KEDAR PANDEY versus NARAIN BIKRAM SAH

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KEDAR PANDEY

v.

NARAIN BIKRAM SAH

April 15, 1965

[P. B. GAJENDRAGADKAR, K N. WANCHOO, M. HIDAYATULLAH AND V. R.AMASWAMI, JJ.]

Constitution of India, 1950, Art. 5(c)-Acquisition of Indian

domicile-Proof.

The appellant and respondent were contesting candidates for election to the State Legislative Assembly. The respondent was declared elected, and the appellant filed an election petition chal lenging the election on the ground that the respondent was not duly qualified under Art. 173 of the Constitution as he was a citizen of Nepal and not a citizen of Inclia. The Tribunal held that the respondent was not a citizen of India, but the High Court in appeal set aside that order and upheld the election of the respondent.

On the question whether the respondent was a citizen of India

under Art. 5 of the Constitution, on the material date,

HELD: Assuming that the respondent was not born in the ter ritory of India, on a consideration of all the events and circum stances of his life, he had acquired a domicile of choice in India long before the end of 1949 which is the material time under Art. 5 of the Constitution. He had formed the deliberate intention of making Inclia his home with the intention of permanently establishing him· self and his family requisite anirn .. us manendi. He was ordinarily resident in India for 5 years immediately preceding the time when Art. 5 came into force. Since the requirements of Art. 5(c) were satisfied, the High Court rightly reached the conclusion that he was a citizen of India at the relevant time.

therefore had

in India and

[805 C-D]

t':i.e

The only intention required for a proof of a change of domicile is an intention of permanent residence. What is required to be estab lished is ti/at the person who is alleged to have changed his domicile of origin has voluntarily fixed the habitation of himself and his family in the new country, not for a mere special or temporary pur pose, but with a present intention of making it his permanent homei On the question of domicile at a particular time the course of his con duct and the facts and circumstances before and after that time are relevant.

[8()1 F-G; 803 F]

Udny v. Udny, L.R. 1 H.L. Sc. 441 and Doucet v. Geoghegan, 9 Ch.

Div. 441, applied.

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SUPREME COURT REPORTS

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CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 976 · A

and. 977 of 1964.

Appeals from the judgment and decree dated March 26, 1964 of the Patna High Court in Eleetion Appeals Nos. 8 and I 0 of 1963.

C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja- B

gopalan and B. P. lha, for the appellant, Un both the appeals).

K. P. Varma and D. Goburdhun, for the respondent (In both

the appeals).

The Judgment of the Court was delivered by

Ramaswami, J. Both

these appeals are brought by certificate against the judgment and decree of the High Court of Judicature at Patna dated March 26, 1964, pronounced in Election Appeals Nos. 8 and IO of !963.

c

The appellant-Kedar Pandey and the respondent-Narain Bikram Sah (hereinafter called Narain Raja) were the contesting D candidates in the year 1962 on behalf of the Congress and Swatan- tra Party respectively for the election to Bihar Legislative Assembly from Ramnagar Constituency the district of Champaran. in The nomination papers of the appellant and the respondent and two others-Patmeshwar Prasad Roy and Suleman Khan were accepted by the Returning Officer without any objection on E January 22, 1962. Later on the two candidates-Parmeshwar Prasad Roy and . Suleman Khan-withdrew their candidature~. After the poll the respondent, Narain Raja was declared elected as member of the Bihar Legislative Assembly by majority of valid votes. On April 11, 1962 Kedar Pandey filed an election petition challenging the election of the respondent. It was alleged F by Kedar Pandey that the respondent was not duly qualified under Art. 173 of the Constitution of India to be a candidate for elec tion as he was not a citizen of India: According to Kedar Pandey the respondent, bis parents and grand-parents werei all born in Nepal and, therefore, on the date of the election, the respondent- G Narain Raja-was not qualified to be chosen to fill the Assembly seat for which be _had been declared to have been elected. According to Kedar Pandey the respondent was related to the royal family of Nepal and the father of the respondent-Rama Raja-owned about 43 bighas of land and a house at Barewa in Nepal in which the respondent bad a share along with his three other brothers. The . H election petition was contested by the respondent who said that .he was an Indian citizen and there was no disqualification incurred under Art. 173 of the Constitution. The further case of the res pondent was that he had lived in India since his birth and that he was a resident of Ramnagar in the district of Champaran and not of Barewa in Nepal. The respondent claimed that he was born in Banaras and not at Barewa .

