JUDGMENT
U.N. Sinha, J.
1. These three cases have been heard together and this judgment will govern all of them. The facts out of which these cases have arisen are as follows:– In the year 1962 there was an election for the purpose of electing a member to the Bihar legislative Assembly from Ramnagar Assembly Constituency, in the district of Champaran. There were two competing candidates for this election, who were, Sri Narayan Bikram Shah, the appellant in Election Appeal No. 8 of 1963 and Sri Kedar Pandey, the appellant in Election Appeal No. 10 of 1963. The result of the election was declared on the 26th of February, 1962, and Sri Narayan Bikram Shah was declared to have been elected. On the nth of April, 1962, Sri Kedar Pandey, the defeated candidate, filed an election petition against Sri Narayan Bikram Shah, contending that the election of the latter should be declared void and set aside. It was also prayed that Sri Kedar Pandey may be declared duly elected in the same election.
The substantial point taken by Sri Kedar Pandey in the election petition was to the effect-that Sri Narayan Bikram Shah was not qualified to be a candidate as he was not a citizen of India, and Article 173 of the Constitution of India stood in his way. According to Sri Kedar Pandey, Sri Narayan Bikram Shah, his parents and grand-parents were born in Nepal, and, therefore, on the date of the election, Sri Narayan Bikram Shah was not qualified to be chosen to fill the Assembly seat for which he had been declared
to have been elected. According to Sri Kedar Pandey if Sri Narayan Bikram Shah had not illegally contested in the election, Sri Pandey would have been declared to have been elected. In reply to the election petition filed by Sri Kedar Pandey, a written statement was filed by Sri Narayan Bikram Shah, controverting the various allegations made. So far as the contentions raised in the written statement are relevant for the present investigation, the following may be mentioned It was stated in paragraphs 7 and 8, that the assertion that Sri Narayan Bikram Shah was not a citizen of India was false. Any disqualification under Article 173 of the Constitution of India was denied. In reply to the allegation that Sri Narayan Bikram Shah, his parents and grand parents were born in Nepal, it was stated that that was not admitted and the petitioner of the election petition was put to the strict proof of the same. According to Sri Narayan Bikram Shah, he was an Indian citizen and he was never a citizen of Nepal. It was also mentioned in the written statement that Sri Kedar Pandey was not entitled to be declared to have been duly elected in the election held in this case.
2. Upon the pleadings of the parties, the following issues were framed by the Election Tribunal, namely:
1. Is the election petition maintainable?
2. Is the election petition liable to be dismissed because of the non-compliance of Sections 81 and 82 of the R. P. Act?
3. Is the respondent a citizen of Nepal and not a citizen of India and so disqualified for being chosen and for being a member of the Bihar Legislative Assembly?
4. Is the election of the respondent void? If so, is the petitioner entitled to be declared elected ?
5. Is the petitioner entitled to any other relief?
3. Issues Nos. 1 and 2 have been answered in favour of Sri Kedar Pandey. Under issues Nos. 3 and 4 it has been held that Sri Narayan Bikram Shah was a citizen of Nepal and not a citizen of India, and, therefore, he was not Qualified under Article 173(a) and was disqualified under Article 191(1)(d) of the Constitution of India for being chosen to fill a seat in the Bihar Legislative Assembly and, for being a member thereof. It has, therefore, been held that the election of Sri Narayan Bikram Shah was void. But under issue No. 4 it has also been held, against Sri Kedar Pandey, that, he was not entitled to be declared elected in the election in question. Sri Narayan Bikram Shah has, therefore, filed Election Appeal No. 8 of 1963, under Section 116-A of the Representation of the People Act, 1951, and Sri Kedar Pandey has filed Election Appeal No. 10 of 1963.
4. Miscellaneous Judicial Case has been filed by Sri Narayan Bikram Shah under Articles 226 and 227 of the Constitution of India, praying that an order passed by the Election Tribunal on the 3rd of April, 1963, may be set aside. By the impugned order, it appears, that the Election Tribunal exhibited three documents on behalf of Sri Kedar Pandey, namely, Exhibits 8(b), 16 and 17, and it refused to exhibit on behalf of Sri Narayan
Bikram Shah a document which has been termed as “Parman Patra”. A grievance has been made in this miscellaneous Judicial case that Exhibits 8(b), 16 and 17 should not have been brought on: the record and the Parman Patra should have been made an exhibit on behalf of Sri Narayan Bikram Shah.
5. From the history of the case, to be mentioned after the disposal of a preliminary point taken in Election Appeal No. 8 of 1963, it will appear that Sri Narayan Bikram Shah has an alias name, which is Narayan Raja, and he will hereinafter be referred to as Narayan Raja.
6. A preliminary point has been urged by the learned counsel for Narayan Raja, which was also urged before the Tribunal under issue No. 1. It is contended that Sri Kedar Pandey cannot be permitted to raise the question of disqualification, of the elected candidate, that he is not a citizen of India, as it must be presumed that when Narayan Raja was registered in the electoral roll, it must have been decided that he did not suffer from any disqualification mentioned in Section 16 of the Representation of the People Act, 1950 (Act No. 43 of 1950). According to learned counsel, the order to register Narayan Raja as a voter, involved a decision that he did not suffer from the disqualification of not being a citizen of India. What was submitted before the Tribunal in this context may be stated in the language of the Tribunal thus:
“The submission is that under Section 16 of the Representation of the People Act, 1950, a person who is not a citizen of India shall be disqualified for registration in an electoral roll for any Assembly Constituency and since the respondent; was registered in the electoral roll, it must be deemed to have been decided at the time of registration of the name of the respondent in the electoral roll that he does not suffer from the disqualification of not being a citizen of India. In other words, it must be deemed to have been decided that the respondent is a citizen of India. In that view of the matter, it is submitted that the election petition for setting aside the election of the respondent on the said ground is not maintainable and the Election Tribunal cannot now decide whether the respondent is or is not a citizen of India.”
The contention was rejected by the Tribunal. Learned counsel for Narayan Raja has relied upon certain Sections of Act 43 of 1950 and some rules of the Registration of Electors Rules, 1960. These sections are Sections 35 to 24 of the Act and the rules are Rules 10 to 23. It is argued that certain disqualifications for registration in an electoral roll have been laid down in Section 16, amongst which there is a disqualification for registration if a person is not a citizen of India. Then, reference is made to Section 21, which states that the electoral roll shall be prepared in the prescribed manner, the manner having been laid down in the Rules mentioned above. Rule 13 lays down the provision for objection to the inclusion of a name in the electoral roll. Rule 20 refers to enquiry into claims and objections by the registration officer. Rule 22 contains provisions for the final publication of the roll by the registration officer.
Provisions of appeal are incorporated in Rule 23, which states in Sub-rule (4) that every decision of the appellate officer shall be final. Thus, learned counsel has urged that when the name of Narayan Raja was entered in the electoral roll, for the disputed election, Sri Kedar Pandey could have objected under the provisions mentioned above, and he not having done so, could not have asked the Tribunal to re-open the matter and decide the question of Narayan Raja’s disqualification to the effect that he was not a citizen of India. The learned Advocate-General of Uttar Pradesh, who has appeared for Sri Kedar Pandey, has drawn our attention to the definition of “elector” in Section 2, Sub-section (1)(e) of the Representation of the People Act, 1951 (Act No. 43 of 1951), which states that “elector” in relation to a constituency means a person whose name is entered in the electoral roll, and who is not subject to any of the disqualifications mentioned in Section 16 of Act 43 of 1950. It is argued that an enquiry under the Rules of 1960 is a summary enquiry, as mentioned in Rule 20 itself, and, therefore, it cannot be held that if no objection had been taken to the inclusion of Narayan Raja’s name on the electoral roll under Rule 13(2), the Tribunal was debarred from dealing with this question under Section 100 of Act 43 of 1951.
It is argued that under Section 100 of that Act, the first ground for declaring an election to be void is the opinion of the Tribunal that on the date of his election the returned candidate was disqualified to be chosen to fill a seat under the Constitution or under Act 43 of 1951. Having heard learned counsel for the parties, it appears to me that the contentions raised by counsel for Narayan Raja in this connection ought not to prevail. The opinion to be given by the Tribunal under Section 100(1)(a) of Act 43 of 1951 cannot be hampered by even an express finding given under Rules 20 and 23 of the Registration of Electors Rules, 1960. The finality contemplated under Rule 23 Sub-rule (4) of the Rules has reference to the proceedings under the Rules. It cannot possibly debar the Tribunal from considering the question whether a returned candidate was disqualified to be chosen to fill a seat under the Constitution or under Act 43 of 1951, on the date of his election.
