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Kedar Pandey Vs. NaraIn Bikram Sah - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Reported inAIR1966SC160; 1965(0)BLJR755; [1965]3SCR793
ActsConstitution of India - Articles 5 and 173
AppellantKedar Pandey
RespondentNaraIn Bikram Sah
Cases ReferredGrove Vaucher v. The Solicitor
election - disqualification - articles 5 and 173 of constitution of india - respondent declared elected - validity of his election challenged on ground that he is not citizen of india - election tribunal found him disqualified under article 173 - high court set aside judgment of election tribunal and upheld election of respondent valid - tribunal and high court both found that requirement of article 5(c) has been fulfilled by respondent appeal preferred to supreme court - only question to be decided is whether respondent had acquired domicile of choice in india - such question to be decided on basis that whether respondent formed and fixed settled purpose of making his home in india with intention of establishing himself and his family - taking all events of respondent's life into account.....ramaswami, j. 1. both these appeals are brought by certificate against the judgment anddecree of the high court of judicature at patna dated march 26, 1964,pronounced in election appeals nos. 8 and 10 of 1963. 2. the appellant - kedar pandey and the respondent - narain bikram sah(hereinafter called narain raja) were the contesting candidates in the year1962 on behalf of the congress and swatantra party respectively for theelection to bihar legislative assembly from ramnagar constituency in thedistrict of champaran. the nomination papers of the appellant and therespondent and two other - parmeshwar prasad roy and suleman khan - wereaccepted by the returning officer without any objection on january 22, 1962.later on the two candidates - parmeshwar prasad roy and suleman khan - withdrewtheir.....

Ramaswami, J.

1. Both these appeals are brought by certificate against the judgment anddecree of the High Court of Judicature at Patna dated March 26, 1964,pronounced in Election Appeals Nos. 8 and 10 of 1963.

2. The appellant - Kedar Pandey and the respondent - Narain Bikram Sah(hereinafter called Narain Raja) were the contesting candidates in the year1962 on behalf of the Congress and Swatantra Party respectively for theelection to Bihar Legislative Assembly from Ramnagar Constituency in thedistrict of Champaran. The nomination papers of the appellant and therespondent and two other - Parmeshwar Prasad Roy and Suleman Khan - wereaccepted by the Returning Officer without any objection on January 22, 1962.Later on the two candidates - Parmeshwar Prasad Roy and Suleman Khan - withdrewtheir candidatures. After the poll the respondent, Narain Raja was declared electedas member of the Bihar Legislative Assembly by majority of valid votes. OnApril 11, 1962 Kedar Pandey filed an election petition challenging the electionof the respondent. It was alleged by Kedar Pandey that the respondent was notduly qualified under Art. 173 of the Constitution of India to be a candidatefor election as he was not a citizen of India. According to Kedar Pandey therespondent, his parents and grand-parents were all born in Nepal and,therefore, on the date of the election, the respondent - Narain Raja-was notqualified to be chosen to fill the Assembly seat for which he had been declaredto have been elected. According to Kedar Pandey the respondent was related tothe royal family of Nepal and the father of the respondent - Rama Raja - ownedabout 43 bighas of land and a house at Barewa in Nepal in which the respondenthad a share along with his three other brothers. The election petition wascontested by the respondent who said that he was an Indian citizen and therewas no disqualification incurred under Art. 173 of the Constitution. Thefurther case of the respondent was that he had lived in India since his birthand that he was a resident of Ramnagar in the district of Champaran and not ofBarewa in Nepal. The respondent claimed that he was born in Banaras and not atBarewa.

