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Dawood Mahomed Pathan Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 34 of 1964
Judge
Reported inAIR1969Guj79
ActsConstitution of India - Articles 5 and 394; Independence Act, 1947; Hindu Law; Mohammedan Law; Indian Penal Code (IPC), 1860 - Sections 380, 411 and 454; Code of Civil Procedure (CPC), 1908 - Sections 100
AppellantDawood Mahomed Pathan
RespondentUnion of India (Uoi) and anr.
Appellant Advocate Arun H. Mehta, Adv.
Respondent Advocate G.M. Vidyarthi, Asst. Govt. Pleader
DispositionAppeal dismissed
Cases ReferredHari Shankar v. Rao Girdhari Lal
Excerpt:
constitution - citizenship - articles 5 and 394 of constitution of india, independence act, 1947, hindu law, mohammedan law, sections 380, 411 and 454 of indian penal code, 1860 and section 100 of code of civil procedure, 1908 - letters patent appeal against order of single judge - trial court dismissed appellant's suit for declaration that he is indian citizen - evidence on record failed to prove that plaintiff's father had made ahmedabad as his permanent home - he continued to have his domicile in pakistan at time of commencement of constitution of india - plaintiff failed to establish that he was domiciled in territory of india under article 5 - appeal liable to be dismissed. - - the original plaintiff who is the appellant before us as well as in the first appeal before divan, j......v.r. shah, j. 1. this appeal under clause 15 of the letters patent arises out of the decision of this court (divan, j.) in first appeal no. 163 of 1964 which was filed against the decision of mr. r.c. shelat, principal judge, city civil court (as he then was), in city civil suit no. 2239 of 1961. the facts giving rise to this appeal are as under:the original plaintiff who is the appellant before us as well as in the first appeal before divan, j., brought this suit against the union of india and the state of gujarat, the two respondents before us, on august 17, 1961 for a declaration that he is a citizen of india and that he has not lost or abandoned his indian citizenship and for a permanent injunction restraining the defendants or their servants from prosecuting and/or deporting him from.....
Judgment:

V.R. Shah, J.

1. This appeal under Clause 15 of the Letters Patent arises out of the decision of this Court (Divan, J.) in First Appeal No. 163 of 1964 which was filed against the decision of Mr. R.C. Shelat, Principal Judge, City Civil Court (as he then was), in City Civil Suit No. 2239 of 1961. The facts giving rise to this appeal are as under:

The original plaintiff who is the appellant before us as well as in the First Appeal before Divan, J., brought this suit against the Union of India and the State of Gujarat, the two respondents before us, on August 17, 1961 for a declaration that he is a citizen of India and that he has not lost or abandoned his Indian citizenship and for a permanent injunction restraining the defendants or their servants from prosecuting and/or deporting him from India. The plaintiff's father was born at the village of Tanda in Hazara District. This District of Hazara was a part of British India upto the coming into operation of the Independence Act of 1947. That Independence Act created two sovereign territories out of the territory of British India; namely the dominion of India and the dominion of Pakistan and this District of Hazara has, since the creation of the dominion of Pakistan formed part of the territory of that dominion. The plaintiff's father came down to Delhi with his wife and two children in October 1938. In December, 1939, his wife gave birth to the plaintiff. In February 1940 the plaintiff's mother fell ill in Delhi and she was taken back to their native place, that is, the village of Tanda and there she died in April 1940. The plaintiff, who was then an infant, was brought up at the village of Tanda by the wife of the elder brother of his father. In October 1940 the plaintiff's father came to Ahmedabad for service. He got service in some mills in 1943 and since then he has been living and serving in Ahmedabad. The plaintiff himself lived at the village of Tanda with his uncle upto the year 1954. In 1954 he went with his uncle to Karachi and he was doing some labour work there. In 1953 he obtained a pass-portand applied for obtaining a visa for coming to Ahmedabad from the office of the High Commissioner for India in Karachi. He came to India on that Pass-port. He thereafter applied for a permit for permanent resettlement in India, but he came to know in August 1960 that his application has been rejected. He, therefore, filed the suit for the reliefs stated above.