Section 5 of Act 43 of 1951 states, amongst others, that a person shall not be qualified to be chosen to fill a seat in the legislative Assembly of a State unless he is an elector for any Assembly in that State, and as indicated above, a person can be an elector if he is not subject to any of the disqualifications mentioned in Section 16 of Act 43 of 1950. One of the disqualifications is not being a citizen of India. Therefore, it is clear beyond doubt that it was open to the Tribunal in this case to investigate into the question as to whether Narayan Raja was a citizen of India or not, on the date of his election.
7. The main controversy in this Court is raised under issue No. 3, as to whether Narayan Raja was a citizen of Nepal or a citizen of India, although the issue was framed differently, i.e., for an enquiry as to whether Narayan Raja was a citizen of Nepal and not a citizen of India. In considering this issue, various factors have been
found by the Tribunal, ending in its conclusion in paragraph 44 of its order, holding that Narayan Raja was a citizen of Nepal and not a citizen of India. In order to appreciate the contentions of the parties, and the arguments advanced in this Court, a history of the family of Narayan Raja has to be mentioned. A complete picture does not appear from the pleadings of the parties, nor does it appear fully from the oral evidence adduced in this case, including that of Narayan Raja.
Counsel for the parties in this Court have freely drawn upon the facts, which appear from certain documentary evidence on record, namely, a plaint filed by the father of Narayan Raja, named Mohan Bikram Shah alias Rama Raja, in Title Suit No. 34 of 1924 (Exhibit 15); the judgment of the trial Court passed in that suit in the year 1927 (Exhibit K(1)J; the judgment of the Judicial Committee in the same case, given in 1931 and reported Chhatra Kumari Devi v. Mohan Bikram Shah, in AIR 1931 PC 196 (Exhibit 10(b); a deposition of Rama Raja given in 1939 in a different suit in which he was a defendant (Exhibit 16), which suit was ultimately decided by the Allahabad High Court, whose judgment is reported in Rajeshwari Debi v. Mohan Bikram Sah, AIR 1945 All 409. Apparently, all these facts were also referred to before the Tribunal, which has mentioned most of these facts as admitted facts. Only one fact, dealt with by the Tribunal extensively, has not been admitted in this Court by learned counsel appearing for Sri Kedar Pandey. I will now mention the facts to which reference has been made in this Court, mostly quoting from the decision of the Tribunal giving first a genealogy of the family of Narayan Raja, given in paragraph 29 of the Judgment and order under appeal:
RAJENDRA VIKRAM SHAH (King of Nepal).
____________________________________|_______________________________
| | | |
Surendra Vikram Upendra Vikram Rajendra Vikram Birendra Vikram
Shah Shah Shah Shah
| | |
..... Dhirendra Vikram Mohan Vikram Shah
Shah=Kanchi alias Mohan Raja
..... Maiya (wife) (died in the Year
| | 1912= Rani Chhatra
Tribhuan Vikram Bhupendra Vikram Kumari (died in
Shah Shah 1937).
(King of Nepal). |
| |
Mahendra Vikram _________________
Shah (Present King | |
of Nepal) Mohan Vikram Lachhman
Shah alias Raja
Rama Raja.
|
_______________________________________
| | | |
Shiva Vikram Narayan Vikram Hari Vikram Manmohan
Shah Shah alias Shah Shah
Narayan Raja
Respondent)
8. Paragraphs 25, 26 and 27 of the order mentioning the history of Ramnagar Estate, of portion of which Narayan Raja was the proprietor until the estate vested under the Bihar Land Reforms Act, are quoted below:
“25. It has come in the evidence adduced by the parties which has been accepted at the time of argument by the learned counsel of both the parties, that Ramnagar Estate in Bettiah Sub-Division in the district of Champaran in Bihar originally belonged to one Shri Prahlad Sen, after the death of Prahlad Sen the estate came into the possession of Shri Mohan Vikram Shah, popularly known as Mohan Raja, after Mohan Raja’s death the estate came into the possession of Rani Chhatra Kumari Devi, the widow of Mohan Raja, and after the death of Rani Chhatra Kumari Devi this estate came into the possession of Rama Raja alias Mohan Bikram Sah, the father of the respondent Shri Narain Vikram Sah alias Narain Raja. From the evidence of R. W. 11, Shri Gopal Narain it appears that he was in service of Ramnagar estate from 1919 to 1952, that the Zamindari interest in the estate vested in the Government of Bihar under the Bihar Land Reforms Act in 1952 and that after the vesting of the Zamindari interest the witness is in the service of the respondent. It appears further from his evidence that Ram Raja left four sons through his legally married wife, namely Shri Shiva Vikram Sah popularly known as Shiva Raja, Shri Narain Vikram Sah popularly known as Narain Raja, Shri Hari Vikram Sah, popularly known as Hari Raja and Shri Manmohan Vikram Shah, popularly known as Man Mohan Raja. These facts are not disputed on behalf of the petitioner. It appears from the evidence on record that during the lifetime of Ram Raja there was a partition suit in the year 1942 for the partition of the properties of the Ramnagar estate among Ram Raja and his sons including the respondent. This was partition suit No. 40 of 1942 filed on 29-9-42 in the Court of the subordinate Judge at Motihari. Ext. 1(2) is the preliminary decree of that suit which purports to show that the preliminary decree was passed on 16-4-43 on compromise. Ext. 1(i) is the final decree passed in that suit on 22-5-44 and it was also based on a compromise between the parties. From Exts. 1(2) and 1(i) it will appear that Ramnagar estate was comprised of the 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 partitioned among different co-sharers. Certain properties including forests in the estate over an extensive area were left joint. The evidence led by the respondent is that after the said partition the different co-sharers came into possession of their respective shares in the properties according to the allotment made as per final decree in the partition suit. From the evidence on record it appears that these forests extended to 27 or 28 miles in length and the evidence of R. W. 11 in cross-examination is that the Government took possession of Ramnagar forest in the year 1950. From the evidence of R. W. 9 and R. W. 11, both of whom are the old employees of the estate, it appears that Rani Chhatra Kumari died in the year 1937 and Ram Raja died in the year 1947.
26. From the evidence on record it does not appear how Prahlad Sen acquired Ramnagar Estate and to which place he belonged. The fact, however, remains that the estate formerly belonged to him. It appears from the evidence of R. W. 3 that Mohan Raja, who became the proprietor of Ramnagar estate after the death of Prahlad Sen,
was the son of the daughter of Prahlad Sen. The evidence of the witness is that Shri Birendra Vikram Sah was the father of Mohan Raja and the daughter of Shri Prahlad Sen was married to Shri Birendra Vikram Sah and Mohan Raja was born of Shri Birendra Vikram Sah and the said daughter of Shri Prahlad Sen. The evidence on record shows that Mohan Raja died without any male issue and during his lifetime he had adopted Ram Raja, the father of the respondent, that by virtue of will executed by Mohan Raja in the year 1904 in favour of his wife Rani Chhatra Kumari Devi she became entitled to the Ramnagar estate on the death of Mohan Raja which took place in the year 1912 in preference to the adopted son Ram Raja, inasmuch as the properties in question belonged to Mohan Raja in his absolute right, and not as ancestral properties, and that after the death of Rani Chhatra Kumari in 1937 Ram Raja came into possession of the estate.
