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TMI Blog1990 (10) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... on to continue his domicil of origin and in that view, the order of the Assistant Controller of Estate Duty was affirmed and the appeal was dismissed. On further appeal by the accountable person before the Tribunal, it took a contrary view and upholding the stand taken by the accountable person, excluded the value of foreign movable properties from assessment. On a reference at the instance of the Controller of Estate Duty, Madras, the matter was brought up before this court earlier and this court directed the Tribunal to consider the question, whether the deceased had given up the domicile of origin and had acquired a new Malayan domicil, afresh, and dispose of the appeal. Pursuant to this direction, the Tribunal, after hearing the appeal afresh, concluded that on the date of death, deceased Ramanathan Chettiar was domiciled in Malaya, and, therefore, the value of the foreign movable properties should be excluded from assessment to estate duty. That is how, again, in T. C. No. 114 of 1980, the following question of law has been referred for the opinion of this court at the instance of the Controller of Estate Duty, Madras, under section 64(1) of the Estate Duty Act, 1953 (hereinaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igin is received by operation of law at birth ; the domicil of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. The domicil of origin is determined by the domicil, at the time of the child's birth, of that person upon whom he is legally dependent . . . As regards change of domicil, any person not under disability may at any time change his existing domicil and acquire for himself a domicil of choice by the fact of residing in a country other than that of his domicil of origin with the intention of continuing to reside there indefinitely. For this purpose, residence is mere physical fact, and means no more than personal presence in a locality, regarded apart from any of the circumstances attending it. If this physical fact is accompanied by the required state of mind, neither its character nor its duration is in any way material. The state of mind, or animus manendi, which is required demands that the person whose domicil is the object of the inquiry should have formed a fixed and settled purpose of making his principal or sole permanent home in the country of residence, or in effect, he should have formed a delibe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not possible to infer that there was an abandonment of domicil of origin by the deceased. At best, the residence and thereby the personal appearance in Malaya, would be in the nature of a physical fact, as pointed out by the Supreme Court. However, the requirement is that the physical fact should be accompanied by a state of mind to have a fixed and settled abode in Malaya with the intention of making Malaya the principal or sole permanent home. The period during which the deceased was residing in Malaya, can be attributed to his carrying on his business in Malaya. Even according to the Tribunal, the deceased had left the shores of India and stayed in Malaya for the purpose of his business, and, under those circumstances, merely on the basis of the period of residence of the deceased in Malaya, it cannot be stated that the deceased had abandoned his domicil of origin. On the contrary, the retention of ancestral houses and other properties in India and his visits to the family in India, would constitute facts in the opposite direction indicating a heavy pull towards home and establishing that the deceased had not broken away from his home, or had severed a single tie with his count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a passport or the acquisition of Malayan citizenship would not, in our view, loom large in the consideration of the question of abandonment of the domicil of origin. These could at best be described as matters of business expediency and utility. Essentially, a passport is a travel document and the obtaining of such a travel document would not in any manner indicate abandonment of the domicile of origin. For the purpose of business, the deceased Ramanathan Chettiar had gone to Malaya on an Indian passport, which was valid till January 19, 1960 and it is quite possible that being fully posted with the local business conditions, he had thought it worthwhile and prudent to secure citizenship of Malaya in 1958 and on that footing, had obtained Malayan passport in 1962. We have not had the benefit of ascertaining the conditions under which Malayan citizenship had been granted to the deceased. The application that should have been made by the deceased had not been placed before us, and there is, therefore, no knowing whether he had made any clear and unequivocal declaration under his hand to acquire Malayan citizenship by totally severing all his connections with India, abandoning his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a will regarding domicil, pointed out that no importance could be attached to such declaration, in the following words : "It only remains to refer to the declaration contained in his will. For myself, I am not prepared to attach any importance to a declaration by man as to his domicil, unless there is some evidence to show that the man knew what 'domicil' means. A declaration by a man made orally or in writing that he intends to remain in a certain country will, if not inconsistent with the facts, be of assistance in determining the question whether he has become domiciled there. Domicile is, however, a legal conception on which the views of a layman are not of much assistance. In the present case, the subject appears to have been presented to the testator, as and upon which he had for the purpose of his testamentary dispositions an unfettered choice. The subject of domicil being so presented, he elected in favour of an Indian one. It is true that some of the testamentary dispositions he desired to make could not be given effect to, if his domicil were Indian, and that, by reason of his election those dispositions had to be modified. It is, however, obvious that the election of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other circumstances earlier referred to appearing in the case, the recital in the will cannot be taken as conclusively establishing an intention on the part of the testator to acquire a domicile of choice, viz., Malaya, abandoning his domicile of origin in India. We also find on a perusal of the record of proceedings, that the tribunal has adverted only to the visits of the deceased, his obtaining a Malayan passport and securing Malayan citizenship and the recitals in the will, as supporting its conclusion, but, while doing so, it had omitted to consider the other circumstances, like the retention of ancestral properties in India, claim of the deceased with reference to the dwelling houses in India, the purchase of property by the deceased in the name of his wife in 1961 in India, the arrangement for payment of insurance moneys in India, the presence of his family members in India and the proposal for the marriage of his son in India. In other words, as pointed out by the Supreme Court in Omar Salay Mohamed Sait v. CIT [1959] 37 ITR 151, at page 170, it was necessary for the Tribunal to have considered every fact, for and against, and then to give finding in a manner which woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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