2. The trial Court dismissed the suit of the plaintiff on the ground that the plaintiff was not proved to be a citizen of India on January 26, 1950. In the first appeal before Diwan, J. the plaintiff sought to make out his case of Indian citizenship on the basis of Article 5 of the Constitution of India. The case before Diwan J. was that his domicile at the commencement of the Constitution was that of his father, as he was a minor then. His further case was that his father having been resident in Ahmedabad since 1940 to 1949, his father had before commencement of Constitution acquired the domicile of India. It was therefore contended before Diwan J. that the plaintiff had a domicile in the territory of India and he was born in India and therefore under Article 5 of the Constitution, he was an Indian citizen at the commencement of the Constitution. Diwan J. rejected this contention and came to the conclusion that the learned trial Judge was right when he held that the plaintiff has not established his claim of being the citizen of India under Article 5 of the Constitution. Diwan J. accordingly dismissed the appeal of the plaintiff. It is against that decision of Diwan J. that this Letters Patent Appeal has been filed by the plaintiff.

3. At the hearing of this appeal before us the only point that was pressed on behalf of the appellant was that he has become an Indian citizen at the commencement of Constitution under Article 5 of the Constitution. The plaintiff can bring his case within Article 5 of the Constitution, if he is able to prove that at the commencement of the Constitution he had his domicile in the territory of India and further prove any one of the three alternative facts mentioned in Clause (a), (b) and (c) of that Article. Clause (a) requires that the person claiming the benefit of Article 5 should be one born in the territory of India. It is not disputed that the plaintiff was born at Delhi in December 1939. Therefore, if the plaintiff proves that he had his domicile in the territory of India at the commencement of the Constitution, then he is entitled to succeed in his plea.

4. The contention on behalf of the appellant-plaintiff is that reading Article 394 of the Constitution with the preamble thereof, it is clear that the commencement of the Constitution referredto in Article 5 is as of November 26, 1949. The plaintiff's case is that he was a minor on that day and therefore he could not have an independent domicile of his own, but his domicile on that day would be the same as that of his father. His further contention is that on that date his father had a domicile in India and therefore his domicile was also in India. Mr. Mehta, learned Advocate for the plaintiff-appellant argued that the domicile of the plaintiff's father at the time when he came to Delhi in 1938 was in British India, because the village of Tanda was a part of the territory of British India. This domicile in British India of the plaintiff's father continued to remain with him until the Independence Act of 1947 was passed and British India was partitioned into the two dominions of India and Pakistan, on August 15, 1947. Mr. Mehta's contention is that since from that date, 'British India' ceased to exist on the map of the world and the British Indian domicile of the plaintiff's father came to an end on August 15, 1947 and he would acquire in place of the domicile in British India, the domicile in either of the Dominions of India or Pakistan. Mr. Mehta's further contention was that, since prior to August 15, 1947 the plaintiff's father was habitually resident in India from 1939 onwards, he acquired, in place of his British Indian domicile, a domicile in the territory of India. He contended, that he became domiciled in the territory of India on August 15, 1947 because he got that domicile on account of the partition of the territory of British India. In other words, his argument was that his domicile which was in British India prior to August 15, 1947 became transferred in the territory of India after that date. His alternative argument was that since 1940 when he came to Ahmedabad, he has been residing in this city continuously upto the date of the filing of the suit by the plaintiff and that he has made his permanent home in Ahmedabad and therefore also his domicile after August 15, 1947 would be in the territory of India and not in the territory of Pakistan.

5. On behalf of the respondents it was contended that the plaintiff's father had his domicile of origin in the District of Hazara and since Hazara formed part of the dominion of Pakistan on and after August 15, 1947, the plaintiff's father had his domicile in Pakistan from that date. It was also urged that the plaintiff's father has not acquired any other domicile namely, the domicile in India after August 15, 1947. Therefore, at the time when the Constitution of India commenced, that is, on November 26, 1949 the plaintiff's father had his domicile in Pakistan and consequently the plaintiff had also his domicile inPakistan. It was therefore, urged that the plaintiff cannot get the benefit of Article 5 of the Constitution.