27. It appears that in the year 1923 Ram Chhatra Kumari filed R. S. No. 4 of 1923 in the Court of Sub-Judge, Motihari as against Ram Raja with respect to certain villages which Ram Raja held in Ramnagar on the basis of some Sadhwa Patwa lease (Vide certified copy of register of Rent suit, Ext. 12). Thereafter Ram Raja 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. Ext. 15 is the plaint of that suit. Ext. 1(d) is the certified copy of the written-statement filed by Rani Chhatrakumari Devi in that suit resisting the claim of Ram Raja to Ramnagar estate. The title suit and the rent suit said above were heard together by the learned Additional Sub Judge of Motihari, who, as per his judgment dated 18-8-27 decreed the title suit filed by Ram Raja and dismissed the rent suit filed by Rani Chhatra Kumari. Ram Raja claimed title to the Ramnagar Estate as the adopted son of Mohan Raja, the husband of Rani Chhatra Kumari. The trial Court found Ram Raja to be the adopted son of Mohan Raja and allowed the claim of Ram Raja for recovery of possession of the same. There was then appeal to the Hon’ble High Court and the Hon’ble High Court confirmed
the judgment of the trial Court. The judgment of the Hon’ble High Court is not on record but this fact is admitted by the learned Counsel of both the parties at the time of argument. There were then four appeals before the Judicial Committee of the Privy Council as against the Judgment of the Hon’ble High Court, out of which two appeals were filed by Rani Chhatra Kumari and two appeals were filed by Ram Raja. All the four appeals were heard by their Lordships of the Privy Council together and the appeals were decided on 8-5-1931 (Vide certified copy of judgment of the Privy Council, Ext. 10 (b). The said judgment has also been reported in AIR 1931 PC 196. Their Lordships dismissed the title suit filed by Ram Raja and decreed the rent suit filed by Rani Chhatra Kumari. From the evidence on record it appears that after Ram Raja became successful in the trial Court in the year 1927, he took possession of Ramnagar estate and got his name registered in Register D and remained in possession thereof till 1931 when he lost the suit in Privy Council and after the decision in the Privy Council Rani Chhatra Kumari again came in possession of Ramanagar estate and got herself registered in register D. Thus Rani Chhatra Kumari remained in possession of the estate till she died in 1937. I like to mention at this stage that their Lordships of the Privy Council did not disturb the finding of the trial Court and of the High Court that Ram Raja was adopted by Shri Mohan Vikram Sah alias Mohan Raja and accepted that finding as correct. Their Lordships, however, 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, their Lordships held that though Ram Raja was the adopted son of Mohan Raja, Ram 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. From the plaint (Ext. 15) of T. S. No. 34 of 1924, Judgment of. the trial Court in T. S. 34 of 1924 and R. S. No. 4 of 1923, Ext. K(1) and judgment of the Privy Council (Etx. 10(b), it appears that Mohan Raja had executed three wills, one in favour of Rani Chhatra Kumari in the year 1901, the second in the year 1903 in favour of Ram Raja whereby the first will was revoked and the third in the year 1904 in favour of Chhatra Kumari whereby Mohan Raja revoked the second will and revived the first will. All the three wills had been verbatim reproduced in the plaint of T. S. 34 of 1924 and they formed part of the plaint. Those three wills have also been verbatim reproduced in the decree in T. S. 34 of 1924 (Ext. I). I may mention at this stage that Ext. 15 is the certified copy of the plaint which was filed by the respondent but has been used by the petitioner in the present case. All these wills relate to the Ramnagar estate”
The only aspect of the case which is disputed in this Court by the learned Advocate-General of Uttar Pradesh, is the adoption of Rama Raja by Mohan Raja, son of Birendra Bikram Shah. (Birendra Bikram Shah’s son was also known as Mohan Bikram Shah. Reference to the latter will
be made as Mohan Raja.). It appears to me that this denial of the adoption has been made in this Court only because the learned counsel for Narayan Raja has raised the question of status and domicile of Rama Raja based on his adoption by Mohan Raja. But, apart from the fact that this adoption was established in the Courts of India in Title Suit No. 34 of 1924 and was not disturbed by their Lordships of the Privy Council in their final judgment in that litigation (Exhibit 10 (b)), it does not appear from the order of the Tribunal that this adoption was challenged before it. As indicated from the quotations of the order given above, the adoption of Rama Raja by Mohan Raja was accepted as a part of the history of Ramnagar Estate, and in continuation of this history, the Tribunal stated in paragraph 29 of its order thus:
“The above pedigree will show that the respondent is the descendant of the King of Nepal. From the evidence already referred to above it is clear that Raja Prahlad Sen of Ramnagar had no male issue and his only daughter was married to Birendra Vikram Sah, the fourth son of Rajendra Vikram Sah, the then king of Nepal. Mohan Raja, the son of Birendra Vikram Sah, became proprietor of Ramnagar estate by inheritance as grandson of Prahlad Sen through his daughter. This Mohan Raja, (sic) father of the respondent, adopted Ram Raja in the year 1903. Thus Ram Raja, who once belonged to the second branch of the king of Nepal, was transferred to the fourth branch, of the king by adoption.”
In any case, the oral evidence given in this case about this adoption must be taken to be decisive in this matter, Girija Sharan Prasad (R. W. 9), who was in service of the Ramnagar Raj from 1917 to 1943, has deposed that he knew Rama Raja, who had been adopted by Mohan Raja. Similarly, Gopal Narayan (R. W. 11), who was also in service of this estate and before whom whose father was in service of this estate, has deposed that Mohan Raja died without any male issue, and during his lifetime he had adopted Rama Raja as his son. I am, therefore, of the opinion that the history of Narayan Raja’s natural family, and thereafter, the history of the Ramnagar Estate, must also include the adoption of Rama Raja by Mohan Raja in the year 1903. Apart from the documentary evidence mentioned above, which have given the history of the Ramnagar Estate, the oral evidence adduced on behalf of Narayan Raja also gives glimpses of the devolution of the Estate. G.S. Prasad (R. W. 9) has stated in cross-examination that Prahlad Sen’s daughter was married to Birendra Bikram Shah and a son was born to them named Mohan Bikram Shah (that is to say, Mohan Raja).
This Mohan Raja was the adoptive father of Rama Raja. According to this witness, further, when he joined service of the Estate in 1917, Rani Chhatra Kumari was in possession and she remained in possession upto 1926. In 1924 Rama Raja had filed a suit by virtue of which he obtained possession through Court in 1927. The name of Rama Raja was mutated in Register D in 1927, and in 1931 the name of the Rani was again mutated, after she had won in the Privy Council. According to this witness, the Rani had
died in the night between the 30th and the 31st of January, 1937. Rama Raja thereafter remained in possession till 1947, when he died. G. Narayan (R. W. 11) has deposed that Rama Raja died in Bombay and his dead body was cremated in Benares. As against this oral evidence adduced on behalf of Narayan Raja, most of the witnesses examined on behalf of Sri Kedar Pandey deposed that Narayan Raja was a citizen of Nepal and a resident of Barewa. N.D. Pathak (P. W. 15) and S. Tewary (P. W. 18) deposed that Narayan Raja was born at Barewa in Nepal. On the basis of the facts admitted before the Tribunal and appearing in the evidence of the witnesses, it came to the following findings under issue No. 3: —
(a) Rama Raja was a resident of Nepal and was domiciled there and he was never domiciled in India, and hence he was a citizen of Nepal.
(b) After the death of Chhatra Kumari in 1937. Rama Raja came in possession of the Ramnagar Estate in 1937 and remained in possession thereof, along with his sons, till 1947, when ho died. But the question of acquisition of Indian citizenship could not arise upto 1947, as the Indian Constitution had not come in force then, and the question of acquisition of Indian citizenship could not have arisen in 1947. Therefore, Rama Raja had not become a citizen of India, when he died in 1947.
(c) Narayan Raja belonged to the family of the Kings of Nepal. He was born in Nepal at a place called Barewa Darbar and not in Benares. Hence his domicile of origin was Nepal and not India.
(d) Narayan Raja’s domicile continued to toe in Nepal in spite of his acquisition of properties in India. It cannot be said that he had acquired an Indian domicile after losing his domicile of origin in Nepal.
(e) He had never relinquished his claim to the throne of Nepal, if at any future date succession to the throne falls on a junior member of the family of the Kings of Nepal.
(f) The conduct of Narayan Raja, after coming into force of the Constitution of India, was irrelevant in determining a domicile of choice. (g) Narayan Raja was a citizen of Nepal and not a citizen of India.
