P L D 1956 (W (PLP)

James Carter, the grandfather of the respondent, joined the Royal Regiment of Artillery on the 30th of December 1857 at the age of 18, and came out to India. On the 19th of April 1865, he married the above‑mentioned Matilda Carrick; about eight months before the death of the latter's father Francis Carrick. Matilda's marriage, like that of her parents, was performed in St. Thomas's Church at St. Thomas's Mound, Madras. James Carter was discharged from the Army in 1879 either "in consequence of his having claimed it or termination of second period of limited engagement". The papers for his discharge were signed at Secundurabad on the 31st of January 1879 and his discharge was confirmed by the War Office in London on the 29th of April 1879. The actual discharge appears to have taken place at Secundurabad on the 11th of August 1879. At that time he had two children; a daughter, Leslie Matild, about 12 years of age, and a son, William Francis, between four or five. After discharge the Carters stayed on in India and in the Parchment Certificate the "Extended Place of Residence" is mentioned as "Madras, East India". James Carter died in India; although the year of his death is not known. Neither his widow nor any of his children appear to have ever gone to England. Nothing further is known of Matilda Carter or Leslie Matlid Carter. The history of the family makes it fairly certain that they lived in India throughout their lives. Had it been otherwise the res pondent, or his father William Francis who has supported his son's defence in this case with partisan spirit, would have at any rate alleged it. The first question which falls to be decided in this case is what was the domicile of James Carter at the time of his death; had he retained the domicile of his origin which was English or had he acquired a domicile of choice namely, Indian? Learned counsel for the respondent contended, with reference to the Explanation to section 10 of the Succession Act and certain rulings, that it cannot be inferred from James Carter's residence in India, which was due to his being in Her Majesty's Military Service, that he intended to abandon, and did in fact abandon, his domicile of origin. That proposition, as far as it goes, is indisputable; but in this case it is the continued residence of James Carter after his retirement from the Army which is under consideration and to which the law and authorities relied on by the leafed counsel are wholly inapplicable. The Explanation to section 10 of the Succession Act runs as follows:‑ "Explanation.‑A man is not to be deemed to have taken up his fixed habitation in the Provinces and the Capital of the Federation (originally 'British India') merely by reason of his residing there in His Majesty's civil, military, naval or air‑force service, or in the exercise of any profession or calling." It will be observed that residence on account of service in His Majesty's military does not prevent a person from acquiring a new domicile; it only forbids the raising of a presumption, which might otherwise be permissible‑because residence is one of the two ingredients of domicile‑that such a change had been intended. In this case, there is no evidence to show that James Carter in spite of his military service intended to change his domicile while he was in the Army. The onus being on the petitioner‑appellant to prove this, it must be held that James Carter continued to retain his English domicile for so long as he was in that service; but after his discharge from that service the rule would cease to operate. Thereafter his residence in India can be taken into consider ation in determining whether he intended to change his domicile of origin or not. The initial presumption of course would be in favour of the continuation of his original domicile but it may be displaced by evidence or proved circumstances showing a contrary intention on his part. In order to show the real nature of James Carter's residence in India after his discharge from the Army, reliance was placed on behalf of the respondent, on the following averment in the affidavit of the respondent's father, W. F. Carter, which was sent from India:‑ "My father was James Carter, who was born in the Parish of Hanwell in County Middlesex in England and enlisted in the Royal Artillery and was still serving in that British Regiment at the date of my birth and always intended to go back to England but soon after his discharge from the Army he suddenly died of heart failure . . . . . ." The deponent was not available for cross‑examination and he has not given‑and I am convinced deliberately‑the date or the year of his father's death and has suppressed that fact by using the convenient and vague expression "soon after". As I have already remarked above, and shall show presently, the deponent has tried to side with his son by suppressing important facts and by minimizing or exaggerating the effect of others: and therefore much reliance cannot be placed upon his allegations favouring the cause of his son. The above passage from his affidavit clearly gives the impression and it was intended to produce that impression‑that his father James Carter could not go to England because "he suddenly died of heart failure". This is obviously false for, as I have already shown, James Carter deliberately chose to stay on in India after his discharge. The Parchment Certificate does not show that he was discharged in India, instead of England, because "he suddenly died of heart failure". The question is what was the effect, on