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Cites 12 docs - [View All]
Article 5 in The Constitution Of India 1949
The Indian Succession Act, 1925
Sankaran Govindan vs Lakshmi Bharathi & Others on 15 April, 1974
Kedar Pandey vs Narain Bikram Sah on 15 April, 1965
Article 227 in The Constitution Of India 1949

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Madras High Court
Poosarilar Ekambaram Pillai vs Visalakshmi And Others on 29 March, 1990
Equivalent citations: AIR 1991 Mad 203
Bench: Bakthavatsalam

ORDER

1. This civil revision petition is filed under Art. 227 of the Constitution of India relating to the election of the President of Omandur Panchayat in Lalgudi taluk.

2. The said election took place on 23-2-1986 and the revision petitioner herein and seven others contested the same. The first respondent herein was duly declared elected as President of Omandur Panchayat having secured 366 votes and the petitioner before me secured 294 votes.

3. The election of the first respondent in the said election was challenged by the petitioner herein by way of an election petition before the Election Tribunal (District Munsif, Thuraiyur), in O.P. No. 7 of 1986.

Against the order of the Election Tribunal dated 5-8-1987, the first respondent preferred a Civil Revision Petition in C.R.P. No. 3262/ 87 before this Court. In the said civil revision petition, Mohan, J. (as he then was) felt that one important question to be decided in this case is whether the first respondent herein is a citizen of India. By order dated 13-6-1988, Mohan, J. (as he then was) in the said C.R.P. No. 326 of 1987, has held that having regard to the terms of Art. 5 of the (Constitution of India, two aspects require to, be decided (1) whether the petitioner therein was domiciled in India on 26th January, 1950 when the Constitution came into force and (2) whether one of her parents was born in the territory of India and to decide the abovementioned questions, the election petition was remitted back to the Election Tribunal by the learned Judge, to give a fresh disposal on those two aspects. After remand, by the impugned order herein, the Election Tribunal came to the conclusion that the first respondent herein is a citizen of India and as such it upheld her election as President of Omandur Panchayat dismissing the petition filed by the petitioner herein. Against that order, the petitioner has come up to this Court to set aside the election of the first respondent herein as Presidents of the Omandur village Panchayat, Lalgudi taluk.

4. The points which arise for consideration in this petition are;

(1) Whether the petitioner was domiciled in India on 26th January, 1950 when the Constitution of India came into force?

(2) Whether one of her parents was born in the territory of India?

5. Mr. R. Krishnamurthi, the learned counsel appearing for the revision petitioner contends that it is admitted that the first respondent herein was born in Malaysia in 1942, that on 26th January 1950 when the Constitution of India came into force, she was only a minor, that she being a minor, her domicile on the date of 26th January 1950, should be the domicile of her father in terms of Ss. 7 and 14 of the the Indian Succession Act. The learned counsel further contends that it is also admitted that regarding the birth of first respondent's father, her mother alone has deposed as a witness R. W. 1, that the evidence of R. W. 1 cannot be taken as evidence in the eye of law, that at best it can be taken as a hearsay and that there is no other evidence to show the birth place of the first respondent's father. The learned senior counsel further contends that the Election Tribunal has not properly understood how to determine "domicile". The learned senior counsel refers to me various portions of evidence of R. W. 1 and R. W. 2 in extenso, to show that the first respondent herein is not a citizen of India. The learned senior counsel also refers to the decision in Central Bank of India v. Ram Narain, , in Govindan v. Bharathi, , in Kedar Pandey v. Narain Bikram, in U. P. State v. Shah Mohammed, , in Abdul Samad v. State of West Bengal, , in Set. Satya v. Teja Singh, and in Sankaran Govindan v. Lakshmi Bharathi, and contends that if the principles laid down by the Supreme Court are applied to the facts of this case, the first respondent's father could not claim India as a place of his 'domicile' and that the mere fact that the first respondent herein obtained an Indian passport which is marked as Ex.B.28 before the Election Tribunal, may not have any effect in the matter. The learned counsel further contends that this is a fit case where the revision petitioner has to be declared as elected as President of the Omandur village Panchayat, according to R. 12 of Panchayat Election Rules.

