Indian diocese loses court bid to keep church properties: The Church of England Newspaper, February 3, 2012, p 6. February 10, 2012
Posted by geoconger in Church of England Newspaper, Church of South India, Property Litigation.Tags: Dioese of Karnataka South, United Basel Mission Church
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First published in The Church of England Newspaper.
In a ruling handed down last week the Karnataka High Court held that the transfer of properties — including 50 church buildings — in 1972 from a property trust created by the United Basel Mission Church in India (UBMC) to the Church of South India (CSI) Trust Association following the merger of the two denominations is void.
The court ordered the CSI Trust to turn over the former UBMC properties to trustees appointed by the court and to provide an accounting of net income generated from the properties since their purported transfer in 1972.
If the ruling is upheld on appeal to the Indian Supreme Court, it could strip the CSI Diocese of Southern Karnataka of the bulk of its properties. However, as the case has taken 43 years to reach this stage, a final disposition is not expected soon due to India’s clogged civil court system.
Founded in 1815 by German and Swiss missionaries as a non-denominational Protestant body, the UBMC began work on the Malabar Coast south of Bombay in what is now the state of Karnataka in 1834. Over time the church formed three geographically distinct branches in Malabar, Bombay Karnataka, and South Kanara and Coorg. The three congregationally organized churches were locally governed but shared a common general synod.
In 1947 the Malabar and Bombay branches of the UBMC joined the newly formed Church of South India. The South Kanara and Coorg branch joined the CSI in 1961. However, litigation ensued following the 1961 merger with four members of the church arguing that the merger of the congregationalist UBMC and the episcopal Church of South India as well as the exclusion of Luther’s Shorter Catechism from the liturgy of the CSI violated the UMBC’s founding theological principles.
In 1968 a Mysore court ruled in favour of the CSI, holding that the doctrine of the UBMC and CSI were substantially similar and did not violate the UBMC’s principles. The case was appealed and in 1974 the Mysore high court reversed itself, finding that the differences in worship between the UBMC and the CSI were sufficient as to have injured the plaintiff’s right to worship under the UBMC liturgy. The case was appealed to India’s Supreme Court and in 1988, 27 years after the suit was initiated, the Supreme Court ruled in favour of the CSI and approved the merger.
A second suit over the trusteeship of the properties was brought in 1968 asking the Mysore court to clarify its ruling as regards to the trusteeship of the UBMC properties. The property case was stayed pending the Supreme Court ruling and was relaunched following the 1988 ruling.
In its decision, the Karnataka High Court reported that the original UBMC Trust Association, created in the 1930s, had been revoked by the UBMC in 1957 and the trust wound up in 1972 after the property was transferred to the CSI Trust Association. The decision by Division Bench consisting of Justice N Kumar and Justice AN Venugopala turned on the common law principle of the statute of frauds and rejected pleas from the CSI that its canons ruled the property dispute.
As a matter of law, the courts ruled that they were bound by the rules governing the transfer of property and trusts. When the UBMC Trust Association was created, it took the legal form of a “public trust”. The court held that under Indian trust law the creator of a public trust had “no right to revoke the public trust”.
Accordingly the 1957 revocation was void ab initio, as was the subsequent transfer to the CSI Trust. The properties belonged to the public, charitable and religious trust formed by the UBMC in the 1930s, the court ruled, and as there were no existing trustees the court had the responsibility to appoint new trustees on behalf of the state to manage the properties according to the terms of the original trust.
The CSI Trust Association may appeal the ruling within 90 days to the Indian Supreme Court, but may not alienate any of the properties pending adjudication of the appeal.