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Kl':PAR l'ANDEY .,,, NA.RAJX (Ranuis1ran11'., .J.)

i915

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Upon that

these rival contentions it was held by. the Tribu-. the respondent-Narain Raja-was not a citizen nal of India and. therefore, was not qualified under Art. 173 of the Constitution for being chosen to fill a seat in the Bihar Legislative Assembly. The Tribunal, therefore. declared that the election of the respondent was void. But the Tribunal refused to make a B declaration that Kedar Pandey was entitled to be elected to Bihar Legislative Assembly for that Constituency. Both the appellant and the respondent preferred separate appeals against the judgment of the Election Tribunal to the High Court. of Judicature at Patna. The High Court in appeal set aside the judgment of the Tribunal and upheld the election of the respondent-Narain Raja. The High C Court found, on examination of the evidence, that Narain Raja, the respondent before us, was born in Banaras on October 10, 1918 and that the respondent was living in India from 1939 right upt0 1949 and even thereafter. The High Court further found that long before the year 1949 Narain Raja had acquired a domicile of choice in Indian territory and, therefore, acquired the status of a citizen of India both under Art. 5(a) and (c) of the Constitution. On these findings the High Court took the view that Narain Raja was duly qualified for being elected to the Bihar Legislative Assembly and the election petition filed by the appellant-Kedar Pandey-should be dismissed.

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The main que,tion arising for decision in this case is whether the High Court was right in its conclusion that the respondent Narain Raja-was a citizen of India under Art. 5 of the Constitu tion of India on the material date.

The history of the family of Narain Raja is closely connected with the history of Ranmagar estate. It appears that Ramnagar estate in the district of Champaran in Bihar originally belonged to Shri Prahlad Sen after whose death the estate came into th~ possession of Shri Mohan Vikram Sah, popularly known as Mohan Raja. After the death of Mohan Raja the estate came into the pos session of Rani Chhatra Kumari Devi, the vidow of Mohan Rajd, and after the death of Rani Chhatra Kumari Devi, the estate came into the possession of Rama Raja alias Mohan Bikram in the f~ther of the respondent-Narain Raja. It is Sah, evidence that the daughter of .Prahlad Sen was married to Shri Birendra Vikram Sah, the father of Mohan Raja. Mohan Raja died without any male issue but during his lifetime he had adopt respondent and by ed Rama Raja, virtue of a will executed by Mohan Raja in the year 1904 in fa, mir of his wife Rani Chhatra Kumari Devi the Rani became entitled to the Ramnagar estate on the death of Mohan Raja (which took place in 1912), in preference to the adopted son Rama Raja since the properties belonged to Mohan Raja in his absolute right and not as ancestral properties. After the death of Rani L/P(ll)5'ur-1;

father of

the

the

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I 1965] :l S.C.R.

Chhatra Kumari ·Devi i11 1937· Rama Raja caine into the posses- A sion of the Ramnagar estate. In the year 1923. Rani Chhatra Kumari Devi had tiled R.S. No. 4 of 1923 against Rama Raja in the Court of Sub-Judge, Motihari with regard to a village which Rama Raja held in Ramnagar estate on the basis of a Sadhwa Patwa lease. Rama Raja in turn filed T.S. No. 34 of 192,l in Ille Court of Subordinate Judge of Motihari against Rani Chh3tra B Kumari Devi and others claiming title to Ramnagar estate anti for possession of the same on the basis of his adoption by Mohan Raja. The Title Suit and the R~nt Suit were heard together by the Additional Sub-Judge, Motihari who, by his judgment dated August 18, 1927 decreed the Title Suit filed by Rama Raja and .dismissed the Rent Suit filed by Rani Chhatra Kumari Devi. There C was an appeal to the High Court of Patna which dismissed the appeal. Against the judgment of the High Court appeals were taken to the Judicial Committee of the. Privy Council. The appeal was decided in favour of Rant Chhatra Kumari Devi and the result .vas that the Title Suit filed by Rama Raja was dismissed and Rent D Suit ti led by Rani Chhatra Kumari Devi was decreed. In the course of judgment the Judicial Committee did not disturb the findiug of the trial Court that Rama Raja was an adopted son of Shri Mohan Vikram Sah alias Mohan Raja and accepted that finding as correct; but the Judicial Committee held that Ramnagar estate was not the ancestral property of Mohan Raja, but he got that E property by inheritance, he being the daughter's son of Prahlad Sen, the original proprietor of that estate. In view of this circum stance, the Judicial Committee held that though Rama Raja was .the adopted son of Mohan Raja, Rama Raja was not entitled to. the estate in view of the will executed by Mohan Raja in favour of Rani Chhatra Kumari Devi in .the year 1904. It appears that p in the year 1927 Rama Raja had taken possession of Ramnagar estate and got his name registered in Register D and remained in possession till the year 1931 when he lost the suit in Privy Council. After the decision of Privy Council, Rani Chhatra Knmari Devi again came into possession of Ramnagar estate and continued to remain in possession till she died in 1937. It is in evidence that G after the death of Rani Chhatra Kumari Devi, Rama Raja obtain- ed possession of Ramnagar estate and continued to remain in pos session thereof from 1937 till 1947, the year of his death. There is evidence that Rama Raja died in Bombay and his dead-body was cremated in Banaras.

