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PETITIONER: KEDAR PANDEY

       Vs.

RESPONDENT: NARAIN BIKRAM SAH

DATE OF JUDGMENT: 15/04/1965

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1966 AIR  160            1965 SCR  (3) 793  CITATOR INFO :  D          1991 SC1886  (7,12)

ACT:     Constitution  of India,  1950,  Art.   5(c)--Acquisition of  Indian domicile--Proof.

HEADNOTE:     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 respondent.     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

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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. 794

JUDGMENT:     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 1963.     C.B.  Agarwala,  Jagdish  Panday,  Chinta  Subbarao,  M. Rajagopalan  and B.P. Jha, for the appellant, (In  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 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 valid  votes. 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  India. 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,

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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

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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

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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

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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 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 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 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 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

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             intention." (1) [1904] 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  H.L.               Cas. 272.               (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 ."

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                 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

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by him. After partition, 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  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 stated:               "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,

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             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 Ramnagar  Constituency. 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

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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. 806