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Report No. 65

III. Evidence Act

4.13. Section 41, Evidence Act.-

So much as regards the provisions in the Code of Civil Procedure. We may next refer to section 41 of the Indian Evidence Act, 1872, which reads-

"41. Relevancy of certain judgments in probate, etc., jurisdiction.- A final judgment, order or decree of a competent court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any 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, 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.

"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 bad 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."

4.14. Court under section 41, Evidence Act, must be a competent one.-

It may be noted that, like section 13 of the Code of Civil Procedure, section 41 of the Evidence Act1 also postulates that the court which pronounces the judgment must be a competent one. Its applicability therefore, depends on the determination of the question of competence of the Court, and, where the court concerned is a foreign court, the determination of the question necessarily takes us to a consideration of the law relating to recognition, because be foreign court must be competent in the extra-territorial sense also. This has been well established by a series of judicial decisions.2 In other words, the foreign court must have exercised jurisdiction on the basis of a criterion recognised by Indian law.

1. Para. 4.13, supra.

2. Para. 4.15, infra.

4.15. Section 41-Interpretation of.-

A few propositions emerging from judicial decisions on section 41, Evidence Act, may be set out at this stage for convenience-

(a) It is well settled that, in section 41, the expression "competent court" means the court of any country, if the court is otherwise competent to pass such judgment as is referred to in the section.

A number of cases have held1 that judgments of foreign courts are not excluded from the scope of section 41. In a Bombay case,2 this proposition was accepted as correct by Beaumont, C.J. and B.J. Wadia, J., although the particular judgment in issue in that case was held to be outside section 41.

(b) It is also not disputed that a judgment of a matrimonial court, decreeing divorce, is, by virtue of section 41 binding as to the status of the parties concerned, on the whole world, provided the other conditions mentioned in section 41 are satisfied3.

(c) The judgment is conclusive only regards status but not as regards the grounds on which it is based4.

(d) If a judgment is regarded as falling within section 41, then, that section dispenses with the proof of the legal character conferred or declared by the judgment5.

1. (a) AIR 1950 Mys 57, para. 4.

(b) AIR 1959 Raj 149 (152).

(c) AIR 1959 Mad 410 (421).

2. Messa v. Messa, (1938) 40 Born LR 871: AIR 1938 Born 394 (396, 397) (Beaumont, C.J. and B.J. Wadia, J.) approving Chandavarkar J.'s view in 1911 ILR 35 Bom 139.

3. Ma Po Khin v. Ma Shin, 1933 ILR 11 Rang 19.

4. D.G. Sahasrabudhe v. Kinchand Devchand & Co., ILR 1947 Nag 85.

5. Vishwanath v. Abdul Walid, AIR 1963 SC 1.

Recognition of Foreign Divorces Back

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