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Report No. 185

Section 41

Section 41 is lengthy and deals with relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdictions, which confer upon a person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing.- not as against any specified person bu.- absolutely, when the existence of any such legal character, or the title of any such person to any such thing, is in issue. Such judgment, order or decree, the section says, is "conclusive proof".

The words 'judgment in rem' is not used in the section and the English concept of judgment in rem is not identical with what is contained in Section 41 (see para 16.29 to 16.31 of the 69th Report). The Select Committee stated that the language of the section is based on the judgment of Sir Barnes Peacock CJ in Kanhailal v. Radha Churn: 7 WR 338 (Cal) (see Report of Select Committee in Gazette of India, 1st July 1871, Part V at p. 273 (quoted in Sarkar, 15th Ed, 1999 at p. 827). This Section 41 refers only to four types of cases and the section is based on public policy in as much as the peace of society requires that matters of social status should not be left in continual doubt (Taylor, Section 1676).

Section 41 is not restricted to a court in India but includes a foreign court competent to pronounce judgment in respect of the four types of subject matter.

Sarkar says (ibid p. 833) that Section 41 does not expressly mention courts-martial, but courts-martia.- other than courts-martial concerned under the Army Ac.- are included in the operation of the Act (Section 1).

Judgments on questions of legitimacy, adoption or partnership or fixation of standard rent and the lik.- which are outside the four enumerated categorie.- are not in rem.

The 69th Report, however, discussed lunacy jurisdiction and recommended (para 16.32) that as it is not one of the four enumerated categories, the order in that behalf under the Indian Lunacy Act is not a judgment in rem though it may be binding between parties and privies.

We do not, however, think that this classification is necessary for it is no different from the cases of legitimacy, adoption etc. referred to above.

In para 16.33 to 16.37, the 69th Report referred to 'Order refusing probate' and observed that negative orders do not fall within Section 41. The observation in the decision of the Madras High Court in Chinnaswami v. Harihara Badra (1893) 16 Mad 380 that a refusal to grant probate took away the character of executors or legatees or beneficiaries under a will and this was also conclusive. The Bombay High Court in Ganesh v. Ram Chandra, (1887) ILR 21 Bom 563 and in Kalyan Chand v. Sita Bai, AIR 1914 Bom 8 (FB) took the opposite view. In the former case, the said High Court in its probate jurisdiction held that the execution of the will was not proved. The judgment was held not to bar a suit by the same applicant as a person who was a beneficiary under the will. The court held:

"From a refusal to grant probate, it by no means follows that in the opinion of the court, the will is not a genuine will of the testator."

In the second case, the probate was refused on the ground the testator was of unsound mind. The widow brought a latter suit as executor de son tort against the defendant claiming to be executors under the will. The court held that Section 41 was not applicable and that 'the finding of a court that an attempted proof has failed is not a judgment and that the defendant executors could still set up the will.

In para 16.37, the 69th Report recommended clarification in Section 41 on this aspect of refusal to grant a probate. We are also of the view that this had to be done in as much otherwise there can be argument in favour of the Madras High Court's view, 'probate' being one of the four subjects dealt with in Section 41.

[Sarkar (ibid, p. 830) says that a finding in probate proceedings that the due execution of a will has not been proved, should not be treated as a final decision upon the genuineness of the will and will not preclude a fresh application on the part of the executors, when they are in a position to support it with more ample proof, quoting Ganesh v. Ram Chandra ILR 21 Bom 563 already quoted. Kalyan v. Sitabai, ILR 38 Bom 309 (FB) was also referred to.]

We accordingly recommend that an Explanation therefore be inserted below Section 41 to the following effect:

"Explanation: An order refusing to grant probate does not fall within the scope of the section."



Review of the Indian Evidence Act, 1872 Back




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