Kedar Pandey v. Narain Bikram Seth

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Ramaswami, J. –

1. 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 other – 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
   qualifiedto be chosento fill the Assemblyseat for whichhe hadbeendeclaredto havebeenelected.
   According to Kedar Pandey the respondent was related to the royal family of Nepal and the father
   of the respondent- Rama Raja – ownedabout 43 bighasof 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
   contestedbythe respondent who saidthat he was an Indiancitizenand therewas no disqualification
   incurredunder Art. 173 of the Constitution. The further caseof the respondent was that he had lived
   in Indiasince his birth and that he was a residentof Ramnagar in the district of Champaranand not
   of Barewain Nepal.Therespondentclaimedthathewasbornin Banarasand 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
   Tribunalto the High Court of Judicature at Patna. The High Court in appeal set asidethe judgment
   of the Tribunal and upheldthe 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 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
   e 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
   petitionfiledbytheappellant- KedarPandey- shouldbedismissed.
4. The mainquestionarising for decisionin this case is whether the High Court was right in its
   conclusionthatthe respondent – Narain Raja – was a citizenof Indiaunder Art. 5 of the Constitution
   of Indiaon thematerialdate.
5. The historyof 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 Sent after whose death the estate came into the possessionof Shri Mohan Vikram Sah,
   popularly known as Mohan Raja. Afterthe deathof Mohan Raja the estatecame into the possession
   of Rani Chhatra Kumari Devi, the widow of Mohan Raja, and after the death of Rani Chhatra
   Kumari Devi, the estate came into the possessionof 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 Mohan Raja. Mohan Raja died without any male issuebut
   during his lifetime he had adopted Rama Raja, the father of the respondent and by virtue of a will
   executedby Mohan Raja in the year 1904 in favourof his wife Rani Chhatra KumariDevithe Rani
   becameentitledto the Ramnagarestate on the death of Mohan Raja (which took placein 1912), in
   preference to the adopted son Rama Raja since the properties belonged to Mohan Raja in his
   absolute right and not as ancestralproperties. After the deathof Rani 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 in the Court of Sub-Judge, Motihari
   with regardto a village which Rama Raja held in Ramnagar estateon 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, Motihariwho, 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 appealto the High Court of Patna whichdismissed the appeal. Against
   the judgment of the High Court appealswere takento the Judicial Committeeof 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 Vikram 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
   entitledto the estate in view of the willexecutedby Mohan Raja in favourof 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 possessionof Ramnagar estate and continuedto remain in possession
   till she died in 1937. It is in evidencethat 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-
   bodywas crematedin Banaras.
6. 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 partitionof the propertiesof the Ramnagarestateamong Rama
   Raja and his sons includingthe 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 compromiseand the final decree- Ex 1(1) in the suit was passedon May 22, 1944. From
   the two decrees it appears that Ramnagar estate was comprised of extensive properties including
   zamindari interest 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-shares but certain properties
   including forests in the estate were left joint.
7. On behalf of the appellant Mr. Aggarwala put forward the argument that the High Court
   was not justified in holdingthat NarainRaja was born in Banarasin the year 1918. Accordingto the
   case of the appellant Narain Raja was born at a placecalled Barewa in Nepal. In order to provehis
   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 of 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 description 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 Jolahadescribed as ‘Agent’. On behalfof 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 municipalregisters 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 the house at Mamurganjin which the respondent was born was not includedwithin
   the limitsof the municipalityin the year 1918, andthat the omissionof the birthof the respondent in
   the municipalregisters was therefore,of no significance. It was contendedon behalfof the appellant
   that there was litigation with regard to properties of Ramnagar estate between the respondent’s
   father and Rani Chhatra Kumari Devi and thereforethe evidenceof P.W. 9, G. S. Prasadthat Rama
   Raja was living with Rani Chhatra Kumari 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 belongingto Ramnagarestate.
