Agriculturists Debt Relief Act, 1958 (Kerala) – S. 2 (a) – Whether the church can claim to be an agriculturist – Held, there is no legal impediment in treating the church as a person, who can claim to be an agriculturist, if it otherwise satisfies the definition of “agriculturist”.
1962 KLT 240 : ILR 1962 (1) Ker. 591
T.C. Raghavan, J.
James Chinnamma Vs. Joseph Abraham
C.R.P. No. 839 of 1960
Advocates: K.K. Mathew, George Vadakkel, M.A. Joseph for Appellant; K. Velayudhan Nair, V.S. Moothath, K.J. Joseph for Respondent
T. C. Raghavan, J.
1. A short question, which js likely to arise rather frequently in this State having several churches, is involved in the Civil Revision Petition. The St. Mary’s Church, Kainadi Muri, Chennamkary Village, through Joseph Abraham filed a petition for relief under Kerala Act XXXI of 1958. The creditors raised the objection that the church was not a person and was not therefore entitled to claim relief under the Act. The objection was over-ruled, by the lower court and one of the creditors has filed the Civil Revision Petition.
2. The short question for consideration is whether the church can claim to be an agriculturist as contemplated by the Act. S.2(a) of the Act enacts that “agriculturist” means a person who has an interest, other than as a simple mortgagee, in any agricultural or horticultural land in the State of Kerala. “Person” is not defined in the Act. But the General Clauses Act says that “person” shall include any company or association or body of individuals, whether incorporated or not. Therefore the sole point is whether the church is a “person” who can claim to be an agriculturist.
3. There are two or three ways of looking at the question. One is to treat the Roman Catholic Church (the church in the present case is of the Roman Catholic faith) as a voluntary association as distinct from the Protestant Church, which is an established church. There are decisions which take this view (vide Rev. Fr. Pathrose Fernandas v. Swamiyadian Gnanaprakasam, 8. TLT 175 and Gasnari Louis v. Rev. Fr. C.P. Gonsalves, 1918-47 IC 941 : 35 MLJ 407). If the church is thus treated as a voluntary association, then the definition of. “person” in the General Clauses Act will apply.
4. The second mode of viewing the question is to treat the head of the church, for example, the Vicar, the Bishop or the Ordinary as a corporation sole. The device employed in such eases is not to,, ascribe legal personality to the foundation or the institution itself, but to regard, as corporations by Canon Law, the officers connected with its management. Salmond in his treatise on jurisprudence says:
“The chief difficulty in apprehending the true nature of a corporation sole is that it bears the same name as the natural person who is its sole member and who represents it and acts for it. Each of them is the Sovereign, or the Bishop or the Solicitor to the Treasury. Nevertheless under each of these names two persons live, one is a human being administering for the time being the duties and affairs of the office. He alone is visible to the eyes of the layman.; The other is a mychical being whom only lawyers know of and whom only the eye of the law can perceive. Ye is the true occupant of the office. He never dies or retires; the other, the person of flesh and blood, is merely his agent and representative through whom he performs his functions. The living official comes and goes, but this offspring of the law remains the same person”.
In this view it is the Vicar, the Bishop or the Ordinary in the ideal sense, as different from the incumbent in flesh and blood of the office, that is the juristic person that holds the property.
5. Yet a third mode of approaching the question is to treat the institution or the church itself as a legal entity or juristic person capable of holding property, of course acting through human agencies. This is the view which was adopted by the learned judges in Kunju Varkki v. Neelacandan Nambyar, 4 CLR 351. This view was adversely commented upon by Varugis, J. in a later case in Mathu v. Pathappan, 7 CLR 69and the learned judge opined that there was no sufficient basis in the history of the law for the position that the church or a particular church was as such a juristic person. But I am inclined to take the view that this last mode of looking at the question is the best mode and according to me, this has the support of the Ecclesiastical Law as well. At page 187 of Civil Ecclesiastical Law by Jerome A. Saldanha, the learned author in Para.275 extracts the relevant provisions of the Canon Law.
“(Cn. 99) There are in the Catholic Church besides physical, also moral persons, instituted by the public authority; these are collegiate moral persons, or else non-collegiate moral persons, as for instance Seminaries, Churches, Benefices, etc.”
“(Cn. 100) The Catholic Church and the Apostolic See have been constituted as moral persons by divine ordinance. The other inferior moral persons received their personality either by the law itself, or by a special concession of the competent ecclesiastical superior; this is granted by a formal decree, for a religious or charitable purpose.
(2). No collegiate moral person can be constituted if it consists of less than three physical persons.
(3) Moral persons both collegiate and non-collegiate have the legal status of minors.”
“(Cn. 102) A legal person is of its very nature perpetual “
“(Cn. 531) Not only a religious organisation itself, but also its provinces and individuals are capable of acquiring and possessing temporal goods, together with fixed revenues and endowments, unless such capacity is excluded or restricted by their rule and constitutions.”
“(Cn. 1495) The Catholic Church and the Apostolic See have by their very nature the right freely and independently of the civil power to acquire, retain and administer temporal goods for the prosecution of their proper purposes.”
In Para.276 the learned author says after extracting several other Canons as well:
“From the above provisions, it may be deduced that so far as ecclesiastical goods (property) in British India are concerned, they are vested in the diocese as represented by the Bishop, Administrator and Ordinary, or in a church as represented by the Vicar or other incumbent. The diocese or the church is a legal or moral person (or corporation) and exists irrespective of its head who may belong to any nationality for the time being. The diocese or the church etc., exists as an entity identical with the nationality of its local existence, so that all those which are in British India are British Indian in nationality, whoever may be its head or administrator for the time being. If, then property is acquired by a Bishop or other Ordinary for the diocese and by a Vicar for a Church in British India, it is not for an alien but for a legal or moral person within British India.”
This according to me must apply to other parts of India as well.
6. From this it is clear that the conception of the church or the institution itself being constituted into a legal or juristic person or corporation and its existence as an entity capable of holding property irrespective of and distinct from its head is only in consonance with the Ecclesiastical law. Therefore, there is no legal impediment in treating the church as a person, who can claim to be an agriculturist, if it otherwise satisfies the definition of “agriculturist”.
The decision of the lower court is confirmed and the Civil Revision Petition is dismissed, in the circumstances, without costs.
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