6. It is necessary therefore to determine first as to what is the essential content of the concept of domicile. The rule about domicile is evolved on account of the universal recognition that questions affecting the personal status of a human being should be governed constantly by one and the same law, irrespective of where he may happen to be or where the facts giving rise to the question may have occurred.

The early concept of what is meant by the territorial domicile has been mentioned by Cheshire in his Private International Law, sixth edition, in Chapter VII as follows:

' 'By domicile', said Lord Cranworth in 1858 'we mean home, the permanent home, and if you do not understand your permanent home I'm afraid that no illustrations drawn from foreign writers will very much help you to it.'

'Indeed, it may be said that the earlier English Judges were content to equate domicile with home in the sense in which the man in the street, untroubled by legal subtleties, would understand that word. Just over a hundred years ago, Kindersley V. C. propounded a definition that for facile comprehension and application it would be difficult to better.'

'That place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself, and his family, not for a more special and temporary purpose, but with a present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.'

The early concept of domicile was linked with the place where the person had his permanent home. Therefore the basic fact from which concept of domicile is evolved has reference to the place where the person has his permanent home. The concept of domicile has its origin in the necessity to determine the system of law whereby his personal status of a human being should be governed. If, therefore, the place where the person has his permanent home is a part of a particular country, the system of law governing the personal status of a human being in that country would be the system of law whereby that person would also be governed. This result is expressed by stating that that person has his domicile in the country in which the spot where he has his permanent home lies. Cheshire states on page 172 as follows:

'Domicile denotes the relation between a person and a particular territorial unit possessing its own system of law.'

In Halsbury's Laws of England, Third Edition, Volume 7, in paragraph 26, it is stated:

'A person's domicile is that country in which he either has or is deemed by law to have his permanent home. Domicile is generally identified with home, but whereas a person may have no home or more than one, the law requires him to have a domicile and one only.'

Further on in the same paragraph it if stated: 'All those persons who have, or whom the law deems to have, their permanent home within the territorial limits of a single system of law are domiciled in the country over which the system extends; and they are domiciled in the whole of that country, although their home may be fixed at a particular spot within it.'

7. From the above statements it is clear that the concept of domicile is essentially linked with and is based upon the existence, either actual or deemed, of permanent home of a person. So long as there is one system of law prevailing in a territory within which the spot where a person has his permanent home is included, that person is said to be domiciled in that territory. The limits of that territory may change or may be enlarged depending upon the force of international events. However, the person having his permanent home at one spot, would continue to have his domicile in that country in which, for the time being, the spot where he has his permanent home is included.

8. Another established principle to that 'every person at birth becomes a member both of a political and of a civil society. The former determines his political status or nationality, on which depends his allegiance to a sovereign; the latter determines his civil status. This means that the law which governs the civil society into which he is born, the law of his domicile of origin, is attached to his person and remains so attached, wherever he goes, unless and until he ceases to be a member of that society; and this he can only do by becoming a member of another civil society; or changing his domicile, upon which the law of the new domicile becomes attached to him in the same manner.' (vide paragraph 27 of Halsbury's Laws of England, Third Edition, Volume 7).

9. There is no dispute before us that the plaintiff's father was a native of Tanda village in Hazara District and that the domicile of the plaintiff's father was in British India because Hazara District was a part of British India. Mr. Mehta, however, contended before us that it would not be correct to say that the plaintiff's father had his domicile in Hazara District. His argument was thatthe domicile is in a country and not in a particular portion of that country. In so far as the argument goes, we think that Mr. Mehta is right. Since the concept of domicile is evolved in order to fix the system of law which would govern the personal status of a person as a human being, it is necessary to include in that concept the relation between the permanent home of that person and the single system of law which prevails with-in the territory within which the place of his permanent home lies. This relation is expressed by stating that the domicile of that person is in that country or territory which has a single system of law governing the personal status of a human being which territory includes the place where that person's permanent home is.

