1. Election petition challenging candidate's qualification for legislative assembly seat on grounds of non-citizenship under Article 173 of the Constitution. (Para 2 )
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1965 Supreme(SC) 129
SUPREME COURT OF INDIA
B. GAJENDRAGADKAR, C.J.I., K.N. WANCHOO, M. HIDAYATULLAH AND V. RAMASWAMI, JJ.
Kedar Pandey (In both the Appeals), Appellant
Versus
Narain Bikram Sah (In both the Appeals), Respondent.
Civil Appeals Nos. 976 and 977 of 1964.
Advocates appeared
Mr. C. B. Agarwala, Senior Advocate, (M/s. Jagdish Panday, Chinta Subbarao, M. Rajagopalan and B. P. Jha, Advocates, with him), for Appellant (In both the appeals); M/s. K. P. Varma and D. Goburdhan, Advocates, for Respondent (In both the appeals).
Advocates:
B.P.JHA, C.B.AGARWAL, C.V.SUBBA RAO, D.GOVERDHAN CHARY, JAGDISH PANDYA, K.P.VARMA, M.RAJAGOPAL
B.P.JHA, C.B.AGARWAL, C.V.SUBBA RAO, D.GOVERDHAN CHARY, JAGDISH PANDYA, K.P.VARMA, M.RAJAGOPAL
Important Points
A domicil of choice is acquired through residence in a new country combined with animus manendi (intention to reside indefinitely). This intention is inferred from the person's conduct and activities both before and after the material date.
Subject
Constitutional Law - Citizenship
Act Referred
Headnote
(A) Constitution of India - Articles 5 and 173 - Citizenship and qualification for election to Legislative Assembly - Domicil of origin and domicil of choice - Domicil of origin is received by operation of law at birth, whereas domicil of choice is acquired by actual removal to another country accompanied by animus manendi, which requires a fixed and settled purpose of making the new country the principal or sole permanent home (Paras 10, 11). The onus of proving that a domicil of choice has been acquired in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost (Para 10).
(B) Evidence of Intention - To determine a person's intention at a given time, conduct and acts both before and after that time are relevant and can be assigned proper weight of cogency (Para 15).
Facts of the case:
An election petition was filed challenging the election of a candidate to the Legislative Assembly on the ground that the candidate was not a citizen of India and thus disqualified under the Constitution. It was alleged that the candidate and his ancestors were born in a foreign country. The candidate contended that he was an Indian citizen, having lived in India and acquired a domicil of choice.
Findings of Court:
The candidate was found to be ordinarily resident in India for five years preceding the commencement of the Constitution. Based on the candidate's education, management of extensive properties, establishment of a family, and political activities within India, it was held that he had acquired a domicil of choice in India.
Issues: Whether the candidate was a citizen of India under Article 5 of the Constitution by acquiring a domicil of choice.
Ratio Decidendi: A domicil of choice is established when a person voluntarily fixes their residence in a particular place with the intention of continuing to reside there for an unlimited time. This intention is inferred from the fact of residence and the state of mind (animus manendi). The court held that the candidate's extensive socio-economic ties and permanent settlement in India outweighed the fact of owning minor property in a foreign country or using a traditional title.
Result: Appeals dismissed.
(B) Evidence of Intention - To determine a person's intention at a given time, conduct and acts both before and after that time are relevant and can be assigned proper weight of cogency (Para 15).
Facts of the case:
An election petition was filed challenging the election of a candidate to the Legislative Assembly on the ground that the candidate was not a citizen of India and thus disqualified under the Constitution. It was alleged that the candidate and his ancestors were born in a foreign country. The candidate contended that he was an Indian citizen, having lived in India and acquired a domicil of choice.
Findings of Court:
The candidate was found to be ordinarily resident in India for five years preceding the commencement of the Constitution. Based on the candidate's education, management of extensive properties, establishment of a family, and political activities within India, it was held that he had acquired a domicil of choice in India.
Issues: Whether the candidate was a citizen of India under Article 5 of the Constitution by acquiring a domicil of choice.
Ratio Decidendi: A domicil of choice is established when a person voluntarily fixes their residence in a particular place with the intention of continuing to reside there for an unlimited time. This intention is inferred from the fact of residence and the state of mind (animus manendi). The court held that the candidate's extensive socio-economic ties and permanent settlement in India outweighed the fact of owning minor property in a foreign country or using a traditional title.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Dispute over whether the candidate was born in India or Nepal and whether a domicil of choice in India was acquired. (Para 2 , 7 , 8 , 19 , 20 )
3. Evaluation of residence and animus manendi through conduct, property ownership, and family ties to determine acquisition of domicil of choice. (Para 14 , 15 , 17 , 18 , 19 , 20 )
4. Domicil of choice is acquired by voluntary residence in a new country accompanied by a fixed and settled intention to make it a permanent home. (Para 10 , 11 , 12 )
5. Appeals dismissed; candidate held to be a citizen of India under Article 5 of the Constitution. (Para 21 )
6. What is the difference between domicil of origin and domicil of choice?
Domicil of origin is received by operation of law at birth based on the person upon whom the child is legally dependent. Domicil of choice is acquired later through actual removal to another country accompanied by the intention to reside there indefinitely, known as animus manendi. (Para 10 )
7. What are the essential requirements to acquire a domicil of choice?
Acquiring a domicil of choice requires both the physical fact of residence in a country and the state of mind or animus manendi, meaning a fixed and settled purpose of making that country one's principal or sole permanent home. (Para 10 , 12 )
8. Can conduct subsequent to a material date be used to determine a person's domicil at that date?
Yes, to determine a person's intention at a given time, the court may consider conduct and acts both before and after that time, assigning such conduct and acts their relative and proper weight of cogency. (Para 15 )
9. Who bears the burden of proof when a change of domicil is asserted?
The onus of proving that a domicil of choice has been acquired in substitution for the domicil of origin lies upon those who assert that the domicil of origin has been lost. (Para 10 )
Judgement
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.
2. 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 Office 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.
3. 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 domicil 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.
4. 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.
5. The history of the family of Narain Raja is closely connected with the history of Ramnagar estate. It appears that Ramnagar estate in the