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It is also in evidence that during the lifetime Qf Rama Raj~ there was a partition suit in the year 1942-No. 40 of 1942-for the partition of the properties of the Ramnagilr estate among Rama Raja and his sons including the respondent. This suit was filed on September 29, 1942 in the Court of the Subordinate Judge at Motihari. A preliminary decree-Ex. 'l (2)-was passed on April 16, 1943 on compromise and the final decree-Ex l'(l) in ·the suit

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w.15 ~3ssed on:May'.!2. 1944._From the two decrees-it appears that !{a:n'nagar. estate w;1s comprised of extensive properties include iac'. <ainindari interest in a large number of villages and the estate h:i:J an :::,tensive area of Bakasht lands. By the said partition the cstat~ ·was divided among the co-sharers but certain properties in- dudi11~ fooests in the estate were left joint.

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·On behalf of the appellant Mr. Aggarwala put forward the argument that the High Court was not justified in holding that Narain Raja was born in Bnnaras in the_ year 1918. According to · the case of the appellant Narain Raja· was born at a place called _ • Barewa in Nepal. In order . to prove his case the appellant -

C examined two witnesses-Sheonath Tewari (P.W. 18) and N: D. Pathak (P.W. 15). The High Court held that their evidence was acceptable. There was also a plaint <Ex. 8) produced on behalf of the appellant to show that Narain Raja was born at Barewa. T1ilil plaint was apparently filed in a suit brought by the respondent for the realisation of money advanced by the respondent's mother to D one Babula) Sah. The place of birth of the respondent is men-. tJOI~ed in this plaint as Barewa Durbar. The High Court did not atta.:h imilortance to Ex. 8 because· it took the view that the des cription of the place of birth given in the document was only for the purpose of litigation. It further appears from Ex. 8 that it was not _ <igned by the respondent but by one Subhan Mian Jolaha d_es· 'Agent". On behalf of the respondent R.W.19-G. S.

E cribed as

0

Prasad was examined to prove that Narain Raja was born at. Banaras. The High Court accepted the evidence of this witness and also of the respondent himself on ·this point. It was submitted by Mr. Aggarwala that there were two circumstances which indicate that the respondent could not have been born at Banaras: In the -- F _first place, it was pointed out, the municipal registers of Banaras . for the year 1918-Ex, 2 series-did not mention the birth of the respondent. It was explained on behalf of the:resl'ondent thar tho house at Mamurganj in which- the respondent was born was not . included within the limits of the municipality in the year 1918, and - that the omission of the birth of the respondent in the municipal -registers was therefore, of no significance. It was ·contended on b~h31f of the appellant that there was litigation with regard to pro perties of Ramnagar estate between the respondent's father and Rani Chhatra Kumari Devi and therefore the evidence of P.W. Y. G. S. Prasad that Rama Raja was living with Rani Chhatra Kumari · n · Devi at Ramnagar even during her lifetime cannot <be accepted_ ~s true. It was, therefore, suggested that it was highly improbable that Narain Raja should have been born at Banaras iii the year 1918, as alleged; in the house belonging_ to Ramnagar estate. We do not, however, think it necessary to express any concluded opinion on this question of fact but proceed to decide the case 011 . the assumption that Narain Raja was not born in the territory of India, in the year 1918. The reason is that the place of birth

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REPORTS

°[1965) 3 S.C.R.

of Narain Raja has lost its importance in this case in view of the A. concurrent findings of both the High Court and the Tribunal that for a period of 5 years preceding the commencement of the Cons titution. Narain Raja was ordinarily resident in the territory of India. Therefore the requirement of Art. S(c) of the Constitutio1? is fulfilled. Mr. Aggarwala on behalf of the appellant did not cha1- lenge this finding of the High Court. It is. therefore, manifest that B the reqmreroent of Art. 5 (cl of the Constitution has been estab lished anc: the only question remaining for oonsideration is th~ question whether Narain Raja had his dornicil in the territory of India at the material time.

