Kedar Pandey Vs. Narain Bikram Sah
 INSC 106 (15 April 1965)
15/04/1965 RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
CITATION: 1966 AIR 160 1965 SCR (3) 793
D 1991 SC1886 (7,12)
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
India. 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
On the question whether the respondent was a
citizen of India under Art. 5 of the Constitution, 0n 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 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. [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 that 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 home, 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. [801 F-G; 803 F] Udny v.
Udny,L.R. 1 H.L..Sc. 441 and, Doucet v. Geoghegan, 9Ch. Div. 441, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 976 and 977 of 1964.
Appeals from the judgment and decree dated
March 26, 1964 of the Patna High Court in Election Appeals Nos. 8 and 10 of
C.B. Agarwala, Jagdish Panday, Chinta
Subbarao, M. Rajagopalan and B.P. Jha, for the appellant, (In both the
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 10 of 1963.
The appellant Kedar Pandey and the
respondent--Narain Bikram Sah'(hereinafter called Narain Raja) were the
contesting 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--Parmeshwar Prasad Roy and Suleman
Khan-were accepted by the Returning Officer without any objection on January
22, 1962. Later on the two candidates--Parmeshwar Prasad Roy and Suleman
Khan--withdrew their candidatures. After the poll the respondent, Narain Raja
was declared elected as member of the Bihar Legislative Assembly by majority of
On April 11, 1962 Kedar Pandey filed an
election petition challenging the election of the respondent. It was alleged 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
According to Kedar Pandey the respondent, his
parents and grand-parents were all born in Nepal and, therefore, on the date of
the election, the respondent-Narain Raja--was not qualified to be chosen to
fill the Assembly seat for which he 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 had a share along
with his three other brothers. The 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.
795 Upon these rival contentions it was held
by the Tribunal 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 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 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 upto 1949 and even thereafter.
The High Court further found that long before the year 1949 Narain Raja had
acquired a domicile of choice, in Indian territory and, therefore, acquired the
status of a citizen of India both-under Art. 5(a) and (c) of the Constitution.
On these findings the High Court took the view that Narain Raja was duly
qualified for being elected to the Bihar Legislative Assembly and the election
petition filed by the appellant--Kedar Pandey--should be dismissed.
The main question arising for decision in
this case is whether the High Court was right in its conclusion that the
respondent-Narain Raja--was a citizen of India under Art. 5 of the Constitution
of India on the material date.
The history of the family of Narain Raja is
closely connected with the history of Ramnagar 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 the 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
Raja, and after the death of Rani Chhatra Kumari Devi, the estate came into the
possession of Rama Raja alias Mohan Bikram Sah, the father 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 Mobart 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 favour 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(D)5SCI--12 796
Chhatra Kumari 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
against Rama Raja 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 1924 in the Court of Subordinate Judge
of Motihari against Rani Chhatra Kumari Devi and others claiming title to
Ramnagar estate and for possession of the same on the basis of his adoption by
Mohan Raja. The Title Suit and the Rent 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 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 Rani Chhatra Kumari Devi and the result was that the
Title Suit filed by Rama Raja 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 of the trial Court that Rama Raja was an adopted son of
Shri Mohan Vikiram 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 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 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 Kumari Devi again came into possession
of Ramnagar estate and continued to remain in possession till she died in 1937.
It is in evidence that 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 of Rama Raja there was a partition suit in the year 1942--No. 40 of
1942--for the partition of the properties of the Ramnagar 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. 1(2)--was passed on April 16, 1943 on compromise and the final
decree--Ex 1(1) in the suit 797 was passed on May 22, 1944. From the two
decrees it appears that Ramnagar. estate was comprised of extensive properties
including zamindariinterest in a large number of villages and the. estate 'had
an extensive area of Bakasht lands. By the said partition the estate was
divided among the co- sharers but certain properties including forests 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 Banaras in the year 1918.
