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TMI Blog1979 (3) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... District on the 19th December, 1870. She comes from a family of medical men. Dr. John Scuddar, her grandfather, was a successful New York doctor. But in 1819, a pamphlet entitled " The claims of six hundred millions " fired his imagination. Closing his shop almost overnight and packing his belongings, he sailed east towards Ceylon with his family and then set foot on this soil, i.e., in this part of the country. He was the first American medical missionary to go to a foreign country. He had 8 sons and 2 daughters, and 3 of his issues founded the Arcot Mission, which, as its name shows, functions in the South Arcot and North Arcot districts. Dr. Ida Scuddar's father was working for some time in Tindivanam, after his return to India as a qualified medical practitioner in or about 1861 to join the Arcot Mission there, and thereafter went over to Vellore working in the same Mission. The family was thereafter residing in Vellore and continued its connection with the Mission. Dr. Ida Scuddar went away to the United States in or about 1878 as a child of eight, for her education, and after graduating from there, she returned to India at a time when her parents were at Tindivanam, in or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... published us a souvenir at the time of her 100th birthday in the year 1970 and also a biography of hers by D. C. Wilson called " Dr. Ida Passing on the Torch of Life ". It is these that have been referred to and contain the facts set out above on which there can be no dispute. There is also an article on Dr. Ida published in the Madras Magazine called " Aside " in its issue of January, 1979. There was also a feature about her in the Readers' Digest. The hospital that she has established is one of the most famous in India and the facilities it commands are to be found rarely elsewhere in this country. She visited the United States a number of times. But most of the visits were responsible for attracting the badly needed resources for running this institution. It is now called the Christian Medical College and Hospital. The family to which she belonged came from Nebraska in the United States. She had movable property in the United States and held shares in the E.I.D. Parrys, then a sterling company. The principal value of her estate came to Rs. 2,01,316, out of which foreign movables came to Rs. 58,854. Section 21 of the E.D. Act provides that there shall not be included in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (see s. 9). A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. A person is not to be deemed to have taken up his fixed habitation in India merely by reason of his residing there in the civil, military, naval or air force service of Government, or in the exercise of any profession or calling (see s. 10). There is a special mode of acquiring domicile in India as provided by s. 11 and that is by making and depositing in some office in India, appointed in this behalf by the State Government, a declaration in writing under his hand, of his desire to acquire such domicile. But, before such declaration is made, he should have been resident in India for one year immediately preceding the declaration. A new domicile continues until the former domicile has been resumed or another has been acquired (see s. 13). Sections 14 and 15 provide for the minor's domicile and the domicile of a woman on marriage. The domicile of a minor follows that of his parents and of a married woman follows that of her husband. It is unnecessary to refer to the other provisions of the Indian Succession Act. It is necessary to bear in mind t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umption in favour of domicile which grows in strength with the length of the residence. Indeed, a residence may be so long and so continuous that, despite declarations of a contrary intention, it will raise a presumption that is rebuttable only by actual removal to a new place. A man cannot gainsay the natural consequences of permanent residence in a country by, for example, declaring in his will that he does not intend to relinquish his former domicile in another country." In, Re Liddell-Grainger's Will Trusts : Dormer v. Liddell-Grainger [1936] 3 All ER 173 (Ch D), the question of domicile had to be decided on the following facts : A testator, who died in 1935, declared by his will, which was in English form : " I have not relinquished and do not intend to relinquish my English domicile ". His domicile of origin was in England where he was born. But in 1897, he moved with his parents to Scotland where his father had bought a property. His father continued to live in Scotland till his death in 1905, when by his will in English form, the property in Scotland as well as in India passed to the testator. With the exception of brief visits to England and an occasional trip abroad, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same page, in another passage, it is stated as follows : " It is impossible to lay down any positive rule with respect to the evidence necessary to prove intention. All that can be said is that every conceivable event and incident in a man's life is a relevant and an admissible indication of his state of mind. It may be necessary to examine the history of his life with the most scrupulous care, and to resort even to hearsay evidence where the question concerns the domicile that a person, now deceased, possessed in his lifetime. Nothing must be overlooked that might possibly show the place which he regarded as his permanent home at the relevant time." In a comparatively recent decision in the Estate of Fuld, decd. (No. 3) : Hartley v. Fuld [1968] Probate Division 675, 684, the law was summarised by Scarman J. as follows : " In the light of these cases, the law, so far as relevant to my task, may be stated as follows : (1) the domicile of origin adheres--unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice ; (2) a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Supreme Court in Kedar Pandey v. Narain Bikram Sah [1965] 3 SCR 