Upon this question it was argued before the High Court on C

behalf ,Qf the respondent that the domicil of origin of Mohan Raja may have been in Nepal but he had acquired a domicile of choice in India after inheriting Ramnagar Raj from his maternal grand father Prahlad Sen. It was said that Mohan Raja had settled down in India and had married all his 4 Ranis in Ramnagar. It was argued, therefore, that at the time when Mohan Raja had adopted D Rama Raja in 1903 Mohan Raja's domicil of choice was India. It was said that by adoption in 1903 Rama Raja became Mohan Raia's son and by fiction it must be taken foal Rama Raja's do:ni- cii was India as if he was Mohan Raja 's son. It was contended in the alternative that whatever may have been Rama R<1ja's domicil E hefore 1937 when Rani Chhatra Kumari Devi died, Rama Raja acauired a domicil of choice in India when he came to India ou the death of Rani Chhatra Kumari Devi. It was also stated on behalf of the respondent that Rama Raja remained in possession of the Ramnagar estate until his death in 1947. The High Court, however. held. upon examination of the evidence, that there was F no material on the record to decide 1he question of Mohan Raja's domicil. It was also held by the High Court that it was not pos sible to ascertain from the evidence whether there was any inten tion of Rama Raja to settle down in India and make it his per manent home. In any event. Narain Raja was born in the year 1918 and unless the domicil of Rama Raja in 1918 was ascertained the G domicil of origin of Narain Raja will remain unknown. The High Court therefore, proceeded upon the assumption that Narain Raja had his domicil of origin in Nepal and examined the evidence to find out whether Narain Raja had deliberately ~hosen the domicil of choice in India in substitution for the domicil of origin.

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The crucial question for determination

in this. case. there fore. is whether Narain Raja had acquired the domicil of choice in India.

The law on the topic is well-established but the difficulty is found in its application to varying combination of circumstances In each case. The law attributes to every person at birth a domicil

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KEDAR PANDE_Y v. NARAIN (Rar,uiswami, J.)

799

-, ' .'\ which is called a domicil of origin. This domicil may be changed.

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~"'' a new domicil, which· is called a domicil of choice, acquired; • hut the two kinds of domicil differ in one respect. The domicil of - - origin is received by operation of Jaw at birth; the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. The B domicil of origin is determined by the domicil, at the time of the child's birth. of that person upon whom he is legally depende'nt. A legitimate child born in a wedlock to a living father receives - - the domicil of the father at the time of the-birth; a posthumous that of the mother at that time. A> legitimate child receives regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for .himH~lf a domicil of choice by the fact of residing· in a country other than that. of his domicil of origin with tinuing to_ reside there indefinitely. For- this purpose residence 'is a mere physical fact,- and means no more than personal D presence in a locality, regarded apart from any of the circum stances attending it. If this physical .fact is accompanied by the required state of mind, neither its character nor its duration is in ' any way material. The state of mind, or animus manendi, which is . required demands that the person whose· domicil is the object of the inquiry should have formed' a fixed and settled purpose of E making his principal or sole permanent home in the country of residence, or, in effect, h~ should have formed a deliberate intm tion to settle there. It is also well-established that the· onus· of proving that a domicilhas been _chosen .in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost. The domicil of origin -. continues unless a lixed and settled intention of abandoning the first domicil and acquiring another as the sole domicil is clearly shown (see Winans v. Attorney-Genera/.(') In Munro v. Munro(') Lord Cottenham st•tes the rule as follows:

intemion of con- _

the

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''The domicil of -origin must prevail until the party ~has not only acquired another, but has manifested and carried into execution an intention of abandoning his for· _ _ mer -domicil. and acquiring another as his sole domicil. · To effect this abandonment of the domicil of origin, and substitute another in its place, it required animo et facto. that is. the choice of a place. actual residence in the place _then chosen and that it shotild be the principal and per- manent residence, the spot where he had placed larem rerumque ac fortunarum suarum summam. In fact. there must be both residence and intention. Residence alone has no effect, per se, though it may be most important as a g10und from which to infer intention." -

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_') [IW!] A.C. 287. ~) 7 er. & Fin. 876 •.