his domicile of origin, of James Carter's continued residence in India after his discharge from the Army. Learned counsel for the respondent contended that according to the certificate, Madras was only the "extended place" of residence. It is not possible to definitely fix the meaning of that expression in the Parchment Certificate. One thing, however, is clear that it is not extended period of residence which is obviously different from "extended place of residence". The latter expression seems to clearly connote the intention to extend the residence after retirement and the question which falls for determination is whether this residence was intended to be of a definite or of indefinite duration. This question can be resolved with a fair amount of certainty by considering the consequences of the choice made by James Carter. I have deliberately used the word "choice" for undoubtedly it was a deliberate choice on the part of James Carter. If the intention was to continue residence in India for an indefinite period, he must be held to have acquired a new domicile of choice. As regards persons recruited in England for the Army it was obviously the moral duty‑and it must also have been the legal duty‑of the British Government to have brought them back to their homes in England after the completion of their service abroad. Mr. Norman Edmunds referred me to the Army Discipline and Regulation Act, 1879 (42 and 43 Victoria. Chapter 32) which lays down that if a soldier serving abroad refuses to go home on the completion of his service he shall lose his right to free passage to England. It was argued that since this Act came into effect only on the 24th of July 1879 and the English mail in those days took a long time in reaching, India the Act would not be known in Secundurabad on the 11th of August 1879 when Carter was discharged, and, there fore, this provision would be inapplicable in his case. The provision, however, could not have been a new one because it is obviously unreasonable for a soldier to claim his discharge abroad and to claim a free passage to his home at his sweet will years afterwards. Sections 4 and 5 of 30 and 31 Victoria, Chapter 34 of 1867 bear this out. "Section

4. Any Soldier whose Period of Enlistment or of total Service shall expire while he is serving on any Foreign, Colonial, or Indian Station may be detained, and his Service may be prolonged, for such further Period as shall be directed by the Commanding Officer at the Station there, not exceeding Twelve Months; but at the Expiration of such prolonged Service, or sooner, if the said Commanding Officer shall see fit, the Soldier shall, unless he desires to remain there, be sent home at the Public Charge as in the Case of Soldiers invalided, with all convenient Speed, and after his Arrival he shall be discharged. Section

5. If any such Soldier being in any of Her Majesty's colonies or possessions abroad desires to remain and to claim his Discharge there, he shall, if such be his Desire, give Notice thereof to the Governor through the Commanding Officer, whereupon it shall be lawful for such Governor, if he sees fit, with the Consent of the Com manding Officer, to permit such Soldier to remain in, such Colony as a discharged Soldier, and such Soldier shall have no Claim thereafter to be conveyed to his Home in the United Kingdom or elsewhere". It will be seen that a soldier serving abroad had two options, namely, either to claim his discharge abroad "if he desired to remain there" or to be brought back home at Government expense and to be discharged there. James Carter claimed and got his discharge at Secundurabad. By doing so he lost the valuable right of going back home at public expense, and in the circumstances of this case must be deemed to have thereby burnt his boats behind. That the free return passage to England must have meant considerably to his pocket is obvious from the fact that he retired from the Army only as a Trumpet Major. He had married twice and both times in India. His second wife was the daughter of another British Soldier who had married an "Indo‑Britain". Having established family contacts with people who were living in India and then, on retirement; having chosen to forego the right of being sent back home free of cost, he must be presumed to have decided to have his fix abode or permanent home in India. He had the motive as well as the intention to become domiciled in India. It is significant that although he was discharged at Secundurabad he gave Madras as the place where he intended to reside thereafter. Madras was the place where he himself was married and where his wife's parents had been married and had apparently their home there. These facts clearly show that like so many other British Soldiers in the early days of British rule, James Carter did intend to become domiciled in India. He may or may not have intended this before his discharge, but there is no doubt about his intention after that. I, therefore, hold that James Carter acquired an Indian domicile on or before the 31st of January 1879 when he asked for his discharge in India instead of England and that he never altered that domicile until his death. In arriving at this conclusion I have not been oblivious of the tendency on the part of English judges in recent times to take an over‑rigorous and unduly severe view of the intention to change one's domicile. In Moorhouse v. Lord ((1863) 10 H L C 272 at 285) Lord Chelmsford expressed himself thus:‑ "The present intention of making a place a person's permanent home can