3. Upon these rival contentions it was held by the Tribunal that therespondent - Narain Raja - was not a citizen of India and, therefore, was notqualified under Art. 173 of the Constitution for being chosen to fill a seat inthe Bihar Legislative Assembly. The Tribunal, therefore, declared that theelection of the respondent was void. But the Tribunal refused to make adeclaration that Kedar Pandey was entitled to be elected to Bihar LegislativeAssembly for that Constituency. Both the appellant and the respondent preferredseparate appeals against the judgment of the Election Tribunal to the HighCourt of Judicature at Patna. The High Court in appeal set aside the judgmentof the Tribunal and upheld the election of the respondent - Narain Raja. TheHigh Court found, on examination of the evidence, that Narain Raja, therespondent before us, was born in Banaras on October 10, 1918 and therespondent was living in India from 1939 right upto 1949 and even thereafter.The High Court further found that long before the year 1949 Narain Raja hadacquired a e of choice in Indian territory and, therefore, acquired thestatus 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 dulyqualified for being elected to the Bihar Legislative Assembly and the electionpetition filed by the appellant - Kedar Pandey - should be dismissed.

4. The main question arising for decision in this case is whether the HighCourt was right in its conclusion that the respondent - Narain Raja - was acitizen of India under Art. 5 of the Constitution of India on the materialdate.

5. The history of the family of Narain Raja is closely connected with thehistory of Ramnagar estate. It appears that Ramnagar estate in the district ofChamparan in Bihar originally belonged to Shri Prahlad Sent after whose deaththe estate came into the possession of Shri Mohan Vikram Sah, popularly knownas Mohan Raja. After the death of Mohan Raja the estate came into thepossession of Rani Chhatra Kumari Devi, the widow of Mohan Raja, and after thedeath of Rani Chhatra Kumari Devi, the estate came into the possession of RamaRaja alias Mohan Bikram Sah, the father of the respondent - Narain Raja. It isin evidence that the daughter of Prahlad Sen was married to Shri BirendraVikram Sah, the father of Mohan Raja. Mohan Raja died without any male issuebut during his lifetime he had adopted Rama Raja, the father of the respondentand by virtue of a will executed by Mohan Raja in the year 1904 in favour ofhis wife Rani Chhatra Kumari Devi the Rani became entitled to the Ramnagarestate on the death of Mohan Raja (which took place in 1912), in preference tothe adopted son Rama Raja since the properties belonged to Mohan Raja in hisabsolute right and not as ancestral properties. After the death of Rani ChhatraKumari Devi in 1937 Rama Raja came into the possession of the Ramnagar estate.In the year 1923, Rani Chhatra Kumari Devi had filed R.S. No. 4 of 1923 againstRama Raja in the Court of Sub-Judge, Motihari with regard to a village whichRama Raja held in Ramnagar estate on the basis of a Sadhwa Patwa lease. RamaRaja in turn filed T.S. No. 34 of 1924 in the Court of Subordinate Judge ofMotihari against Rani Chhatra Kumari Devi and others claiming title to Ramnagarestate and for possession of the same on the basis of his adoption by MohanRaja. The Title Suit and the Rent Suit were heard together by the AdditionalSub-Judge, Motihari who, by his judgment dated August 18, 1927 decreed theTitle Suit filed by Rama Raja and dismissed the Rent Suit filed by Rani ChhatraKumari Devi. There was an appeal to the High Court of Patna which dismissed theappeal. Against the judgment of the High Court appeals were taken to theJudicial Committee of the Privy Council. The appeal was decided in favour ofRani Chhatra Kumari Devi and the result was that the Title Suit filed by RamaRaja was dismissed and Rent Suit filed by Rani Chhatra Kumari Devi was decreed.In the course of judgment the Judicial Committee did not disturb the finding ofthe trial Court that Rama Raja was an adopted son of Shri Mohan Vikram Sahalias Mohan Raja and accepted that finding as correct; but the Judicial Committeeheld that Ramnagar estate was not the ancestral property of Mohan Raja, but hegot that property by inheritance, he being the daughter's son of Prahlad Sen,the original proprietor of that estate. In view of this circumstance, theJudicial Committee held that though Rama Raja was the adopted son of MohanRaja, Rama Raja was not entitled to the estate in view of the will executed byMohan Raja in favour of Rani Chhatra Kumari Devi in the year 1904. It appearsthat in the year 1927 Rama Raja had taken possession of Ramnagar estate and gothis name registered in Register D and remained in possession till the year 1931when he lost the suit in Privy Council. After the decision of Privy Council,Rani Chhatra Kumari Devi again came into possession of Ramnagar estate andcontinued to remain in possession till she died in 1937. It is in evidence thatafter the death of Rani Chhatra Kumari Devi, Rama Raja obtained possession ofRamnagar estate and continued to remain in possession thereof from 1937 till1947, the year of his death. There is evidence that Rama Raja died in Bombayand his dead-body was cremated in Banaras.