6. Mr. Selvaraj, the learned counsel appearing for the first respondent contends that the first respondent herein was a minor on 26th January, 1950 and that so far as the domicile is concerned, the domicile of her father will be applicable to her. The learned counsel argues that Art. 5 of the Constitution of India came into force on 26-11-1949 as per Art. 394 of the Constitution of India. All parties proceeded on the basis that Maria Pillai and the father of the first respondents were citizens of India and the fact that his domicile of origin is India is also not disputed. The learned counsel further argues that the burden lies on the petitioner to prove that the domicile of origin is changed. The learned counsel further contends that the mere fact that he was a resident of Malaysia and died will not show that he was domiciled in Malaysia. The learned counsel further contends that it is true that the first respondent's father was residing in Malaysia, but no citizenship of Malaysia was obtained and that his idea was not to reside in Malaysia permanently. The learned counsel also refers to the evidence of R. W. 1 to show that her father was born in India, that her father domiciled in India, that she was a minor when the Constitution of India came into force on 26-1-1950 and as such according to Art. 5 of the Constitution of India, the first respondent herein is also a citizen of India.

7. In reply, Mr. R. Krishnamurthi, the learned senior counsel appearing for the petitioner herein states that the first respondent herein is not a citizen of India and that is admitted in the evidence of R. W. 1 and R.W. 2. The learned counsel further states that on an analysis of the evidence of R. Ws. 1 and 2 it is found that the father of the first respondent herein went to Malaysia, that he came to India for the purpose of marriage, that he died in the year 1952 and that he never came back to India since his marriage till death. The learned senior counsel further submits that none of the documents prove that the father of the first respondent had any intention to come back to India and that the marriage of R. W. 1 was also conducted in Malaysia.

8. I have considered carefully the arguments of Mr. R. Krishnamurthi, the learned senior counsel for the petitioner and of Mr. Selvaraj, the learned counsel for the first respondent. I have gone through the entire evidence of R. Ws. 1 and 2 adduced before the Election Tribunal.

9. It is necessary now to find out whether the Election Tribunal has arrived at a correct finding with regard to the citizenship, under Art. 5 of the Constitution of India.

10. It is to be mentioned at this stage, that after remand in the election petition, the first respondent's mother was further examined through an Advocate-Commissioner as R. W. 2. There is no material on the side of the petitioner herein to show that the first respondent was born in Malaysia and she obtained the citizenship of Malaysia. The Election Tribunal in its order dated 20-12-1988, which is impugned herein, has held that the petitioner herein has not produced any documentary evidence to show that the first respondent is not a citizen of India. The Election Tribunal has also found that the petitioner has not produced any documentary evidence to show that the first respondent and her ancestors were citizens of Malaysia. The tribunal has considered the evidence of R. W. 1 in which she has stated that her father Mariapillai and her grandfather Manga Periannanpillai were citizens of India. In her evidence R. W. 1 has denied the case of the petitioner herein that the mother of the first respondent was born in Ceylon. The mother of the first respondent, as R. W. 2 deposed before the Election Tribunal that she was born in India so also, her husband the father of the first respondent. R. W. 2 maintains the same stand when she was cross-examining by the petitioner. The Election Tribunal has also found that no documentary evidence was produced to show that to first respondent's mother was born in Ceylon. The Election Tribunal, after considering the oral and documentary evidence on both sides, has given a finding that the first respondent's parents were born in India and as such, as per Art, 5(b) of the Constitution of India, both the parents of first respondent were born in India. The Election Tribunal has rightly held that Art. 5(a) of the Constitution will not apply to the case on hand since the first respondent herself admitted in her evidence that she was born in Malaysia.

11. The next question examined by the Election Tribunal was brother the first respondent herein was a 'domicile' in India as per Art. 5 of the Constitution (sic). On a perusal, it can be seen that in Indian Succession Act, 1925 and Art. 5 of the Constitution, the term 'domicile' has not been defined. In Central Bank of India Ltd. v. Ram Narain, it has been held that it is impossible to lay down an absolute definition of 'domicile' In Craignish v. Craignish, 1892 (3) Ch 180 at p. 192 (A) Chitty, J. has given the simplest definition of the term 'domicile' wherein the learned Judge has said;

"....That place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom."

In that case, the Supreme Court has further observed as follows (at p. 39) :--

"....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 forever in the country where the residence has been taken up...."

