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Report No. 69

I. Introductory

16.13. Section 41 reads-

"A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confer upon or takes away from any person any legal character, or which declare any person to be entitled to any such character, or to be entitled to an specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.

16.14. Such judgment, order or decree is conclusive proof-

that any legal character which it confers accrued at the time when such judgment, order or decree came into operation.

that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person;

that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease;

and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property."

16.15. Expression "judgment" in rem why not used.-

The topic to which this section relates is dealt with under the head of "judgments in rem" in many text books and commentaries, but that expression, which is even otherwise not very appropriate, has been deliberately avoided by the legislature.

16.16. IIn an early Madras case,1 Holloway J., and in a Calcutta case,' Barnes C.J., elaborately reviewed the law regarding judgments in rem and how far they were admissible in evidence. Peacock, C.J. observed-

"the effect of a decree in a suit for a divorce, vinculo mutrimoni is to cause the relationship of husband and wife to cease. It is conclusive upon all persons that the parties have been divorced, and that the parties are no longer husband and wife; but it is not conclusive or even prima facie evidence against strangers that the cause for which the decree was pronounced existed. For instance, if a decree between A and B were granted upon the ground of adultery of B with C, it would be conclusive as to the divorce., but it would not be even prima facie evidence against C that he was guilty of adultery with B, unless he were a party to the suit."

1. Yarakalamma Nagamma v. A. Naramma, (1864-65) 2 MHCR 276.

16.17. The Calcutta case1 was followed with approval in a Madras case.2 Stone J., as he then was, observed:

"Though it be necessary as a step to making a declaration which will operate in rem to find a fact, that finding will not bind third parties in subsequent proceedings."

"This statement has my respectful concurrence. Applying the principle stated therein, it follows that the order of adjudication of a debtor as insolvent operates in rem, but the finding on which it is based is not binding on third parties in subsequent proceedings even though that finding was necessary and formed the basis of the order."

1. Kanyya Lal v. Radha Churn, (1867) 7 WR 338: Beng LR Supp Vol. 662 (FB).

2. An Advocate (in re:), AIR 1931 Mad 441.

16.18. Select Committee.-

The Select Committee, in their Report on the Indian Evidence Bill, remarked as follows:1

"For the sake of simplicity, and in order to avoid the difficulty of defining or enumerating judgments in rem, we have adopted the statement of law by Sir Barnes Peacock in 7 W.R. 338."

1. Report of the Select Committee in the Gazette of India, dated.-7-1871, Part V, p. 273.

16.19. english law as to use of judgement in rem in criminal Case.-

It may be noted that the section is not confined to civil cases. In English law, a judgment !'n rem is strong prima facie evidence, in a criminal case, on behalf of the person in whose favour such judgment was given; but it is not conclusive.1

1. Phipson (1963), para. 1341.

Indian Evidence Act, 1872 Back

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