to be Congregational Churches in any sense whatsoever. Under the constitution the bishop is not a mere figure-head. He has “the general pastoral oversight of all the Christian people of the diocese and more particularly of the ministers of the Church in the diocese”. He is the chief Shepherd of the flock of Christ entrusted to his care. Under the constitution the bishop is not a mere figure-head. He has “the general pastoral oversight of all the Christian people of the diocese and more particularly of the ministers of the Church in the diocese”. He is the chief Shepherd of the flock of Christ entrusted to his care. He has to take the lead in the evangelistic work of the diocese and to instruct the ministers and congregations concerning the faith and to issue directions regarding services and prayers. He ordains ministers, and has authority to take disciplinary action against them. We are clearly of opinion that notwithstanding the reservation in the constitution regarding the freedom to interpret the basis of the institution of episcopacy, the adoption of the episcopal form of church government in the scheme of union amounts to deviation of a fundamental character from the principles of the L. M. Churches in Travancore. 81. Another matter in respect of which there has been deviation on a fundamental principle of the L. M. Church is the doctrine relating to ministry. A fundamental principle of Congregationalism is its doctrine of what is called the ‘Priesthood of all believers’, the doctrine that “every Christian has the privilege and the right to function in all things pertaining to the priestly office”. This doctrine implies the right of laymen to celebrate sacraments. Therefore, the doctrine of ‘Priesthood of all believers’ and the doctrine of ‘lay celebration of Sacraments’ go together. In the Anglican Church, as in the case of all Episcopal Churches, only ordained priests can celebrate sacraments. It is ordination that confers on a person the authority to celebrate sacraments. Lay celebration of sacraments is unheard of in the Anglican Church. In the L. M. Church also as a rule sacraments are performed by ordained priests, but it is done so for the sake of ‘order and decency’ and not because of the inherent disability of an unordained person to celebrate sacraments. In the L. M. Church ordination only means ‘setting apart’ a particular person for the office of minister, and ordination by itself confers no authority on him to celebrate sacraments and conveys no particular grace to him. In the L. M. Church ordination only means ‘setting apart’ a particular person for the office of minister, and ordination by itself confers no authority on him to celebrate sacraments and conveys no particular grace to him. The laying of hands on the ordained person at the time of ordination only signifies the act of ‘setting apart’, whereas in the case of ordination in the Anglican Church it signifies the conferment of authority and the flowing of the Grace of the Holy Ghost. There was one instance in the L. M. Church in which a layman took part in the ordination of a minister. Mr. Marsden, a layman who was the president of the T. C. C., presided at the ordination of a minister and he recited the ordination prayer and laid his hands on the person ordained along with ordained ministers. (Vide Ext. CT and Ext. LXIX). From the very beginning the T. C. C. was insisting on the recognition of the principle of lay celebration of sacraments in the scheme of union, but that was a matter on which the Anglican Church would not yield as it affected the fundamental principle of that Church. 82. T.C.C. appointed a sub-committe to submit a report on the question of lay celebration of sacraments. Pw. 3 (Rev. Eastaff) was the convenor of the sub-committee. Ext. XVIII is the report of the subcommittee. That shows what the position of the L. M. Church was as regards the doctrine relating to ministry and lay celebration of sacraments. The report reads thus: “In Travancore we believe firmly and with practical unanimity in the great fundamental Protestant doctrine of the ‘priesthood of all believers’. This principle we wish to safeguard completely and finally, and we could never subscribe to a scheme for Church Union in which this principle is set aside or regarded as of but secondary importance, as it is vital to our conception of the nature of the Church of Christ, It follows from this belief in: the ‘priesthood of all believers’ that every Christian has potentially the privilege and right to function in all things pertaining to the priestly office, namely, witness for God to men; offering of prayer to God on behalf of others; and in the Protestant Church of the Free Order such as ours, celebration of the sacraments of Baptism and the Lord’s Supper. “But we are equally unanimous in our agreement with the apostle Paul in his injunction to the early church at Corinth that “all things be done decently and in order” [1 Cor. xiv. 40] The injunction was the outcome of sad experience of division and even confusion in the Corinthain Church, and we have no hope of preserving “the unity of the Spirit in the bond of peace” is our Own Christian fellowship unless we adhere closely to Paul’s admonition and accept his conception of Church order so clearly setout in his letter to the Ephesians, chapter, iv, verses 1-16. According to the principles here enunciated, whilst every Christian is called by his Lord, Who