6. It is also in evidence that during the lifetime of Rama Raja there was apartition suit in the year 1942 - No. 40 of 1942 - for the partition of theproperties of the Ramnagar estate among Rama Raja and his sons including therespondent. This suit was filed on September 29, 1942 in the Court of theSubordinate Judge at Motihari. A preliminary decree - Ex. 1(2) - was passed onApril 16, 1943 on compromise and the final decree - Ex 1(1) in the suit waspassed on May 22, 1944. From the two decrees it appears that Ramnagar estatewas comprised of extensive properties including zamindari interest in a largenumber of villages and the estate had an extensive area of Bakasht lands. Bythe said partition the estate was divided among the co-shares but certainproperties including forests in the estate were left joint.

7. On behalf of the appellant Mr. Aggarwala put forward the argument thatthe High Court was not justified in holding that Narain Raja was born inBanaras in the year 1918. According to the case of the appellant Narain Rajawas born at a place called Barewa in Nepal. In order to prove his case theappellant 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 wasalso a plaint (Ex. 8) produced on behalf of the appellant to show that NarainRaja was born at Barewa. This plaint was apparently filed in a suit brought bythe respondent for the realisation of money advanced by the respondent's motherto one Babulal Sah. The place of birth of the respondent is mentioned in thisplaint as Barewa Durbar. The High Court did not attach importance to Ex. 8because it took the view that the description of the place of birth given inthe document was only for the purpose of litigation. It further appears fromEx. 8 that it was not signed by the respondent but by one Subhan Mian Jolahadescribed as 'Agent'. On behalf of the respondent R.W. 9 - G. S. Prasad wasexamined to prove that Narain Raja was born at Banaras. The High Court acceptedthe evidence of this witness and also of the respondent himself on this point.It was submitted by Mr. Aggarwala that there were two circumstances whichindicate that the respondent could not have been born at Banaras : In the firstplace, 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 explainedon behalf of the respondent that the house at Mamurganj in which the respondentwas born was not included within the limits of the municipality in the year1918, and that the omission of the birth of the respondent in the municipalregisters was therefore, of no significance. It was contended on behalf of theappellant that there was litigation with regard to properties of Ramnagarestate between the respondent's father and Rani Chhatra Kumari Devi andtherefore the evidence of P.W. 9, G. S. Prasad that Rama Raja was living withRani Chhatra Kumari Devi at Ramnagar even during her lifetime cannot beaccepted as true. It was, therefore, suggested that it was highly improbablethat Narain Raja should have been born at Banaras in the year 1918, as alleged,in the house belonging to Ramnagar estate. We do not, however, think itnecessary to express any concluded opinion on this question of fact but proceedto decide the case on the assumption that Narain Raja was not born in theterritory of India, in the year 1918. The reason is that the place of birth ofNarain Raja has lost its importance in this case in view of the concurrentfindings of both the High Court and the Tribunal that for a period of 5 yearspreceding the commencement of the Constitution Narain Raja was ordinarilyresident in the territory of India. Therefore the requirement of Art. 5(c) ofthe Constitution is fulfilled. Mr. Aggarwala on behalf of the appellant did notchallenge this finding of the High Court. It is, therefore, manifest that therequirement of Art. 5(c) of the Constitution has been established and the onlyquestion remaining for consideration is the question whether Narain Raja hadhis domicile in the territory of India at the material time.

