PRAKASH V. MST. SHAHNI AIR 1965 J&K 83
PRAKASH V. MST. SHAHNI AIR 1965 J&K 83
FACTS
- The respondent, Mst. Shahni was found to be the real owner of the disputed property, which she had purchased in the name of Bindu Ram, with whom she lived as his mistress at the time of purchase. (Concurrent finding of the fact in the first appeal)
- The appellant's counsel raised the issue that Shahni, being a non-permanent resident of the State, could not acquire immovable property in the State.
- An issue was remitted to the trial court to determine whether Shahni was a permanent resident of the State.
- The trial court, after allowing evidence from both parties, found unanimously that Shahni was not a permanent resident of the State. This finding was accepted by the appellant but objected to by Shahni.
- Hence, this Second Appeal before J&K High Court.
ISSUE
- Whether Mst. Shahni is a permanent resident of the State of Jammu and Kashmir and thus eligible to acquire immovable property in the State.
- Whether a non-permanent resident can indirectly acquire immovable property in the State by purchasing it in the name of another and then claiming it through a declaration.
RULE
- Acquisition of immovable property by non-permanent residents in Jammu and Kashmir is prohibited, as per the Irshads and commands of His Highness and various notifications.
- A woman acquires the domicile of her husband.
HELD
- Shahni's husband (Pohu Ram) was a resident of Pul Bijoyan in Sialkot, outside the State, and she described herself as his widow. Thus, she was not a permanent resident.
- Lord Advocate v. Jaffrey, (1921) AC 146 - Stated that a married woman cannot acquire a separate domicile from her husband while the marriage subsists.
- Attorney-General for Alberta v. Cook, 1926 AC 444 - Established that a widow retains her late husband's domicile until she changes it by her own act.
- Even if Shahni was born in Jammu and Kashmir, her marriage to a non-resident changed her domicile to that of her husband, which was outside the State.
- The laws and notifications clearly prohibit non-residents from acquiring immovable property in the State, and this prohibition cannot be circumvented by indirect methods.
- The court concluded that Mst. Shahni could not be considered a permanent resident of Jammu and Kashmir due to her marriage to a non-resident.
- As a non-permanent resident, she could not acquire immovable property in the State, either directly or indirectly (i.e., Benami Property).
- The suit property could not be declared as belonging to Shahni in the eyes of the law.
- The appeal was allowed, and the suit of the respondent, Mst. Shahni, was dismissed.
COMMENATRIES
- Domicile on Marriage
A woman acquires the domicile of her husband on her marriage, in cases where her domicile was not the same, before marriage (section 15, Indian Succession Act). If during marriage, there is a change in the domicile of the husband, the wife’s domicile follows that of the husband (Attorney-General Alberta v Cook, 1926 AC 444), except where there has been an order of judicial separation by a Court of competent jurisdiction [Dolpin v Robbins, 7 HLC 390 (418] or where the husband has been undergoing a sentence of transportation (section 16, Indian Succession Act).
The general rule is that the domicile of wife is linked up with that of the husband (Sainapathi v Sainapathi, AIR 1932 Lah 116 )
The domicile of a widow will continue to be that of her deceased husband until she changes it (Kashiba v Shripat Narshiv, (1894) ILR 19 Bom 697).
Where the marriage is voidable, the rule is wife’s domicile is the same as husband’s domicile, until the marriage is annulled (De Reneville v De Reneville, 1948 P 100). In the case of a void marriage, the wife does not acquire the domicile of her husband by operation of law
(Mehta v Mehta, (1945) 2 All ER 690).