is the Head of the Church, to serve in the great and glorious common endeavour to build up and perfect the Christian fellowship which is the Body of Christ the tasks allotted to each vary in character and are clearly defined. In accordance with this teaching, therefore, we believe that normally only such of the brethren as are specially called by Christ to the work which we technically designate ‘the ministry’, being approved by the members of the Church and accepted as representatives of the body of believers in the discharge of their high office, should be entrusted with the celebration of the sacraments of Baptism and the Lord’s Supper. “In our Church in Travancore hitherto it has been our practice to restrict the conduct of these sacraments to ministers so ordained, and throughout our experience this restricted practice has not involved us in any difficulty or disability of which we have been conscious, but, on the other hand, we believe it has helped to safeguard the integrity of our Church and to preserve our Christian fellowship. “At the same time, in order to affirm our belief in the spiritual equality of all believers in the sight of God, and to protect the residual right of every one of those who, according to Peter [vide his first letter. “At the same time, in order to affirm our belief in the spiritual equality of all believers in the sight of God, and to protect the residual right of every one of those who, according to Peter [vide his first letter. Chapter ii, verses 5 and 9], are called to be a “holy, royal priesthood”, we propose that the Joint Committee on Union incorporate in the Scheme of Union a provision which shall make the highest constitutional authority of the Church in Travancore, the Travancore Church Council- competent to authorise a ‘layman’ on special and particular occasions, which we think will be very rare in Travancore to conduct the sacraments of ; Baptism and the Lord’s Supper. “If this can be done, the Sub-committee is assured that the doctrinal position of our Church will be safeguarded and the unity of our fellowship preserved.” [Ext. XVIII, pp. 19-20]. 83. Pw. 4 also has dealt with the question in Ext XX. This is what he says:- “Congregationalists believe in a ministry. But they have no room for priests, Let me explain more closely what I mean, for the terms are open to various interpretations. We believe in a ministry in the sense that we believe that Christ calls certain people to devote themselves specifically to the work of the Church and of evangelisation, and that the Holy Spirit guides the Church to set apart such people for that work. But we do not believe that there are any functions of the ministry which cannot be properly and validly performed by unordained members of the Church. Such a belief, we feel, imports both into the idea of the ministry and into the idea of the sacraments an untrue element. A view of the sacraments which makes their validity depend on their celebration by a special class of religious official, instead of making it depend solely on the spiritual condition of the worshippers together with that of the officiating person, imports, we feel, into the rite an element of magic which is to be found in the rites of many non-christian forms of belief, and most powerfully perhaps in the lowest forms, and which we believe to be sub-Christian. The same applies to any insistence on the vital necessity of particular formula being repeated at the rite. The same applies to any insistence on the vital necessity of particular formula being repeated at the rite. “Here, it seems to me, we have an irreconcilable cleavage upon the matters of the ministry and the sacraments. On the one band we have a ministry called and set apart indeed to devote itself in a specific way to certain work, but without any exclusive rights or powers inherent in it; on the other hand a ministry which is conceived to be the sole channel of certain gracious operations of the Holy Spirit. On the one hand, we have a rite solely expressing, and dependent for its benefits on, the spiritual condition of the worshipper; on the other hand a rite which though indeed it is said “to be made effective by faith” is also dependent on certain extraneous details as to the person who conducts it and the manner of its performance which are not matters appertaining to his faith or sincerity or those of the worshippers. “We have in the S. I. U. C. departed in practice from the strictly congregational position here by limiting the administration of the sacraments to ordain men [though I believe this is not quite rigidly adhered to in all parts of the S. I. U. C.]. But we have not necessarily departed in theory. We have restricted cur complete liberty in the interests of order and decency and perhaps also in the interests of union with other parts of the S. I. U. C. But our theory remains the same. ‘ It is well known however that some parties to the Proposed Scheme intended these restrictions to be laid down as the unvarying rule of the united Church not from the motives of order or convenience, but from theories of the ministry and sacraments outlined above with which we are in entire disagreement, If we enter this scheme it seems clear that we shall not only bind these non-congregational practices irrevocably upon the Indian Church, but we shall do much to fasten upon the Church theories which are repugnant to us.” [Ext. XX, pp. 5-6], It is true that Ext XX is a criticism of the scheme of union as it existed in 1929. But the criticism applies with equal force to the scheme as it was finally adopted. XX, pp. 5-6], It is true that Ext XX is a criticism of the scheme of union as it existed in 1929. But the criticism applies with equal force to the scheme as it was finally adopted. The T.C.C. gave up the demand for the recognition of the principle of lay celebration of sacraments in 1941 (vide Ex. R-1) as it was evident that the Anglican Church would not yield on the point. 