8. Upon this question it was argued before the High Court on behalf of therespondent that the domicileof origin of Mohan Raja may have been in Nepal buthe had acquired a domicile of choice in India after inheriting Ramnagar Rajfrom his maternal grandfather Prahlad Sen. It was said that Mohan Raja hadsettled down in India and had married all his 4 Ranis in Ramnagar. It wasargued, therefore, that at the time when Mohan Raja had adopted Rama Raja in1903 Mohan Raja's domicile of choice was India. It was said that by adoption in1903 Rama Raja became Mohan Raja's son and by fiction it must be taken thatRama Raja's domicile was India as if he was Mohan Raja's son. It was contendedin the alternative that whatever may have been Rama Raja's domicile before 1937when Rani Chhatra Kumari Devi died, Rama Raja acquired a domicileof choice inIndia when he came to India on the death of Rani Chhatra Kumari Devi. It wasalso stated on behalf of the respondent that Rama Raja remained in possessionof the Ramnagar estate until his death in 1947. The High Court, however, held,upon examination of the evidence, that there was no material on the record todecide the question of Mohan Raja's domicile. It was also held by the High Courtthat it was not possible to ascertain from the evidence whether there was anyintention of Rama Raja to settle down in India and make it his permanent home.In any event, Narain Raja was born in the year 1918 and unless the domicileofRama Raja in 1918 was ascertained the domicileof origin of Narain Raja willremain unknown. The High Court therefore, proceeded upon the assumption thatNarain Raja had his domicileof origin in Nepal and examined the evidence tofind out whether Narain Raja had deliberately chosen the domicile of choice inIndia in substitution for the domicile of origin.

9. The crucial question for determination in this case, therefore, iswhether Narain Raja had acquired the domicileof choice in India.

10. The law on the topic is well-established but the difficulty is found inits application to varying combination of circumstances in each case. The lawattributes to every person at birth a domicilewhich is called a domicile oforigin. This domicile may be changed, and a new domicile, which is called adomicile of choice, acquired; but the two kinds of domicile differ in one respect.The domicile of origin is received by operation of law at birth; the domicile ofchoice is acquired later by the actual removal of an individual to anothercountry accompanied by his animus manendi. The domicile of origin is determinedby the domicile, at the time of the child's birth, of that person upon whom heis legally dependent. A legitimate child born in a wedlock to a living fatherreceives the domicile of the father at the time of the birth; a posthumouslegitimate child receives that of the mother at that time. As regards change ofdomicile, any person not under disability may at any time change his existingdomicile and acquire for himself a domicile of choice by the fact of residing ina country other than that of his domicile of origin with the intention ofcontinuing to reside there indefinitely. For this purpose residence is a merephysical fact, and means no more than personal presence in a locality, regardedapart from any of the circumstances attending it. If this physical fact isaccompanied by the required state of mind, neither its character nor itsduration is in any way material. The state of mind, or animus manendi, which isrequired demands that the person whose domicile is the object of the inquiryshould have formed a fixed and settled purpose of making his principal or solepermanent home in the country of residence, or, in effect, he should haveformed a deliberate intention to settle there. It is also well-established thatthe onus of proving that a domicile has been chosen in substitution for thedomicile of origin lies upon those who assert that the domicile of origin hasbeen lost. The domicile of origin continues unless a fixed and settled intentionof abandoning the first domicile and acquiring another as the sole domicileisclearly shown (see Winans v. Attorney-General. [1904] A.C.287 In Munro v.Munro 7 CI. 876 Lord Cottenham states the rule as follows :

'The domicile of origin must prevail until the partyhas not only acquired another, but has manifested and carried into execution anintention of abandoning his former domicile, and acquiring another as his soledomicile. To effect this abandonment of the domicile of origin, and substituteanother in its place, it required animo et facto, that is, the choice of aplace, actual residence in the place then chosen and that it should be theprincipal and permanent residence, the spot where he had placed larem rerumqueac fortunarum suarum summam. In fact, there must be both residence andintention. Residence alone has no effect, per se, though it may be mostimportant as a ground from which to infer intention.'

