JUDGMENT V. Khalid, J. 1. Defendants 1 and 2 in O.S. No. 38 of 1972 on the file of the Sub Court, Quilon, are the appellants. The suit, from which the second appeal arises, was one for partition. I shall refer in brief to the facts of the case. One Raman Gangadharan died in Singapore on 19th January 1971. The plaintiff is his mother, the first defendant his wife and the second defendant, his daughter. Plaint A-B and C schedule properties belonged to him. According to the plaintiff, herself and defendants 1 and 2 are each entitled to 1/3 share. Since the defendants were not amenable to partition of the properties out of court, the suit had to be filed. Defendants 3 and 4 have been impleaded as members of the Gangadharan's tarwad. 2. Defendants 1 and 2 contested the suit on the ground that the plaintiff cannot maintain the suit, since she is not entitled to any share in the estate of deceased Gangadharan. According to them, Gangadharan, at the time of his death was not an Indian citizen but had acquired British citizenship on and from 31st January 1969. A-schedule properties are the movable properties other than money which belonged to deceased Gangadharan. B-schedule properties are immovable properties and C-schedule properties, the money in Bank deposit. 3. The courts below accepted the case of the plaintiff that she was entitled to a share as an heir of deceased Gangadharan since Gangadharan was at the time of his death an Indian citizen and of Indian domicile. Hence this second appeal. 4. The only question that falls for consideration in this second appeal is as to what is the law of succession applicable to Gangadharan. I am not interested in this second appeal with the A and B-schedule properties in the plaint. It is conceded, and rightly, by the learned counsel for the appellants, that the law applicable to A and B schedule properties is the lex situs, i.e., the law of the land where the properties are situated. The Plaintiff is therefore entitled to a share in these properties. 5. The question that needs to be decided in this second appeal is the right of the parties in relation to the amount in deposit. To resolve this question, the political status and the civil status of deceased Gangadharan have to be ascertained. 6. The Plaintiff is therefore entitled to a share in these properties. 5. The question that needs to be decided in this second appeal is the right of the parties in relation to the amount in deposit. To resolve this question, the political status and the civil status of deceased Gangadharan have to be ascertained. 6. Before considering the questions of law raised before me, it is necessary to correctly understand the pleadings in the case. The pleadings put forward by the plaintiff are clear and unambigous. According to her, Gangadharan died an Indian citizen with Indian domicile. He is governed by the law of succession applicable to Hindus. She is an heir of Gangadharan under the said law and that she is entitled to 1/3 share in the C-Schedule properties. The case of the defendants regarding this important aspect is seen reflected in Para.3 and 5 of their written statement: xxx xxx xxx From what is extracted above, the case put forward appears to be that Gangadharan renounced Indian citizenship in 1965 and become a Singapore citizen till 31st January 1969, when he become a British subject. Therefore the law of succession applicable to him is the law applicable to U.K. citizen D.W. 1, who is the first defendant, admitted while she was examined that Gangadharan never went to London: xxx xxx xxx. 7. The important materials available in the case are that Gangadharan never took his wife and son to Singapore. Nor did he go to London. He had no Bank account either at Singapore or in England. His Bank account was in India. He left for Singapore in 1952. He visited his native place in 1958, 1966 and 1968. He married the first defendant during his visit in 1958. Ext. B-2 is the Passport held by him. This shows that he was a British subject and a citizen of U.K. Colonies. Ext. B-15, produced at the appellate stage is an application filed by him on 7th January 1969 on the strength of which he was registered as a citizen of U.K. Colonies by the British High Commission in Singapore on 31st January 1969. 8. The question for consideration is as to what is the law of succession applicable to deceased Gangadharan. Is it with reference to his citizenship at the time of his death or with reference to his domicile? 