10. In order to make it easy to work put the principles of domicile, the law assigns what is called a domicile of origin to every person at his birth, namely, to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother, and to a foundling the place where he is found. This domicile of origin is attached to a person at the time of his birth by operation of law itself. This domicile of origin continues to attach itself to that person during the rest of his lifetime until and unless he has abandoned that domicile of origin by acquiring another domicile of his choice. A domicile of choice would be referable to domicile in some country other than the country in which there was his domicile of origin. In order to acquire a fresh domicile by choice, there should be proved actual residence by that person in the new country and also a present intention in that person's mind to make his permanent home in that country. By the term 'permanent home' it is not meant to be a home forever and for all time to come. What is meant is a home for an indefinite time. These principles relating to acquisition of domicile of origin and of choice are well settled (vide Roseta Evelyn Attaullah v. Jestin Attaullah : AIR1953Cal530 ; Winans v. Attorney General 1904 AC 287; Kedar Pandey v. Narain Bikram Seh AIR 1968 SC 160).

11. It is with reference to these well-established principles relating to the law of domicile that we proceed to test the arguments advanced by Mr. Mehta on behalf of the appellant. There cannot be any dispute that in 1935 when the plaintiff's father came from his native place in Tanda village in Hazara District to Delhi, his domicile was in British India, because the place where his permanent home was at that time was in British India. He was therefore domiciled in British India, which was a unit of territory governed by a single sys-tem of law. It is true that in British India different legal rules applied to different classes of the population according to their religion, race or caste but nonetheless it was the territorial law of British India that governed each person domiciled in British India, notwithstanding that Hindu law would apply to one case and Mohammedan law would apply to another. Therefore, even though the personal status of the plaintiff's father would be governed by the Mohammedan law as applied to the natives in Hazara District that system of law applied to him because that was a part of the territorial law of British India. The single system of law which governed the personal status of the plaintiffs father in 1938 was the system of law as administered in British India. It is also not disputed that the unit of territory known as British India, was effaced from the map of the world by the Independence Act of 1947. The British sovereignty over that unit of territory known as British India, came to an end on August 15, 1947 and the whole of the territory of British India which existed prior to August 15, 1947 was divided into two portions and each portion became, by that Act, a sovereign State. Therefore, on August 15, 1947 since the territorial unit named British India ceased to exist and there was no place on the map of the world which could be known as British India, there could not remain a system of law which prevailed in British India and hence the domicile of the plaintiff's father in British India based on his permanent home in Hazara District came to an end. The plaintiff's father on and after August 15, 1947 could not say that he was domiciled in British India since that country was divided into the two sovereign countries of the dominion of India and the dominion of Pakistan. The plaintiff's father must have his domicile either in the Indian dominion or the Pakistan dominion. The dispute in this case is centered round the question as to what should be held to be the domicile of the plaintiffs father after he ceased to have the British India domicile on August 15, 1947. The contention of Mr. Mehta, as we stated above, is that since the plaintiffs father was habitually residing in Ahmedabad from 1940 onwards, the plaintiff's father would get the domicile in India in substitution of his domicile of origin in British India. He has based this contention on a submission that the domicile is in a particular country and that the place of the permanent home in that country has no relevance in fixing the domicile. According to Mr. Mehta, all persons habitually residing in Indian dominion on August 15, 1947 would automatically get the domicile in India in substitution of their domicile inBritish India. In our opinion this submission of Mr. Mehta is not well founded. This submission ignores one of the essential factors which is decisive in settling the domicile of the plaintiff's father. The plaintiff's father was domiciled in British India because he had his permanent home in Hazara District which formed a part of British India prior to August 15, 1947. It was solely on account of this geographical fact namely that Hazara District was a part of British India which assigned a domicile in British India to the plaintiff's father and it was on that account that when the plaintiff was born in 1939 in Dobli, he obtained a domicile in British India as the domicile of his origin as that was the domicile of his father at that time. On partition of the country on August 15, 1947 the domicile of the plaintiff's father would still be referable to the place where his permanent home was on 15-8-47; and if his permanent home was in Tanda village in Hazara District, then the plaintiff's father would acquire on and after 15th August, 1947, the domicile of that country of which Hazara District formed part, namely, a domicile in Pakistan. That domicile in Pakistan would continue to remain with the plaintiff's father until it was shown that he had changed that domicile by acquiring a fresh domicile of choice. It is the alternative contention of Mr. Mehta on behalf of the appellant that the plaintiff's father had changed his permanent home prior to 1947. We will consider that contention later on. But at this stage we are dealing with the case on the basis that there has been no change of permanent home by the plaintiff's -father at any time. We are considering the contention of Mr. Mehta that merely because the plaintiff happened to be residing since 1940 in Ahmedabad that fact alone would on August 15, 1947, invest him with the domicile in India rather than with the domicile in Pakistan in place of his original domicile in British India. For considering this contention we proceed, therefore, on the basis that the plaintiffs father had not changed his permanent home at any time up to the time when the plaintiff filed this suit in 1961. Since the domicile is always referable to the place of permanent home and since in this case the permanent home of the plaintiff's father continued to be in Hazara District it follows in our opinion that on August 15, 1947 when the British Indian domicile of the plaintiff's father came to an end, he acquired in substitution of that domicile, the domicile of that country in which his permanent home was on August 15, 1947, that is, the plaintiff's father acquired in substitution, the domicile of Pakistan. The plaintiff being a minor would continue during his minority to possess that domi-cile which his father possessed at the relevant time. At the time of the commencement of the Constitution that is on November 26, 1949, the plaintiff being a minor could have only the domicile that his father possessed on that date and since his father possessed the domicile of Pakistan on that date, the plaintiff also possessed that domicile.