exist only where he has no other idea than to continue there, without looking forward to any event, certain or uncertain, which might induce him to change his residence." This passage‑although on a minute and careful analysis it would appear to be unexceptionable‑at first sight gives the impression that the intention to reside permanently must be absolute, unqualified and irrevocable. That this is not so is clear from the following observations in the comparatively recent cases of Gulbenkian v. Gulbenkian ((1937) 4 All. E. R. 618 at 627). "The intention must be a present intention to reside permanently, but it does not mean that such intention must necessarily be irrevocable. It must be an intention A unlimited in period, but not irrevocable in character." The change of domicile depends, apart from residence, upon the intention to reside for an indefinite or unlimited A period. Once a person residing at a place other than that of H his domicile of origin has formed that intention, it is immaterial whether later on, or even at the time of forming that intention, he has an "idea" or contemplates the possibility, that at some distant and uncertain future he may again change his domicile. Although quite distinct from intention residence is prima facie one of the circumstances from which the intention to reside permanently can be gathered. Indeed it has been laid down that the fact that a person resides in a E country is prima facie evidence that he is domiciled there. Bruce v. Bruce ((1790) 2 B & P at 231); Bempde v. Johnstone ((1796) 3,Ves. Jun. at 201 ). It may be so long and so continuous that mere declarations of a contrary intention would be insufficient to rebut the presumption. Stanley v. Bernes ((1830) 3 Bagg. I cc 373); Hodgson v. De Beauchesne ((1858) 12 Moo. P C 286 at 329). The question whether the requisite intention is proved depend upon the particular circumstances of each case; but there is no warrant either in principle or in commonsense for reluctance to arrive at that finding in face of evidence clearly pointing to that conclusion. I have carefully examined a large number of English cases and find that the tendency mentioned by me is displayed far more, if not exclusively, in obiter dicta and observations of certain learned judges than in the actual rulings or decisions. In practically every case the actual finding accords with the true nature of the proof. I am convinced that in view of the circumstances under which James Carter decided to continue his residence in India after being discharged from the Army, it is overwhelmingly probable that violence would be done to his real and actual intention by holding that he did not intend to become domiciled in India. In the absence of any circumstance showing a contrary inclination or intention, the conclusion at which I have arrived is rationally inescapable. Since W. F. Carter was a minor both at the time of the discharge and the death of his father, his domicile too must also be considered to be Indian until he became major at the age of 18, according to the Indian Majority Act, when it was open to him to have discarded his Indian domicile and reverted to the domicile of the origin of his father. Whether he did so or not is the next question which has to be considered in this appeal. It is settled law that mere intention to change one's domicile without actual change of residence is wholly ineffective. Therefore since the respondent's father never went to England he cannot be held to have ever reverted to the domicile of origin of his father or abandoned his Indian domicile. Similarly the respondent also has retained the domicile which was conferred upon him at the time of his birth, and during his minority, by his father. The mere fact, even if true, that he and his father have always been pining for the "home" of their forefathers can be of no avail to them. Nor is their registration as British citizens or of being of English domicile of any relevance to the present enquiry. Domicile is different from citizenship and can be changed only by the change of intention as well as residence. I have said that W. F. Carter was born on the 25th of September 1874. He joined the R. M. Railway Service as an Engine Driver and was married to Mildred Emma King‑ again a resident in India‑on the 22nd of December 1903. We do not know his date of retirement but we have it from his affidavit on the record that after his retirement he started a billiard saloon in Bangalore where he is now residing at the ripe old age of

81. He has asserted in his affidavit:‑ " I have always regarded myself as belonging to and domiciled in England and my name was always entered in.the railway records as of non‑Asiatic domicile, but with my own son (the respondent) and two children of my second wife to maintain I wanted to earn more money after my retirement before leaving to settle down in England where I always intended to go for good as soon as I had saved sufficient money. For this purpose after leaving the railway I started a billiard saloon for British Troops and this caused me to put off my departure for England till old age and ill‑health prevented my going." I am unable to accept as true his assertions regarding his English domicile and his intention to go to England for good. To entitle such assertions to any weight the Court must be satisfied of their veracity. Hodgson v. De Beauchesne" . . . . they must be examined by considering the person to whom, the purposes for which, and the circum stances in which they are made, and they must further be