PRAKASH V. MST.

SHAHNI ADITI INDRANI

AIR 1965 J&K83
 BACKGROUND OF THE CASE:
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.
Mst. Shahni had married one Pohu Ram who was a resident of Put Bijoyan Tehsil Sialkot.
The Plaintiff and her husband Pohu Ram came to the State during the disturbances of 1947
as refugees. 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.
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. She continues to call herself the widow of that
person, i.e., Pohu Ram..
CONTD
The point raised by the plaintiff 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 Bondu Ram,
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 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.
QUESTIONS RAISED
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,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.
 QUESTIONS RAISED (CONTD)
The wife's domicile follows that ofThe 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, notdenied 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
ofdetermining his civil status. Domicile may be required by birth, by choice and by
operation of law.
CONTD
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
her husband.
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.
PERMANENT RESIDENT J&K
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.
9. 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.
JUDGMENT
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.