According the case of the appellant Narain
Raja was born at a place called Barewa in Nepal. In order to prove his case the
appellant 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 the appellant to show that Narain Raja
was born at Barewa. This plaint was apparently filed in a suit brought by the
respondent for the realisation of money advanced by the respondent's mother to
one Babulal Sah. The place of birth of the respondent is mentioned in this
plaint as Barewa Durbar. The High Court did not attach importance to Ex. 8
because it took the view that the des- cription of the place of birth given in
the document was only for the purpose of litigation. It further appears from
Ex. 8 that it was not signed by the respondent but by one Subhan Mian Joiaha
described as 'Agent'. On behalf of the respondent R.W. 9--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 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 respondent that house at Mamurganj in which the
respondent was born was not included within the limits of the municipality in
the year 1918, and that the omission of the birth of the respondent in the
municipal registers was therefore, of no significance. It was contended behalf
of the appellant that there was litigation with regard to properties of
Ramnagar estate between the respondent's father Rani Chhatra Kumari Devi and
therefore the evidence of P.W. G.S. Prasad that Rama Raja was living with Rani
Chhatra Kurnari Devi at Ramnagar even during her lifetime cannot be accepted as
true. It was, therefore, suggested that it was highly improbable that 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 it necessary to
express any concluded opinion on this question of fact but proceed to decide
the case 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 of
Narain Raja has lost its importance in this case in view of the 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. 5(c) of
the Constitution is fulfilled.
Mr. Aggarwala on behalf of the appellant did
not challenge this finding of the High Court. It is. therefore, manifest that
the requirement of Art. 5(c) of the Constitution has been established and the
only question remaining for consideration is the question whether Narain Raja
had his domicil in the territory of India at the material time.
Upon this question it was argued before the
High Court on behalf of 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 Rama Raja in 1903 Mohan Raja's domicil of choice was India. It was said
that by adoption in 1903 Rama Raja became Mohan Raja's son and by fiction it
must be taken that Rama Raja's domicil was india as if he was Mohan Raja's son.
It was contended in the alternative that whatever may have been Rama Raja's
domicil before 1937 when Rani Chhatra Kumari Devi died, Rama Raja acquired a
domicil of choice in India when he came to India on 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 no material on the record to decide
the 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 unIess the domicil of
Rama Raja in 1918 was ascertained the 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 chosen 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
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 799 which is called a domicil of origin. This domicil may be changed
and a new domicil, which is called a domicil of choice, acquired; but the two
kinds of domicil differ in one respect. The domicil of origin is received by
operation of law 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 domicil of origin is determined by the domicil, at the time of the
child's birth, of that person upon whom he is legally dependent. 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. As regards change of domicil, any person not under
disability may at any time change his existing domicil and acquire for himself
a domicil of choice by the fact of residing in a country other than that of his
domicil of origin with the intention of continuing to reside there
indefinitely. For this purpose residence is a mere physical fact, and means no
more than personal 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 making his principal or sole permanent home in the
country-of residence, or, in effect, he should have formed a deliberate
intention to settle there. It is also well-established that the onus of proving
that a domicil has 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 fixed and settled intention of abandoning the first
domicil and aquiring another as the sole domicil is clearly shown (see Winarts
v. Attorney-General. (1) In Munro v. Munro(2) Lord Cottonham states the rule as
"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 former 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 Should 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 so, though it may
be most important as a ground from which to infer intention." (1) 
A.C. 287. (2) 7 C.I. & Fin . 876.
800 In Aikman v. Aikman(1), Lord Campbell has
discussed the question of the effect on domicil of an intention to return to
the native country, where such intention is attributable to an undefined and
remote contingency. He said:
"If a man is settled in a foreign
country, engaged in some permanent pursuit requiring his residence there, a
mere intention to return to his native country on a doubtful contingency, will
not prevent such a residence in a foreign country from putting an end to his
domicil of origin. But a residence in a foreign country for pleasure, lawful or
illicit, which residence may be changed at any moment, without the violation of
any contract or any duty, and is accompanied by an intention of going back to
reside in the place of birth, 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 decision. of the House of Lords in Moorhouse v. Lord(2) in which it was
held that in order to lose a domicil of origin, and to acquire a new domicil, a
man must intend quatenus in illo exuere patriam and there must be a change of
nationality, that is natural allegiance R is not enough for him to take a house
in the new country, even with the probability and the belief that he may remain
there all the days of his life. But the principle laid down in this case was
discussed in Udny v. Udny(3) which decision is the leading authority on what
constitute 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(2), as to the intent exuere patriam, are calculated to mislead, and go
beyond the question of domicil. At page 458 Lord Westbury states:
"Domicil of choice is a conclusion or
inference which the law derives from the fact of a man fixing voluntarily his
sole or chief residence in a particular place, with the intention of continuing
to reside there for an unlimited time. This is description of the circumstances
which create or constitute a domicil and not a definition of the term.