12. It was, as we stated above, the contention of Mr. Mehta before us that the plaintiffs father cannot be said to have his domicile in Hazara District, but he has his domicile in the British India and therefore the fact that his father had a permanent home in Hazara District would not be relevant in considering the question as to which domicile the plaintiff's father acquired in substitution of his original domicile on August 15, 1947 when the British India was divided into the two sovereign dominions of India and Pakistan. A reference to the case of Central Bank of India Ltd. v. Ram Narain : 1955CriLJ152 is of some value in dealing with this contention of Mr. Mehta. In that case the respondent Ram Narain was carrying on business at Mailai in Multan District and was allowed a cash credit limited upto a certain amount by the Central Bank of India Ltd. The account was secured against stocks which were to remain in possession of the borrowers as trustees on behalf of the Bank. On account of the disturbances that followed in the wake of the partition of the country the Bank's godown-keeper at Mailai left Mailai in September 1947 and there was no one in Mailai to safeguard the Bank's godown after October 1947. In January, 1948 the Agent of the Multan branch of the appellant Bank visited Mailai and he discovered that stocks pledged by Ram Narain against the cash credit agreement had disappeared. The Bank ultimately lodged a prosecution against Ram Narain on 18th April 1950 for having committed offences punishable under Sections 380, 454 and 411 of the Indian Penal Code before the District Magistrate at Gurgaon, in which District Ram Narain had migrated from Multan District, after 10th November 1947. A question arose in the course of that prosecution as to whether the Court in Gurgaon District which was a part of India could try the offences committed by Ram Narain in Multan District after August 15, 1947 and before November 10, 1947. The answer to this question depended on whether Ram Narain was a citizen of India at the relevant time. Dealing with this point the Supreme Court observed as follows on page 40:

'In these circumstances, if one may use the expression, Ram Narain's domicile of origin was in the district of Multan and when the district of Multan fell by the partition of India in Pakistan, RamNarain had to be assigned Pakistani Domicile till the time he expressed his unequivocal intention of giving up that domicile and acquiring Indian domicile and also took up his residence in India.'