Learned Government Advocate appearing for Narayan Raja has contended that the question of domicile of Narayan Raja has been wrongly decided and that the facts and circumstances of the case clearly prove that on the date when Article 5 of the Constitution of India came into force, Narayan Raja was domiciled in India. It is argued that too great a stress was laid on the place of birth of Narayan Raja, and although the evidence on record will support a conclusion that Narayan Raja was born at Benares and not in Nepal, the question of his domicile at the material time can be determined irrespective of the place of his birth. According to learned counsel, Narayan Raja’s place of birth will be of para-mount importance, if for the purpose of citizenship, Article 5 (a) of the Constitution of India is relied
upon, but it is argued that apart from Article 5 (a) of the Constitution, Narayan Raja had obtained Indian citizenship under Article 5 (c) of the Constitution, as he was domiciled in India and was ordinarily residing in India for not less than five years preceding the commencement of Article 5. Article 5 of the Constitution of India states thus:
“At the commencement of this Constitution, every person who has his domicile in the territory of India and –
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India”.
9. The learned counsel has argued the question of domicile of Narayan Raja and his ancestors thus. It is argued that the domicile of origin of Mohan Raja may have been Nepal, but had acquired a domicile in India, after inheriting Ramnagar Raj from his maternal grandfather named Prahlad Sen. It is said that Mohan Raja had settled down in India and had married in Ramnagar successively and he had ultimately died at Calcutta and was cremated at Benares. Thus it is urged that at the time that Mohan Raja had adopted Rama Raja, i.e. in 1903, Mohan Raja’s domicile of choice was India. Reference is made to the recitals in some documents including Exhibits 16, the deposition of Rama Raja given in 1939. It is mentioned in that deposition that Mohan Raja had married all his four Ranis in Ramnagar In continuation, it is argued that if the domicile of Mohan Raja was in India, in 1903, the domicile of Rama Raja was India, when he was adopted. It is said that by adoption he became Mohan Raja’s son and by fiction it must be taken that Rama Raja’s domicile became India as if he wag Mohan Raja’s son.
This domicile of Rama Raja, it is argued, continued unless it can be shown that be lost it. According to learned Counsel, if the domicile of Rama Raja was India, then, necessarily, the domicile of his son, Narayan Raja born in 1918, became India. So far as Rama Raja was concerned, it is urged, in the alternative, that whatever may have been his domicile before 1937, when Chhatra Kumari died, Rama Raja acquired a domicile of choice in India, when he came here on the death of Rani Chhatra Kumari. With respect to Narayan Raja it is lastly contended that as he had also come to India in the begining of 1937, along with his father, and he has remained here all along, Rama Raja dying in the meantime in 1947, he has undoubtedly acquired an Indian domicile by choice. According to the learned counsel, the facts and circumstances connected with the life of Narayan Raja, even after 1950, are factors which should be taken into consideration in determining Narayan Raja’s domicile, when Article 5 of the Indian Constitution came into operation. It may be noted here that Article 5 is one of the Articles which came into operation on the 26th of November, 1949 according to Article 394 of the Constitution. I will deal with the points in the order mentioned above.
10. Upon the question of domicile of Mohan Raja, the learned Advocate-General of Uttar Pradesh has contended that the materials on record are insufficient for holding that Mohan Raja had the intention of settling down in India making his permanent home at Ramnagar or at any other place. Reference is made to a Sapurdnama of the year 1902, said to have been executed by Mohan Raja in favour of Rani Chhatra Kumari. It is urged that this indicates that Mohan Raja was not keen in establishing himself permanently at Ramnagar, making it his home. Shri Misra also relied upon certain portions of the trial Court judgment in Title Suit No. 34 of 1924 Exhibit K (1), to urge that Mohan Raja could not have an intention to settle down in India by choice. It appears from certain recitals in Exhibit K (1), that Mohan Raja was there considered to be in the position of a deportee from Nepal. It is contended that Mohan Raja was in India not from choice but from necessity, and, therefore, India was not his domicile of choice.
It is also urged from certain recitals from the same judgment that Mohan Raja had taken the sanction of the Prime Minister of Nepal for adopting Rama Raja, and, therefore, he had always considered himself to be under the allegiance of Nepal. The sanction given by the Prime Minister of Nepal is also mentioned in Exhibit 15, the plaint in Title Suit No. 34 of 1924. After considering the arguments of learned counsel for the parties upon the question of Mohan Raja’s domicile, I am of the opinion that this question cannot be decided one way or the other in this case on the materials on record. There was no specific issue upon the point and the evidence on this point is meagre indeed. It is obvious that the parties did not direct their attention upon the question of domicile of Mohan Raja. Further more, all the recitals in Exhibit K (1) can not be taken as relevant evidence for the purpose of deciding this particular point. No specific conclusion has also been arrived at by the Tribunal upon the question of Mohan Raja’s domicile.
It will be highly unsafe to give a conclusive finding upon Mohan Raja’s domicile, particularly in the year 1903, when he had adopted Rama Raja. If the question of Mohan Raja’s domicile is left undecided, then it is not possible to hold that by mere adoption Rama Raja acquired an Indian domicile in 1903. The question of Rama Raja’s domicile must, therefore, be ascertained independently. It can be safely presumed that Rama Raja’s domicile of origin was Nepal. If the materials are not sufficient for a conclusion that India became his land of domicile by adoption, then he could have obtained an Indian domicile only by his own volition. No doubt, he was attempting to obtain direct possession of Ramnagar Raj from Chhatra Kumari, after Mohan Raja’s death in 1912. But it is difficult to hold that Rama Raja had an established residence in India, in the sense of his home, so that India became his place of domicile, as long as Chhatra Kumari was in possession of Ramnagar Raj by virtue of the Privy Council decision.
Learned counsel for the parties have mentioned to us about certain litigations between Rama Raja and Chhatra Kumari, beginning in 1912 in a Probate case and ending with the institution of Title Suit No. 34 of 1924 by Rama Raja for the possession of the Raj. Learned Government Advocate has referred to this history for his contention that Rama Raja had made up his mind to acquire Ramnagar Raj for himself and necessarily to settle down in India, even if the place of his domicile prior to 1912 may not be ascertainable. Shri Misra, on the other hand, has drawn our attention to various recitals in Exhibits 15 and 16 to contend Rama Raja was living in Nepal at the time of his father’s death and thereafter, at least until the institution of the title suit in 1924. Hence, it is urged that the facts do not indicate Rama Raja’s intention to settle down in India or his intention to leave Nepal for good.
Here also, all the facts relied upon by learned counsel cannot be said to be based on admissible evidence, and the question of Rama Raja’s intention at this stage cannot be conclusively determined. All that can be deduced is that Rama Raja was trying to obtain possession of Ramanagar Estate as his own property. But it is not possible to hold conclusively that his acts at this period of time were indicative of his intention to settle down in India permanently, if the estate was recovered from Rani Chhtra Kumari. The course of litigation in Title Suit No. 34 of 1924 is that the suit was decreed in 1927, but by judgment of the Privy Council the suit was dismissed in 1931. It is said that Rama Raja was in possession of the estate from 1927 to 1931, and then he retreated in favour of Rani Chhatra Kumari, the ultimate victor. Rani Chhatra Kumari remained in possession till January, 1937, when she died.
The evidence given by G.S. Prasad (R. W. 9) to the effect that Rama Raja did not come to Ramnagar from Nepal after the death of Rani Chhatra Kumari and that he was living with the Rani at Ramnagar during her lifetime, also managing the affairs of the Rani’s estate, does not appear to be true. After Rama Raja and the Rani had contested against each other in serious litigations. Rama Raja could not have been permitted to manage the estate, while the Rani was in possession after her victory in the Privy Council. From 1931 to January 1937, therefore, the intention of Rama Raja to settle down in India as his home must remain unascertainable.
11. The history of Rama Raja’s wife after he took possession of the estate in 1937 until his death in 1947 appears to be this. According to the oral evidence, he had remained, in possession of the Estate until his death. On the 20th of September, 1939, he had executed a power-of-attorney in favour of Narayan Raja. This document has been brought on the record and marked as Exhibit BB. Therein he had described himself as a resident of Raj Ramnagar in the district of Champaran. In 1942 Shiva Bikram Shah alias Shiva Raja and his minor son instituted a partition suit against Shiva Raja’s father, Rama Raja, and the other three sons of Rama Raja and against Sita Maharani, who was Rama Raja’s wife. A preliminary decree on compromise was passed in
1941 vide Exhibit I (2). Thereafter, a final decree on compromise was passed in 1944 — vide Exhibit I(1). It is not necessary to give further details of the decree, at this stage, as it will be necessary to revert to this matter while dealing with the life history of Narayan Raja.