   We do not, however, think it necessary to express any concluded opinion on this question of fact
   but proceed to decide the case on the assumption that Narain Raja was not born in the territory of
   India, in the year 1918. The reasonis that the place of birthof Narain Raja has lost its importancein
   thiscase in viewof the concurrentfindingsof boththe High Court andthe Tribunalthat for a period
   of 5 years precedingthe commencementof the Constitution Narain Raja was ordinarilyresident 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 Constitutionhas been established and the
   only question remaining for consideration is the question whether Narain Raja had his domicile in
   theterritoryof Indiaat thematerialtime.
8. Upon this question it was argued beforethe High Court on behalfof the respondentthat the
   domicileof originof MohanRaja mayhavebeen in Nepal but he had acquireda domicileof choice
   in India after inheriting Ramnagar Raj from his maternal grandfather Prahlad Sen. Itwas said that
   Mohan Raja had settled down in India and had marriedall 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
   domicile of choice was India. It was said that by adoption in 1903 Rama Raja became Mohan
   Raja’s son and by fiction it mustbe taken that Rama Raja’s domicile was India as if he was Mohan
   Raja’s son. It was contended in the alternative that whatevermayhave been Rama Raja’s domicile
   before 1937 when Rani Chhatra Kumari Devi died, Rama Raja acquired a domicile of choice in
   Indiawhen he cameto Indiaon the deathof Rani Chhatra Kumari Devi. It was also statedon behalf
   of the respondent that Rama Raja remained in possession of the Ramnagar estate until his death in
9. The High Court, however, held, upon examinationof the evidence, that there was no material
   on the record to decidethe question of Mohan Raja’s domicile. 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
   Rajato settledown in Indiaand make it his permanenthome. In anyevent, NarainRajawas born in
   the year 1918 and unless the domicileof Rama Raja in 1918 was ascertainedthe domicileof origin
   of Narain Raja will remain unknown. The High Court therefore, proceeded upon the assumption
   that Narain Raja had his domicileof origin in Nepaland examinedthe evidenceto find out whether
   Narain Raja had deliberatelychosen the domicileof choice in India in substitutionfor the domicile
   of origin.
10. The crucial question for determination in this case, therefore, is whether Narain Raja had
    acquiredthedomicileof choicein India.
11. 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
    domicile which is called a domicile of origin. This domicile may be changed, and a new domicile,
    which is called a domicile of choice, acquired; but the two kinds of domicile differ in one respect.
    The domicile 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 domicile of origin is determined by the domicile, 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 domicile 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 domicile, any person not under
    disabilitymay at anytime change his existingdomicileand acquire for himselfa domicile of choice
    by the fact of residing in a country other than that of his domicile of origin with the intention of
    continuingto 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
    demandsthat the personwhosedomicileis the object of the inquiryshould have formed a fixedand
    settled purpose of making his principal or sole permanent home in the country of residence, or, in
    effect, he shouldhave formeda deliberate intention to settle there. It is also well-establishedthat the
    onus of provingthat a domicilehas been chosen in substitution for the domicileof origin lies upon
    those who assert that the domicileof origin has been lost. The domicileof origin continues unless a
    fixed and settled intention of abandoning the first domicile and acquiring another as the sole
    domicile is clearly shown (see Winans v. Attorney-General. [1904] A.C.287 In Munro v.
    Munro, 7 CI. 876 LordCottenhamstatestheruleas follows:
    “The domicile 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 domicile , and
    acquiring another as his sole domicile. To effect this abandonment of the domicile 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
    bothresidenceand intention. Residencealone has no effect, per se, though it maybe most important
    as a groundfromwhichto inferintention.”
    
    In Aikman v. Aikman, 3 Mac 854, Lord Campbellhas discussedthe questionof the effect on
    domicile of an intention to return to the native country, where such intention is attributable to an
    undefinedandremotecontingency.He said:
    “If a man is settled in a foreign country, engaged in some permanent pursuit requiring his
    residencethere, a mere intention to return to his native countryon a doubtful contingency, will not
    prevent such a residence in a foreign country from putting an end to his domicile of origin. But a
    residence in a foreign countryfor pleasure, lawfulor illicit, whichresidence may be changed at any
    moment, without the violation of any contract or any duty, and is accompanied by an intention of
    goingbackto reside in the placeof birth, or the happeningof an event whichin the courseof nature
    mustspeedilyhappen, cannotbeconsideredas indicatingthepurposeto liveanddieabroad.”