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BUl'RE!.IR COURT

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(196/i} 3 .;.< 0.R.

In Aikman v. Aikman('), Lord Campbell has discussed the ques· A tion of the effect on domicil of an int~ntion to return to the native country, where such intention is attributable to an undefined aml remote contingency. He said:

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"If a man is settled in a foreign country. engaged in some permanent pursuit requiring his residence there, a mere intention to return to his native country on a doubt· ful contingency, will .not prevent such a residence in a foreign country from putting an end to his domicil of origin. But a res~Jence in a foreign country for pleasure, lawful or illicit, which .residence may be changed at any moment, without the violation of any contract or any duty. and is accompanied by an intention of going back to reside in the place of bittll, or the happening of an event which in the course of nature must speedily happen, cannot be considered as indicating the purpose to live and die abroad."

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On behalf of the appellant Mr. Aggarwala relied on the de.:i sion of the House of Lords in Moorhouse v. Lord(') in which it was held<hat in order to lose a domicil of origin, and to acquire a new domicil, a man must intend q1Jatenus in illo .exuere patriam and there must be a change of nationality, that is natural allegiance It is not enough for him to take a house in tile new country. E even with the probability and the belief that he may remain there all the da:ys of his life. But the principle laid ·down in this case was discussed in Udny v. Udny(") which decision is the leading authority on what c9nstitute a; domicil, of choice taking the place of a domicil of origin. It is there pointed out by Lord Westbury that the expressions used in Moorhouse v. Lord('), as to the intent F e:x1tere patriam, are calculated to mislead, and go beyond the ques ti""· of domicil. At page 458 Lord Westbu~y states:

"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with the intention of continuing to reside there for an unlimited time. This is description of the circumstances which create or constitute it domicil and not a definition of the term. There must be residence freely chosen and not prescrib- e« or dictated by any external necessity, such as the ctuties of office; the demands of creditors, or the relief from illness, and it must be a residence fixed, not for a limited period or particlllar ·purpose, but general and indefinite in its future cmttemplation. It is true that resi· dence, originally temporary or intended for a limited

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(') 3 Mac Q., H.L.C. 854. (') 10 H L. Cas. 272. (') L.R 1 HL. Sc. 441.

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period, may, afterwards become general and unlimite•j; and in such a case, so soon as the change of purpose. or animus monendi, can be inferred, the fact .of domicil is established."

[n tbe ne:.t case-Doucet v. Gl?og/;egan(') the Court of Appeal deCl(•ed th2t the testator bad. acquired an English domicil; and one of the main facts relied on was that he had twice married in E'nQlanJ in a manner not conforming to the formalities which ne required by the French Law for the legalisation of marriages of Frenchmen in a foreign country. James L. J. stated as fol· lows:

"Both his marriages were acts c:>f. unmitigaU!d scoundrel'. ism if he was not a domiciled Enghshman. He hro~ght up his children in this country; he made his will in this country, professing to exercise testamentary rights which he would not have if he hnd not been an English man. Then with respect to his declarations. what do they amount to? He is reported to have said that when he had made his fortune he would go back to France. A man who says that, is like a man who expects to reach the horizon and finds it at last no nearer than it was at the beginning of his journey. Nothing can be imagined more indefinite than such declarations. They cannot out weiJh the focts of the testator's life."

In our opinion, the decisions of the English Courts in Udny v. l!ndv(') and Doucet v. Geoghegan(') represent the correct law with regard to change of domicil of origin. We are of the view that the only intention required for a proof of a change of domicil is an intention of permanent residence. In other words, what is required to be established is that the person who is alleged to have changed his domicil of origin has voluntarily fixed the habitation of himself and bis family in the new country. not for a mere special of temporary purpose, but with a present intention of making it hi' permanent home.

Against this background of law we have to consider the facts in the present case for deciding whether Narain Raja had adopted India as his permanent residence with the intention of making a clomicil of choice there. In other words, the test is whether Narain Raia had formed the fixed and settled purpose of making his home in India with the intention of establishing himself and his famil) tn India.