Suffice it to say that the estate was partitioned according to the compromise entered into in 1914. Not much details are available regarding the history of Rama Raja thereafter, until his death in 1947. From this history of Rama Raja’s life from 1937 till his death, it is contended by learned counsel for Narayan Raja that at the time of Rama Raja’s death, he had acquired an Indian domicile by choice, even if his domicile before 1937 cannot be ascertained. In my opinion, whatever may have been the position in this context, it has no bearing on the question of Narayan Raja’s domicile under enquiry. It is a matter of record that Narayan Raja was born in 1918, and unless the domicile of Rama Raja in 1918 can be ascertained, the domicle of origin of Narayan Raja will remain unknown.
Even if Narayan Raja was born in Benares, a point which will be discussed in due course, his domicile of origin will remain unknown unless the domicile of his father at this time can be ascertained, I have already indicated that the domicile of Rama Raja upto 1937 cannot be ascertained with any certainty. Even if it be assumed that Rama Raja obtained a domicile of choice between 1937 and 1947, this will have no effect on Narayan Raja’s domicile, as he had obtained majority by them. Therefore, the history of Rama Raja’s life, from his adoption by Mohan Raja until 1947 does not supply any answer to Narayan Raja’s domicile, when Article 5 of the Constitution of India came into force. This question will have to be determined independently.
12. Thus remains the most crucial point for determination, namely, the place of domicile of Narayan Raja at the material time. In pursuing the history of his life, it will be necessary to deal with a controversial question raised in this case, as to the place of his birth. According to the case set up by Sri Kedar Pandey, Narayan Raja was born at a place called Barewa in Nepal. According to Narayan Raja’s case, he was born in Benaras. In the election petition filed in this case, all that was mentioned by the petitioner was that Narayan Raja, his parents and his grandparents were born in Nepal. Oral evidence has, however, been adduced in this case with respect to the actual place of birth in Nepal. The specific oral evidence is that of N.D. Pathak (P. W. 15), who has stated that Narayan Raja was a resident of Barewa Darbar and that he was born at Barewa. It appears from the evidence of the witnesses examined before P. W. 15, that they merely made out a case that Narayan Raja was a resident of Nepal or of Barewa. Narayan Raja’s case that he was born in Benares, was, however, not put to these witnesses, including P. W. 15. When the last witness for Sri Kedar Pandey, named Shivanath Tewari (Sri Kedar Pandey’s election agent) was examined as P. W. 18., the case of Narayan Raja on this point was put to him. This was so put to P. W. 18 because he deposed that
Narayan Raja was born in Barewa in Nepal Tarai and his father and mother were born in Nepal and so was his grand-father. He further deposed that Narayan Raja was a citizen of Nepal. The specific evidence relied upon on behalf of Narayan Raja is the evidence of Narayan Raja himself. (P. W. 19) and that of G. S. Prasad (R. W. 9), according to which evidence, Narayan Raja was born in Benares. Learned counsel for Sri Kedar Pandey has urged that Narayan Raja’s case that he was born in Benares should be disbelieved on the preliminary ground that such a case was not made out in the written statement filed before the Tribunal.
As already indicated, all that was mentioned: in the written statement was that the allegations regarding the place of birth of Narayan Raja and, others were not admitted. It is then contended by learned counsel that the alleged birth of Narayarh Raja in a place called Mamurganj in the town of Benares has been negatived by the fact that his birth was not mentioned in the Municipal Registers of Birth of the years 1918 and 1919, as is indicated by Exhibits 2 series. In my opinion, the argument based on paragraph 5 of the election petition and the absence of an assertion in the written statement that Narayan Raja was born in Benares is not of much force, on the facts and circumstances of this case. The substance of the election petition was that Narayan Raja was born in Nepal and he was not a citizen of India, and therefore, Article 173 of the Constitution stood in his way of being elected as a member of the Bihar Legislative Assembly. It may be noted here that the case of Sri Kedar Pandey that Narayan Raja was born in Barewa in Nepal was not specifically mentioned in the election petition.
The substance of the written statement was that Narayan Raja was an Indian citizen and he was never a citizen of Nepal. The allegation of his birth in Nepal was denied. I do not think that the absence of any assertion in the written statement that Narayan Raja was born in Mamurganj in Benares can have any repercussion on the evidence adduced by Narayan Raja in proof of that fact. So far as the case put forward by Sri. Kedar Pandey that the birth registers of 1918 and 1919 did not mention the birth of Narayan Raja within Benares Municipality is concerned, an attempt was made on behalf of Narayan Raja to prove that in 1918 Mahalla Mamurganj was not included within the Benares Municipality. According to Narayan Raja’s case, this Mohalla came within the Municipal Corporation in 1949 (vide Exhibit U) and thereafter. In my opinion, it is difficult to hold, on the materials produced in this case, that the absence of any record in the birth registers of the Benares Municipality, indicating Narayan Raja’s birth in 1918, can be taken as a conclusive factor.
Although Exhibit U does not clearly indicate which parts of Benares were brought within the Municipality in 1949, there is no doubt that in that year some part was included within the Municipality which was not within it until then. The word “Mamurganj” does appear in the notification in conjunction with the name of a road,
described as Mamurganj Sigra Road. B. Tewari (R. W. 4), who was in service of the Benares Municipal Board from 1923 to 1951, has specifically deposed that the area within which one of the Kothis of Ramnagar Raj, to the north of Maruadih Road, was situated, was included within the Municipality in 1949, in accordance with Exhibit U. He has mentioned that the kothi to the north of this road was west of Sigra Road. According to this witness, the kothi of the Estate to the south of Maruadih Road came within the Municipality in 1959. I do not find any reason for discarding the evidence of this witness with respect to the inclusion of Mohalla Mamurganj within the Benares Municipality.
The question of Narayan Raja’s place of birth must, therefore, be decided on the other evidence adduced in this case. On this point I do not feel inclined to accept the oral evidence adduced on behalf of Sri Kedar Pandey to prove that Narayan Raja was born in Barewa in Nepal. N.D. Pathak (P. W. 15) was a resident of Mouza Motihari in the district of Champaran in India. He came to know Narayan Raja personally, since 1953. He is said to have gone to Barewa in March, 1956, in connection with some work to be done for a relation of his named Vidyanand Dubey, a homeopathic practitioner at Kalewa in Nepal, adjacent to Barewa. According to this witness, he had met Narayan Raja for the purpose of obtaining some land from him for his relation. This evidence given by P. W. 15 is wholly insufficient to prove that he could have known about the place of birth of Narayan Raja. He has deposed in his examination-in-chief that he knew Rama Raja, who was a resident of Barewa Darbar in Nepal. According to this witness, further, Rama Raja had come to Ram Nagar for the first time in 1938 and since then he occasionally came to Ramnagar. P. W. 15 has further deposed that after the death of Rani Chhatra Kumari, nearabout 1938, the estate came into Rama Raja’s possession, and as long as he was alive, he and his sons, including Narayan Raja, generally lived at Barewa Darbar. It appears to me, as his cross-examination indicates, that no part of this evidence can be accepted as true. It was elicited from him in cross-examination that he had never met Rani Chhatra Kumari or Rama Raja. He had no concern with Rama Raja or Narayan Raja. He has admitted that he had only heard about Rama Raja’s coming to Ramnagar in 1938. The 1956 incident, spoken about by P. W. 15, also appears to be unreliable. According to this witness, when he went to Narayan Raja in 1956, the latter told him in the course of their conversation that,
“…….they had vital interest in Barewa in Nepal and their dynasty was coming on there from time immemorial and they have got relationship with the king of Nepal (objected to). He told me his relationship with the present king of Nepal Sri 5 Mahendra Bikram Sah. He told me that Sri Rajendra Bikram Sah was the common ancestor of his and that of Sri 5 Mahendra Bikram Sah. He said Sri 5 Rajendra Bikram Sah has four sons, the eldest son being Sri 5 Surendra Bikram Sah and the present Maharaja of Nepal Sri 5 Mahendra Bikram Sah being the great grandson of Sri 5 Surendra Bikram Sah. He said that Sri Upendra
Bakram Sah was the 2nd son of Sri 5 Rajendra Bikram Sah and he himself is the great grandson of Sri 5 Upendra Bikram Sah. The killa of Sri Narain Bikram Sah at Berewa is over an area of about 50 bighas of lands. He has got thousands of bighas of lands in Barewa and nearabout in his possession. Sri Narain Bikram Sah told me that he was citizen of Nepal and would remain as citizen of Nepal.”