It is true, as pointed out by Mr. Mehta, that in that case Ram Narain was since prior to August 15, 1947 living in Multan which fell in Pakistan, while in the instant case the plaintiff's father had been living in Ahmedabad since before the date of partition of the country. However, the decision of the Supreme Court shows that in considering what domicile a particular resident of British India acquired on partition of that country on August 15, 1947, it is necessary to see as to what was the place of his permanent residence on August 15, 1947, The Supreme Court has used the expression that Ram Narain was 'domiciled in Multan District' prior to August 15, 1947 and therefore it was held that he obtained Pakistani domicile because Multan District fell by partition in Pakistan. On the basis of this decision of the Supreme Court it can well be said in this case also that the plaintiff's father had his domicile in Hazara District prior to August 15, 1947 and since Hazara District fell in Pakistan on partition of the country, the plaintiff's father acquired Pakistani domicile on August, 15, 1947. We, therefore, hold that a person who had a domicile in British India prior to August 15, 1947 would acquire the domicile in Indian dominion or Pakistan according as the place of his permanent home fell on partition of the country in India or in Pakistan.

13. Mr. Mehta's second contention on this point was developed as follows:--

Prior to August, 15, 1947 there was one State, namely British India. On August 15, 1947 this State of British India divided its territory into two portions and ceded one portion of the territory to the new State of the dominion of India and the second portion of its territory to the new State of the dominion of Pakistan. British India was therefore a ceding State and the dominions of India and Pakistan were the acquiring States and Mr. Mehta submitted that there was cession of territory by British India to the dominion of India so as to bring into existence the new State of the dominion of India. Mr. Mehta then submitted that when cession of territory takes place all persons residing in that ceded territory acquired domicile in that new State. For this purpose he relied upon paragraph 219 on page 551 on Treatise of International Law, volume 1 by Oppenheim. The relevant portion of paragraph 219 on which Mr. Mehta has relied, reads as follows:-- 'As the object of cession is sovereignty over the ceded territory, all such Indivi-duals domiciled thereon as are subjects of the ceding State become ipso facto by the cession subjects of the acquiring State. The hardship involved in the fact that in all cases of cession the inhabitants of the territory who remain lose their old citizenship and are handed over to new sovereign whether they like it or not, has created a movement in favour of the claim that no cession shall be valid until the inhabitants have by a plebiscite given their consent to the cession.'

In our opinion, this paragraph does not refer to the change in or acquisition of domicile. It refers to the change in, or acquisition of citizenship. It also refers to the change of the political status of a person rather than his civil status. There is no doubt that the concept of citizenship and the concept of domicile are two entirely different things. The concept of citizenship is designed to fix the political status of the person which would include his rights as a citizen of the country including his tie of national allegiance. The concept of domicile, as we stated above, is not necessarily linked with the citizenship of the country. It is quite possible that a person may be domiciled in one country and be the citizen of another country. This distinction is clearly mentioned in paragraph 30 in the case reported in : AIR1953Cal530 mentioned above. Paragraph 219 relied upon by Mr. Mehta lays down as to what happens to the citizenship of the residents of a ceded territory. It lays down a general rule that the inhabitants of the ceded territory acquire the citizenship of the new State provided (1) these inhabitants are domiciled in the ceded territory and (2) they are the subjects of the ceding State. In our opinion, paragraph 219 does not support the contention of Mr. Mehta. We, therefore, reject the contention of Mr. Mehta that on the partition of the country on August 15, 1947, the plaintiff's father acquired a domicile in India merely because he was residing in Ahmedabad from a date prior to August 15, 1947. We come to the conclusion that since his permanent home was in Hazara District he acquired the domicile in Pakistan on August 15, 1947.