34. The ‘Basis of Union’ contains the following provision relating to ministry: “The uniting Churches believe that the ministry is a gift of God through Christ to his Church, which He has given for the perfecting of the life and service of all its members. All members of the Church have equal access to God. All, according to their measure share in the heavenly High Priesthood of the risen and ascended Christ, from which alone the Church derives its character as a royal priest-hood. All alike are called to continue upon earth the priestly work of Christ by showing forth in life and word the glory of the redeeming power of God in Him. No individual and no one order in the Church can claim exclusive possession of this heavenly priesthood. “But in the Church, there has at all times been a special ministry, to which men have been called by God and set apart in the Church. Those who art ordained to the ministry of the Word and Sacraments can exercise their offices only in and for the Church, through the power of Christ the one High Priest. “The vocation of the ordained ministry is to bring sinners to repentance and to lead God’s people in worship, prayer and praise, and through the pastoral ministrations the preaching of Gospel and the administration of the Sacraments [all these being made effective through faith] assist men to receive the saving and sanctifying benefits of Christ and to fit them for service. The uniting Churches believe that in ordination God, in answer to the prayers of His Church, bestows on and assures to those whom He has called and His Church has accepted for any particular form of the ministry, a commission for it and the grace appropriate to it.” [Ex. AO, pp. 6 - 7 ]. To the same effect is the provision in the Constitution. 85. AO, pp. 6 - 7 ]. To the same effect is the provision in the Constitution. 85. It will be seen from the above provisions that the principle of ‘priesthood of all believers’ is recognised only in the case of ‘heavenly High Priesthood’, which means nothing so far as the Church here on earth is concerned. ‘Under the constitution of the United Church only ordained priests can celebrate sacraments in the Church, The United Church also believes “that in ordination God, in answer to the prayers of His Church, bestows on and assures to those whom He has called and His Church has accepted for any particular form of the ministry, a commission for it and the grace appropriate to it.” ,The conception of ministry underlying this provision is entirely different from that of the L. M. Church. We have no hesitation in holding that this is a departure from a fundamental principle of the L. M. Church. 86. The arguments advanced by learned counsel for the appellants regarding the doctrines applicable to ministry cover also ‘ordination’, ‘gradation of ministry’ and ‘equality of ministry’. The doctrines and practices of the L. M. Church relating to these matters are based on the fundamental doctrine of that Church relating to ministry. It is, therefore, not necessary to deal with those matters separately. 87. The other matters in respect of which, according to the appellants, there has been deviation from the fundamental principles of the L. M. Church are: (1) Autonomy of the local churches, (2) Sacraments, (3) Membership of the Church, (4) Conception of the Church, (5) Creeds and (6) Worship. With regard to the autonomy of the local churches the case of the appellants is that their autonomy has been materially affected by the provisions of the constitution of the United Church. The finding of the Court below on this point is that -the autonomy of the L. M. Churches was but nominal and that it was not a fundamental principle of the L. M. Church. We do not think that it is so. Even under the Constitutions, Exs. J. and H, the local churches enjoyed certain amount of independence. The finding of the Court below on this point is that -the autonomy of the L. M. Churches was but nominal and that it was not a fundamental principle of the L. M. Church. We do not think that it is so. Even under the Constitutions, Exs. J. and H, the local churches enjoyed certain amount of independence. But we do not think that the autonomy of the local churches was materially affected by the union into the C. S. I. It is true that the Synod of the C. S. I. has larger powers than the General Assembly of the S.I.U.C. But this cannot be said to be a change of a fundamental character. 