John v. Bishop of the Diocese of Palai — 1998 DIGILAW 290 (KER)

Judgment :- S. Krishnan Unni, J. Plaintiffs 1 to 9 and 11 in O.S.207 of 1984 of Additional Sub Court, Kottayam are the appellants. 2. First defendant is the Bishop of Diocese of Palai and 2nd defendant is the Vicar of St. Mary's Forane Church, Bharananganam.:. Defendants 3 to 5 are the Trustees of the said Church. 3. Plaintiffs prayed for a declaration that they and members, of their families are entitled to permanent use of the vaults or graves allotted to them and they are entitled to bury the dead there. They also sought an injunction against" the defendants obstructing them from doing so or obliterating the vaults in any manner. They also prayed that they may be allowed to transfer the mortal remains of trie-dead buried away from their family vaults to the family vault. They have further sought damages of Rs. 101/- each for the act of the defendants in preventing them from burying the dead in the family vault. 4. I will briefly state the contentions in the plaint. Plaintiffs are parishioners of St. Mary's Forane Church, Bharanaganam comprised in Palai Diocese. They sought permission to sue as representing the other members of their families. Plaint schedule property is that part of the cemetery attached to the Church where vaults are allotted to the families of plaintiffs for burial of the dead. It is a sacred place which cannot be put to any other use, nor can any one prevent its use, ie. to bury the dead. A number of vaults were constructed using the money advanced by members of the Church. Such vaults were allotted as family vaults on receipt of Rs. 2000/-. This was done in 1965-66. The family vaults were allotted on receipt of payment to those members of family for all time to come. This was done with the approval and consent of the Bishop. Usually persons who do not belong to the family who possessed the vaults will not be buried there. After the vault was allotted, plaintiffs spent their money and put up permanent slab over the grave. The obligation to preserve a grave is absolute and no grave in a cemetery duly blessed can be obliterated, converted or dealt with otherwise for secular or other uses. After the vault was allotted, plaintiffs spent their money and put up permanent slab over the grave. The obligation to preserve a grave is absolute and no grave in a cemetery duly blessed can be obliterated, converted or dealt with otherwise for secular or other uses. Defendants or the plaint parish had no right or authority to derogate from the grant made in perpetuity to the plaintiffs and the other members of their families. On 10.8.1984 Sri. Ulahannan Devassy, father of plaintiffs 1 to 4 expired. They wanted to bury him in the family vault allotted to them. Second defendant refused permission to bury him in the family vault, on the ground that the parish yogam had taken decision not to allow burials in the old cemetery and that future burials would be made in the new vaults constructed by the church. If there is any such resolution of the general body it is not approved by the Bishop. An appeal was made to the Bishop by plaintiffs 1 to 4 without any success. Plaintiffs 1 to 4 were forced to bury the body of the deceased in the place pointed out by the Vicar. Similarly, 9th plaintiffs father's brother who died on 23.9.1984 was also refused permission to be buried in the family vault and he was also buried in the new place. Plaintiffs had suffered mental agony and pain on account of such refusal on the part of the Vicar. Plaintiffs would allege that they are entitled to claim damages for the mental agony caused but they limited it to Rs. 101 each. It is understood that defendants intend to obliterate and demolish the plaint vaults in order to convert the site for other uses. They are doing so in the pretext of honour ing Sister Alphonsa who is buried in the cemetery. 5. Defendants had filed separate written statements, raising more or less the same contentions. According to them no vault as such was allotted to any parishioner but permission was granted to few members of the Parish to bury their relatives in the vault constructed by the Church in the chapel in the cemetery. Such permission would not create any right or interest in the land. Sr. Alphonsa was buried in this cemetery and large number of pilgrims and worshippers are attracted to this place. They conduct masses. Such permission would not create any right or interest in the land. Sr. Alphonsa was buried in this cemetery and large number of pilgrims and worshippers are attracted to this place. They conduct masses. The family vaults are situated adjacent to the grave of Sr. Alphonsa. Visitors to this grave are swelling day by day and in order to accommodate pilgrims, the Church was put to the necessity of effecting repairs, remodeling and enlargement of the chapel. Hence new vaults were constructed on the eastern side and parishioners were permitted to bury the dead in the new place. The cemetery is a sacred place and the manner of keeping this place, saying prayers and conducting funeral, burial etc are matters touching upon the laws of the Church. The Court has no jurisdiction to decide these matters. The Church permitted the parishioners to bury the dead in the vault on payment of Rs. 2000/-. The permission so granted is a bare licence which can be revoked at any time. It is not a licence coupled with a grant. The vaults were constructed by the Church and plaintiffs did not execute any work of permanent nature. They were only permitted to inscribe the names of the dead on the slab supplied by the Church which covered the vaults. Only faithful parishioners have the right to have their funeral in the cemetery. The Church authorities have a right to revoke the licence and to make alternative arrangements. They can stop burials in the vaults. Plaintiffs have no right over the vaults; but they can bury the dead in the family vaults so long as Church permits. Due to compelling circumstances the Church was forced to alter the vaults to suit the convenience of the pilgrims. There is no civil right involved in the case for adjudication. 