14. Mr. Mehta's alternative contention was that prior to August 15, 1947 the plaintiff's father had made Ahmedabad his permanent home and therefore on August 15, 1947, the place where the father of the plaintiff had his permanent home fell into the territory of India and therefore the plaintiff's father was possessed of the domicile in the territory of India on Nov. 26, 1949. If Mr. Mehta could satisfy the Court that the plaintiff's father had his permanent home in India from the date prior to November 26, 1949, he would certainly be justified in asking us to hold that at the time of the commence-ment of the Constitution, the plaintiff had a domicile in the territory of India. Upto August 15, 1947, since Hazara District and Ahmedabad were parts of the same unit of territory namely British India, it would not be correct to say that there would be any change of domicile by the plaintiff's father because in any event, the domicile would still remain in British India. So far as the different provinces in British India are concerned, it cannot be said that a person can be domiciled to a particular province of British India. All that can be said is that a person had changed his permanent home from one part of British India to another part of British India. In such a case though there will be a change in the place of permanent home, there will be no change in domicile. Nonetheless, the change in the permanent home will be a decisive (actor when the partition of the country took place and the domicile of persons, who were residents in British India prior to August 15, 1947 was required to be fixed afresh. In order to decide whether they get, in substitution, the domicile in India or the domicile in Pakistan it will be necessary to fix the places of their permanent homes. If the plaintiff's father were able to show that he had changed his permanent home to Ahmedabad prior to August 15, 1947, then it would be a decisive factor to say that on August 15, 1947 his place of permanent home fell in the territory of India. Now, the terms 'permanent home' or 'fixed habitation' which are generally used to enable one to ascertain the country of domicile, are not equivalent to mere 'residence'. The term 'residence' would imply merely the physical presence of the person at a particular spot in a particular country. The residence may be for various purposes and it may be temporary or for an indefinite period. In order that 'residence' may amount to 'permanent home' or 'fixed habitation' it is necessary that, in addition to residence, there should be certain attendant circumstances which would indicate that the residence in consequence of setting up a permanent home, that is for an indefinite time. Mr. Mehta submitted that the plaintiff's father has been residing in Ahmedabad since 1940, when became here upto the date of the suit, that is upto 1961; and he urged that this long residence is itself sufficient to show that his father had his permanent home in Ahmedabad and therefore he has his domicile in the territory of India. Mr. Mehta relied upon the following passage on page 174 in Cheshire's Private International Law, Sixth Edition:

'This much is clear, however, that a person's residence in a country is prima facie evidence that he is domiciled there. There is a presumption in favour of domi-cile which grows in strength with the length of the residence. Indeed, a residence may be so long and so continuous that, despite declarations of a contrary intention, it will raise a presumption that is rebuttable only by actual removal to a new place.'

It was urged on the strength of this paragraph by Mr. Mehta that this long residence by the plaintiff's father in Ahmedabad raises a presumption in favour of the plaintiff's father having his domicile in the territory of India and Since there is no rebuttal of this presumption, the plaintiff must succeed in his case. In our opinion, this paragraph cannot be read so as to mean that mere long residence without anything more gives rise to such a presumption. Later on, on the same page Cheshire observes as follows:

'On the other hand, time is not sole criterion of domicile. Long residence does not constitute nor does brief residence negative domicile. Everything depends upon the attendant circumstances, for they alone disclose the nature of the person's presence in a country. In short, the residence must answer a qualitative as well as a quantitative test.'