88. With regard to Sacraments, the finding of the court below is that the doctrine of the C. S. I. as embodied in Ex. AO is different from that of the L.M. Church. The learned District Judge came to this conclusion mainly on the basis of the evidence of Pw. 2 and Pw. 3. It is stated in Ex. AO that the Sacraments of Baptism and the Lord’s supper are means of Grace. It is also stated that men should follow Christ’s “appointed way of salvation by a definite act of reception into the family of God and by continued acts of fellowship with Him in that family” The defendants have not made out by convincing evidence that this theory is opposed to the doctrine of the L. M. Church regarding Sacraments. In fact there is no clear evidence in the case to show what the doctrine of the L. M. Church is regarding these two Sacraments. It is in evidence that the prayers said in the L. M. Churches during the celebration of these Sacraments are more or less the same as those said in the Anglican Churches. In the circumstances it cannot be said that the defendants have made out that the doctrine of the C. S. I. relating to Sacraments is fundamentally different from that of the L. M. Church. 89. In the circumstances it cannot be said that the defendants have made out that the doctrine of the C. S. I. relating to Sacraments is fundamentally different from that of the L. M. Church. 89. As regards ‘Membership of the Church’ and the ‘Conception of the Church’, we do not think that there is any fundamental difference between the L. M. Church and the C. S. I. As for ‘Creeds’, the case of the defendants is that the L. M. Church has no Creed as such and that it only believes in the truths contained in what is known as the Apostle’s Creed, while in Ex. AO it is stated that the C.S.I. believes in the Apostle’s Creed and the Nicene Creed. This, according to the defendants, is a fundamental difference. But there is no material difference between the Apostle’s Creed and the Nicene Creed. The Nicene Creed is in fact only an amplification of the Apostle’s Creed. It is admitted by the defendants that the Apostle’s Creed is recited in the L. M. Churches during the time of Service. The Confession of Faith contained in Ex. J embodies the truths contained in the Apostle’s Creed. In the circumstances it cannot be said that there is fundamental difference between the two Churches with regard to Creeds. 90. As regards Worship or Order of Service also it cannot be said that the union brought about a fundamental change. So far as the L. M. Churches are concerned it is seen that there has been no uniform Order of Service. Different Orders of Service were being followed in different churches. These Orders of Service were borrowed mostly from the Book of Common Prayer used in the Anglican Church although in some cases slight variations were made. The following is the provision contained in Ex. AO regarding forms of worship in the United Church: “The Church of South India will aim at conserving for the common benefit whatever of good has been gained in the separate history of those Churches from which it has been formed, and therefore, in its public worship will retain for its congregations freedom either to use historic forms or not to do so as may best conduce to edification and to the worship of God in spirit and in truth. “No forms of worship which before the union have been in use in any of the uniting Churches shall be forbidden in the Church of South India, nor shall any wonted forms be changed or new forms 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 this Constitution. “Subject to these conditions, and to the provisions of this Constitution and any special regulations which may hereafter be issued by the Synod under the Constitution with regard to the services of ordination and consecration and the essential elements or central parts of other services, especially those of Baptism, Holy Communion and Marriage, every pastor and congregation shall have freedom to determine the forms of their public worship.” [Ex. AO, p. 33], It is clear from this that the Union did not bring about any fundamental charge in the form of worship adopted by the L. M. Churches. 91. It was next argued on behalf of the appellants that no real union was effected between the Churches on matters of vital importance and that the so-called union is a colourable one. Although the new Church accepted ‘historic episcopate in a constitutional form’ the members of the Church were given freedom to hold whatever views they liked regarding historic episcopacy. Some may believe in Apostolic Succession, the doctrine that the bishops are the successors of the apostles of Christ, and may accept the institution of episcopacy for that reason alone. Others may not believe in Apostolic Succession and may accept episcopacy merely as a useful institution. Similarly divergent views are allowed to be held by the members of the Church regarding the doctrinal basis of episcopal ordination and consecration. It is provided in Ex. AO that the provision in the Constitution relating to episcopal ordination and consecration “does not involve any judgment upon the validity or regularity of any other form of the ministry.” It is also expressly stated in Ex. AO that union is sought to be achieved “on the basis of freedom of opinion on debatable matters and respect for even large differences of opinion and practices.” (Ex. AO, p. 34). AO that union is sought to be achieved “on the basis of freedom of opinion on debatable matters and respect for even large differences of opinion and practices.” (Ex. AO, p. 34). Consequently the following pledge was inserted in the Governing Principles of the Church: “The Church of South India therefore pledges itself that it will at all times be careful not to allow any overriding of conscience either by Church authorities or by majorities and will not in any of its administrative acts knowingly