Prakash vs Mst. Shahni and Others

Bhat, J.—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

appelant, 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 decla-sought for with respect, to this property be-cause she was not a permanent resident of the

State and as such could not acquire any immovable property in the State. We, therefore 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.

The trial Court, after the case went back lo it allowed parties opportunity to lead evidence. The Defendant on 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 witness box. The finding of the Courts below is unanimous on the point that

Mst. Shahni Respondent is not a permanent resident of the State. This finding was accepted as correct by the Appellant but the respondent Mst.

Shahni put in her objections with regard to this finding before us.

We have heard the learned Counsel for the parties. The learned counsel for the Respondent has tried to assail this finding on some legal grounds

which shall be considered after the finding of fact arrived at by both the Courts in this behalf is recorded. The Courts below have found that the

Plaintiff Mst. Shahni had 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 Counsel for the

Respondent says that the case has now been referred to 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 Shahni has not been granted a certificate of being a 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 Bijoyan in Sialkot Tehsil. Shu continues to call herself the widow of that person, i.e., Pohu Ram..

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 an elementary but lunila-mental 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 State she 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.

The first question therefore 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, AIR 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 Section 157 of the Jammu and Kashmir Constitution.

The second point that has been argued by Mr. Vidya Sagar is that the findings of the Courts below that the Respondent is not a permanent

resident are not well founded. According to 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 denied by him that she had married Pahu

Ram who was a resident of village Pul Bijoyan in Tehsh Sialkot. Sialkot was not a .part of the State of Jammu and Kashmir but formed part 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 resident of this State, as her parents were permanent residents of 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 called the domicile of origin. Domicile by choice may be acquired by a person by the factum of 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 Mrs. Rosetta Evelyn Attaullah Vs. Justin Attaullah and Another, . So long as the marriage subsists the wife is

incapable of acquiring a separate domicile of her own, no matter her husband may have even deserted her: 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 Alberta v.

Cook, 1926 A.C. C. 444.

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 u/s 11 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.

The term 'permanent resident' has now been defined in Section 6 of the Constitution of Jammu and Kashmir and it describes state subjects of

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 lawfully acquired immovable property in the State have been

ordinary residents in the State for not less than ten years prior to 14th May 1954. We shall take up this clause first.

Shahni is not and cannot be a permanent resident of the State within the meaning of this Sub-section because it is her case that she came to the

State during the disturbances of 1947 nor has she lawfully acquired immovable property in the State. About her being a 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 State of Jammu and Kashmir.

Mr. Vidyasagar has however laid stress on Note II appended to this Notification. This Note reads as under:-

The descendants of the persons who have secured the status of any class of the state subjects will be entitled to become the State subjects of the

same Class For example if A is declared a state subject of class II his sons and grandsons will ipso facto acquire the status of the same class (II)

and not of Class I.

Mr. Vidya Sagar tried to argue that Mst. Shahni's father was a state subject. Her brother had secured a state subject certificate; as a

descendant of her father Shahni claims the status of being a permanent resident. In view of what has been already stated that a female takes the

domicile of her husband' on marriage, this explanation has no application to the case of the Respondent, Mst. Shahni. il she had not married a

person who was a resident of Anr. place outside the State, she could have no doubt claimed the status of her father) but on her marriage she lost

her status in the State and acquired a new status of being a resident of Sialkot.

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 Highness or the legislature of the Stale have been very jealous not to allow anybody who has not lived in thp State

in terms ol the definition to be a permanent resident. 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.

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 State of Jammu and Kashmir. Further, in view of the Irshads of his

Highness prohibiting acquisition of property by non-state-Subsections, the suit property cannot be held to be the property of 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 declaration to that effect from any

Court in the State.

And this finding alone is sufficient to get the suit of the Respondent dismissed; the appeal is accepted and the suit of the Plaintiff is dismissed,

Parties will bear their own costs throughout.

S. Murtaza Fazl Ali, J.

I agree.