12. On behalf of the appellant Mr. Aggarwalarelied on the decision of the House ofLords in
    Moorhouse v. Lord, 10 H.L. Cas 272 in which it was held that in orderto losea domicileof origin,
    andto acquirea new domicile, a man must intend quatenusin illo exuerepatriam andtheremust be
    a changeof nationality, that is naturalallegiance. It is not enoughfor himto take a housein the new
    country, evenwiththe probabilityand the beliefthat he mayremainthere all the days of his life. But
    theprincipallaid down in thiscasewas discussed in Udny v. Udny, L.R. 1 H.L. 441 whichdecision
    is the leading authority on what constitute a domicile of choice taking the place of a domicile of
    origin.It is therepointedout by Lord Westburythattheexpressionsusedin Moorhouse v. Lord, 10
    H.L. Cas. 272 as to the intent exuere patriam1, are calculated to mislead, and go beyond the
    question of domicile. At page 458 Lord Westbury states:
    “Domicileof choiceis a conclusionor inferencewhich the law derives from the fact of a man
    fixingvoluntarilyhis sole or chiefresidence in a particular place, with the intentionof continuing to
    residethere for an unlimitedtime. This is descriptionof the circumstanceswhich createor constitute
    a domicile 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 period, may, afterwards become general and
    unlimited;and in sucha case, so soon as the changeof purpose, or animusmanendi, can be inferred,
    thefactof domicileisestablished.”
13. In the nextcase – Doucet v. Geoghegan, 9 Ch. Div. 441 the Court of Appeal decided that
    the testator had acquired in English domicile; 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 theyamount to ? He is reported to havesaid that when he
    had madehis fortunehe would go backto France. A man who says that, is likea manwho expects
    to reachthe horizonand finds it at last no nearerthan it was at the beginningof his journey. Nothing
    can be imagined more indefinite than such declarations. They cannot outweigh the facts of the
    testator’slife.”
    In our opinion, the decisions of the English Courts in Undy v. Undy L.R. 1H.L.44 and
    Doucet v. Geoghegan representthecorrectlawwithregardto changeof domicileof origin. We are
    1 To throw off or renounce one’s country or native allegiance (The lawdictionary.org)
    
    of the view that the only intention required for a proof of a change of domicile is an intention of
    permanent residence. In other words, what is required to be established is that the person who is
    allegedto havechanged his domicileof originhas voluntarilyfixed the habitationof himselfand his
    familyin the new country, not for a mere special of temporarypurpose, but witha present intention
    of makingit his permanenthome.
14. 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 domicile of choice there. In other words, the test is whether Narain Raja had formed the
    fixed and settled purposeof makinghis home in India withthe intentionof establishinghimselfand
    his familyinIndia.
15. The following facts have been either admitted by the parties or found to be established in
    this case. Narain Raja was educated in Calcutta from 1934 to 1938. From the year 1938onwards
    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
    courseof his statement Narain Raja deposedthat 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 theyhad been left joint. Narain Raja used to makesettlement of the forestson behalfof the Raj
    and pattas used to be executed by him. After partition, he and his wife acquired properties in the
    district of Champaran, in Patnaand in other places. Narain Raja and his wife and childrenpossessed
    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, Patnaand Benaras. The forest settlementsare
    supported by Exhibits X series, commencing from 1943, and by Ex. W of the year 1947. Then,
    there are registered pattasexcluded by Narain Raja of the year 1945, which are Exs. W/3, W/4, and
    W/5. Thereare documentswhichprove acquisitionof properties in the nameof Narain Raja’swife –
    F(1), 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 Lucknowissued by the Governor-Generalof 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 was 10 or 12 years old. He also said that he had not gone to Barewa for ten
    years before1963.