It is hardly possible that this conversation could have taken place when P. W. 15 met Narayan Raja only for the purpose of securing some land for his relation. It appears that P. W. 15 had not been able to obtain any land in Kalewa for his relation. There is no corroboration of the fact that Narayan Raja had thousands of bighas of land in Barewa and nearabout as P. W. 15 states. Then, the course of events that had taken place in the election held in 1957 is also relevant in this context. At that time P. W. 15 was the General Seceretary of Champaran District Congress Committee. When Narayan Raja had filed his nomination paper for that election, against the Congress candidate, P. W. 15 had requested Narayan Raja to withdraw his nomination in favour of the Congress party. In the present election in controversy, this witness had got a pamphlet printed as President of the District Congress Committee, asking the voters not to vote for Narayan Raja, as he was a citizen of Nepal. If the 1956 incident was true, one would have expected that this objection would have been taken in the 1957 election also.
In my opinion, the evidence given by P. W. 15 regarding the conversation with Narayan Raja in March 1956 must be rejected. The other oral evidence relied upon on this controversial point is that of Sheonath Tewary (P. W. 18). The evidence given by this witness that Narayan Raja was born in Barewa Darbar is also unacceptable. He has admitted that he had never been to Larewa, and as a matter of fact, this witness was born about 1928. So, he was not a competent witness to depose about the place of birth of Narayan Raja in 1918. Then learned counsel for Sri Kadar Pandey has, in this context, relied upon a plaint filed in 1960 (Exhibit 8 — a Hindi rendering of which is Exhibit 8 (a)). Exhibit 8 appears to be a plaint in a suit filed by Narayan Raja in a Court in Nepal, wherein it was stated that Narayan Raja was born at village Barewa Darbar. It was denied by Narayan Raja that he had filed such a suit. In my opinion, even if it be assumed that such a suit was filed by or on behalf of Narayan Raja, in 1960, it appears that the statements made therein had been made only for the purpose of that litigation.
According to the evidence of M.D. Saresth (P. W. 16), who was a practising lawyer at Birganj, before which he was a “Court Bichari” in some Court in Nepal, in a plaint filed in Nepal the name of the plaintiff, his place of residence, his place of birth and his age will have to be given. No plaint in connection with immoveable property can be entertained by a Court in Nepal, if it is filed by a person who is not a Nepali citizen. It appears from Exhibit 8(a) that the suit was partly with respect to certain Zarpeshgi money advanced by Narayan Raja’s mother to one Babulal Sah. Therefore, it may very well be that for that reason it was mentioned in the plaint that the plaintiff was born in Nepal. It may be that village Barewa was selected because there is no doubt that Narayan Raja’s family had some land there.
The oral evidence given by Narayan Raja himself is supported by a passport issued to him on the 23rd of March, 1949 (Exhibit S). His place of birth is mentioned therein as Benares. Even if this document be left out of consideration, I do not see any reason why the evidence of G.S. Prasad (R. W. 9) should be disbelieved on this point. He was an employee of Ramnagar Estate from 1917 to 1943. Thereafter, he went in the service of Narayan Raja’s brother named Shiva Raja. According to this witness, Narayan Raja was born in Benares and it was elicited from his cross-examination that he was present in Benares at that time and people were fed on the occasion of the birth. It was further elicited from him in cross-examination that Narayan Raja was born in 1918, but that he did not remember the month in which he was born. This indicates that the witness was a truthful witness, because a tutored witness would have been tutorod to state that Narayan Raja was born on the roth of October, 1918, as is specifically mentioned in the passport. I would, therefore, hold that Narayan Raja was born in Benares.
13. The effect of the finding mentioned above will be considered later on, but I may state at this stage that this factor is not by itself decisive of the question of domicile of Narayan Raja, as I have already held that the domicile of his father, Rama Raja, upto 1937, cannot be ascertained with any certainty. It has fairly been conceded by the learned Government Advocate appearing for Narayan Raja, that, if it cannot be held with certainly that Rama Raja had an Indian domicile by his adoption, then, Narayan Raja’s birth in 1918 in Benares will not be sufficient to prove that he had an Indian domicile at the material time. According to the learned counsel, it will then have to be proved that, whatever may have been Narayan Raja’s domicile of origin, he had acquired a domicile of choice at the material time by his residence in India with the intention of making it his permanent home. Learned Counsel concedes that the onus will be on him to prove satisfactorily that Narayan Raja had, by his own arts and by his own intention, obtained a domicile of choice in India at the end of 1949.
In that light, I will now proceed with the life history of Narayan Raja. Not much is known about him from his birth until he attained majority in 1936 and shortly thereafter, except that according to Narayan Raja himself, he had received his education in Calcutta from 1934 to 1938. Then, the question arises, where was Narayan Raja from 1937-1938 upto 1947, when Rama Raja died, and what were Narayan Raja’s activities during this time? Broadly speaking, it appears from the evidence of Fida Hussain (R. W. 6), who was in service of Ramnagar Estate for ten years from 1937 that Narayan Raja lived in Ramnagar, Without going into further details at this stage, it appears that after Rama Raja’s death in 1947, Narayan Raja continued to live in Ramnagar, being
in possession of the properties obtained by him by compromise in 1944.
The facts stated by Narayan Raja in his evidence, details of which will be dealt with in there proper perspective, indicate that even when he had gone out of India on an Indian passport, he had returned to India and thereafter lived in Ramnagar. Upon this state of affairs it will have to be ascertained what was Narayan Raja’s domicile at the 2nd of 1949, when Article 5 of the Constitution of India came into force. It will not be necessary to expound elaborately the meaning of the expression “domicile”. The conception is now well settled, whatever may be the conclusion upon a particular set of facts. I will make the shortest reference to the significance of “domicile”, quoting from the well-known treatise. Dicey’s Conflict of laws, from a decision of their Lordships of the Supreme Court, and from some other well-recognised authoritative decisions. Dicey in his treatise explains “domicile” thus:
“The notion which lies at the root of the concept of domicile is that of permanent home……… A person may be said to have his home in a country if he resides in it without any intention of at present removing from it permanently or for an indefinite period. But a person, does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.”
(Vide Dicey, Conflict of Laws, 7th Edition, p. 85).
Then Dicey states that just as every person receives at birth a domicile of origin, an independent person could acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence but not otherwise. With respect to intention which is required for the acquisition of a domicile of Choice, Dicey, has explained the matter thus:
“A person who determines to spend the rest of his life in a country clearly has the necessary intention, even although he does not consider his determination to be irrevocable. It is, however, rare for the animus menendi to exist in this positive form; more frequently a person simply resides in a country without any intention of leaving it, and, such a state of mind suffices for the acquisition of a domicile of choice.” (Vide Dicey, Op. Cit. P. 97):
14. In the case of Central Bank of India Ltd. v. Ram Narain, reported in (S) AIR 1955 SC 36, the Supreme Court stated thus:
“Writers on Private International law are agreed that it is impossible to lay down an absolute definition of ‘domicil’. The simplest definition of this expression has been given by Chitty, J in In re Craignish v. Hewitt, (1892) 3 Ch 180, at p. 192, wherein the learned Judge said;
“That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom.”
But even this definition is not on absolute one. The truth is that the term ‘domicil’ lends itself
to illustrations but not, to definition. Be that as it may, two constituent elements that are necessary by English law for the existence of domicil are; (1) a residence of a particular bind, and (2) an intention of a particular kind. There must be the factum and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where the residence has been taken up.
It is also a well-established proposition that a person may have no home but he cannot be without a domicil and the law may attribute to him a domicil in a country where in reality he has not. A person may be vagrant as when he lives in a yacht or wanderer from one European hotel to another, but nevertheless the law will arbitrarily ascribe to him a domicil in one particular territory. In order to make the rule that nobody can be without a domicile effective, the law assigns what is called a domicil of origin to every person at his birth. This prevails until a new domicil has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicil of origin adheres to him until he actually settles with the requisite intention in some other country”.