transgress the long established traditions of any of the Churches from which it has been formed. Neither forms of worship or ritual, nor a ministry, to which they have not been accustomed, or to which they conscientiously object, will be imposed upon any congregation; and no arrangements with regard to these matters will knowingly be made, either generally or in particular cases, which would either offend the conscientious convictions of persons directly concerned, or which would hinter the development of complete unity within the Church or imperil its progress towards union with other Churches.” [Ex. AO. p. 34] 92. Relying on the above provisions in Ex. AO, learned counsel for the appellants argued that according to the decision in the Free Church Case it cannot be said that there has been real union of the Churches in this case or that the C.S.I. is a Church in the true sense. We are of opinion that there is great force in this argument. Discussing this point in the Free Church Case Earl Halsbury observed: “Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines Its creeds, confessions, formularies, tests, and so forth are apparently intended to ensure the unity of the faith which its adherents profess, and certainly among all Christian Churches the essential idea of a creed or confession of faith appears to be the public acknowledgment of such and such religious views as the bond of union which binds them together as one Christian community.” [p. 612-613], His Lordship then quoted with approval the observation of Sir William Smith in Dill v. Watson (1836) 2 Jones Rep. 48). 48). That learned Judge observed in that case that, in the absence of uniformity of belief among the members of the Church, “Our Establishment would not be a rock, cemented into solidity by harmonious uniformity of opinion; it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other and the whole forming but a nominally united while really unconnected mass, fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension. Nis dextrorsum obit; ille Sinistrorsum. This indeed I should hold to be, in the language of a late prelate, ‘a Church without a religion’ “. [p. 616]. His Lordship further observed: “But there is another and a further ground upon which I think the appellants are entitled to succeed, and that is that the so-called union is not really a union of religious belief at all. The united body has united in its organisations. It has established its various administrative arrangements, has declared its authority as the United Free Church, and in that name has absorbed the various bodies of the United Presbyterians and the Free Church as originally constituted; but has it agreed in the doctrines of either of them and if so which is it that has given way? “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 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.” [pp. 627-628], 93. In the Free Church Case the United Free Church made a declaration similar to the one contained in the Pledge embodied in Ex. AO. It reads as follows:- “As this union takes place on the footing of maintaining the liberty of judgment and action heretofore recognised in either of the Churches uniting, so in particular it is hereby declared that members of both Churches, and also of all Churches which in time past have united with either of them, shall have full right, as they see cause, to assert and maintain the views of truth and duty which they had liberty to maintain in the said Churches.” [pp. 662-663]. Referring to this freedom of opinion in the United Church Lord James observed thus:- “It [the Church] is a body of men united only by the possession of common opinions, and if this community of opinion ceases to exist, the foundations of the Church give way. But difference of opinion to produce this result must be in respect of fundamental principles and not of minor matters of administration or of faith.” [p. 656]. His Lordship further observed at page 663: ‘But this freedom to differ, whilst admitting the differences, does not lessen or remove them. The United Free Church, as a whole holds within it neither the principle of Establishment nor of Voluntaryism; such questions were to be open questions. His Lordship further observed at page 663: ‘But this freedom to differ, whilst admitting the differences, does not lessen or remove them. The United Free Church, as a whole holds within it neither the principle of Establishment nor of Voluntaryism; such questions were to be open questions. But the man who as a member of the Free Church had accepted the views of a Church which claimed Establishment as one of its fundamental principles may well object when he is told that he shall no longer belong to a Church holding that principle, but that he must, under compulsion, join a Church wherein members of it may think as they will on this broad subject and must, whether he wishes it or not, be in communion with the supporters of the voluntary system to the same extent as if they had been adherents to the principle of Establishment in accordance “with the tenets of the Free Church.” There can be no doubt that the observations of Earl Halsbury and Lord James apply to the facts of this case and that in this view also the union has to be held to be a deviation from the fundamental principles of the L. M. Church in Travancore. 