It is a well established proposition that a person may have no home or a country, but he cannot be without a domicile. In Kedar Pandey v. Narain Bikram the Supreme Court has held that the law attributes to every person at birth a domicile which is called a domicile of origin and that this domicile may be changed and a new domicile called a domicile of choice, acquired and that the two kinds of domicile, however, differ in one respect. In that case, the Supreme Court has further held as follows (at p. 163) :

"....The former kind of domicile is received by operation of law at birth, while the latter kind of domicile is acquired later by the actual removal of the individual to another country accompanied by his animus manendi....."

The Supreme Court in that case has further observed as follows (at p. 163) :

"....As regards change of domicile, any individual who is not under disability may at any time change his existing domicile and acquire for himself a domicile of choice by the fact of residing in a country other than that of his domicile of origin with the intention of continuing to reside there indefinitely. For this purpose residence is a mere physical fact. It means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. When this physical fact is accompanied by that 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 demands that the individual should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or, in effect, he should have formed deliberate intention to settle there...."

In 'Indian Private International Law by R. S. Chanvan' (at p. 41) various kinds of domicile are set out and they are as follows :--

"(1) domicile of origin (2) new domicile or domicile of choice (3) domicile of minor (4) domicile of married women and (5) domicile of lunatics...."

It can be also seen that the domicile of origin continues until domicile of choice is acquired. While dealing with this question, the decision in Govindan v. Bharathi, is worth mentioning. In that case one Dr. Krishnan left India for England for higher studies in medicine. He set up his evening surgery at Sheffield and he died in the year 1950 and never visited India after he left. But he informed in his letters expressing his desire to come back to India after earning sufficient money. On these facts, the Kerala High Court in the abovementioned case has held that the said Krishnan had not abandoned his Indian domicile of origin. But the said decision was reversed by Supreme Court in Sankaram Govindan v. Lakshmi Bharathi, holding that domicile was a mixed question of law and fact. In the above mentioned case, the Supreme Court has further observed as follows (at p. 1774) :

"....If the inquiry relates to the domicile of the deceased person, it must be ascertained whether at some period in his life he had formed and retained a fixed and settled intention of residence in a given country. One has to consider the tastes, habits, conduct, actions, ambitions, health, hopes and projects of a person because they are all considered to be keys to his intention to make a permanent home in a place. It is impossible to lay down any positive rule with respect to the evidence necessary to prove intention. All that can be said is that every conceivable event and incident in a man's life is a relevant and an admissible indication of his state of mind. It may be necessary to examine the history of his life with the most scrupulous care, and to resort even to hearsay evidence where the question concerns the domicile that a person, now deceased, possessed in his lifetime. Nothing must be overlooked that might possibly show the place which he regarded as his permanent home at the relevant time. No fact is too trifling to merit consideration. Nothing can be neglected which can possibly indicate the bent of a person's mind. His aspirations, whims, prejudices and financial expectation, all must be taken into account. Undue stress cannot be laid upon any single fact, however impressive it may appear when viewed out of its context, for its importance as a determining factor may well be minimised when considered in the light of other qualifying event. It is for this reason that it is impossible to formulated a rule specifying the weight to be given to a particular evidence."

After making observation as mentioned above, the Supreme Court reversed the judgment of the Kerala High Court and held that the said Krishnan had no definite intention of returning to India and as he was a resident in England and his acts and conduct were consistent only with his intention to make England his permanent home, he died domiciled in England. Domicile choice is a new domicile voluntarily chosen by a person of full age and capacity. To acquire a new domicile of choice, two elements, viz. residence and intention must be existent. This principle has been clearly set out in Kedar Pande v. Narain Bikram, . In that case the Supreme Court approved two decisions of the English cases and observed that what was required to be established by a person to prove a change in his domicile of origin was his voluntary fixed habitation of himself and his family in the new country with the present intention of making it his permanent home. It will be seen from Art. 5 of the Constitution of India that at the commencement of the Constitution domicile formed a basic condition among others for the acquisition of citizenship. Article 5 of the Constitution reads as follows :--

"5. 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....."

In all the cases mentioned above the nationality of persons domiciled in India is immaterial. I am of the view that mere residence is not domicile. There must have (been) some intention on the part of the first respondent herein or by her father to settle down at Malaysia permanently. See Abdus Samad v. State of West Bengal, . In Smt. Satya v. Tej Singh, the Supreme Court has held as follows at page 116 :--

"....True, that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, brief residence may not negative it. But residence for a particular purpose fails to answer the qualitative test for the purpose being accomplished, the residence would cease. The residence must answer "a qualitative as well as a quantitative test", that is, the two elements of FACTUM ET ANIMUS must concur....."