11. In Aikman v. Aikman 3 Mac 854, Lord Campbell has discussedthe question of the effect on domicile of an intention to return to the nativecountry, where such intention is attributable to an undefined and remotecontingency. He said :

'If a man is settled in aforeign country, engaged in some permanent pursuit requiring his residencethere, a mere intention to return to his native country on a doubtfulcontingency, will not prevent such a residence in a foreign country fromputting an end to his domicile of origin. But a residence in a foreign countryfor 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 anintention of going back to reside in the place of birth, or the happening of anevent which in the course of nature must speedily happen, cannot be consideredas indicating the purpose to live and die abroad.'

12. On behalf of the appellant Mr. Aggarwala relied on the decision of theHouse of Lords in Moorhouse v. Lord 10 H.L. Cas 272 in which it was heldthat in order to lose a domicile of origin, and to acquire a new domicile, a manmust intend quatenus in illo exuere patriam and there must be a change ofnationality, that is natural allegiance. It is not enough for him to take ahouse in the new country, even with the probability and the belief that he mayremain there all the days of his life. But the principal laid down in this casewas discussed in Udny v. Udny L.R. 1 H.L. 441 which decision is theleading authority on what constitute a domicileof choice taking the place of adomicile of origin. It is there pointed out by Lord Westbury that theexpressions used in Moorhouse v. Lord 10 H.L. Cas. 272 as to the intentexuere patriam, are calculated to mislead, and go beyond the question ofdomicile. At page 458 Lord Westbury states :

'Domicile of choice is a conclusion or inferencewhich the law derives from the fact of a man fixing voluntarily his sole orchief residence in a particular place, with the intention of continuing toreside there for an unlimited time. This is description of the circumstanceswhich create or constitute a domicile and not a definition of the term. Theremust be residence freely chosen and not prescribed or dictated by any externalnecessity, such as the duties of office, the demands of creditors, or therelief from illness, and it must be a residence fixed, not for a limited periodor particular purpose, but general and indefinite in its future contemplation.It is true that residence, originally temporary or intended for a limitedperiod, may, afterwards become general and unlimited; and in such a case, sosoon as the change of purpose, or animus manendi, can be inferred, the fact ofdomicile is established.'

13. In the next case - Doucet v. Geoghegan 9 Ch. Div. 441 the Court ofAppeal decided that the testator had acquired in English domicile; and one ofthe main facts relied on was that he had twice married in England in a mannernot conforming to the formalities which are required by the French Law for thelegalisation of marriages of Frenchmen in a foreign country. James L.J. statedas follows :

'Both his marriages were acts of unmitigatedscoundrelism, if he was not a domiciled Englishman. He brought up his childrenin this country; he made his will in this country, professing to exercisetestamentary rights which he would not have if he had not been an Englishman.Then with respect to his declarations, what do they amount to He is reportedto have said that when he had made his fortune he would go back to France. Aman who says that, is like a man who expects to reach the horizon and finds itat last no nearer than it was at the beginning of his journey. Nothing can beimagined more indefinite than such declarations. They cannot outweigh the factsof the testator's life.'

14. In our opinion, the decisions of the English Courts in Undy v. UndyL.R. 1 H.L.44 and Doucet v. Geoghegan represent the correct law withregard to change of domicile of origin. We are of the view that the onlyintention required for a proof of a change of domicile is an intention ofpermanent residence. In other words, what is required to be established is thatthe person who is alleged to have changed his domicile of origin has voluntarilyfixed the habitation of himself and his family in the new country, not for amere special of temporary purpose, but with a present intention of making ithis permanent home.

15. Against this background of law we have to consider the facts in thepresent case for deciding whether Narain Raja had adopted India as hispermanent residence with the intention of making a domicile of choice there. Inother words, the test is whether Narain Raja had formed the fixed and settledpurpose of making his home in India with the intention of establishing himselfand his family in India.