In (1892) 3 Ch 180, it was stated that the domicil of a person is that place or country in which his habitation is fixed without any present intention of removing therefrom. In the case of Ramsay v. Liverpool Royal Infirmary, reported in 1930 AC 588, where all the earlier leading cases have been reviewed, the relevant portion of the placitum reads thus:
“It being settled that a change of domicil must be made animo et facto, the animus may be inferred by the factum of residence within the new domicil, but in order to warrant that inference the quality of the residence must be taken into account; mere length of residence is not of itself sufficient.”
On the principles enunciated above, I will now consider the evidence adduced in this case in some detail, to find out whether it has been established beyond doubt that Narayan Raja had acquired an Indian domicile when Article 5 of the Constitution of India came into force, if his domicile of origin is unknown. I must state that the oral evidence adduced on behalf of Sri Kedar Pandey, to the effect that Narayan Raja was a resident of Barewa in Nepal and that he was a citizen of Nepal, is not at all impressive. For instance, P. Ws. 3, 4, 10 and 11 have deposed that Narayan Raja was a resident of Nepal or of Barewa, but, none of these witnesses had never been to Barewa. Therefore, none of them was competent to sneak about Narayan Raja being a resident of Barewa in Nepal. P. W. 9 has deposed that Narayan Raja has no house in Ramnagar. This is obviously untrue evidence. P. W. 12 has deposed that Narayan Raja mostly resided in Nepal.
It will appear presently, that, this evidence also cannot be true. P. W. 5 has deposed that Narayan Raja mostly resided in Barewa. In my opinion, such general evidence ought to be rejected
forthwith upon the point of Narayan Raja’s residence. According to P. W. 15, Narayan Raja possessed thousands of bighas of land at Barewa. This statement is entirely uncorroborated. As it will be indicated in due course, at the most, Narayan Raja and his brothers had about 43 bighas of land, with a Quila, at Barewa. As against this evidence, the evidence given by Narayan Raja is to the following effect;. He has deposed that his father had built a palace at Ramnagar between 1938 and 1941, and thereafter, he himself built his house there. Before he had built his house, he had lived in his father’s palace. (It appears that Narayan Raja had built his own house in 1955-56).
He has deposed that there was a partition-between his father, mother and his brothers. After that partition, Narayan Raja was looking after the joint properties of the estate and was the manager thereof. The extensive forests were not partitioned and they had been left joint. He used to make settlements of the forests on behalf of the Raj and puttas used to be executed by him. After partition, he and his wife acquired properties in the district of Champaran, in Patna and in other places. He and his wife and his children possessed, in all, 500 or 600 acres of land in the district of Champaran. He manages these properties from Ramnagar. He had his houses in Bettiah, Chapra, Patna and Benares. Most of these facts are corroborated by documentary evidence. That properties had been left joint after partition is supported by the compromise decrees mentioned above. The preliminary decree stated that the forests remaining as common property shall be managed by Narayan Raja.
The forest settlements are supported by Exhibits X series, commencing from 1943, and by Exhibit W of the year 1947. Other managements by Narayan Raja are evidenced by Exhibits EE series, commencing from 1946. Then, we have the registered puttas executed by Narayan Raja of the year 1945, which are Exhibits W/3, W/4 and W/5. The acquisition of properties in the name of Narayan Raja’s wife is also a correct state of affairs, although the relevant documents (Exhibits F (1), F (2), F (3) and F (5) are of the year 1952. There is one document Exhibit F (4), which shows purchase of 11 bighas and odd land at Patna by Narayan Raja and this document is of the year 1951. This evidence given by Narayan Raja together with his passport, dated the 23rd March, 1949, issued from Lucknow indicate that Narayan Raja was living in India from 1939, when the power-of-attorney, Exhibit BB, had come into existence, right upto 1949 and even thereafter.
In between this period, Rama Raja had died in 1947 at Benares. If Narayan Raja is to be believed, and I do not see why he should not be believed, in this respect, he had not gone to Barewa for ten years before 1963. He had been to Barewa for the first time with his father when he was 10 or 12 years old. He has admitted that after that also, he had been to Barewa once or twice. This clearly indicates that the evidence given by the witnesses for Sri Kedar Pandey that Narayan Raja either resided or mostly resided at Barewa cannot be true. In dealing with the history of Narayan Raja’s life, the Tribunal has stated in paragraph 42 of its judgment, that the facts and circumstances relating to the period subsequent to the date on which the Indian Constitution came into force are irrelevant. This approach
of the Tribunal is erroneous, and in considering the question of domicile of a person at a particular time, his conduct and facts and circumstances after that time have also been held to be relevant. In re Grove. Voucher v. The Solicitor to the Treasury, reported in (1889) 40 Ch D. 216, the question of domicile of one Marc Thomegay in 1744 was in issue and various facts and circumstances after 1744, were considered to be relevant. I can do no better than quote from the judgment
of Lopes, L. J., at p. 242 of the report, where it was stated thus:
“The domicile 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 contended 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 re-side 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, 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”.
Continuing with the history of Narayan Raja’s life from 1950 onwards, it appears that he had married in 1950. His wife belonged to Darkoti in Himachal Pradesh. Darkoti is near Patiala. The marriage had taken place at Benares. The name of his father-in-law is said to be Pearey Ram Singh. Narayan Raja has a son and a daughter by that marriage, and according to his evidence, the daughter was born in Benares and the son was born in Bettiah. The daughter prosecutes her studies in Dehradun. In 1950 or 1951 Narayan Raja had established a Sanskrit Vidyalaya in Ramnagar in the name of his mother, called Prem Janani Sanskrit Vidyalaya. The story of Narayan Raja’s political and other activities is as follows: There was a Union Board in Ramnagar before Gram Panchayats had come into existence, of which Narayan Raja was the Chairman or President. According to Narayan Raja himself, he was the Chairman, and according to P. W. 3, he was the President of the Union Board.
Be that as it may, there is no doubt that Narayan Raja was connected with the Union Board.
After Gram Panchayats were established, the Union Board was abolished. Narayan Raja was a voter in the Grain Panchayat. There was a union, called C. D. C. M. Union of Ramnagar of which Narayan Raja was the Vice-President. Then came the elections for the Legislature. For the election held in 1952 Narayan Raja was a voter from Ramnagar Constituency. In the general election of 1957 he had stood as a candidate opposing Sri Kedar Pandey, Thereafter, he became the President of the Bettiah Subdivisional Swatantra Party and then Vice-President of the Champaran District Swatantra Party. From the facts and events narrated above, it is clear to me that long before the end of 1949, which is the material time under Article 5 of the Constitution of India. Narayan Raja had formed the intention of residing in India indefinitely. There is no doubt in my mind that the requisite animus manendi has been proved, and Narayan Raja had not the slightest intention of living anywhere except in India by that time.
It has been seriously contended by the learned counsel appearing for Sri Kedar Pandey that for two reasons Narayan Raja could never have the intention of residing in India permanently or indefinitely. One reason is said to be that he owned extensive properties in Barewa in Nepal. Reliance is placed in this context on Exhibit 10 (c), which is a Khatian prepared in 1960, showing certain properties standing in the name of Narayan Raja and his brothers in Nepal. Exhibit 10 (a) is a Hindi translation of the same document. The Tribunal has stated that the total area of land indicated by the Khatian came upto 43 bighas approximately. Thus, according to learned counsel for Sri Kedar Pandey, it cannot be said that Narayan Raja had no property connection with, Nepal, and, therefore, he could not have an intention of living in India permanently. In order to explain the property mentioned in the Khatian, Narayan Raja’s case is that some property had belonged to his natural grandmother named Kanchhi Maiya, and she had gifted 40 to 42 bighas of land in Barewa to Rama Raja.