6. Though a replication statement was filed by plaintiffs, it only reiterated the contentions already raised by them in the plaint. 7. Exts. A1, %1 to B5 were marked. PWs.1 to 3 and DW.1 were examined. The trial court found that the permission granted to plaintiffs amounts to an irrevocable licence under S.60(a) of the Easement Act. However, it came to the conclusion that the declaration and injunction asked for cannot be granted because it will meddle with the authority of the Church and dismissed the suit. Hence the appeal. 8. Heard counsel. 9. The trial court found that the permission granted to plaintiffs amounts to an irrevocable licence under S.60(a) of the Easement Act. However, it came to the conclusion that the declaration and injunction asked for cannot be granted because it will meddle with the authority of the Church and dismissed the suit. Hence the appeal. 8. Heard counsel. 9. I will refer to the background of the litigation and a few facts which are not very much disputed. 10. St. Forane Church, Bharananganam comes within the Diocese of Palai, of which 1st defendant is the Bishop. Second defendant is its Vicar. Plaintiffs are parishioners of that Church. The body of Sr. Alphonsa is buried in the cemetery. Sr. Alphonsa is a distinguished soul and she has been designated servant of God and the 'Venerable' and is in the three should of being elevated to Sainthood. If this is done, probably she will be the first person in India to become a Saint. The process by which this is done is a long-drawn out one and it had started even in 1965-66. Now this place is attracting a lot of pilgrims from the State and outside. Mass is conducted every day and every often when pilgrims come from outside, the priests who accompany them also conduct Masses. In 1965-66 a General Body meeting of the Parish resolved to allot family vaults to the families who pay Rs. 2000/- per vault. Ext. B2 is the register containing this resolution at page 169. Accordingly plaintiffs and some of their predecessors paid Rs. 2000/- and obtained family vaults. This scheme admittedly had the approval of 1st defendant-Bishop. Plaintiffs also put up concrete slabs above vaults and inscribed the names of the buried. Plaintiffs would contend that this amounted to contract coupled with an irrevocable grant. 11. The term 'family' was defined and it was approved in the General Body meeting of the Parish the result of which is embodied in Ext. B3. As per Ext. B2,16 families were allotted family vaults including that of plaintiffs. The family vaults are situated adjacent to the grave of Sr. Alphonsa. Thereafter a decision was taken on 13.1.80 by the Parish General Body to shift the family vaults to a new place, 15 meters away, and all those persons who were allotted family vaults were offered family vaults in the new place free of cost. The family vaults are situated adjacent to the grave of Sr. Alphonsa. Thereafter a decision was taken on 13.1.80 by the Parish General Body to shift the family vaults to a new place, 15 meters away, and all those persons who were allotted family vaults were offered family vaults in the new place free of cost. This decision was taken to provide more convenience to pilgrims whose number was swelling day-by-day. The decision was announced on two Sundays during the Service. Ext. B1(c) is the relevant minutes. A representation was received from those who own family vaults, which is marked as Ext. B4, against the decision to shift the vaults. However, the Bishop also approved the decision to shift the family vaults, and burials were stopped in the old place. Father of plaintiffs 1 to 4 who was in Thrissur passed away and his dead body was brought to Bharananganam to be buried in the family vault. The Vicar refused permission to bury him in the old family vault in view of the decision of the General Body. Though an appeal was made to the Bishop, it had no effect and the dead had to be buried in the new vault. Similarly 9th plaintiff's father's brother passed away and he was also not allowed to be buried in the old family vault and had to be buried in the new place. This has given rise to the litigation. Plaintiffs would contend that the Church had accepted Rs. 2000/- from them and allotted family vaults and they had a right to bury the dead persons in their family in the vault. They would contend that the Church is not entitled to refuse permission to bury nor shift the vault to another place as the grave is a sacred place where prayers are offered in the memory of ancestors. Plaintiffs would further contend that the version of the Church authorities that the old vault is being shifted to honour Sr. Alphonsa and to accommodate the pilgrims is only a ruse or pretext to shift the vault to another place. 12. Four witnesses were examined on plaintiffs' side. PW.1 is the 2nd plaintiff who has sworn in support of his case. Alphonsa and to accommodate the pilgrims is only a ruse or pretext to shift the vault to another place. 