16. The following facts have been either admitted by the parties or found tobe established in this case. Narain Raja was educated in Calcutta from 1934 to1938. From the year 1938 onwards Narain Raja lived in Ramnagar. After RamaRaja's death in 1947 Narain Raja continued to live in Ramnagar, being inpossession of properties obtained by him under compromise in 1944. In thecourse of his statement Narain Raja deposed that his father had built a palacein Ramnagar between 1934 and 1941 and thereafter Narain Raja himself built ahouse at Ramnagar. Before he had built his house, Narain Raja lived in hisfather's palace. There is the partition suit between Narain Raja and his brothersin the year 1942. Exhibits 1(2) and 1(1) are the preliminary and final decreesgranted in that suit. After the partition Narain Raja was looking after theproperties which were left joint and was the manager thereof. The extensiveforests 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 andpattas used to be executed by him. After partition, he and his wife acquiredproperties in the district of Champaran, in Patna and in other places. NarainRaja and his wife and children possessed 500 or 600 acres of land in thedistrict of Champaran. Narain Raja managed these properties from Ramnagar. Hehad also his houses in Bettiah, Chapra, Patna and Benaras. The forest settlementsare supported by Exhibits X series, commencing from 1943, and by Ex. W of theyear 1947. Then, there are registered pattas excluded by Narain Raja of theyear 1945, which are Exs. W/3, W/4, and W/5. There are documents which proveacquisition of properties in the name of Narain Raja's wife - F(1), F(2), F(3),and F(5). Exhibit F(4) shows the purchase of 11 bighas and odd land at Patna byNarain Raja. It is also important to notice that Narain Raja had obtainedIndian Passport dated March 23, 1949 from Lucknow issued by theGovernor-General of India and he is described in that Passport as Indian bybirth and nationality and his address is given as Ramnagar of Champarandistrict. In the course of his evidence Narain Raja said that he had been toBarewa for the first time with his father when was 10 or 12 years old. He alsosaid that he had not gone to Barewa for ten years before 1963.

17. The High Court considered that for the determination of the question ofdomicile of a person at a particular time, the course of his conduct and thefacts and circumstances before and after that time are relevant. We considerthat the view taken by the High Court on this point is correct and forconsidering the domicile of Narain Raja on the date of coming into force of theConstitution of India his conduct and facts and circumstances subsequent to thetime should also be taken into account. This view is borne out by the decisionof the Chancery Court in In re Grove Vaucher v. The Solicitor to the Treasury(1889) 40 Ch. 216 in which the domicile of one Marc Thomegay in 1744 was atissue and various facts and circumstances after 1744 were considered to berelevant. At page 242 of the report Lopes, L.J. has stated :

'The domicile of an independent person isconstituted by the factum of residence in a country and the animus manendi,that is, the intention to reside in that country for an indefinite period.During the argument it was contended that the conduct and acts of Marc Thomegaysubsequently to February, 1744, at the time of the birth of Sarah wereinadmissible as evidence of Marc Thomegay's intention to permanently reside inthis country at that time. It was said that we must not regard such conduct andacts in determining what the state of Marc Thomegay'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 authorities with whichI am acquainted. I have always understood the law to be, that in order todetermine a person's intention at a given time, you may regard not only conductand acts before and at the time, but also conduct and acts 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 should nothave thought it necessary to allude to this contention, unless I had understoodthat the propriety of admitting this evidence was somewhat questioned by LordJustice Fry, a view which I rather now gather from his judgment he hasrelinquished.'

18. We are, therefore, of opinion that the conduct and activities of NarainRaja subsequent to the year 1949 are relevant but we shall decide the questionof his domicile in this case mainly in the light of his conduct and activitiesprior to the year 1949.