8. The question for consideration is as to what is the law of succession applicable to deceased Gangadharan. Is it with reference to his citizenship at the time of his death or with reference to his domicile? Every person is ascribed by law on his birth two distinct legal status: one is his political status by which his ties of political and national allegiance to a particular country is determined and the other is his civil status which determined his personal rights. The political status varies with the law of each country. But civil status is governed only by one principle and that is of universal application, namely, that of domicile. Lord Westbury observes in Kiny v. Udny 1869 L.R.I.H.L. Sc. 441. "The law of England, and of almost all civilized countries, ascribes to each individual at his birth two distinct legal status or conditions; one by virtue of which he becomes the subject of some particular country binding him by the tie of national allegiance, and which may be called his political status, another by virtue of which he has ascribed to him the character of citizen of some particular country and as such is possessed of certain municipal rights, and subject to certain, obligations, which later character is the civil status or conditions of the individual, and may be quite different from his political status. The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicile which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy, must depend." what determines the domicile of an individual? 9. Normally a person acquires a domicile by his origin of birth. He may acquire a domicile of his choice also. Ordinarily a person can have only one domicile at one time. However, law permits a person to have one domicile for the purpose of succession, testate or intestate and another domicile for all other purpose. A person who sets up a plea of acquisition of a new domicile has a heavy burden to discharge. Ordinarily a person can have only one domicile at one time. However, law permits a person to have one domicile for the purpose of succession, testate or intestate and another domicile for all other purpose. A person who sets up a plea of acquisition of a new domicile has a heavy burden to discharge. A person who asserts that one has chosen a domicile different from the domicile of one's origin, he has to establish the settled intention of abandoning the first domicile and acquiring another domicile. 10. Regarding the burden of proof we have the following in Cheshire's Private International Law, Eighth Edition, Chap.22, at page 161: "There is a presumption in favour of the continuance of an existing domicile. Therefore the burden of proving a change lies in all cases upon those who allege that a change has occurred. This presumption may have a decisive effect, for if the evidence is so conflicting or indeterminate that it is impossible to elicit with certainty what the resident's intention is, the court will decide in favour of the existing domicile." Regarding standard of proof, the following passage at page 161 is useful: "The standard of proof necessary to rebut the presumption is what adopted in civil actions, which requires the intention of the propositus to be proved on a balance of probabilities, not beyond reasonable doubt as is the case in criminal proceedings. But it has been said that when the displacement of a domicile of origin by a domicile of choice is alleged, "the standard of proof goes beyond a mere balance of probabilities". Searman, J., however, after observing that the language used in such cases emphasises as much the nature and quality of the intention to be proved as the standard of proof requires, preferred to summarise the position as follows: "Two things are clear first that unless the Judicial conscience is satisfied by evidence of change, the domicile of origin persists; and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words." Regarding the burden of proof it will be useful to refer to the following passage at page 172: "In the first place, there is the strongest possible presumption in favour of its continuance. As contrasted with a domicile of choice, it has been said by Lord Macnaghten that "its character is more enduring, its hold stronger and less easily shaken off". The only distinction between acquisition and abandonment is that the letter requires less evidence than the former. There cannot be abandonment animo solo." 11. Regarding the acquisition of domicile of choice it was observed that the pre requisite for such acquisition are residence and intention. It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently. "The two requisites for the acquisition of a fresh domicile are residence and intention. It must be proved that the person in question established his residence in a certain country with the intention, of remaining there permanently. Such an intention, however unequivocal it may be, does not per se suffice. These two elements of factum and animus must concur, but this is not to say that there need be unity of time in their concurrence. The intention may either precede or succeed the establishment of the residence. The emigrant forms his intention before he leaves England for Australia, the emigre who flees from persecution may not form it until years later." 