12. Four witnesses were examined on plaintiffs' side. PW.1 is the 2nd plaintiff who has sworn in support of his case. He has admitted that the land where family vaults are situated belongs to the church and he has no interest in the land except the right to bury the dead persons in his family there. The legal custodian of the vaults is the Church. But his case is that even during 1965-66 pilgrims were visiting the grave of Sr. Alphonsa and the decision to allot vaults was taken at that time. PW. 2 was the Vicar of the Church from 31.3.197 3 for 20 months. He has given evidence that it is not usual to deny permission to bury the dead in the vaults allotted to the families. He has also stated that the Syro Malabar Sabha follows Latin Canon law. It would appear that a new Canon law is enacted now by the Church as per which burials are not allowed inside Church. This need not detain us very long because plaintiffs are basing their claim on a contract or licence coupled with a grant, and not on any customary right or religious law. 13. PW. 3 is a priest who is a member of this parish. He has taken up one of the family vaults. He had participated in the meeting which decided to allot family vaults. He says he was present at the meeting held on 15.1.1984 which decided to shift family vaults to new place. He is examined to prove that if family vaults are allotted, permission is not refused to bury the dead there. 14. DW.1 was the Vicar of the Church from 17.2.1981 to 9.2.1985. He was the Vicar at the time of Ext. B1(b) decision. He has stated that Ext. B2 has been approved by the Bishop. Ext. B1(c) minutes of the General Body meeting slates the reason for shifting the family vaults, ie., for the convenience of the pilgrims and for a better look. One important aspect in his evidence is that he gives instances of such shifting. One instance was where the mortal remains of priests and sisters kept in the Cathedral were removed to another place in order to built a new Cathedral. One important aspect in his evidence is that he gives instances of such shifting. One instance was where the mortal remains of priests and sisters kept in the Cathedral were removed to another place in order to built a new Cathedral. Similarly in Kozhuvinal Church the old cemetery was demolished and a new one was built and the remains in the old cemetery was transferred to the new place. In the case of Kudakkachira Church, the Church was divided into two and there was some adjustment of the jurisdiction of the parish. Family vaults were allotted in the said Church. When some families were transferred to Valavur Parish, the family vaults were transferred to the new Church. Another instance was relating to Kalathur Parish which was divided. DW.1'-has given evidence that in many other parish churches also there were similar shifting. He of course admitted that the permission to bury in the family vaults is not usually denied but churches had always right to make adjustments and remove the vaults. 15. Though the original proposal of the Church was to shift all the old vaults to the new place, the authorities have relaxed this stand and agreed to maintain the old vaults in the present condition, subject to the rider that further burials will not be allowed there. In view of this, the apprehension of plaintiffs that the Church would obliterate or destroy the existing vaults is unfounded. What is prevented now is only new burials but at the same time the persons who were allotted vaults are free to shift the mortal remains of the dead to the new vaults, if they so choose. The church has no objection to the same also. In view of the stand taken by the Church, it is not necessary to issue a mandatory injunction to preserve the plaint schedule graves in the present condition. Besides the above, plaintiffs have prayed to allow them to transfer the mortal remains of the dead buried in the new vaults to the old one. This of course is not acceptable to the Church. We have to consider how far the above prayer of the plaintiffs is well-founded in law. 16. Besides the above, plaintiffs have prayed to allow them to transfer the mortal remains of the dead buried in the new vaults to the old one. This of course is not acceptable to the Church. We have to consider how far the above prayer of the plaintiffs is well-founded in law. 16. Though issues 1, 2 and 12 were framed on the basis of the contention of defendants that this pertains to a purely religious right and the Court has no jurisdiction to entertain such request, this was overruled by the Court below on the ground that the prayer is only for enforcement of a civil right. I am of the view that the objection raised by the Church is not sustainable and the Court has jurisdiction to consider the question. The right for a decent burial is a civil right is now beyond the pale of controversy. Though the Court may not be justified in directing the Church to perform particular religious ceremonies, it is well within its power to direct that no person who is entitled to burial at the premises is denied that right. The right is purely of a civil character in this case. The parties contested the matter purely on temporal grounds. Plaintiffs alleged that there was a contract or a grant by the church on receipt of Rs. 2000/-whereby they agreed that all family members who are dead can be buried in the vaults on payment of a further sum of Rs. 200/- for each burial. Plaintiffs contended that this amounts to creation of an irrevocable licence whereas the defendants would contend that it is a licence simpliciter which is revocable. This is purely a question of civil right relating to which the civil court has ample jurisdiction to adjudicate. In view of the above, the finding of the trial court that the court has jurisdiction and the suit is maintainable has to be confirmed. 