A.K.SARKAB, J.

(1) THE appellant,.an Iranian national by birth, came to India from Yezd in Iran with his maternal uncle, an Iranian national, in 1938 when he was about thirteen years old. The record does not show on what passport he entered India. In January 1945 he obtained an Iranian passport and went to Iraq on pilgrimage This passport showed that he held an identity card ,of the Iranian government. On return from the pilgrimage he was on 22/03/1946 registered under the Registration of Foreigners Rules, 1939 as an Iranian national. On 25/05/1951, he obtained a residential permit under the Foreigners Order, 1938 permitting him to reside in India upto a certain date. This permission was extended from time to time at his request. On 2/12/1957 his last request was refused and he was ordered under the Foreigners Act, 1946 to leave India. On 14/12/1957, he filed a suit in the City Civil court at Bombay for a ,declaration that he was a citizen of India and for an injunction restraining the State of Bombay,: the Police of Bombay and the Union of India from taking action against him on the footing that he was a foreigner and not a citizen of India. This suit was dismissed by the City Civil court and an appeal by the appellant to the High court at Bombay also failed. He has now appealed to this court with special leave.

(2) THE appellant bases his claim to citizenship of India on Art. 5 of the Constitution. Under that article every person who had his domicile in the territory of India and had been ordinarily resident there for not less than five years immediately preceding the commencement of the Constitution was declared to be a citizen of India. Article 5 of the Constitution came into force on 21/11/1949. It is not in dispute that the appellant had been ordinarily resident in the territory of India for over five years before 21/11/1949. The only question in this appeal is whether he had his domicile in the territory of India on- that date.

(3) WHEN the appellant arrived in India he was a minor. His domicile was, therefore, that of his father which was Iranian. This is not disputed. The appellant contends that he had changed his Iranian domicile into an Indian domicile prior to 21/11/1949. The onus of proving the change of domicile is, of course entirely on the appellant. Such change can be proved if it is established that the appellant had made up his mind to make India his home, that is to say, remain in India permanently. The facts established are that since 1938 excepting for a visit to Iraq lasting about a year he has all along been a resident of Bombay. It is well established that residence alone is insufficient evidence to establish acquisition of a new domicile; there has also to be. proof that the residence in a country was with the intention of making it the persons home.

(4) NOW on the question of intention of the appellant to make India his home, there is very little evidence. The evidence shows that after his arrival in India the appellant was put in a school but before he attained majority he took up the job of a cashier in a restaurant in Bombay. He attained majority sometime in 1943. Prior to that he was not entitled under the law to change his domicile. He has to establish the change in domicile by proving that after 1943 and before 21/11/1949 he had formed the intention of making India his home. There is very little during this short period from which one can draw an inference that he had intended to change his domicile. He was then quite young. During, this period he left India on an Iranian passport declaring himself to be an Iranian national. On his return he was registered as an Iranian national on 23/03/1946. These facts do not support the appellant. It is said that he had done all these because under the law then obtaining he had no option. It has however to be pointed out that it was open to him then, if he wished to change his Nationality, to get himself naturalised as a British