12. In this connection it is useful to refer to Sankaran v. Lakshmi AIR 1974 SC 1764 Para.20: "Domicile is a mixed question of law and fact and there is perhaps no chapter in the law that has from which extensive discussion received less satisfactory settlement. This is no doubt attributable to the nature of the subject, including as it does, inquiry into the animus of persons who have either died without leaving any clear record of their intention, but allowing them to be collected by inference from acts often equivocal; or who, being alive and interested, have a natural tenancy to give their bygone feelings a tone and colour suggested by their present inclinations. See Bell v. Kennedy, [1868 (1) SC and Div 307 at p. 322 (H.L)]. The traditional statement that, to establish domicile, there must be a present intention of permanent residence merely means that so far as the mind of the person at the relevant time was concerned, he possessed the requisite intention. The relevant times varies with the nature of the inquiry. It may be past or present. The traditional statement that, to establish domicile, there must be a present intention of permanent residence merely means that so far as the mind of the person at the relevant time was concerned, he possessed the requisite intention. The relevant times varies with the nature of the inquiry. It may be past or present. 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." 13. Let us see whether the defendants in the case have discharged this heavy burden with satisfactory evidence, of an unequivocal intention on the side of Gangadharan, to abandon his domicile of origin and to acquire the domicile of his choice. It is for a proper appreciation of this question that the pleadings and evidence in support of this case were extracted by me earlier. From the written statement, it is seen that he was originally a citizen of India, then of Singapore and subsequently became a citizen of U. K. and Colonies. He never proceeded to U. K. Thus, neither by residence nor by intention can it be inferred that he acquired the domicile in U. K. The pleadings do not spell out a case that Gangadharan had ever manifested his intention to give up his Indian domicile and acquire a foreign domicile. Nor is such a case evident from the testimony of D. W. 1. The only case put forward was that he was a citizen of U. K. at the time of his death. D.W. 1 however deposed that Gangadharan intended to take his wife and son to London and to reside there. This did not materialise. Therefore the intention did not find factual expression. The first defendant had no case that Gangadharan wanted to reside at Singapore. The materials in this case, in profession, show the contrary intention. As already mentioned by me, he never took his wife and son to Singapore. He acquired properties in India. He had his residential house in India. Thus, the necessary evidence is totally absent in this case to make out a case of intention on the part of Gangadharan to acquire a domicile of choice. 14. The case that the estate of the deceased was governed by the law applicable in the United Kingdom has to fail. He had his residential house in India. Thus, the necessary evidence is totally absent in this case to make out a case of intention on the part of Gangadharan to acquire a domicile of choice. 14. The case that the estate of the deceased was governed by the law applicable in the United Kingdom has to fail. There is not a shred of evidence in this case to show that Gangadharan ever acquired a domicile in the United Kingdom. The simplest definition of the concept of domicile is given by Chitty, J., in 1892 (3) Chancery 180, 192, namely, "that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom". Under the English law, for the existence of domicile, two elements necessary are: residence of a particular kind and an intention of a particular kind. There must be both the factum and the animus. The residence need not be continuous but it must be definite not purely fleeting. The intention must be a present intention to reside for ever in the country where his residence has been taken. By these standards one can say without any hesitation that the case of the defendants that deceased Gangadharan acquired U. K. domicile has to fail. 15. Now I shall deal with the effect of securing a British Passport. What is the effect of the acquisition of a British Passport by Gangadharan on his citizenship? If a person before the commencement of the Constitution voluntarily acquires the citizenship of a foreign State, he is not entitled to claim Indian citizenship. We are not strictly concerned with this aspect of the case. The fact of securing of a passport does not affect the question of domicile and I do not think it necessary to labour the point much. I, therefore, hold that the defendants appellants have failed to prove the elements necessary to constitute a domicile of choice different from the Indian domicile. 16. Even if it is assumed for argument sake that the acquisition of a British Passport confers on the passport holder British citizenship, does that by itself create a change of domicile also. An Englishman remains an Englishman in the sense that his allegiance subjects him to certain duties to the Crown. 