There must be residence freely chosen and not
prescribed or dictated by any external necessity, such as the duties of office,
the demands of creditors, or the relief from illness, and it must be a
residence fixed, not for a limited period or particular purpose, but general
and indefinite in its future contemplation. It is true that residence,
originally temporary or intended for a limited (1) 3 Mac Q., H.L.C. 854. (2) 10
(3) L.R. 1 H.L. Sc. 441.
801 period, may, afterwards become general
and unlimited; and in such a case, so soon as the change of purpose, or animus
manendi, can be inferred, the fact of domicil is established ." In the
next case--Doucet v. Geoghegan (1) the Court of Appeal decided that the
testator had acquired an English domicil; and one of the main facts relied on
was that he had twice married in England in a manner not conforming to the
formalities which are required by the French Law for the legalisation of
marriages of Frenchmen in a foreign country. James L.
J. stated as follows:
"Both his marriages were acts of
unmitigated scoundrelism, if he was not a domiciled Englishman. He brought 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 had 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 outweigh
the facts of the testator's life." In our opinion, the decisions of the
English Courts in Udny v. Undy(3) and Doucet v. Geoghegan(1) 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 his family in the new country,
not for a mere special of temporary purpose, but with a present intention of
making it his 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 domicil
of choice there. In other words, the test is whether Narain Raja had formed the
fixed and settled purpose of making his home in India with the intention of
establishing himself and his family in India.
(1) 9 Ch. Div. 441.
(2) L.R. 1 H.L. So. 441.
802 The following facts have been either
admitted by the parties 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 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 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, he
and his wife acquired properties in the district of Champaran, in Patna and in
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 1943, and by Ex. W of the year 1947. Then, there are
registered pattas excluded by Narain Raja of the year 1945, which are Exs. W/3,
W/4, and W/5. There are documents which prove acquisition of properties in the
name of Narain Raja's wife--F(D, F(2). F(3) and F(5). Exhibit F(4) shows the
purchase of 11 bighas and odd land at Patna by Narain Raja.
It is also important to notice that Narain
Raja had obtained Indian Passport dated March 23, 1949 from Lucknow issued by
the Governor-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 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 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 domicil 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 803 out by the decision of the Chancery Court in In re Grove
Vaucher v. The Solicitor to the Treasury(1) in which the domicil of one Marc
Thomegay in 1744 was at issue and various facts and circumstances after 1744
were considered to be relevant. At page 242 of the report Lopes, L.J. has
"The domicil of an independent person is
constituted 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 con ended 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 conduct
and 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 not
have thought it necessary to allude to this contention, unless I had understood
that the propriety of admitting this evidence was somewhat questioned 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
question 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 Narain Raja had established a Sanskrit
Vidalya in Ramnagar in the name of his mother, called Prem Jananl Sanskrit
Vidyalaya. The story of 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.
(1) (1889) 40 Oh. D. 216.
804 After Gram Panchayats were established,
the Union Board was abolished. Narain Raja was a voter in the Gram Panchayat
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
In the General Election of 1957 he stood as a
candidate opposing Kedar-Pandey. Thereafter, he became the President of the
Bettiah Sub-divisional Swatantra Party and then Vice-President of Champaran
District Swatantra Party.
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 domicil 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 805 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.
For the reasons expressed, we hold 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 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.
We accordingly dismiss both these appeals
with costs. One set Appeals dismissed.