In our opinion the residence which gave rise to a presumption in favour of the plaintiff's father should be long residence coupled with such circumstances as would indicate that the plaintiff's father had made up his mind to give up his permanent home at Tanda and to have his permanent home at Ahmedabad. A man may reside in a particular place for a variety of reasons. In this particular case, the plaintiff's father had been residing in Ahmedabad because he has got his service and means of livelihood in Ahmedabad. His residence in Ahmedabad therefore is on account of a special purpose. It may well be that when the purpose of his residence in Ahmedabad comes to an end, he may leave Ahmedabad and go away to some other place or return back to his native village in Hazara District. It is therefore obligatory on the plaintiff to prove not only that his father has been residing in Ahmedabad since 1940 but also to prove that his father had made up his mind prior to November 26, 1949 to make Ahmedabad his permanent home. It is only on proof of such circumstances that the plaintiff can say that he has acquired the domicile in the territory of India at or before that date. The facts proved in this case are that the plaintiff's father came to Ahmedabad in 1940 and got service in some mills in 1943 and has ever since remained in Ahmedabad and has not gone back to his native place. It is also proved that he married in 1946 and that all along he has been serving in some mills at Ahmedabad. The learnedtrial Judge as well as Diwan J., have considered the facts of this case and have come to a definite conclusion that it is not proved that the plaintiff's father made Ahmedabad his permanent home at any time. As we stated above, his presence in Ahmedabad is because he has got his means of livelihood there. From the record of the case no other reason for the presence of the plaintiff's father has been brought out. It was pointed out that he married in 1946 and presumably as he says, that he has never gone back to his native place, that marriage was solemnised in Ahmedabad. The evidence on record does not make out any such circumstance which would indicate that the plaintiff's father has been residing here because he has chosen to make Ahmedabad his permanent home. The plaintiff's father in his evidence did not even state that he had abandoned his original domicile and had permanently settled at Ahmedabad. There are concurrent findings of both of the trial Judge and of Diwan J., on this point and having considered the facts of the case, we are in respectful agreement with these findings. We. therefore, come to the conclusion that it is not proved that the plaintiff's father had made Ahmedabad his permanent home at any time. He, therefore continued to have his domicile in Pakistan at the time of the commencement of the Constitution and the plaintiff therefore fails to prove that at the time of the commencement of the Constitution he was domiciled in the territory of India. He, therefore, fails to prove that he was a citizen of India at the commencement of the Constitution of India.

15. During the course of his arguments, Mr. Vidyarthi, learned Assistant Government Pleader, contended that in an appeal under Clause 15 of the Letters Patent, this Court cannot go into the questions of fact decided by the learned Judge against whose decision the appeal is preferred. In our opinion, this contention is not correct Clause 15 of the Letters Patent gives a right of appeal against the decision of a single Judge of this court except in such cases which are expressly excepted from the operation of Clause 15. That Clause does not lay down any qualification or limitation as to upon which points the appeal can lie or as to which points the Court can decide. An appeal is usually a creation of statute and unless the statute creating the appeal puts a limitation upon the subject matter of the appeal or the powers of the appellate Court, the scope and ambit of the appeal before the appellate Court is co-extensive with the scope and ambit of the dispute which was heard by the Judge against whose judgment the appeal is preferred. As for example, the Civil Procedure Code, by Sec-tion 100 provides for a second appeal, to the High Court, but lays down that such an appeal can lie only in respect of points of law. When therefore, a second appeal is concerned, questions of fact cannot be agitated before the appellate Court. If an appeal under Clause 15 of the Letters Patent is filed against the decision of this Court in a second appeal, the Court hearing the Letters Patent appeal could not enquire into any question of facts because the Judge hearing the second appeal against whose judgment the appeal under the Letters Patent la filed also could not go into any question of facts. An appeal is generally a rehearing of the matter in order to decide whether the judgment appealed against is correct or not. Therefore, unless the statute imposes any restriction either as regards the subject matter of the appeal or the power of the appellate court, the appellate Court is required to cover the same ground over again as was covered before the Judge against whose judgment the appeal is preferred. In this particular case Diwan J. was hearing a first appeal and he was therefore competent to decide not only questions of law but also questions of fact. Since Clause 15 of the Letters Patent appeal does not lay down any limitation of any sort either as regards the subject matter of the appeal or the powers of the appellate Court, the appellate Court hearing the appeal under the Letters Patent is bound to hear the appeal both on questions of law and questions of fact, which were agitated before the learned Judge against whose judgment the appeal is preferred. In the case of Hari Shankar v. Rao Girdhari Lal, AIR 1963 SC 698 it has been observed as follows:

'A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way, as has been done in second appeals arising under the Code of Civil Procedure.'

In our opinion, in this particular case, the contention of Mr. Vidyarthi that this court cannot go into the questions of fact cannot be accepted.

16. In view of the conclusions to which we have reached, the plaintiff fails to prove that he was domiciled in the territory of India at the commencement of the Constitution within the meaning of Article 5 of the Constitution and therefore he fails to prove that he was a citizen of India at the commencement of the Constitution. No other point was raised before us.

17. In the result, therefore, the appealfails and is dismissed with costs.


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