16. The High Court considered that for the determination of the question of domicile 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 domicile of Narain Raja on the date of coming into force of the
    Constitutionof India his conduct and facts and circumstancessubsequent to the time should also be
    taken into account. This view is borne out by the decision of the Chancery Court in In re Grove
    Vaucher v. The Solicitor to the Treasury, (1889) 40 Ch. 216 in which the domicile of one Marc
    Thomegayin 1744 was at issue and various facts and circumstances after 1744 were consideredto
    berelevant.At page242of thereport Lopes,L.J. hasstated:
    “The domicile of an independentperson is constituted by the factum of residencein a country
    andthe animusmanendi, that is, the intentionto residein that countryfor an indefiniteperiod.
    
    Duringthe argument it was contendedthat the conductand acts of Marc Thomegaysubsequentlyto
    February, 1744, at the time of the birthof Sarah were inadmissible as evidenceof Marc Thomegay’s
    intentionto permanentlyreside in this countryat 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 opposedto all the rules
    of evidence, and all the authoritieswithwhich I am acquainted. I havealwaysunderstoodthe law to
    be, that in order to determinea person’s intention at a given time, you may regard not onlyconduct
    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-establishedon
    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 viewwhich I rathernow gatherfromhisjudgmenthehasrelinquished.”
17. We are, therefore, of opinion that the conduct and activities of Narain Raja subsequent to
    the year 1949 are relevant but we shalldecidethe questionof his domicile in this case mainlyin the
    lightof hisconductandactivitiespriortothe year1949.
18. 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 inBettiah. 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 Janani Sanskrit Vidyalaya.
    The storyof 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. After Gram Panchayats were established, the Union Board was abolished. Narain Raja
    was a voter in the Gram Panchayatandhe was elected as the Vice-Presidentof 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.
19. Taking all the events and circumstances of Narain Raja’s life into account we are satisfied
    that longbefore the end of 1949 whichis 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 makinghis home with the intention of permanentlyestablishinghimself and
    his familyin India. In our opinion, the requisite animusmanendi has been proved and the findingof
    the HighCourt is correct.
20. On behalf of the appellant Mr. Aggarwala suggested that there were two reasons to show
    that Narain Raja had no intention of making his domicile 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
    propertyin Nepaland so he could not haveany intentionof livingin Indiapermanently. It is said by
    the respondentthat the total areaof land mentionedin the Khatianwas about 43 bighas. The caseof
    Narain Raja is that the property had belonged to his natural grandmother named Kanchhi Maiya
    who had gifted the landto Rama Raja. The landwas the exclusivepropertyof Rama Raja, and after
    his death, the propertydevolved upon his sons. The caseof Narain Raja on this point is provedby a
    Sanad(Ex. AA). In anyevent, we are not satisfiedthat thecircumstanceof Narain Raja owningthe
    propertycoveredby Ex. 10(c) can outweighthe fact that Narain Raja alone had extensiveproperties
    in Indiaafterthepartitiondecreeof the year1944.
21. 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
    familyof Nepal. It was argued on behalf of the appellant that Narain Raja had clung tenaciouslyto
    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
    Kingof Nepal. We do not think there is anysubstance in thisargument. It is likelythat Narain Raja
    and his father Rama Raja had prefixed the title of “Sri 5” to their namesowingto the prideof their
    ancestry and sentimental attachment to the traditional title and this circumstance has no bearing on
    the question of domicile. Succession to throne of Nepal is governed by the rule of primogeniture
    and it cannotbe believedthat as the second sonof 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 case that
    NarainRaja’selderbrother ShivBikramSahhasleftmaleissues.
22. For the reasons expressed, we hold that Narain Raja had acquired domicile of choice in
    Indiawhen Art. 5 of the Constitutioncame into force. We havealreadyreferredto the findingof the
    High Court that Narain Raja was ordinarily resident in India for 5 year immediately preceding that
    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 NarainRajawasa citizenof Indiaat therelevanttime.
23. Weaccordinglydismissboththeseappealswithcosts. Oneset.
24. Appealsdismissed.