Kedar Pandey

This is the case that settles the Indian test for a domicile of choice, and it does so by lowering the bar. The older English learning, at its heaviest, had required a change of national allegiance. Kedar Pandey rejects that and fixes the requirement at an intention of permanent residence — nothing more.

It matters for a second reason that is easy to score on. The domicile question arrived inside an election petition, which is Module 1's point that a conflicts question may be sprung in an ordinary action, made concrete.

Narain Raja was of Nepalese parentage, was educated in Calcutta, had been resident at Ramnagar from 1938, had a palace and house built there, and had brought a partition suit there. The question was whether he had made India his domicile of choice and was therefore qualified under Article 173 to sit in the Bihar Legislative Assembly.

He had acquired an Indian domicile of choice and was qualified. The test:

"the only intention required for a proof of a change of domicile is an intention of permanent residence"

Step one: adopt the English learning on the two ingredients. Ramaswami J. quoted Lord Cottenham in Munro v. Munro:

"The domicile of origin must prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicile , and acquiring another as his sole domicile. To effect this abandonment of the domicile of origin, and substitute another in its place, it required animo et facto, that is, the choice of a place, actual residence in the place then chosen and that it should be the principal and permanent residence"

and Lord Westbury in Udny v. Udny on the domicile of choice being an inference the law draws from a man "fixing voluntarily his sole or chief residence in a particular place, with the intention of continuing to reside there for an unlimited time."

Step two: reject the heavier test. Moorhouse v. Lord had required a change of national allegiance. That confuses domicile with citizenship, and it would make a change of domicile nearly impossible for a person who keeps his nationality — which is most people. The Court dropped it.

Step three: state what intention must be proved. An intention of permanent residence, and that alone. The Court then asked what evidence showed it, and found it in the facts of settlement: long residence from 1938, a palace and a house built at Ramnagar, and litigation about property there. Building and litigating are acts, not declarations, and acts of that kind are the best evidence of the animus.

Step four: handle the intention to return. The examinable question in every domicile problem is whether a declared intention to go home is definite or merely a horizon. Lord Campbell in Aikman v. Aikman, quoted in the same judgment: "a mere intention to return to his native country on a doubtful contingency, will not prevent such a residence in a foreign country from putting an end to his domicile of origin." Against that, in Ramsay v. Liverpool Royal Infirmary the contingency defeated the change. The Court of Appeal's line in Doucet v. Geoghegan, which Kedar Pandey approves, is the best formulation: a man who says he will go back to France when he has made his fortune "is like a man who expects to reach the horizon and finds it at last no nearer than it was at the beginning of his journey."

It opens: any Indian question on domicile of choice; Distinguish domicile of origin and domicile of choice, with Indian authority; and every problem in which a person of foreign origin has settled in India.

The method to reproduce: state the two ingredients, factum and animus; state the Indian test in the Court's own words; then marshal the facts of settlement as evidence of intention; then deal with the alleged intention to return, asking whether it is definite or contingent, and cite Aikman and Doucet on the two sides.

Note the date point. Domicile is always tested at a particular moment, and the moment is fixed by the statute or the rule that made domicile relevant. Kedar Pandey was decided on the date of nomination. Compare Rosetta Evelyn Attaullah v. Justin Attaullah, where the matrimonial statute required domicile in India at the time the petition was presented, and the decree nisi could not be confirmed because the parties were then domiciled in Pakistan.

Keep domicile apart from citizenship. D.P. Joshi v. State of Madhya Pradesh: "citizenship and domicile represent two different conceptions"; and Rashid Hasan Roomi v. Union of India, where the argument that a child's domicile changes automatically with the father's, so that a son left behind in India when his father migrated in 1948 was a foreigner, was held to be based on a fallacy, and the petitioner was set at liberty.

It does not decide: anything about domicile of dependence, or about the revival of a domicile of origin — for revival go to Udny. And it is not authority that long residence alone suffices; Ramsay is the standing refutation of that.