Prakash v. Mst. Shahni

Case Summary

Full Case Details

Bhat, J.

1. This second appeal came before us on 19th April 1963. There was a concurrent finding of
   fact that the Respondent, Mst. Shahni, was the real owner of the property in dispute and she had
   purchased it in the name of Bindu Ram Defendant 2 with whom she lived as his mistress on the
   date of the purchase. This concurrent finding of fact could not be disturbed in second/appeal. Mr.
   Sharma, learned Counsel for the appellant, however, raised a new point that notwithstanding the
   fact that the property in dispute had been purchased Benami in the name of Bindu Ramyior the
   Plaintiff, Shahni could not get the declaration sought for with respect, to this property because she
   was not a permanent resident of the State and as such could not acquire any immovable property in
   the State. We there fore remitted an issue to the trial Court to the following effect:
   Whether Mst. Shahni is not a state subject (permanent-resident). OPD
   We further directed the trial Court to permit the parties to lead such evidence as they chose
   about this issue and then give its finding. The trial Court had to submit its finding through the
   District Judge, Jammu.
2. The trial Court, after the case went back lo it allowed parties opportunity to leadevidence.
   The Defendanton whom the burden of proof lay produced two witnesses Desraj and Kanshi Ram
   and himself went into the witness box. The Plaintiff produced Dharu, Amrui, Gauri, Kirpa, Amar
   Nath. Kithu Ram and Sain Das witnesses and herself went into the witnessbox. The findingof the
   Courtsbelow is unanimouson the point that Mst. Shahni Respondent is not a permanent residentof
   the State. This findingwas accepted as correct by the Appellant but the respondent Mst. Shahni put
   in herobjectionswithregardto thisfindingbeforeus.
3. We have heard the learned Counsel for the parties. The learned counsel for the Respondent
   has tried to assail this findingon some legal grounds which shall be considered after the findingof
   fact arrived at by both the Courts in this behalf is recorded. The Courts below have found that the
   PlaintiffMst. Shahnihad married one Pohu Ram who was a resident of Put Bijoyan Tehsil Sialkot.
   The Plaintiff as her husband Pohu Ram came to the State during the disturbances of 1947 as
   refugees. The Plaintiff Respondent, Mst. Shahnii still describes herself as the widow of Pohu Ram.
   She had tried to obtain a state subject certificate, but the Deputy Commissioner of Jammu rejected
   her application. The learned Counselfor the Respondent says that the case has now been referredto
   the Revenue Minister for his opinion. But that fact can have no bearing on the disposal of this
   appeal. It is an established fact that Shahnihas not been granted a certificateof beinga state subject
   (permanent resident) by the revenue authorities and on evidence produced by either party in this
   case it has been held by both the Courts that she was married to a man who was a resident of Pul
   Bijoyanin Sialkot Tehsil.Shucontinuesto callherselfthe widowofthatperson,i.e.,PohuRam..
4. The point raised by Mr. Sharma that the Respondent cannot acquire any immovable
   property in the State becomes important in this way that if Shahni could not directly in her own
   name, acquire immovable property in the State she cannot defeat the law by an indirect device by
   first getting the property purchased or acquired in the name of some one else, in this case Bindi
   Rim, and then getting a decree for declaration that she is the real owner of the property. This
   involves a principle of jurisprudence that what cannot be achieved legally cannot be permitted to be
   acquired by indirect methods. In our opinion, therefore, this point does not merit any discussion. If
   Shahni could not in her own name acquire immovable property in the States he cannot be permitted
   to purchase it in the name of a Benamidar and then claim it as her own. No such declaration can be
   granted in her favour by any Court of law in the State.
5. The first question there fore to be determined is whether there is any restriction on acquisition
   of immovable property for persons who are not permanent residents of the State. In this behalf the
   law is very well settled. There is a Full Bench authority of this Court reported as Devi Das v. Fauna
   Lal, A.I.R. 1959 J & K 62 wherein all to Irshads and Commands of His Highness have been
   mentioned by which transfer of immovable property in favour of non-state subjects is prohibited,
   We have also perused the original lrshads. In the Command of 9th Maghar 1957 (Bikrami) it is laid
   down by His Highness that no immovable property should be transferred in favour of non-residents
   of the State; it any such transfer has to take place it could be done only with the permission of His
   Highness after getting a proper Ryatnama from His Highness. Section 139 of the T.P. Act says that
   all Hidayals, resolutions, and Ailans restricting and regulating transfers of immovable property in
   any part of the State of Jammu and Kashmir preserve intact the rights of transfer expressly taken
   away or restricted by any such enactment. A whole list of circulars and Hidayals in particular has
   been mentioned in Sub-section (2) of this very section and the commands) one of winch has been
   referred to above in addition to Ors. to the same effect have also been mentioned. That means
   acquisition or transfer of any immovable property in favour of a person who is not a resident of this
   State is completely prohibited and banned under the Laws of the State. The legal validity of these
   commands of His Highness has been kept intact under the Constitution Act (XIV) of 1996 as well
   as Section157of the Jammu and Kashmir Constitution.
6. The second point that has been argued by Mr. Vidya Sagar is that the findingsof the Courts
   below that the Respondent is not a permanent resident are not wellfounded. Accordingto him Mst.
   Shahni was born in the State of Jammu and Kashmir and therefore she retains her domicile and