17. The main point that falls for consideration is whether, in the circumstances of the case, an irrevocable licence has been created in plaintiff s favour. In this connection I may at the outset mention the version of PW.1 that they do not claim any interest in the land and that the land where the vault is situated belongs to the Church. S.60 of the Indian Easements Act reads: "60. In this connection I may at the outset mention the version of PW.1 that they do not claim any interest in the land and that the land where the vault is situated belongs to the Church. S.60 of the Indian Easements Act reads: "60. Licence when recoverable.- A licence may be revoked by grantor, unless - (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution" There are rudiments of plea under S.60(b) of the Act. in the plaint-and the oral evidence to contend that acting upon the permission granted, plaintiffs have executed work of a permanent character and incurred expenses in its execution. The lower court has in para. 15 of the impugned judgment, ruled out the case advanced under S.60(b) of the Act. It has come out in evidence that the only act done by plaintiffs is to inscribe the names of the dead on the slab covering the vault and this cannot be termed as work of a permanent character. The expression "work of a permanent character" occurring in clause (b) is not the mere writing of the names of the dead over the slab. It means erection of a structure of permanent nature. It is important to note that the plaintiffs have not made any construction activity or put up a superstructure over the 1 and. They have also not put up any subterranean structure. In these circumstances, it cannot be said that they have executed the work of a permanent character. By no stretch of imagination can anyone come to such a conclusion on the facts and circumstances of the case. Therefore, the feeble attempt made by plaintiffs to rely on S.60(b) of the Indian Easements Act has to fail. 18. The only other poi nt that arises for consideration is whether the grant is coupled with a transfer of property and such transfer is in force; in other words, whether it is a licence coupled with a grant. What exactly is the distinction between a mere licence or a permission and a licence coupled with a grant has received judicial attention. I will refer to those authorities relied on by the parties. 19. What exactly is the distinction between a mere licence or a permission and a licence coupled with a grant has received judicial attention. I will refer to those authorities relied on by the parties. 19. In Ananda Behera v. State of Orissa (AIR 1956 SC 17) the dispute was about fishery rights. The right involved was to catch and carry away fish in specific portions of a lake over a specified future period. The Apex Court held that the right amounts to a licence to enter on the land coupled with a grant to catch and carry away the fish, that is to say, it is a profit a printer. The Supreme Court observed thus: "In England this is regarded as an interest in land (11 Halsbury's Laws of England, Page 387) because it is a right to take some profit of the soil for the use of the owner of the right (page (382). In India it is regarded as a benefit that arises out of the land and as such is immovable property". The Apex Court went on to observe that the definition of 'immovable property' in the General Clauses Act includes benefits that arise out of the land. On the other hand, the Transfer of Property Act does not define the term except to say that immovable property does not include standing timber, growing crops or grass. As fish do not come under that category, it. was held that the definition in the General Clauses Act applies and as a 'profit a render' is regarded as a benefit arising out of land it: is immovable property. 20. Again in Shuntabai v. State of Bombay (AIR 1958 SC 532) the Supreme Court had occasion to consider the nature of the right created in a document authorty sing a person to enter into the land to cut and remove certain kinds of trees. The question was whether it was a lease or a licence. Vivian Bose J. observed as follows (in para 23): "In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood. The question was whether it was a lease or a licence. Vivian Bose J. observed as follows (in para 23): "In my opinion, the document only confers a right to enter on the lands in order to cut down certain kinds of trees and carry away the wood. To that extent the matter is covered by the decision in 1953 SCR 476 at P.483 (AIR 1953 SC 108 at P.110) (The State of Madayi Pradesh) and by the later decision in 1955-2 SCR 919 at P.922 and 923: (AIR 1956 SC 17 at P.18 and 19 (Ananda Behera v. The State of Orissa), where i t was held that a transaction of this kind amounts to a licence to enter on the land coupled with the grant to cut certain trees on it and carry away the wood. In England it is a profit a prendre because it is a grant of the produce of the soil "like grass, or turves or trees." See 12 Halsbury' s Laws of England (Simonds Edition) P. 522 Note (m). It is not a "transfer of a right to enjoy the movable property" itself (S.105, T.P. Act), but a grant of a right to enter upon the land and take away a part of the produce of the soil from it. In a lease, one enjoys the property but has no right to take it a way. In a profit attender one has a licence to enter on the-land, not for the purpose of enjoying it. but for removing something from it, namely, a part of the produce of the soil." The decision emphasises the distinction between a lease and profit a prendre and held that the latter creates a grant of right to enter upon the land and take away a part of the produce of the soil from it. This was held to he an irrevocable grant. 