Case: Kedar Pandey Vs. Narain Bikram Sah

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 19632. Ther Pandey and then 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 twor Prasad Roy and Sulemane accepted by the Returning Office without any objection on January 22. 1962. Later on the two candidatesr Prasad Roy and Sulemanw 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 ands were all born in Nepal and, therefore, on the date of the election, thes 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 thed 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 Barewa3. Upon these rival contentions it was held by the Tribunal that thes 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 then 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 ther Pandeyshould be dismissed.

Reasoning:
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 reason is that the place of birth 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 timeIn our opinion, the decisions of the English Courts in (1869) 1 Sc and Div 441, and, (1878) 9 Ch D 441, 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 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 or temporary purpose, but with a present intention of making it his permanent home15. 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 account16. 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 194918. Taking all the events and circumstances of Narain Rajas 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 India his home with the intention of permanently establishing himself and his family in India. In our opinion, the requisite animus manendi has been proved and the finding of the High Court is correctThe 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 owing 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 1944We 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 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 case that Narain Rajas elder brother Shiv Bikram Sah has left male issues21. 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.