16. Even if it is assumed for argument sake that the acquisition of a British Passport confers on the passport holder British citizenship, does that by itself create a change of domicile also. An Englishman remains an Englishman in the sense that his allegiance subjects him to certain duties to the Crown. He may, at the same time, change his residence so that many of his legal rights and obligations are determined by a foreign system of law by adopting a different domicile by choice. Therefore the mere acquisition of a British Passport does not create on the Passport holder a change of domicile also. A useful discussion can be found in Cheshire's International Law, at page 180: "Nationality is a possible alternative to domicile as the criterion of the personal law. These are two different conceptions. Nationality represents a man's political status, by virtue of which he owes allegiance to some particular country; domicile indicates his civil status and it provides the law by which his personal rights and obligations are determined. Nationality depends, apart from naturalization, on the place of birth or on parentage; domicile, as we have seen, is constituted by residence in a particular country animo manendi. It follows that a man may be a national of one country but domiciled in another." In Joshi D. P. v. M. B. State AIR 1955 SC 334 the following extract is useful: "Residence and place of birth are two distinct conceptions with different connotations both in law and in fact, and when Art.15 (1) prohibits discrimination based on the place of birth, it cannot be read as prohibiting discrimination based on residence. It could not be held that the exemption based on domicile was, in effect, an exemption based on place of birth under an alias. Domicile of a person means his permanent home. Whether the expression used is 'domicile of origin' or 'domicile of birth' the concept involved in it is something different from what the words 'place of birth' signify. And if 'domicile of birth' and 'place of birth' cannot be taken as synonymous, then the prohibition enacted in Art.15(1) against discrimination based on place of birth cannot apply to a discrimination based on domicile. Citizenship and domicile represent two different conceptions. Citizenship has reference to political status of a person and domicile to his civil rights. And if 'domicile of birth' and 'place of birth' cannot be taken as synonymous, then the prohibition enacted in Art.15(1) against discrimination based on place of birth cannot apply to a discrimination based on domicile. Citizenship and domicile represent two different conceptions. Citizenship has reference to political status of a person and domicile to his civil rights. Domicile has reference to the system of law by which a person is governed, and when we speak of the domicile of a country, we assume that the same system of law prevails all over that country. In Central Bank of India Ltd. v. Ram Narain AIR 1955 SC 36 it is stated in Para.6 and 8 as follows: "(6) The question of nationality of Ram Narain really does not arise in the case. The real question to be determined here is, whether Ram Narain had Indian domicile at the time of the commission of the offence. Persons domiciled in India at the time of coming into force of our Constitution were given the status of citizens and they thus acquired Indian nationality. If Ram Narain had Indian domicile at the time of the commission of the offence, be would certainly come within the ambit of S.4, I.P.C. and S.188 Cr. P.C. If, on the other hand, he was not domiciled in India at the relevant moment., those sections would have no application to his case. Writers on Private international law are agreed that it is impossible to lay down an absolute definition of 'domicile'. The simplest definition of this expression has been given by Chitty, J. in 'Craignish v. Craignish' [1892 (3) Ch. 180, at p. 192 (A)] 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 an absolute one. The truth is that the term 'domicile' 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 domicile are: (1) a residence of a particular kind, and (2) an intention of a particular kind." 17. In the Conflict of laws by J.N.C. Morris, Chap.4 deals with domicile. Be that as it may, two constituent elements that are necessary by English law for the existence of domicile are: (1) a residence of a particular kind, and (2) an intention of a particular kind." 17. In the Conflict of laws by J.N.C. Morris, Chap.4 deals with domicile. R.3 reads as follows: "3(1) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. (2) A person may sometimes be domiciled in a country although he does not have his permanent home in it." R.6, which deals with domicile of origin, reads thus: "6. Every person receives at birth a domicile of origin: (1) A legitimate child born during the lifetime of his father has his domicile of origin in the country in which his father was domiciled at the time of his birth. (2) A legitimate child not born during the lifetime of his father, or an illegitimate child, has his domicile of origin in the country in which his mother was domiciled at the time of his birth. (3) A foundling has his domicile of origin in the country in which he was found." R.7, which deals with domicile of choice is also extracted: "7. Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise." I have referred in brief to these three rules only to highlight what exactly is the distinction between domicile of origin and domicile of choice and how one acquires the domicile of choice. The word 'residence' can have different meanings in different branches of law. The learned Author observes that for the purpose of this rule, residence means very little more than the physical presence. Thus a person who is present in a country either for the purposes of business or casually or as a traveller and always retains his animus to go back to his native place cannot be said to be a resident of that place for the purposes of this rule. Thus, it is clear that evidence is lacking in this case to establish that Gangadharan has acquired the domicile different from the domicile of origin which is the domicile in India. Thus, it is clear that evidence is lacking in this case to establish that Gangadharan has acquired the domicile different from the domicile of origin which is the domicile in India. This determines the succession to his properties and if we go by the known rules of domicile, we have to hold that Gangadharan continued to be an Indian domicile in which case he is governed by the law applicable to Hindus in India in which case the plaintiff, his mother, is entitled to 1/3 share. 18. Now I will consider the effect of the evidence in this case that Gangadharan left his wife and daughter in India. This is one of the facts which aids a decision about the intention of a person. Mary Ann Elizabeth Platt and another v. The Attorney General of Mew South Wales 1878 LR 3 AC 336 at 343 contains a discussion about this aspect of the case. There the effect of keeping the wife and children in one place has been accepted to be one of the manifestations of the intention of a person not to change the domicile. The facts of the case are as follows: Having abandoned his domicile of origin, which was in Scotland, acquired a new domicile in that portion of New South Wales which in 1859 was by proclamation separated therefrom and became the Colony of Queensland. Thereafter he built in New South Wales a house suitable to his fortune, his wife and children residing there till his death, removing thereto from Queensland, he himself also residing there except at times when he was engaged upon his business or political duties in Queensland. It was observed that it was material in determining what is a man's domicile, to consider where his wife and children lived and have their permanent place of residence and where his establishment is kept up. At page 343 the following observation is useful "His residence was at Quiraing, where his wife and children were living. That is the place to which it is to be presumed he would have gone if he had been incapacitated for business or public duties. It is always material in determining what is a man's domicile to consider where his wife and children live and have their permanent place of residence, and where his establishment is kept up. That is the place to which it is to be presumed he would have gone if he had been incapacitated for business or public duties. It is always material in determining what is a man's domicile to consider where his wife and children live and have their permanent place of residence, and where his establishment is kept up. It is said that Mc Lean at times spoke of adding to the house at Westbrook for the purpose of residing there at a future time, and that he also expressed his wish to be buried at Westbrook. But an intention not executed cannot countervail the facts already adverted to. And in this case his intention of adding to the house, if he ever had that intention, was never executed, and he never appropriated that place to the residence of his wife and family. The expression of his wish to be buried at Westbrook does not appear to be a very important circumstance. In the case of Douglas v. Douglas (1), the person whose domicile was in question was buried in Scotland, but it was held, notwithstanding, that his domicile was in England. It must certainly often occur that a person who is permanently residing in one place may have a vault or some place where he may wish to be buried among his ancestors, but that does not affect his domicile. I would like to make a passing reference to Conflict of Laws (Private International Law), Seventh Edition, by R. H. Gravenson, Art.2 at page 205, R.3: "Where a person is stationed in a country for the principal purpose of carrying on a business, profession or occupation, and his wife and children (if any) ' have their home in another country, he shall be presumed to intend to live permanently in the latter country." This is only to reinforce the finding that the intention of keeping wife and children in one place by a person who is alleged to have changed his domicile is, to a large extent, destructive of the said case. On a consideration of the facts and circumstances of the case, I have no hesitation to hold that the defendants have failed in this case to prove that Gangadharan had changed his domicile to disentitle the plaintiff from claiming right in the property as one of his heirs. This second appeal therefore fails and is dismissed with costs.