21. In Ghissu v. Hashim All (AIR 1954 Allahabad 683) the same point is further elucidated by Beg J. (as he then was). In that case plaintiff allowed the defendant not only to enter the grove but also to lake away something from it, namely, the crops of the trees. It was held to be licence coupled with a grant or licence with a profit a prendre. In that case plaintiff allowed the defendant not only to enter the grove but also to lake away something from it, namely, the crops of the trees. It was held to be licence coupled with a grant or licence with a profit a prendre. It was observed thus: "(8) In view of the above definition, if the plaintiff 1 had allowed the defendant merely to come to the grove, that would have been a licence pure and simple. Here plaintiff 1 allowed the defendant not only to enter the grove by I also to take away something from it, namely, the crops of the trees. This is, therefore, not a case of bare licence. In this case, the grant of a licence is coupled with the transfer of property, this property being the crop of the grove. The case would be akin to a case where a person allows another person to come to his park to hunt there and to take away the game. If the owner of the park merely allowed another person to enter the park and to do something there, namely, to hunt in the park, it would be a case of bare licence. If he allowed him not only to hunt in the park but also to take away the game, men it cannot be said to be a case of bare licence. The licenee in such a case would be coupled with a transfer of property, viz. the game hunted. This would be a complex right which in law would be termed as a licence coupled with a grant or licence with a 'profit a prendre'. The matter has been dealt with by Joshi in his Commentary on the Easements Act, 1948 Edition, Page 274. That following extracts from pp. 274 and 275 are relevant: "As a licence to go beyond the seas, to hunt in a man's park, to come into his house are only actions which without licence had been unlawful. But a licence to huntinaman' spark and carry away the deer killed to his own use; to cut down a tree in man's ground and to carry i t away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer and the tree cut down, they are grants.. It will thus be seen that what is called a licence is often something more than a licence. It may be a right coupled with an interest in land or a licence with'profit a prendre' attached to it. A complex right, not merely a licence, is thus formed". (9) The rights thus created would not be revocable under S.60 Easements Act, which states that a licence may be revoked by the grantor unless it is coupled with a transfer of property and such transfer is in force." 22. Learned counsel for respondents submitted that the mere circumstance that consideration was paid for obtaining the vaults will not make it a licence coupled with a grant. The payment of consideration for permission granted does not make it an irrevocable licence. The parameters are entirely different, namely whether the grant is irrevocable as stated. In this connection Katiyar on Easements, 11th Edn. at Page 848 states: "The fact that a licence is acquired for valuable consideration or for an agreed term does not affect its revocability - The power of revoking a mere licence given by S.60 is not affected by the fact that the licence has been given for valuable consideration. Baron Alderson has discussed this point in the leading case of Woodv. Leadbitter (12 M & W 83 8 (855) as follows: "It was suggested that in the present case a distinction might exist, by revision of the plaintiffs having paid a valuable consideration for the privilege of going on the stand. But this fact makes no difference, whether it may give the plain tiff a right of action against those from whom he purchased the ticket, or those who authorised its being issued and sold to him, is a point not necessary to be discussed. Any such action would be founded on the breach of contract and would not be the result of his having acquired by the ticket a right of going up on the stand inspite of the owner of the soil, and it is sufficient, on this point, to say, that in several of the cases we vecited.Hawlins v. Shippon (5B & C221), for instance and broyn v. whixtler (SB & C288), the alleged licence had been granted for a valuable consideration, but that was not held to make any difference". Similarly, the fact that the licence is acquired for an agreed term, does not affect the power of revocation within such terms". 23. The essential question to be answered is whether permission to bury the dead in the vaults provided constitutes a licence coupled with a grant. The lower court has, iii. paragraphs 14 and 15 of the impugned judgment, dealt with this question. It relied on the following grounds to conclude that it is a licence with irrevocable grant: 1) The evidence of PW. 2, who was Vicar of the Church, that generally family vault or cemetery is not shifted and to his knowledge there was no such instance. 2) PW. 3 who is a priest and a member of this Parish had sworn that if family vault is allotted, it is a permanent allotment to bury the dead of that family and in this Church also certain families were given the right to bury the dead of the family permanently. 3) Second defendant as DW.1 has sworn that normally when one takes up a family vault in the cemetery, it is a permission to bury the dead belonging to the family there. 4) The resolution which is extracted in page V of the printed impugned judgment mentions that space has to be given for family vaults if there are takers for the same. The lower court particularly emphasises the words It has observed that this amounts to creating an interest in immovable property which is not a bare licence. Therefore, as long as one is a faithful Christian, he has a right to be buried there. 