94. For the above reasons we hold that the union into the C. S. I. is opposed to the fundamental principles of the L. M. Church in Travancore. In fact the attempt of the authors of the scheme of Union was to unite together irreconcilable elements. This is what Pw. 4 said about the scheme in Ex. XX: “The Advocates of the scheme claim that an attempt has been made to conserve for the united Church the elements of value in each of the traditions that are to be brought together, and the scheme itself contemplates affiliation with, amongst others, the World Union of Congregational Churches. It seems to me doubtful whether the vital elements in such diverse traditions as are represented can be preserved in any scheme which contemplates so close and rigid an organic union as this scheme does.” [p. 2]. That the scheme is opposed to the fundamental principles of the Congregational Churches including the L. M. Church was the opinion of even a prominent member of the Anglican Church who took a leading part in the union movement. Rt. Rev. That the scheme is opposed to the fundamental principles of the Congregational Churches including the L. M. Church was the opinion of even a prominent member of the Anglican Church who took a leading part in the union movement. Rt. Rev. Azariah, the Bishop of Dornakal, who was the convener of the Tranquebar Conference that started the movement wrote thus in an article published by him in 1935: “No doubt the Scheme makes comparatively the largest demands of those that have strong British congregationalist traditions behind them. It must be frankly confessed that their idea of Church, and Church Government, the Ministry and the Sacraments are completely different from the conception underlying the scheme. Their conception of the autonomy of the individual Church, of the absolute independence of each minister and each congregation, their aversion to any credal basis and the very indifferent value too often placed by many of them on the sacraments-are all so many difficulties in the way of their whole-hearted acceptance of a position within the newly conceived United Church. These Churches no doubt must face the issues; whether they would like to adhere to the principle of independency so dearly held by many of them and in consequence stand outside the union, or to throw themselves into a Church with Episcopal and Presbyterian organisation, with a definite credal basis, and a distinct place for the observance of Holy Baptism and Holy Communion.” [Vide Ex. ET, Pan II. pp. 1-2]. 95. It has to be noted in this connection that in the Free Church Case the Free Church of Scotland was formed by persons who seceded from the Established Church of Scotland. Their ‘Establishment Principle’ consisted in the belief that it was the duty of the State to establish and endow the Church. In one sense it was a mere opinion about the duty of a third party. Yet it Was held to be a ‘fundamental principle of the Free Church. Even though the United Church allowed its members to hold their own views regarding the principle of Establishment it was held that there was a deviation from the fundamental principles of the Free Church. As regards Confession of Faith what was done was that the members of the United Church were given freedom to hold their own opinions regarding a particular article in the Westminister Confession of Faith. As regards Confession of Faith what was done was that the members of the United Church were given freedom to hold their own opinions regarding a particular article in the Westminister Confession of Faith. This also was held to be a departure on a fundamental principle. But what has taken place in this case is that a Congregational Church which was opposed to Episcopacy become an Episcopal Church. The fundamental doctrine of that Church relating to ministry was given up. The members of the new Church were given freedom to hold their own views regarding vital doctrines. In the circumstances, if the principle laid down by the House of Lords in the Free Church Case are accepted the only conclusion that can be arrived at in this ease is that the union is opposed to the fundamental principles of the L. M. Church. 96. In coming to this conclusion we are not expressing any opinion on the merits of the union. In the words of Lord Davey, already referred to, it is not within our province to “discuss the truth or reasonableness of any of the doctrines” of the united Church. To use again the words of His Lordship we can only “sympathise with the effort made by men of great intelligence and sound learning to escape from the fetters forged by an earlier generation.” But sitting as a court of appeal “we are not at liberty to take any such matter into consideration.” What we are concerned with is the question whether the members of the plaint church should be deprived of their right to use the church for Divine worship according to their faith for the simple reason that they are not prepared to give up that faith. In other words, the question is, as stated in the Free Church Case, “whether the majority have power to compel the minority to follow them into the union under pain of loss” of their Church. This question we have to decide in favour of the defendants for the reasons already given by us. We hold that the plaint church is not bound by the resolutions passed by the General Assembly of the S. I. U. C. and T. C. C. accepting the scheme of union. 