Prakash v. Mst. Shahni (AIR 1965 J&K 83)

Facts of the Case

The case involves a dispute over the ownership of immovable property in the State of Jammu and Kashmir, focusing on the legal status of the female claimant.

• 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 was living as his mistress at the time of purchase).

• The property's true ownership (Benami) was a concurrent finding of fact in the first appeal.

• The appellant's counsel challenged this claim, raising a fundamental legal issue: Shahni, being a non-permanent resident of the State, was legally prohibited from acquiring immovable property in Jammu and Kashmir, according to the State's laws (Irshads and commands of His Highness and various notifications).

• The matter was remitted to the trial court to determine Shahni's permanent residency status.

• The trial court, after taking evidence, unanimously found that Shahni was not a permanent resident of the State.

The Second Appeal was filed before the J&K High Court.

Issue

1. Whether Mst. Shahni was a permanent resident of the State of Jammu and Kashmir and thus eligible to acquire immovable property in the State.

2. Whether a non-permanent resident can indirectly acquire immovable property in the State (through a Benami transaction) and then claim it through a declaration suit.

Rule

• Acquisition of Immovable Property: The laws and notifications of the State of Jammu and Kashmir at the time prohibited the acquisition of immovable property by non-permanent residents.

• Domicile on Marriage: Under Private International Law and general principles, a woman acquires the domicile of her husband upon marriage. A widow retains her late husband's domicile until she changes it by her own act.

Held

The J&K High Court:

• Domicile Determination: Found that Shahni's husband, Pohu Ram, was a resident of Pul Bijoyan in Sialkot, which was outside the State. Since Shahni described herself as his widow, she took her domicile from her husband, which was outside the State.

• Irrelevance of Place of Birth: Even if Shahni was born in Jammu and Kashmir, her marriage to a non-resident legally changed her domicile to that of her husband, which was outside the State.

• Cited Precedents on Domicile:

  • Lord Advocate v. Jaffrey (1921) AC 146: Confirmed 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 affirmatively changes it. [Image illustrating the legal concept of the wife's derivative domicile (from the husband) and the widow's retained domicile until a new choice is made]

• Prohibition on Indirect Acquisition: Held that the laws clearly prohibiting non-residents from acquiring immovable property cannot be circumvented by indirect methods (i.e., through a Benami transaction where she pays the consideration but the property is held in another's name).

• Conclusion: Mst. Shahni could not be considered a permanent resident of J&K. As a non-permanent resident, she could not acquire immovable property, either directly or indirectly. The suit property could not be declared as belonging to her.

The appeal was allowed, and the suit of the respondent, Mst. Shahni, was dismissed.

Commentary

The Domicile of a Married Woman

This case rigorously applies the common law rule that the domicile of a married woman is dependent on, and automatically follows, that of her husband (domicile of dependency). This rule was subsequently codified in India under the Indian Succession Act (Section 15 & 16), which states:

• A woman acquires her husband’s domicile upon marriage (Section 15).

• Her domicile follows his during marriage, except where there is a judicial separation or the husband is undergoing transportation (Section 16).

Domicile of a Widow

The concept applied to Shahni's status as a widow is equally firm:

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).

This principle meant that to be eligible to acquire property in J&K, Shahni would have had to prove a clear and independent domicile of choice in the State after her husband's death, which she failed to do. The court's decision was therefore driven entirely by the State's constitutional and historical restrictions on property ownership, enforced through the rigid rules of domicile.