5) A right to be buried in the family vaults is a privilege given by a special act for certain persons and the privilege is presumed to be perpetual unless the contrary is proved according to Canon Law. The Church has not proved the contrary. In 1966at the time when permission was granted, there was no intention to create a temporary privilege in favour of plaintiffs and it must be deemed to be a permanent one. 6) Consideration was paid for obtaining family vaults. In view of the above circumstances or grounds, the learned Sub Judge held that plaintiffs have a licence coupled with an irrevocable grant. 24. As to grounds 1 to 3,1 may mention that PW. 6) Consideration was paid for obtaining family vaults. In view of the above circumstances or grounds, the learned Sub Judge held that plaintiffs have a licence coupled with an irrevocable grant. 24. As to grounds 1 to 3,1 may mention that PW. 3 is a member of this parish who has taken a family vault and is an interested party. As regards the evidence given by PW.2 and DW1 are concerned, there is no dispute that normally once family vault is allotted, the dead belonging to that family will be permitted to be buried there. While normally it is so, DW.! in his evidence has given instances (to which I have referred earlier) where such cemetery and graves were shifted. His evidence has to be read as a whole and if so read, it cannot be said that he has admitted that once family vaults are allotted the same cannot be shifted. Of course, DW.1 himself says that though normally family vaults once allotted are not shifted and are meant for permanent use, occasions may arise when the Church will have the right to shift the cemetery or the grave. He has given such instances in his evidence: 25. As regards Ext. B2 relied on very much by the learned Sub Judge to find that an interest in land is created, I am unable to agree because plaintiffs themselves have no such case. PW 1 has clearly admitted that the land belongs to the church and they have absolutely no-interest in the land. The expression only means that if there are individuals who would like to have family vaults, space must be provided in the cemetery for arranging family vaults on payment of Rs. 2000/-. The lower court has misread the above words to mean that the church intended to create an interest in the land in favour of the persons who paid money and took family vaults. 26. As to the 5th ground, namely it is a privilege created by Canon Law, it cannot be held to be a civil right enforceable by a Civil Court. Of course, during the course of arguments, learned counsel for appellants Sri. Parameswara Panicker never contended for the position that it was a privilege. The learned counsel in fact strongly argued that it is his clients' right arising under the contract and not a privilege granted by the Church. Of course, during the course of arguments, learned counsel for appellants Sri. Parameswara Panicker never contended for the position that it was a privilege. The learned counsel in fact strongly argued that it is his clients' right arising under the contract and not a privilege granted by the Church. The ground that some consideration was paid to obtain the licence will not make it permanent, as I already pointed out. 27. There cannot be any doubt that plaintiffs enjoy a licence to bury the dead in the family vaults unless it is revoked. It is far from saying that the nature of the right is irrevocable under all circumstances. In this case, which presents a peculiar situation, the Church is forced to provide convenience for the growing number of pilgrims so that burial in the old family vaults are to be stopped. Itis a common purpose and the decision is taken by the General Body of the parish and approved by the Bishop. It is pursuant to this decision that the Vicar refused permission to plaintiffs 1 to 4 and 9 to bury their relatives in the old vaults. Though an appeal was made to the Bishop, it was not fruitful. Any right or licence is subject to the convenience of the Church and larger interest of community as such, for, a right is one which is recognised by the community. A right or licence as such cannot exist in vacuum. It has to be recognised by the community and respected by it. That alone will give meaning and content to that right as one which can be enforced. If the interest of the Church and general interest of the Parish require that the cemetery or a vault be shifted from the existing place to another' place to suit the convenience of the pilgrims, the need is a real and bonafide one. It was submitted during the arguments that no-one in India has been conferred with Sainthood and if it is done probably Sr. Alphonsa will be the first Indian Saint to be recognised by Vatican. I have staled this only to point out the uniqueness of the situation and importance of the need that forced the Church to shift the old family vaults. On analysis it is found that no interest in the land is created in favour of plaintiffs. Alphonsa will be the first Indian Saint to be recognised by Vatican. I have staled this only to point out the uniqueness of the situation and importance of the need that forced the Church to shift the old family vaults. On analysis it is found that no interest in the land is created in favour of plaintiffs. The reasoning of the learned Sub Judge in this regard interpreting Ext. B2 was a bit far-fetched. The making of inscription over the slab also does not amount to work of a permanent character. Plaintiffs or those who own family vaults are not authorised to take any profit arising out of the immovable property or profit a prendre, as some of the decisions have mentioned. In view of the above circumstances, it is difficult to agree with the conclusion of the learned Sub Judge that a licence coupled with an irrevocable grant is created in favour of plaintiffs. 