97. This question we have to decide in favour of the defendants for the reasons already given by us. We hold that the plaint church is not bound by the resolutions passed by the General Assembly of the S. I. U. C. and T. C. C. accepting the scheme of union. 97. It follows from our finding that the union into the C. S. I. is not binding on the plaint church and that the church did not accept it that it has not become part of the C. S. I. The Bishop of the South Travancore Diocese of the C. S. I. can therefore have no authority to appoint a pastor for the plaint church. In the result, the appointment of the plaintiff as pastor of the plaint church by Pw. 4 is invalid. Both Pw. 4 and the plaintiff who have become members of the C. S. I. must be deemed to have ceased to be members of the Travancore L. M. Church. The plaintiff is therefore incompetent to officiate as pastor in the plaint church and is in the position of an intruder so far as that church is concerned The defendants who are members of the church are entitled to resist any attempt on the part of the plaintiff to enter the church and conduct service there. 98. Learned counsel for the appellants also argued on the basis of the decision in the Free Church Case that even if the majority of the members of the plaint church are in favour of the union the minority will not be bound to accept the union and that the minority will be entitled to be in sole possession of the church to the exclusion of the others who will be deemed to have seceded from the L. M. Church. In view of our finding that the union is not binding on the plaint church this question does not call for decision in this appeal. We do not therefore propose to discuss the question. 99. Two other points argued by learned counsel for the appellants relate to the maintainability of the suit. As stated already, the plaint church is not made a party to the suit. We do not therefore propose to discuss the question. 99. Two other points argued by learned counsel for the appellants relate to the maintainability of the suit. As stated already, the plaint church is not made a party to the suit. It is argued that the church ought to have been made a party to the suit and that the plaintiff ought to have complied with the provisions of Order I, Rule 8 C.P.C. This contention was not raised in the written statement of the defendants although it was contended by them that the suit was not maintainable. The contention was raised at the time of argument and the court below decided it against the defendants. We are clearly of opinion that in the nature of this suit the plaint church, i. e., its congregation, should have been made a party to the suit. The main relief claimed in the plaint is a declaration that the plaintiff is entitled to conduct service in the plaint church, and the principal question to be decided in the suit is whether the union into the C. S. I. is binding on the plaint church. There can be no doubt that in such a suit the church is a proper, if not a necessary party. The learned District Judge ought to have directed the plaintiff to implead the congregation as a party to the suit. At the time of the argument of the appeal we asked learned counsel for the plaintiff whether he wanted to implead the church as a party to the suit and have the suit tried afresh with the church on the party array so that the decision in the case may be binding on the church. Learned counsel replied that the plaintiff did not want to implead the church as a party to the suit and that it was not due to any mistake or omission that the church was not made a party to the suit. Since the plaintiff was not willing to avail himself of the opportunity afforded by us we thought it proper to hear the appeal on the merits. In view of our findings on the merits of the case, it is not necessary to decide the question whether the suit is unsustainable by reason of the fact that the plaint church is not made a party to the suit. 100. In view of our findings on the merits of the case, it is not necessary to decide the question whether the suit is unsustainable by reason of the fact that the plaint church is not made a party to the suit. 100. The other argument advanced by the learned counsel for the appellants is that the suit for declaration of the plaintiff’s right to conduct service in the plaint church and for an injunction restraining the defendants from obstructing him in the conduct of such service is not maintainable by reason of the fact that the plaintiff has omitted to sue for recovery of possession of the church from the defendants. The argument is based on the proviso to section 42 of the Specific Relief Act which is to the following effect: “Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may, in its discretion, make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: “Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” This contention also does not find a place in the pleadings of the defendants and was not raised even at the time of argument in the Court below. Neither was this ground taken in the appeal memorandum. In the circumstances, and particularly in view of our decision on the merits of the case, we do not think it necessary to consider this question also. 101. In the result, we hold that the plaintiff is not entitled to any of the reliefs claimed in the plaint. We, therefore, allow this appeal and in reversal of the judgment and decree of the Court below dismiss the suit with costs both here and in the Court belong. Only one set of costs is allowed. Allowed.