793 ; AIR 1966 SC 160. That case arose in the context of art. 173 of the Constitution, Under that provision, a person would not be duly qualified for election if he was not a citizen of India. For determining this dispute, the question of his domicile was relevant. The question was whether Narain Bikram Sah, whose parents and grandparents were all born in Nepal, had an Indian domicile and had become an Indian citizen. At pages 798 and 799 (p. 163 of AIR) it was laid down as follows : The law attributes to every person at birth a domicile which is called a domicile of origin. This domicile may be changed, and a new domicile, which is called a domicile of choice, acquired ; but the two kinds of domicile differ in one respect. The domicile of origin is received by operation of law at birth ; the domicile of choice is acquired later by the actual removal of an individual to another country accompanied by his animus manendi. The domicile of origin is determined by the domicile, at the time of the child's birth, of that person upon whom he is legally dependent. A legitimate child born in a wedlock to a livin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Travancore State as the principal place of residence and that was his place of domicile. In Dicey and Morris on the Conflict of Laws, 9th Edn., at page 89, it is stated as follows : " If a person has two homes in different countries, he is in the absence of a contrary intention domiciled in that country in which he has his principal home." It is this principle which came for application in Seethalakshmi Ammal v. Ponnuswamy Nadar, ILR [1966] 2 Mad 373. It is in the light of the above principles that we have to examine the facts in the present case. The first reason given by the Tribunal in support of its conclusion that Dr. Ida Scuddar had foreign domicile was that the domicile of origin must prevail. This is only a rule of presumption. The onus of proof is on the person propounding the theory that the domicile of origin has been displaced by the domicile of choice. Until the domicile of choice is established, the domicile of origin would continue. The facts of this case have to be examined to see if the domicile of origin continues or is displaced. The parents of Dr. Ida Scuddar lived at least for four decades in India and died here. Even the grandparents lived here. Dr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied in it. The goal set by her for herself, on the example of her parents and grandparents, was to be of service to the distressed and the afflicted in India. There could have been no attraction for one like her to a land of affluence and plenty like the United States. The facts are thus clear to show that the presumption in favour of the domicile of origin is displaced, and that her domicile of choice was India where she had her home and which was the centre of her activities. The second reason given by the Tribunal in support of its conclusion is based on a passage in the will which is erroneously referred to by it as codicil. The will is dated 16th January, 1960, just a few months before her death. The opening portion of the will runs as follows : " Regardless of where my residence or domicile may be at the time of my death and although I am not now or never have been and have no present intention of ever becoming a resident of or domiciled in the State of New York, I hereby request and suggest but do not direct that the 'original' or 'primary' probate of this my last will and testament be had in the surrogates' court of the country of New York, State of New York ...... .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the deceased was having residence in India even though such residence was for long and continuous periods is not sufficient to establish that she has elected India as her permanent and abiding home. She had taken up and continued her residence in India for a special purpose, viz., for setting up and running the Christian Medical College and Hospital at Vellore. The deceased's residence in India for a specific purpose cannot import an intention of having India as her abiding and permanent home." The Tribunal is clearly in error in belittling the significance of the long stay. This is contrary to the well-accepted legal position set out in Cheshire's Private International Law, 9th Edn., page 169, already extracted. That she came to India only for a special purpose, viz., for setting up and running the Christian Medical College and Hospital at Vellore is also an erroneous assumption. The events in her life which are described in detail in the biographies and literature about her would go to show that the establishment of the hospital was not the purpose for which she came to India. She came to India to meet her parents initially, after she was away from them for her edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1973] 49 TC 13 (CA). In that case, the question of domicile was relevant in the context of an income-tax assessment. If a person was domiciled abroad, then he would not be assessable to tax on the income from the foreign possessions. The Commissioners of Inland Revenue, taking into account the facts of that particular case, had come to the conclusion that the assessee there had acquired an English domicile of choice and had not lost it. When the matter came before the Court of Appeal, the contention urged was that the question of domicile was a question of fact. The Court of Appeal applied the decision of the House of Lords in Edwards v. Bairstow [1955] 36 TC 207 ; 28 ITR 579. It was pointed out in that case (36 TC 207) that when a case stated came before the court, the duty of the court was to examine the decision having regard to its knowledge of the relevant law. If the case contained anything ex facie bad in law, then the determination would be erroneous in point of law. Even without such misconception about law appearing on the face of the order, it may be that the facts found were such that no person acting judicially and properly instructed as to the relevant law could have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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