(' J 9 Ch. Div. 441.

(') L.R 1 H.L. Sc. 441.

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SUPREME COURT REPORTS

[1965] 3 s.c.n.

The following facts i,ave been either admitted by the parties or A

after

lived

looking

the properties which were

in his father's palace. There

found to be established in this case. Narain Raja was educated in Calcutta from 1934 to 1938. From the year 1938 onwards Narain Raja lived in Ramnagar. After Rama Raja's death in 1947 Narain Raja continued to live in Ramnagar, being in possession of pro perties obtained by him under compromise in 1944. In the course B of his statement Narain Raja deposed that his father had built a palace in Ramnagar between 1934 and 1941 and thereafter Narain Raja himself built a house at Ramnagar. Before he had built his house, Narain Raja is the partition suit between Narain Raja and his brothers in the year 1942. Exhibits 1(2) and 1(1) are the preliminary and C final decrees granted in that suit. After the partition Narain Raja was left joint and was the manager thereof. The extensive forests of Ramnagar estate were not partitioned and they had been left joint. Narain Raja used to make settlement of the forests on behalf of the Raj and pattas used to be executed by him. After partition, D he and his wife acquired properties in the district of Champaran, in Patna and in other places. Narain Raja and his wife and children possessed 500 or 600 acres of land in the district of Champaran. Narain Raja managed these properties from Ramnagar. He had also his houses in Bettiah, Chapra, Patna and Benaras. The forest settlements are supported by Exhibits X series, commencing from E 1943, and by Ex. W of the year 1947. Then, there ate registered pattas excluded by Narain Raja of the year· 1945, which, are Bxs. WI 3, WI 4, and WI 5. There are documents which prove acquisition of properties in the name of Narain Raja's wife-F(I), F(2). F(3) and F(5). Exhibit F(4) shows the purchase of 11 bighas and odd land at Patna by Ji.larain Raja. It is also important to F notice that Narain Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by the Gqvernor-General of India and he is described in that Passport as Indian by birth and nationality and his address is given as Ramnagar of Champaran district. In the course of his evidence Narain Raja said that he had been to Barewa for the first time with his father when he was 10 or G 12 years old. He also said that he had not gone to Barewa for ten years before 1963.

The High Court considered that for the determination of the B

question of domicil of a person at a particular time, the 'course of his conduct and the facts and circumstances before and after that time are relevant. We consider that the view taken by the High Court on this point is correct and for considering the doinicil of Narain Raja on the date of coming into force of the Constitution of India his conduct and facts and circumstances subsequent to the time should also be taken into account. This view is borne

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KEDAR PANDEY v. NARAIN (&ma.swami, J.)

803

out by the decision of the Chance~y Co?rt in In re. G_rove Vaucher v. The Solicitor to the Treasury(') m which the dom1cil .of one Marc Thomegay in 1744 was at issue and various facts and clfcumstances after 17 44 were considered to be relevant. At page 242 of the report Lopes, L. J. has stated :

"The domicil of an independent person is constituted by the factum of resid.ence !n a coun!fY ~nd the animus manendi, that is, the mtent10n to reside m that country for an indefinite period. During the argument it was con tended that the conduct and acts of Marc Thomegay sub sequently to February, 1744, at the time of the birth of Sarah were inadmissible as evidence of Marc Thomegay's intention to permanently reside in this country at that time. It was said that we must not regard such conduct and acts in determining what the state of Marc Thome gay's mind was in February, 1744. For myself I do not hesitate to say I was surprised at such a contention; it. is opposed to all the rules of evidence, and all the authori ties with which I am acquainted. I have always under stood the law to be, that in order to determine a person's intention at a given time, you may regard not only con puct and acts before and at the time, but also con duct and aets after the time, assigning to such conduct and acts their relative and proper weight of cogency. The law, I thought, was so well-established on that subject that I to allude to this contention, unless I had understood that the prcpriety of admitting this evidence was somewhat questioneci by Lord Justice Fry, a view which I rather now gather from his judgment he has relinquished."

should not have

it necessary

thought

We are, therefore, of opinion that the conduct and activities of Narain Raja subsequent to the year 1949 are relevant but we shall decide the q ue,Lion of his domicil in this case mainly in the light of his conduct and activities prior to the year 1949.

