landmark judgement LAW INSIDER IN

Kedar Pandey V Narain Bikram Sah

CASE BRIEF

Citations: 1966 AIR 160, 1965 SCR (3) 793

Case Type: Civil case

Case No: Civil Appeals Nos. 976 and 977 of 1964.

Decided On: 15/04/1965

Petitioner: Kedar Pandey

Respondent: Narain Bikram Sah

Bench:

Ramaswami, V.

Gajendragadkar, P.B. (CJ)

Wanchoo, K.N.

Hidayatullah, M.

Statutes Referred:

Constitution of India, 1950, Art. 5(c)—Acquisition of Indian domicile–Proof.

Art. 173 of the Constitution

Cases Referred:

Munro v. Munro;

Aikman v. Aikman,

Udny v. Udny,

Moorhouse v. Lord,

Doucet v. Geoghegan

Facts:

The appellant and the respondent were contending for a candidate for elections to the State Legislative Assembly. The respondent was declared elected and the appellant filed an election petition to challenge elections on the ground that respondents did not have a legitimate qualification under art. 173 of Constitution of India which said the respondent is the citizen of Nepal but not a citizen of India.

Issues Involved:  

  • The important question to resolve this case, therefore. Is whether Narain Raja had acquired the domicile of choice in India?
  • The law on the subject is well-established but the struggle is found in its application to altering combination of situations in each case. The law powers to every person at birth a domicile which is called a domicile of origin. This domicile may be transformed and a new domicile, which is called a domicile of choice, attained; but the two kinds of domicile differ to each other in every respect.
  • The domicile of origin is usually acquired by operation of law at birth; the domicile of choice is acquired later by the actual movement of the individual to another country with the animus manendi
  • In the context of this law, the facts of this case must be taken into account in determining whether Narain Raja has adopted India as a permanent residence. With the intention of establishing himself and his family in India, he formed a settled purpose of building his home in India.
  • Regarding the question of whether the respondent was an Indian citizen under Art.5,on the said date?
  • The test is whether Narain Raja has formed a settled purpose of building his home in India with the intention of establishing himself and his family in India?

Observations/Obiter Dicta:

  • Taking all the events and circumstances of Narain Raja’s life into account we are satisfied that long before the end of 1949 which is the material time under Art. 5 of the Constitution, Narain Raja had acquired a domicile of choice in India.
  • In other words, Narain Raja had formed the deliberate intention of making his home with the intention of permanently establishing himself his family in India. In our opinion, the requisite animus manendi has been proved and the finding of the High Court is correct. On behalf of the appellant Mr. Aggarwala suggested that there were two reasons to show that Narain Raja had no intention of making his domicil of choice in India. Reference was made, in this context, to Ex. 10(c) which is a khatian prepared in 1960.
  • Showing certain properties standing in the name of Narain Raja and his brothers in Nepal. It was argued that Narain Raja had 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 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 Raja owning the property covered by Ex. 10(c) can outweigh the fact that Narain Raja alone had extensive properties in India after the partition decree of the year 1944.
  • It was also pointed out on behalf of the appellant that Narain Raja, and before him Rama Raja, had insisted upon designating themselves “Sri 5,’ indicating that they belonged to the royal family of Nepal It was argued on behalf of the appellant that Narain 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 junior 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 attachment to the traditional title and this circumstance has no bearing on the question of domicil.
  • Succession to throne of Nepal is governed by the rule of primogeniture and it cannot be believed that 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 described himself as “Sri 5” with the intention of keeping alive his ties with Nepal. There was evidence in this ease that Narain Raja’s eider brother Shiv Bikram Sah has left male issues.

Rationale:

The only intent needed to prove a change of residence is the intent of permanent residence. What needs to be established is that the person who allegedly changed his place of origin voluntarily fixed his or her family’s place of residence in the new country not just for temporary or special purpose but his intention should be to make it a permanent home, the issue of residence at a particular time, is related to the process of his actions and the facts and circumstances before and after.

Judgement:

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 India his home with the intention of permanently establishing himself and his family in India and therefore had the requisite animus 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.

For the reasons expressed, the court held that Narain Raja had acquired domicile 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 for 5 years immediately preceding the time when Art. 5 of the Constitution came into force.

It is manifest that the requirements of Art. 5(c) of the Constitution 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.

Conclusion:

This case talks about two types of domicile, domicile by birth and domicile by choice.

With regard to change of place of residence, persons without disabilities may anytime change their existing place of residence and acquire a place of residence of their choice with the intention to live in a country other than their country of origin for the purpose of continuing their residence indefinitely

For this purpose, residence is merely a physical fact, meaning that, apart from the circumstances that accompany it, it is merely a personal presence in the area. When this physical fact is accompanied by a necessary state of mind, its character and duration are of no importance.

The required mental state, or animus manendi, is the responsibility of the person whose place of residence is the subject of the investigation to prove that the place of residence was chosen in the country of residence or instead of the place of origin.

The place of origin continues unless there is a fixed intention to abandon the original place of residence and acquire another place of residence as the only place of residence.

Thus, this case definitely made the difference between the actual differences between the two types of domicile and will clearly show a torch to all the similar case which is based on domicile related matters.

Prepared by Anushka Choudhary