   must be consider a permanent resident of the State for all practical purposes. It was, however, not
   deniedby him that she had married Pahu Ram who was a residentof village Pul Bijoyan in Tehsh
   Sialkot. Sialkot was not a part of the State of Jammu and Kashmir but formedpart of British India
   before partition and is now a part of Pakistan. Mr. Vidya Sagar argued that the domicile of Mst.
   Shahni would be the domicile of her origin and on that account she would be deemed to be a
   permanent residentof this State, as her parents were permanent residentsof this State. Domicile has
   been defined to be the country which is taken to be a man’s permanent home for the purpose of
   determining his civil status (Vide Basu’s Commentary on the Constitution of India 3rd Edn. page
   (61). Domicile may be required by birth, by choice and by operation of law. The place of birth is
   calledthe domicileof origin. Domicile by choice may be acquiredby a personby the factumof his
   residence and his intention to settle ‘.permanently in a particular country. The third category of
   domicile is that which is acquired by operation of law. A married woman acquires the domicile of
   her husband, if she had not the same domicile before marriage. The wife’s domicile follows that of
   her husband. See Harvey v. Farnie, 8 (1882) A.C. C. 43 and R. E. Attaullah v. J. Attaullah,A. I.
   R. 1953 Cal 530 (S.B.). So long as the marriage subsists the wife is incapable of acquiring a
   separatedomicileof her own, no matter her husbandmayhave evendesertedher: Lord Advocate v.
   Jalfrey, 1 (1921) A.C.C. 146. Nothing short of a dissolution of marriage tie enables a married
   woman to acquire a separate domicile Even on the death of her husband, a widow retains her late
   husband’s domicile until she changes it by her own act, e.g., by remarriage. Attorney-General for
   Albertav. Cook,1926A.C.C. 444.
7. Even in England by the Act of 1914, Section 10 a woman on marriage takes her husband’s
   nationality, and during covertures the wife’s nationality changes with that of her husband. On the
   death of her husband Under Section11 of the same Act or on divorce a married woman retains her
   married nationality. Therefore according to these well-settled principles of the Constitution and
   Private International Law a woman on her marriage gets the domicile of her husband which she
   retains during her widowhood also.
8. The term ‘permanent resident’ has now been defined in Section 6 of the Constitution of
   Jammuand Kashmir and it describes state subjectsof class I and 11 as defined in Notification No. ‘
   I-L/84 dated 20-4-1927 read with the State Notification No. 13L dated 27-6-1932. It has included
   Anr. class of persons Under Sub-section(1) (b) of Section 6 as those who having lawfullyacquired
   immovablepropertyin the Statehave been ordinaryresidents in the State for not less than ten years
   priorto 14thMay1954. Weshalltakeupthisclausefirst.
9. Shahni is not and cannot be a permanent resident of the State within the meaning of this
   Sub-sectionbecause it is her case that she came to the State duringthe disturbancesof 1947 nor has
   she lawfullyacquiredimmovablepropertyin the State. About her beinga state subject of class I or
   II she satisfies neither of the conditions, because her husband was not at all a state subject of the
   Stateof Jammuand Kashmir.
10. Mr. Vidyasagarhas however laid stress on Note II appendedto this Notification. This Note
    reads asunder:-
    The descendants of the persons who have secured the status of any class of the state subjects
    will be entitledto becomethe State subjects of the same Class For exampleif A is declared a state
    subject of class II his sons and grandsonswill ipso factoacquirethe statusof the sameclass (II) and
    not ofClassI.
11. Mr. Vidya Sagar tried to argue that Mst. Shahni’s father was a state subject. Her brother
    had secureda state subject certificate; as a descendantof her father Shahniclaims the statusof being
    a permanent resident. In viewof what has beenalreadystatedthat a femaletakesthe domicileof her
    husband’ on marriage, this explanation has no application to the case of the Respondent, Mst.
    Shahni. il she had not marrieda personwho was a residentof Anr. placeoutsidethe State, shecould
    have no doubt claimed the status of her father) but on her marriage she lost her status in the State
    andacquireda newstatusof beinga residentof Sialkot.
12. Even in the case of the wife or the widow of a state subject, she can retain her status as a
    slate subject only so long as she does not leave the State for permanent residence outside. The
    purpose of the notification and this definition is very well made out from Note III appended to the
    notification. In other words His Highnessor the legislatureof the Stalehave been veryjealous not to
    allowanybody who has not lived in the State in terms of the definition to be a permanentresident.
    Regard being had to both the notes appended to the definition, it can never be imagined that a
    female would be granted the status of a permanent resident of the State if she married a non-state-
    subject.
13. In view of the foregoing we are clearly of the opinion that there is no force in the legal
    contention put forward by Mr. Vidya Sagar. Mst. Shahni has been rightly held to be not a state
    subject or a permanent resident of the Stateof Jammu and Kashmir. Further, in view of the Irshads
    of his Highness prohibiting acquisition of property by non-state-Subsections, the suit property
    cannotbe held to be the propertyof Respondent 1, Mst. Shahni. She cannot claim the suit property
    as its real owner in the eye of law and therefore she cannot get a declarationto that effect from any
    Court intheState.
14. And this findingalone is sufficient to get the suit of the Respondentdismissed; the appeal
    is acceptedandthesuitof the Plaintiffis dismissed,Partieswillbeartheirowncoststhroughout.
    S Mortaza Fazl Ali – I agree
    AppealAllowed.