These lands were the exclusive property of Rama Raja, and after his death, this property has devolved upon his sons. In order to substantiate this case, a Sanad (Exhibit AA) has been relied upon. Exhibit AA (1) is a Hindi translation of the same document. It was of the year 1914. The Tribunal has refused to rely on Exhibit AA on the ground that it was filed at a very late stage of the hearing, and Sri Kedar Pandey had no opportunity of meeting this point after this document was filed. I do not think that the conclusion of the Tribunal regarding late filing of Exhibit AA is justified. The certified copy of the Khatian (called the Field Book at that stage) was filed on behalf of Sri Kedar Pandey on the 7th of March, 1963, and the Sanad was filed on the 13th of March, 1963, with an application showing cause for the delay in filing this document. The certified copy of the Khatian was marked as Exhibit 10 (c) on the 14th of March, and the Sanad was marked as Exhibit AA on the 18th of March.
The case was closed on behalf of Narayan Raja on the 1st of April, 1963, and even after that,
Exhibits 8 (b), 16 and 17 were marked on behalf of Sri Kedar Pandey. Even on the 29th of June, 1963, an attempt was made on his behalf to bring on the record other documents, which attempt was abandoned on the 1st July. It is, therefore, difficult to hold that Sri Kedar Pandey was in any way prejudiced by the late filing of Exhibit AA. In any event, there is the oral evidence given by Narayan Raja regarding the lands mentioned in the Khatian and he was cross examined on this point. Moreover, owning certain properties having an area of about 43 bighas in Barewa, jointly with other brothers, cannot outweigh the fact that Narayan Raja alone got extensive properties in India after the partition decree of the year 1944. It is impossible to hold that if Narayan Raja had ever to choose between India and Nepal, on the criterion of owning properties in these two countries, he would have preferred Nepal to India. In this connection, reference may be made to Douglas v. Douglas, reported in (1871) 41 L. J. Ch. 74, where Wickens, V. C. expressed himself in these words :
“It may, perhaps, be added, that to prove such an intention as is necessary to establish a change of domicile, and in the absence of evidence, that the intention actually existed (which can be shown by express declaration, and in no other way) the evidence must lead to the inference that if the question had been formally submitted to the person whose domicile is in question, he would have expressed his wish in favour of a change. Possibly where the actual residence in the acquired domicil has been vary long, an unconscious change of mind may be inferred, though it may be doubtful whether it would have been declared or admitted if the question had been actually raised. Such unconscious changes of opinion on the most important subjects happen not unfrequently in such a space of time as the 32 years residence in England, which occurred in Udny v. Udny, (1869) 1 Sc. and Div. 441 : 11 Digest 309, 19. But, in cases, not involving a very Song time, I apprehend that, in order to establish a change of domicil, it must be shown that the intention required actually existed, or made reasonably certain that it would have been formed or expressed if the question had arisen in a form requiring a deliberate or solemn determination. What, therefore, has to be here considered is whether the testator, William Douglas, ever actually declared a final and deliberate intention of settling in England, or whether his conduct and declarations lead to the belief that he would have declared such an intention if the necessity of making his election between the countries had arisen”.
To my mind, “if the question had arisen in a form requiring a deliberate or solemn determination”, Narayann Raja would have answered it in favour of India. This was the test applied by Lord Macnaghten in Winans v. Attorney-General 1904 A C 287 at p. 298. This was also the test applied in Gulbenkian v. Gulbenkian (1937) 4 All ER 618 at p. 625. Referring to evidence of intention by express declaration, mentioned in (1871) 41 L. J. Ch. 74 (supra), the learned Government Advocate has urged that in the instant case there is evidence of an express declaration of Narayan Raja’s intention. Reliance is
placed on the passport, mentioned above (Exhibit S), where under the appropriate column Narayan Raja’s domicile was mentioned as India. This contention is rebutted by learned counsel for Sri Kedar Pandey, on the basis of an invitation letter (Exhibit 6) of the year 1961, said to have been issued by Narayan Raja in connection with the marriage of Kumar Vinode Bikram Shah.
In that document Narayan Raja has been described as of Barewa Darbar. Even if Exhibit 6 is assumed to have been issued by Narayan Raja or at his instance,– a fact denied by him — this incident is not sufficient to rebut the inference from all other evidence on record, as to which, place was considered by Narayan Raja as his home. On the other hand, the last argument advanced by learned Government Advocate on behalf of Narayan Raja is not a very strong one in favour of the question that has arisen for consideration. Apparently, this mention of domicile in the passport was taken from Narayan Raja’s application, for grant of a passport, in which a column had to be filled up showing the domicile of the applicant. But it is difficult to conclude that the applicant was mentioning the place of domicile as India, understanding fully the legal implication of the expression. Domicile is a legal conception on which views of laymen are not of much assistance, unless there is some evidence to show that a declarant knew what “domicil” means : vide Attorney-General v. Yule and Mercantile Bank of India, reported in (1931). All E R 400.
The question of domicile has, therefore, to be determined in this case from the facts and circumstances rather than on a single declaration by Narayan Raja, even if it be assumed that the mention of Indian domicile in the passport can be taken to be a declaration made by Narayan Raja himself. The second criterion upon which learned counsel for Sri Kedar Pandey has relied is the fact that Narayan Raja, and before him Rama Raja, insisted upon designating themselves by the expression “Sri 5”, indicating that they belonged to the Royal family of Nepal. This reference to the Royal family of Nepal, in my opinion, is no criterion upon the question of domicile. The reference to Sri 5, as prefixes to the names of Narayan Raja and Rama Raja was surely attributable to the pride of their ancestry, but upon the question of domicile, it can have no such repercussion as to altogether negative an Indian domicile, if other facts and circumstances indicate animus manendi, and it is held that an Indian domicile had been obtained animo et facto.
In my opinion, the Tribunal has made much of the descent from the family of the Maharaja of Nepal by stating in paragraph 19 of its judgment, that clinging tenaciously, to Sri 5 indicates an intention of not relinquishing a claim to the throne of Nepal, if at any future date succession to the throne falls to any junior member of the family of the King of Nepal. The succession to the throne of Nepal is governed by the rule of primogeniture; and it is hardly believable that as the second son of his father, Narayan Raja could ever hope to ascend the throne of Nepal. It has come into evidence that Narayan Raja’s elder brother, Shiva Bikram Shah, has left male issues. Situated as he was, Narayan Raja could very well consider India rather than Nepal as his home.
15. Upon a review of the materials on record, it appears to me that the conclusion ought to be that when Article 5 of the Constitution of India came into force, Narayan Raja was domiciled in the territory of India. On the finding given above, that Narayan Raja was born at Benares, in the territory of India, it must be held that at the material date Narayan Raja was an Indian citizen. Even if it be held that Narayan Raja was born in Barewa, in Nepal, there is no doubt that Narayan Raja was ordinarily resident in the territory of India for not less than five years immediately preceding the time when Article 5 of the Constitution of India came into force. The history traced above must prove that Narayan Raja was ordinarily resident in the territory of India for not less than five years immediately preceding the time when Article 5 of the Constitution of India came into force. Therefore, the ingredients of Article 5 (c) of the Constitution have been proved, and even if the ingredients of Article 5 (a) may not be proved, the conclusion will be the same, that Narayan Raja was an Indian citizen at the relevant time.
16. It must, therefore, be held that the election of Narayan Raja has wrongly been declared
to be void. The judgment and order of the Election Tribunal is, therefore, set aside to that ex
tent.
17. For the reasons given in allowing Election Appeal No. 8 of 1963, it is clear that Election Appeal No. 10 of 1963 must fail. In any event, it is clear that the order of the Election Tribunal, refusing to declare Sri Kedar Pandey to have been duly elected in the election in question was correct. The matter is now concluded by the judgment of the Supreme Court in the case of Keshav Lakshman v. Dr. Deorao Lakshman, AIR 1960 S C 131. There is no substance in the contention of the learned counsel for the appellant in Election Appeal No. 10 of 1963, that apart from the provision of Section 101 of the Representation of the People Act, 1951, the Election Tribunal had any power to declare Sri Kedar Pandey to have been duly elected under the provision of Section 98 (3) of the Act. Undoubtedly, the Act had given the Election Tribunal such power, but the power could have been exercised only if the requirements of Section 101 were fulfilled. Election Appeal No. 10 of 1963 must fail.
18. Election Appeal No. 8 of 1963 is, therefore, allowed with costs. Election Appeal No. 10 of 1963 is dismissed, but in the circumstances, without costs. Miscellaneous Judicial Case No. 306 of 1963 was not pressed; and it is dismissed, but without costs.
S.N.P. Singh, J.
19. I agree.