While going through Private International Law and the concept of Domicile, I came across this very interesting case. I have tried to summarize it as briefly as possible. Hope it is of some help.
Poosarilar Ekambaram Pillai v. Visalakshmi and others- AIR 1991 Mad. 203
Facts:
An 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 a Panchayat.
The election of the first respondent
in the said election was challenged by the petitioner by way of an election
petition before the Election Tribunal. Against the order of the Election
Tribunal, the first respondent preferred a Civil Revision Petition before the
High Court.
The judge felt that one important
question to be decided in this case is whether the first respondent herein is a
citizen of India.
The Election Tribunal came to the
conclusion that the first respondent herein is a citizen of India and as such
it upheld her election.
Issues:
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?
Arguments by the Petitioner:
1. 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,
2. 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 Indian Succession Act.
3. That regarding the birth of first
respondent's father, her mother alone has deposed as a witness, that her
evidence 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.
Arguments by the Respondents:
1. 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.
2. It was argued 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.
3. That the burden lies on the
petitioner to prove that the domicile of origin is changed. The mere fact that
he was a resident of Malaysia and died will not show that he was domiciled in
Malaysia.
4. 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.
Evidence given by her mother was referred 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.
Judgment:
In
the present case, the Election Tribunal said that the first respondent's
parents were born in India and as such, as per Article 5(b) of the Constitution of India,
both the parents of first respondent were born in India. The High Court agreed
with the Election Tribunal on the point that Article 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.
The
High Court examined the next question framed by the Election Tribunal which was
whether the first respondent herein was a 'domicile' in India as per
Article 5 of the Constitution. 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[1],
it has been held that it is impossible to lay down an absolute definition of
'domicile' In Craignish v. Craignish[2], Chitty,
J. has given the simplest definition of the term 'domicile';
"....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:
"....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...."
We see that in all the cases mentioned, the nationality of
persons domiciled in India is immaterial. My personal view is 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.
Further, the High Court analyzed the
domicile status of the mother and the father. It said that 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.
The respondent 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 decidedly prove by itself that this
respondent continues to be an Indian citizen.
The
High Court said that 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 Article 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 Article 5 of the Constitution of India.
No reason was found to set at naught the well-considered order of the Election
Tribunal. The Civil Revision Petition stood dismissed.
Ratio:
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.
Critique:
On
the point of Evidence, I fail to understand how the mother’s hearsay statement was
accepted by the Tribunal. However, it was within the power of the Tribunal to
accept such statement since Tribunals are not bound by procedural laws and
decide each case on its own merits.
On
the point of Domicile, I agree with the court that both quality and quantity
must be taken into account while deciding such an issue. Brief residence does
not definitely negate the Domicile.
I
really appreciate the way the court brought article 227 into picture. Article
227 is an extraordinary jurisdiction of the High Court and it must be exercised
sparingly. The court was right to this effect.
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