KEDAR PANDEY versus NARAIN BIKRAM SAH

Citation: [1965] 3 S.C.R. 793 · Decided: 15-04-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Dismissed

Judgment (excerpt)

A 
B 
c 
. 
D 
E 
F 
G 
H 
KEDAR PANDEY 
v. 
NARAIN BIKRAM SAH 
April 15, 1965 
[P. B. GAJENDRAGADKAR, K N. WANCHOO, M. HIDAYATULLAH AND 
V. R.AMASWAMI, JJ.] 
Constitution of India, 1950, Art. 5(c)-Acquisition of Indian 
domicile-Proof. 
The appellant and respondent 
were contesting candidates for 
election to the State Legislative Assembly. The respondent was 
declared elected, and the appellant filed an election petition chal-
lenging the election on the ground that the respondent was not 
duly qualified under Art. 173 of the Constitution as he was a citizen 
of Nepal and not a citizen of Inclia. The Tribunal held that the 
respondent was not a citizen of India, but the High Court in appeal 
set aside that order and upheld the election of the respondent. 
On the question whether the respondent was a citizen of India 
under Art. 5 of the Constitution, on the material date, 
HELD: Assuming that the respondent was not born in the ter-
ritory of India, on a consideration of all the events and circum-
stances of his life, he had acquired a domicile of choice in India 
long before the end of 1949 which is the material time under Art. 5 
of the Constitution. He had formed the deliberate intention of making 
Inclia his home with the intention of permanently establishing him· 
self and his family in India and therefore had t':i.e requisite 
anirn .. us manendi. He was ordinarily resident in India for 5 years 
immediately preceding the time when Art. 5 came into force. Since 
the requirements of Art. 5(c) were satisfied, the High Court rightly 
reached the conclusion that he was a citizen of India at the relevant 
time. [805 C-D] 
The only intention required for a proof of a change of domicile 
is an intention of permanent residence. What is required to be estab-
lished is ti/at the person who is alleged to have changed his domicile 
of origin has voluntarily fixed the habitation of himself and his 
family in the new country, not for a mere special or temporary pur-
pose, but with a present intention of making it his permanent homei 
On the question of domicile at a particular time the course of his con-
duct and the facts and circumstances before and after that time are 
relevant. [8()1 F-G; 803 F] 
Udny v. Udny, L.R. 1 H.L. Sc. 441 and Doucet v. Geoghegan, 9 Ch. 
Div. 441, applied. 
793 
794 
SUPREME 
COURT 
REPORTS 
'[1965) 3 S.C.R. 
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 976 · A 
and. 977 of 1964. 
Appeals from the judgment and decree dated March 26, 1964 
of the Patna High Court in Eleetion Appeals Nos. 8 and I 0 of 
1963. 
C. B. Agarwala, Jagdish Pan<lay, Chinta Subbarao, M. Raja-
B 
gopalan and B. P. lha, for the appellant, Un both the appeals). 
K. P. Varma and D. Goburdhun, for the respondent (In both 
the appeals). 
The Judgment of the Court was delivered by 
Ramaswami, J. Both 
these 
appeals 
are 
brought 
by 
certificate against the judgment and decree of the High Court of 
Judicature at Patna dated March 26, 1964, pronounced in Election 
Appeals Nos. 8 and IO of !963. 
c 
The appellant-Kedar Pandey and the respondent-Narain 
Bikram Sah (hereinafter called Narain Raja) were the contesting D 
candidates in the year 1962 on behalf of the Congress and Swatan-
tra Party respectively for the election to Bihar Legislative Assembly 
from Ramnagar Constituency in the district of Champaran. 
The nomination papers of the appellant and the respondent 
and two others-Patmeshwar Prasad Roy and Suleman Khan-
were accepted by the Returning Officer without any objection on E 
January 22, 1962. Later on the two candidates-Parmeshwar 
Prasad Roy and . Suleman Khan-withdrew their 
candidature~. 
After the poll the respondent, Narain Raja was declared elected 
as member of the Bihar Legislative Assembly by majority of 
valid votes. On April 11, 1962 Kedar Pandey filed an election 
petition challenging the election of the respondent. It was alleged F 
by Kedar Pandey that the respondent was not duly qualified under 
Art. 173 of the Constitution of India to be a candidate for elec-
tion as he was not a citizen of India: According to Kedar Pandey 
the respondent, bis parents and grand-parents werei all born in 
Nepal and, therefore, on the date of the election, the respondent-
G 
Narain Raja-was not qualified to be chosen to fill the Assembly seat 
for which be _had been declared to have been elected. According to 
Kedar Pandey the respondent was related to the royal family of 
Nepal and the father of the respondent-Rama Raj

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