28. Learned counsel for appellants referred to the decision reported in Varkey v. St. Mary's C.C., Mulakkulam (1997 (2) KLT 192) to argue that such a right, ie., the right to bury the dead in a particular place in the Church, was recognised by this Court. St. Mary's Catholic Church, Mulakkulam was a Church concerned in that case. Pariyappurathu family contributed much for the establishment of the Church about 163 years ago and members of that family were permanent members of the Diocese. There was a custom to bury the members of that family in the first row on the eastern side of the cemetery maintained by the Church. One cent on the eastern side of the cemetery was shown as the plaint schedule property in that suit. Plaintiffs prayed for a declaration that in the plaint schedule property only members of Petiyappurathu family be buried and the Church is not entitled to permit burial of others there. What was pleaded in that case was a custom to bury the dead in that particular place. Plaintiffs had no case that the right arose out of a contract or under the general law of easement, The trial court held that the suit was not maintainable. The appellate Court confirmed the above finding. This Court reversed the above finding and held that the right to burial is a civil right and to merely a religious or spiritual ritual or observance. The appellate Court confirmed the above finding. This Court reversed the above finding and held that the right to burial is a civil right and to merely a religious or spiritual ritual or observance. Para 7 of the judgment makes it clear that plaintiffs had come out with a case on the basis that it is a customary right and by long and uninterrupted user that right has acquired the force of law. There was no specific agreement with the Church or any other basis set up for the claim of right and the Court did not consider whether the right could be acquired by grant or by contract. Yet, that is exactly the point raised in this case. Plaintiffs claim to have acquired a right by contract and claim the right on the basis of an irrevocable grant. What was pleaded there was a custom. Therefore, the above decision will not apply to the facts of this case. 29. Plaintiffs can claim a civil right to be buried in the cemetery as a Christian unless lite Church considers him to be unfaithful. But it is not established that all Christians have a general right to be buried in a particular place where their ancestors are buried. The decision in 1997 (2) KLT 192 which was relied on by counsel for appellants does not lay down any such rule. It has only found that in that particular Church, the dead members of the particular family to which plaintiffs belonged had a right to be bulled in a particular place according to the custom which was established. I have not been taken through any other authorities recognising such a right. No customary right is pleaded in this case. The finding of the lower Court that plaintiffs have an irrevocable grant in their favour is not well-founded. 30. During the course of the arguments, there were suggestions that it is the right of a Christian to be buried along with their ancestors. Instances were referred from the Mew Testament. The plaintiffs have not pleaded that right in the plaint. Moreover, such family vaults were not allotted to every Christian but only to those who pay Rs. 2000/-. Therefore, there cannot be any controversy on the point that no such customary right existed among Christians to be buried along with the ancestors. It is a' limited privilege extended to few persons. Moreover, such family vaults were not allotted to every Christian but only to those who pay Rs. 2000/-. Therefore, there cannot be any controversy on the point that no such customary right existed among Christians to be buried along with the ancestors. It is a' limited privilege extended to few persons. The evidence shows that in this case only 16 families in the Parish were allotted such vaults. There were innumerable Christians in the Parish and they never had such rights. The right, if any, arose purely from Ext. B2 resolution and the subsequent contract. Plaintiffs have not produced any other evidence to establish their right. Hence the finding on issues 3 to 5 and 8 is set aside and told that plaintiffs have not established that they have any irrevocable grant under S.60(a) of the Indian Easements Act. 31. The learned Sub Judge, in paragraph 18 of the impugned judgment, has dealt with issues 10 and 11 and found those issues against the plaintiffs. Various reasons given for the same by the learned Sub Judge can be summarised as follows: 1) If a declaration is granted it will be rendered in effective and is not capable of execution. 2) If such a degree is granted, hardship and unjust results may be caused to the defendants and third parties. 3) His not proper on the part of the court to direct an unwilling Bishop or Vicar to conduct ceremonies in the Church. 4) It will be unjust on the part of the court to give a direction to defendants to bury a dead one in the family vaults of the plaintiffs at a time when a large number of people assemble before the grave of Sr. Alphonsa to offer prayers. 5) As the majority of the parishioner shade greed to Ext. BI(a) decision, a minority group shall not be permitted to interfere. 32. Prayer 'A' in the plaint is to "declare that the plaintiffs and all the members of their families are entitled to the permanent use of the respective vaults or graves allotted to them as in the plaint schedule property and to declare their right to bury their dead in the respective vaults allotted to them". 