# KEDAR PANDEY v. NARAIN BIKRAM SAH

- **Citation:** [1965] 3 S.C.R. 793
- **Court:** Supreme Court of India
- **Decided:** 1965-04-15
- **Case number:** Civil Appeals Nos. 976 · A and. 977 of 1964
- **Bench:** P. B. Gajendragadkar, K N. Wanchoo, M. Hidayatullah, V. R.Amaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kedar-pandey-v-narain-bikram-sah-3461
- **Pages:** 13

## Headnote

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 challenging 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 territory of India, on a consideration of all the events and circumstances 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 in India and therefore had t':i.e 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. [805 C-D]
The only intention required for a proof of a change of domicile
is an intention of permanent residence. What is required to be established 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 purpose, but with a present intention of making it his permanent homei
On the question of domicile at a particular time the course of his conduct 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.
793
794
SUPREME
COURT
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'[1965) 3 S.C.R.

## Text

A
B
c
.
D
E
F
G
H
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 challenging 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 territory of India, on a consideration of all the events and circumstances 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 in India and therefore had t':i.e 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. [805 C-D]
The only intention required for a proof of a change of domicile
is an intention of permanent residence. What is required to be established 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 purpose, but with a present intention of making it his permanent homei
On the question of domicile at a particular time the course of his conduct 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.
793
794
SUPREME
COURT
REPORTS
'[1965) 3 S.C.R.
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. RajaB
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 Swatantra Party respectively for the election to Bihar Legislative Assembly
from Ramnagar Constituency in the district of Champaran.
The nomination papers of the appellant and the respondent
and two others-Patmeshwar Prasad Roy and Suleman Khanwere 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 election 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 respondentG
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 respondent 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 .
•
•
Kl':PAR l'ANDEY .,,, NA.RAJX (Ranuis1ran11'., .J.)
i915
A
Upon these rival contentions it was held by. the Tribu-.
nal
that the respondent-Narain Raja-was not a citizen
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
D
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.
E
F
G
H
The main que,tion arising for decision in this case is whether
the High Court was right in its conclusion that the respondentNarain Raja-was a citizen of India under Art. 5 of the Constitution 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 possession 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
Sah, the
f~ther of the respondent-Narain Raja. It is in
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 adopted
Rama
Raja,
the
father
of
the
respondent
and
by
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;
796
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REPOR'fS
I 1965] :l S.C.R.
Chhatra Kumari ·Devi i11 1937· Rama Raja caine into the possesA
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 circumstance, 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 obtained possession of Ramnagar estate and continued to remain in possession 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.
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
H
-·
I\
B
797
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 indudi11~ fooests in the estate were left joint.
-
·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 description 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·
E cribed as 'Agent". On behalf of the respondent R.W.19-G. S.
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 -
0
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 properties 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
•
798
SUPREME
COU.RT
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 Constitution. 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 cha1lenge this finding of the High Court. It is. therefore, manifest that B
the reqmreroent of Art. 5 (cl of the Constitution has been established 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 grandfather 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:nicii 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 possible to ascertain from the evidence whether there was any intention 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 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.
The crucial question for determination in this. case. therefore. 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
H
'
·,
..,.
••
.-~~~~~~~--~~.
-~-------------------------,
' I
.... '
.•• '>..
:.
KEDAR PANDE_Y v. NARAIN (Rar,uiswami, J.)
799
-, ' .'\
which is called a domicil of origin. This domicil may be changed.
~"'' 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
legitimate child receives that of the mother at that time. A>
0
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 the intemion of con- _
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 circumstances 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 intmtion 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
F
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
G
st•tes the rule as follows:
~ -
·
''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 permanent 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." -
-'.
_') [IW!] A.C. 287.
~) 7 er. & Fin. 876 •.
•
800
BUl'RE!.IR
COURT
HEl't.JR.'l':i
(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:
"If a man is settled in a foreign country. engaged in
some permanent pursuit requiring his residence there, a
B
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
0
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."
On behalf of the appellant Mr. Aggarwala relied on the de.:ision 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
D
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 questi""· 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
G
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 prescribe« or dictated by any external necessity, such as the
ctuties of office; the demands of creditors, or the relief
H
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
(') 3 Mac Q., H.L.C. 854.
(') 10 H L. Cas. 272.
(') L.R 1 HL. Sc. 441.
.
A
B
(j
D
E
F
G
B
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."
801
[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 Englishman. 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 outweiJh 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.
802
SUPREME COURT REPORTS
[1965] 3 s.c.n.
The following facts i,ave been either admitted by the parties or A
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 properties 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 lived in his father's palace. There 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 looking
after
the
properties
which
were 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
I
'•
A
B
c
D
E
F
G
H
..
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 contended that the conduct and acts of Marc Thomegay subsequently 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 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 which I am acquainted. I have always understood the law to be, that in order to determine a person's
intention at a given time, you may regard not only conpuct and acts before and at the time, but also conduct 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 should not have thought it necessary 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."
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 onwards, it appears that he had married his wife in 1950. His wife·
belonged to Darkoti in Himachal Pradesh near Patiala. The marriage 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.
. 80-i
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 then Vice-President of
Champaran District Swataμtra Party.
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.
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
D
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
Qin 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 indicating 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
,-
,.
A
B
0
D
005
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 Constitution 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 Ccnstitution 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.