Reverting to the history of Narain Raja's life from 1950 on

wards, it appears that he had married his wife in 1950. His wife· belonged to Darkoti in Himachal Pradesh near Patiala. The mar riage had taken place at Banaras. Narain Raja had a son and a daughter by that marriage and according to his evidence the daughter was born in Banaras and the son was born in Bettiah. The daughter prosecutes her studies in Dehradun. In 1950 or 1951 Naraiil Raja had established a Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem Janani Sanskrit Vidyalaya. The story or Narain Raja's political activities is as follows: There was a Union Board in Ramnagar before Gram Panchayats had come into existence, of which Narain Raja was the Chairman or President.

(') (1889) 40 Ch. D. 216.

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SUPREllE COURT REPOBTS

[1965] 3 S.C.R.

After Gram Panchayats were establish~d, the Union Board A was abolished. Narain Raja was a voter m the Gram Panchay:n and he was elected as the Vice-President of the Union called C.D.C.M. Union of Ramnagar. For the General Elections held in 1952 Narain Raja was a voter from Ramnagar Constituency. Tn the- General Election of 1957 he stood as a candidate .opposini: Kedar Pandey. Thereafter, he became the President of the Bettiah B Sub-divisional Swatantra Party and Champaran District Swataµtra Party.

then Vice-President of

Taking all the events and circumstances of Narain Raja's lifo into account we are satisfied that Jpng before the ena of 1949 which is the material time under Art. 5 of the Constitution, Narain C Raja had acquired a domiciil of choice in India. In other words, Narain Raja had formed the deliberate intention of making his borne with the intention of permanently establishing himself and his family in India. In our opinion, the requisite animus manendi ha~ been proved and the finding of the High Court is correct.

D

On behalf of the appellant Mr. Aggarwala su~gested that there were two reasons to show that Narain Raja had no intention ol making his domicil of choice in India Reference was made, in this context, to Ex. lO(c) which is a khatian prepared in 1960. showing certain properties standing in the name of Narain Raja and his brothers in Nepal. It was argued that Narain Raja bnd E property in Nepal and so he could not have any intention of living in India permanently. It is said by the respondent that the total area of land mentioned. in the khatian was about 43 bighas. The case of Narain Raja is that the property had belonged to his natural grandmother named Kanchhi Maiya who had gifted the land to Rama Raja. The land was the exclusive property of Rama F Raja, and after his death, the property devolved upon his sons. The case of Narain Raja on this point is proved by a Sanad <Ex. AA). In any event, we are not satisfied that the circumstance of Narain Raia owning the property covered by Ex. 1 O(c) can outweigh the fact that Narain Raja alone had extensive properties Q in India after the partition decree of the year 1944.

' It was also pointed out on behalf of the appellant that Narain Raja, and before him Rama Raja, had insisted upon designatinu themselves "Sri 5" indicating that they belonged to the royal family of Nepal. It was argued on behalf of the appellant that Narain H Raja had clung tenaciously to the title of "Sri 5", thereby indi cating the intention of not relinquishing the claim to the throne of Nepal if at any future date succession to the throne falls to a junicr member of the family of the King of Nepal. We do. not think there is any substance in this argument. It is likely that Narain Raja and his father Rama Raja had prefixed the title of "Sri 5" to their names owing to the pride of their ancestry and sentimental

005

A

B

0

D

an::chrncnt to the traditional title and this circumstance has no bearing on the question of domicil. Succession to throne of Nepal is gcverned by the rule of primogeniture and it cannot be believed :hat as the second son of his father, Narain Raja could ever hope to ascend to the throne of Nepal, and we think it is unreasonable to suggest that he descr:bcd himself as "Sri .5" with the intention of keeping alive his ties with Nepal. There was evidence in this case that Narain Raja's elder brother Shiv Bikram Sah has left mak issues.

For the reasons expressed, we held that Narain Raja had acquired domicil of choice in India when Art. 5 of the Constitu tion came into force. We have already referred to the finding of the High Court that Narain Raja was ordinarily resident in India ror 5 years immediately preceding the time when Art. 5 .of the Ccn stitution came into force. It is manifest that the requirements of Arl. 5(c) of the Constitulion are satisfied in this case and the High Court rightly reached the conclusion that Narain Raja was a citizen of India at the relevant time.

We accordinp,ly dismiss both these appeals with ccsts. One

set

Appeals dismissed.