32. Prayer 'A' in the plaint is to "declare that the plaintiffs and all the members of their families are entitled to the permanent use of the respective vaults or graves allotted to them as in the plaint schedule property and to declare their right to bury their dead in the respective vaults allotted to them". I have already found that plaintiffs have no right to use the old family vaults when the parish has taken a decision* not to allow further burials there, which was approved by the Bishop for every valid reasons. Apart from that, S.34 of the Specific Relief Act makes it clear and gives a wide discretion to the court to grant such a declaration relating to any legal character or to any right as to any property. On merits I have found that plaintiffs have no right to or interest in the property. They are not claiming any declaration based on legal character. Apart from this, even if such a right or legal character is proved, the court is not bound to grant such a declaration and can exercise its discretion. I am of the view that none of the reasons suggested by the lower Court in para. 18 of the impugned judgment are correct or reasonable. 33. The main reason for refusing the declaration is that if such a declaratory decree is granted, it will be in effective. If the plaintiffs have a right to bury their family members in the old vaults, a declaration can be made to that effect and I do not see how it can calendared ineffective. The learned Sub Judge has pointed out that defendants may violate the decree. The right is relating to a civil nature and merely because defendants are religious authorities, they cannot be allowed to thought the decrees of the Court. Another reason given is that i t is not proper on the part of the court to direct an unwilling Bishop or Vicar to conduct ceremonies in the cemetery. The plaint does not ask for such a relief directing the Bishop or Vicar to conduct prayers or ceremonies. It deals only with the right of the plaintiffs to bury the dead which is a civil right. The plaint does not ask for such a relief directing the Bishop or Vicar to conduct prayers or ceremonies. It deals only with the right of the plaintiffs to bury the dead which is a civil right. Another reason suggested is that if the plaintiffs are allowed to bury the dead in the old family vaults, it will cause inconvenience for the people who gather to offer prayers in the grave of Sr. Alphonsa. This also does not appear to be a proper reason to deny the relief. The learned Sub Judge has found in favour of the plaintiffs right and in that case it cannot be a reason to deny the declaration. Another reason is that if such a decree is granted, it will result in hardship to third parties and the defendants. This again cannot also be a reason to deny the relief if the plaintiffs have such a right. One other reason suggested is that Ext. B1 (a) decision to shift the old family vaults approved by the majority cannot be defeated by the plaintiffs alone who are in a minority in the parish. This again is a fallacious reasoning because in case plaintiffs have such a right, they are entitled to exercise that right even if the majority opposed it. Therefore, I am of the view that the reasons relied on by the learned Sub Judge are not good enough to exercise the discretion against the plaintiffs, if they have otherwise right to bury the dead in the old family vaults. 34. Prayer 'B' relates to prohibitory injunction restraining defendants from obstructing the plaintiffs using the old family vaults. In view of my finding that there is no such licence which is irrevocable, plaintiffs are not entitled to this relief. 35. Prayer 'C' relates to a mandatory injunction to preserve the old family graves in the present condition. The Church has stated that it does not propose to obliterate or remove the old family vaults from the present position and they only bar future burials there. In view of the above stand, it is unnecessary to grant this prayer also. 36. In prayer 'D' plaintiffs pray that the mortal remains of the dead buried in the new vault may be allowed to be transferred to the old family vault. This cannot be allowed for the reasons I have already found in this judgment. 37. In view of the above stand, it is unnecessary to grant this prayer also. 36. In prayer 'D' plaintiffs pray that the mortal remains of the dead buried in the new vault may be allowed to be transferred to the old family vault. This cannot be allowed for the reasons I have already found in this judgment. 37. As regards mandatory injunction, learned counsel for respondents pointed out the decision reported in Koya Hajiv. Bhaskaran (1984KLT929) wherein Paripoornan, J. (as he then was) observed that in the matter of granting mandatory injunction court should not be moved by reasons of sentiments alone, but enquire whether mandatory injunction is the only appropriate remedy. In view of my finding it is unnecessary to consider this question any further. 38. Plaintiffs have asked for a nominal damages of Rs. 101/- each for the refusal on the part of Vicar to allow burials in the old family vaults. I have found that plaintiffs have no such right in view of Ext. B1 (a) resolution of the General Body of the Parish and the Vicar was well justified in refusing permission to them. Therefore, plaintiffs are not entitled to get any damages. In the result, the finding of the trial court on issues 3 to 5 and 8 is set aside and it is found that plaintiffs have failed to establish the right pleaded in the plaint. The finding on issues 10 and 11 is also set aside. In view of my finding on issues 3 to 5 and 8, plaintiffs are not entitled to get the reliefs claimed. Hence the appeal is dismissed. No costs.