fortified and carried into effect by conduct and action consistent with the declared expression." Ross v. Ross. ((1930) A C 1 p. 6). Even assuming that it cannot be held on the evidence on the record that James Carter had by the time of his death acquired an Indian domicile, I am inclined to hold, that both W. F. Carter and the present respondent on attaining majority had the intention of living indefinitely in India where they were residing and thus acquired an Indian domicile which they had not either at the times of their birth or during their minority. There is no evidence on the record to show that W. F. Carter, or his son, the present respondent, soon after attaining majority declared, or had the intention to retain English domicile or to go back to England. It is l true that the onus is on the appellant to affirmatively prove H that they, on attaining majority, decided to continue their residence in India indefinitely. It is equally true. however, that the intention is not capable of proof only by declarations or clear expressions to that effect. Indeed in most cases they are not available to the Courts. Therefore, the intention has to be gathered from the proved circumstances of the lives of the persons concerned which quite often are more reliable than mere words of mouth. The circumstances may show that a person has, so to say, drifted into the notion of permanent or indefinite residence. In his affidavit the respondent's father suppressed certain very important and relevant facts. He did not mention that he had built, or acquired, a house of his own at Bangalore and that his marriage with his first wife, the mother of the respondent, had been dissolved by a Court‑presumably in India. These facts were elicited during the cross‑examination of the respondent in the lower Court. The respondent, however, did not disclose when the house was acquired by his father or the Court which dissolved the marriage between his father and mother. These crucial facts being especially within the knowledge of the respondent and his father, the failure to disclose them to the Court raises a presumption against the respondent's case. F. W. Carter says that he started a billiard saloon for British troops in Bangalore in order to save sufficient money to go to England. In the first place, while the billiard saloon, according to the respondent, is still running, there are no British troops in Bangalore since 1947. Secondly, he must have had sufficient money to return to England when he obtained his Provident Fund, Gratuity and etc. after his retirement from the Railway Service. Again, if he was really intending to go to England he would not have spent the money on acquiring a house in Bangalore. The allegation in the affidavit that " . . . . with my own son (the respondent) and two children of my second wife to maintain, I wanted to earn more money after my retirement before leaving to settle down in England . . . ." is false. He was born in 1874 and could have, at the earliest, retired only towards the end of 1929 at the age of

55. The present respondent states that he joined the service of N. W. Railway on the 27th of April 1922. Thus F. W. Carter must have ceased to support the respondent long before his retirement. Particulars about the second son who was employed in the Burmah Shell Company and died in Karachi and his real sister have not been disclosed; but there is fair reason to suspect that F. W. Carter was not supporting them either when he retired from service. The proved facts of F. W. Carter's life are, therefore, these. He was born of a father who continued to live in India after his retirement till his death and of a mother who was an Anglo‑Indian and whose parents were residents in India. His father died while he was still a minor. As I have already pointed out, there is no evidence that after attaining majority he expressed the desire for an English domicile. He joined permanent service in India and after his retirement acquired a house for himself in Southern India where his father, mother and mother's parents had lived. After retirement he established the business of a billiard saloon which be, is still running at the ripe old age of

81. During these 81 years he never went to England once nor is there any reliable evidence of his having ever attempted to do so or wished it. In most cases it is not possible to precisely determine the point of time when a person actually forms an intention of retaining, abandoning or acquiring a domicile. In the particular circumstances of this case, I am however, convinced that on attaining majority F. W. Carter did intend to reside in India perma nently. The events of his whole life clearly point to that conclusion. His assertion now that he intended to go to England has obviously been made for the benefit of his son in the present litigation. Otherwise there is every indication on the record that he actually never intended to do so. There is yet another aspect to the domicile of F. W. Carter. He alleges that his father died "soon after" his discharge from the Army in 1879 and that he himself was born on the 25th of September 1874. There is no allegation that his mother's domicile was English. The presumption from her and her parents' residence in India is that her domicile was Indian. If so, after the death of his father F. W. Carter acquired, before the attainment of his majority, the domicile of his mother and guardian, vide Dicey's Conflict of Laws, 6th Edition, page