19. Reverting to the history of Narain Raja's life from 1950 onwards, itappears that he had married his wife in 1950. His wife belonged to Darkoti inHimachal Pradesh near Patiala. The marriage had taken place at Banaras. NarainRaja had a son and a daughter by that marriage and according to his evidencethe daughter was born in Banaras and the son was born in Bettiah. The daughterprosecutes her studies in Dehradun. In 1950 or 1951 Narain Raja had establisheda Sanskrit Vidalya in Ramnagar in the name of his mother, called Prem JananiSanskrit Vidyalaya. The story of Narain Raja's political activities is asfollows : There was a Union Board in Ramnagar before Gram Panchayats had comeinto existence, of which Narain Raja was the Chairman or President.

20. After Gram Panchayats were established, the Union Board was abolished.Narain Raja was a voter in the Gram Panchayat and he was elected as theVice-President of the Union called C.D.C.M. Union of Ramnagar. For the GeneralElections held in 1952 Narain Raja was a voter from Ramnagar Constituency. Inthe General Election of 1957 he stood as a candidate opposing Kedar Pandey.Thereafter, he became the President of the Bettiah Sub-divisional SwatantraParty and then Vice-President of Champaran District Swatantra Party.

21. Taking all the events and circumstances of Narain Raja's life intoaccount we are satisfied that long before the end of 1949 which is the materialtime under Art. 5 of the Constitution, Narain Raja had acquired a domicile ofchoice in India. In other words, Narain Raja had formed the deliberateintention of making his home with the intention of permanently establishinghimself and his family in India. In our opinion, the requisite animus manendihas been proved and the finding of the High Court is correct.

22. On behalf of the appellant Mr. Aggarwala suggested that there were tworeasons to show that Narain Raja had no intention of making his domicile ofchoice in India. Reference was made, in this context, to Ex. 10(c) which is aKhatian prepared in 1960, showing certain properties standing in the name ofNarain Raja and his brothers in Nepal. It was argued that Narain Raja hadproperty 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 theKhatian was about 43 bighas. The case of Narain Raja is that the property hadbelonged to his natural grandmother named Kanchhi Maiya who had gifted the landto Rama Raja. The land was the exclusive property of Rama Raja, and after hisdeath, the property devolved upon his sons. The case of Narain Raja on thispoint is proved by a Sanad (Ex. AA). In any event, we are not satisfied thatthe circumstance of Narain Raja owning the property covered by Ex. 10(c) canoutweigh the fact that Narain Raja alone had extensive properties in Indiaafter the partition decree of the year 1944.

23. It was also pointed out on behalf of the appellant that Narain Raja, andbefore him Rama Raja, had insisted upon designating themselves 'Sri5' indicating that they belonged to the royal family of Nepal. It wasargued on behalf of the appellant that Narain Raja had clung tenaciously to thetitle of 'Sri 5', thereby indicating the intention of not relinquishingthe claim to the throne of Nepal if at any future date succession to the thronefalls to a junior member of the family of the King of Nepal. We do not thinkthere is any substance in this argument. It is likely that Narain Raja and hisfather Rama Raja had prefixed the title of 'Sri 5' to their namesowing to the pride of their ancestry and sentimental attachment to thetraditional title and this circumstance has no bearing on the question ofdomicile. Succession to throne of Nepal is governed by the rule of primogenitureand it cannot be believed that as the second son of his father, Narain Rajacould ever hope to ascend to the throne of Nepal, and we think it isunreasonable to suggest that he described himself as 'Sri 5' with theintention of keeping alive his ties with Nepal. There was evidence in this casethat Narain Raja's elder brother Shiv Bikram Sah has left male issues.

24. For the reasons expressed, we hold that Narain Raja had acquired domicileof choice in India when Art. 5 of the Constitution came into force. We havealready referred to the finding of the High Court that Narain Raja wasordinarily resident in India for 5 year immediately preceding that time whenArt. 5 of the Constitution came into force. It is manifest that the requirementsof Art. 5(c) of the Constitution are satisfied in this case and the High Courtrightly reached the conclusion that Narain Raja was a citizen of India at therelevant time.

25. We accordingly dismiss both these appeals with costs. One set.

26. Appeals dismissed.

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