If the principle laid down by the Supreme Court as stated above are applied to the facts and taking into account the oral evidence adduced in this case, I have no doubt to hold that the first respondent herein is a citizen of India. As rightly argued by Mr. Amarnath, the learned counsel for the first respondent, the father of the first respondent has never lost his domicile in India and he was a citizen of India. There is no evidence to show that the father of the first respondent was settled in Malaysia with the intention not to come back to India. In my view, the Election Tribunal has arrived at the right conclusion on the basis of the evidence.

12. The argument of Mr. Selvaraj, the learned counsel for the first respondent on the question of burden of proof is also well founded. A Division Bench of this Court in M. A. Muthiah Chettiar v. Saw Ganesan, . Vol. XXI 1960 Eh has held as follows:

"....An election enquiry, as has often been pointed out is in the nature of a quasi criminal trial and the election petitioner is virtually in the position of a prosecutor and it is an elementary rule of law that the prosecution should make out its case by positive proof and not by mere conjecture....."

In more than one place, the Election Tribunal has held that the petitioner therein has not let in evidence on this aspect. In this case, the Election Tribunal has not found any trustworthy evidence of the desire of the father of the first respondent to acquire Malaysian domicile. The Indian Succession Act provides that the domicile of origin prevails until a new domicile is acquired and thus the domicile of origin is a creature of law.

13. In this case, on facts, the Election Tribunal has found that the first respondent herein was a minor when the Constitution of India came into force and as such, in so far as the domicile of the first respondent herein is concerned, it is the domicile of her father as per the provisions of the Indian Succession Act. With regard to question whether the father of the first respondent was domicile in Malaysia with intention not to come back to India, the Election Tribunal has held that the petitioner has not proved by way of any oral and documentary evidence that the father of the first respondent was a domicile in Malaysia with intention to settle there permanently. The Election Tribunal has taken note of the passport Ex. B.28 and the entries made therein and has come to the conclusion that even after the marriage of the first respondent, she has no intention to settle in Malaysia, and that the entries made in the said passport only show that they were made only for temporary stay in Malaysia. The Tribunal has also held that the first respondent has got only Indian passport and that the petitioner has not proved that the first respondent has got any Malaysian passport.

14. Mr. Amarnath, the learned counsel appearing for the first respondent points out that the contents in paragraph 10 of the counter affidavit were not denied by the petitioner. Paragraph 10 of the counter affidavit filed by the first respondent before the Election Tribunal runs as follows :--

"..... This respondent's father Mariapillai was an Indian citizen. In fact petitioner grandfather even had passport with Indian citizenship. This respondent's mother gave birth of this respondent during her temporary visits at Malaysia. At all events, this respondent was taken back to India soon after her birth and she was educated in India as an Indian citizen. She has acquired properties in India as an Indian citizen. This respondent has also given birth of her male children when she used to visit Malaysia to join her husband who was in Malaysia. But at all the relevant times the respondent has her Indian domicile and she never terminated her Indian domicile. She never intended to terminate her Indian domicile as well. The very fact she has studied in India as an Indian citizen having Indian passports as Indian citizen not only to her but also to her children will also clinchingly prove by itself that this respondent continues to be an Indian citizen. There are voluminous documents available for this respondent to prove her citizenship which are of matters of evidence which will be putforth during enquiry....."

Taking into consideration this aspect and also the conclusion reached by the Election Tribunal on facts, I do not see any reason to interfere with the decisions of the Election Tribunal.

15. It is well settled that under Art. 227 of the Constitution of India, this Court should not interfere with the decisions of the Tribunal even if there is an error of law or on facts. It is also well settled that simply because this Court can come to another conclusion, it will not be a ground for interfering with Art. 227 of the Constitution. After appreciating the oral and documentary evidence on both sides, the Election Tribunal has come to the conclusion that the first respondent is a citizen of India as per Art. 5 of the Constitution of India. I do not see any reason to set at naught the well considered order of the Election Tribunal. The Civil Revision Petition will stand dismissed. However, there will be no order as to costs.

16. Petition dismissed.