102. And having never resided in England he cannot in law be deemed to have changed his domicile thereafter by his mere wish to do so. As regards the respondent himself, I am equally convinced that even if he did not inherit the Indian domicile from his father, or through him from his grandfather, he did become domiciled in India on the attainment of his majority. His father, grandfather, their wives and their children were all permanent residents in India throughout their lives. None of them ever went to England. His own younger brother lived, in India and died in Karachi. His father has a house and business in this sub‑continent. Under these circumstances the long continued residence of the respondent and iris forefathers and relations in this country raises a fair and strong presumption that on attainment of majority he actually decided to live in India indefinitely. He joined the permanent service of N. W. Railway and has lived in this sub‑continent for 51 years without having gone to England once or having taken any practical and definite step in that direction. If residence in a particular country is an indication of an intention to become domiciled therein, which un doubtedly it is, the indication became stronger and stronger with each generation which the Carters spent in India. To hold, in the circumstances of the present case, that the respondent still retains the domicile of the country of origin of his grandfather is to altogether divorce the notion' of domicile from reality and to transmute it into a mere legal fiction, which it is not. The respondent asserted in his statement: "It is always my intention to settle down after retirement in the U. K." He placed on record two affidavits, one of his deceased brother's wife, Mrs, S. Carter, and the other of one Mr. H. S. F. Hamilton, both of whom are living in England. Mrs. Carter states: "Eversince 1934 I have known the respondent, that is to say, during the past 20 years, he has always indicated his intention to retire from the East to the land of his domicile and in which his maternal great grandfather and his own paternal grandfather Francis Carrick and Gunner James Carter respectively were born." Mr. Hamilton after stating that he had received several letters from the respondent since the past 25 years alleges "The respondent has always in such communications indicated that he intended, and still so far as I am aware intends, to retire to the United Kingdom where in fact he has been since about a year ago asking me to watch for a suitable house for him to live in as soon as he retires from railway service in the East." There is nothing to show in Mr. Hamilton's affidavit that the respondent actually com municated his intention to retire to the United Kingdom 25 years ago, Even assuming that he did so, the expression of his wish to Mr. Hamilton, as well as to Mrs. Carter, was made at the most 25 years ago. The respondent had already attained majority seven or eight years before that and, therefore, this evidence is of little use in determining his intention on the attainment of majority. I may also point out that the learned counsel for the respondent has failed to point out to me the provision of law under which the authenticity of these affidavits can be presumed. According to both the deponents the respondent, for the first time, thought of purchasing a house in the United Kingdom some time in 1954‑September 1954 according to Mr. Hamilton. This was about the time when the relations between the appellant and the respondent had become strained and the former made the present application for dissolution of her marriage in November 1954. In any case, the respondent's intention now, or long after the attainment of his majority, to settle down in England cannot by itself divest him of the domicile which he had at birth or during minority and, in the circumstances of this case is no evidence of his intention regarding his domicile after the attainment of his majority is common knowledge that persons descended from European stock, either on the father's or on the mother's side, have always boasted of England, or some other European country, to be their "home" even after, having lived in this sub‑continent for generations. Before the independence of India, this attitude was actuated by a desire to assume superior airs by identifying themselves with the rulers of the country. Therefore, mere expressions of such wishful thoughts or boastful sentiments can be of little value in assessing the domicile of such persons according to law. For all these reasons, I am of the opinion that, in the first place, the respondent did not have English domicile either at his birth or during his minority, and in the alternative he acquired the Indian domicile soon after attaining his majority. As regards the question whether the respondent's domicile, if it is in this sub‑continent, is Indian or Pakistani, presents no difficulty. He himself does not claim Indian domicile. If his domicile was Indian before the partition, it was' clearly changed by him after that event when he opted for service in Pakistan. He had joined service in that part oft the sub‑continent which is now West Pakistan and has all along lived here. I, therefore, hold that the present domicile of the respondent is in this country. I accept the appeal, and setting aside the order of the learned District judge order that the record be sent back for the disposal of the appellant's petition for dissolution of her marriage with the respondent in accordance with law. The appellant shall have her costs from the respondent in this appeal. A. H. Appeal accepted.