LAW OF EVIDENCE PROJECT WORK

RELEVANCY OF JUDGMENTS IN REM AND

JUDGMENTS IN PERSONAM: AN ANALYSIS

Submitted To:
Mrs. Vinita Tripathi
Faculty, Law Of Evidence

Submitted By:
Syed Shadan
B.A.LL.B. (Hon.)
Semester – VII, Section B,
Roll no. 173

Date of Submission: 8th December, 2020

Hidayatullah National Law University, Raipur

i
 Declaration

I, Syed Shadan hereby declare that this project work is a original piece
of research and is not a result of plagiarism, the sources of data has
been adopted from other sources as well and proper mention about such
sources has been made in the form of footnotes and in bibliography.

I have completed this project work under the guidance of Mrs.

Vinita Tripathi, faculty of Law Of Evidence, Hidayatullah National Law
University. Raipur (C.G).

Syed Shadan

Roll No. 173

Semester -VII, Section- B

B.A. L.L.B (Hons.)

ii
 ACKNOWLEDGEMENTS

Thanks to the Almighty who gave me the strength to accomplish the project with
sheer hard work and honesty.

This research venture has been made possible due to the generous co-operation of
various persons. To list them all is not practicable, even to repay them in words is beyond the
domain of my lexicon.

May I observe the protocol to show my deep gratitude to the venerated Faculty-in-
charge Mrs. Vinita Tripathi for her kind gesture in allotting me such a wonderful and
elucidating research topic. Ma’am, your sincere and honest approach have always inspired
me and pulled me back on track whenever I went astray.

Last, but by no means the least, I would like to thank all the members of HNLU
family in general and my blooming and charismatic friends in particular for their
wholehearted co-operation throughout the odyssey.

I take this opportunity to also thank the University and the Vice Chancellor for
providing extensive database resources in the Library and through Internet.

Syed Shadan

Section – B, Roll No. - 173

B.A. L.L.B (Hons.)

iii
 TABLE OF CONTENT

No Page
I Objectives 1
II Research Methodology 1
III Introduction 2
Ch. 1 Judgment in Rem 3

• The Essentials
• Probate Jurisdiction
• Matrimonial Jurisdiction
Ch.2 Judgment in Personam 5

• The Concept
• Principle of Res Judicata
Ch.3 Other Judgments 7

• Public Importance
•

IV Conclusion 9
V Bibliography 10

iv
 INTRODUCTION

The Judgments that affect the legal status of some subject matters, person or thing are called
Judgment in rem, e.g., divorce, court judgment, grant or probate or administration. Such
judgments are conclusive evidence against all the persons whether parties to it or not.
However, Judgment in a partition suit is not judgment in rem1.

Whereas, Judgments in personam are all the ordinary judgments not affecting the status of
any subject matter, any person or anything. In such judgment the rights of the parties to the
suit or proceedings are determined. The judgment is binding only on the parties to the suit on
the proceeding and their privies. Privies in such situations may be divided into three classes:
(i) Privies-in-interest (or estate) as donor-donee, lessor-lessee, mort gator-
mortgagee or vendor-vender
(ii) Privies in blood as ancestor, half or coparcenary.
(iii) Privies in law (or representation), as testator or executor,

The same rule applies to these privies as to original parties, i.e., a person claiming through
another is bound by the judgment in the same manner as to original party. The earlier decree
can be relied upon in a subsequent suit between the same parties.2 Also, there exists a
condition under Section 42 that in cases where a judgment in no in rem nor in personam, it
can still be relevant if it is under public importance. The judiciary has elaborated the term
‘public importance’ through various of its judgments.

Through this research project, an attempt is made to understand the relevancy of judgments,
previously decided by courts as evidence in any dispute.

1
Abdur Raheman v. Agasthenju AIR1952 TC 156.
2
Ram Sarup v. Puran AIR 1971 Punj 101.

1
 OBJECTIVES

• To understand relevancy of Judgments in Personam as evidence.

• To understand relevancy of Judgments in Rem as evidence.
• To analyse the difference between them.

RESERCH METHODOLOGY

The method of research adopted for the project is analytical methodology. For the present
project relevant data and information has been received and collected from secondary sources
and there has been use of authentic books and websites that provided reliable information and
data.

2
 Chapter-1

JUDGMENTS IN REM

Section 41 makes certain judgments of a Court in the exercise of a Probate,

Matrimonial, Admiralty or Insolvency Jurisdiction not only relevant but conclusive evidence
of certain matters. Having dealt with such judgments, which are usually known as judgments
in rem, the Act goes on to deal with other judgments generally known as judgments in
personal, and provides in Section 42 that they are " relevant if they relate to matters of a
public nature relevant to the inquiry," but are not conclusive proof of what they state, and in
Section 43 that all other judgments are irrelevant unless the existence of such judgment is a
fact in issue or relevant under some other provision of this Act, and under those other
provisions the judgment may be relevant but cannot be conclusive in law though it may in
fact.

Thus in Brew v. Haren3, where the question was whether the plaintiff was the owner of the
foreshore, the facts that he had successfully prevented people from taking seaweed from the
shore and that he had instituted a Suit for trespass in which there was a reference to
arbitration and an award in his favor were held evidence of ownership.4

A judgment 'in rem', which is the judgment with which Section 41 deals, is a judgment
passed by a Court as the exclusive Court dealing with probate matters. A civil Court dealing
with the same question, deciding the same issue cannot pass a judgment, which would bind
the world and would constitute a judgment 'in rem'. Therefore, even though the civil Court
here has decided a question as to the proof of the will and the codicil and although it has held
that the will and the codicil have been proved, even so its judgment will have no binding
effect as a judgment 'in rem'. 5

3
9 Ir. C.L. 29 and 11 Ir. C.L. 198
4
The Secretary Of State For India In v. Syed Ahmad Badsha Sahib (1921) 41 MLJ 223
5
Jerbanoo Rustomji Garda v. Pootlamai Manecksha Mehta AIR 1955 Bom 447

3
Essentials To Constitute A Judgment In Rem

The condition necessary for making a Judgment in rem may be considered under two heads-

1. Those having reference of the contents of the judgments and,

2. Those to the nature of the proceeding in which the judgment is sought to be

relied upon afterwards,

A judgment to be relevant under Section 41 must be-

1. Of a competent court in the exercise of probate matrimonial, admiralty or

insolvency jurisdiction, and

2. It must confer upon or take away from any person any legal character or
declare any person any legal character to be entitled to any specific thing not
as against any specified person but absolutely.6

In the case of Surendra Kumar vs. Gyanchand,7 the Court held that the judgment of a probate
court granting probate of a will in favor of the petitioner must be presumed to have been
obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The
judgment-in-rem is conclusive proof only for showing {A) that the judgment has conferred a
legal character, or (B) that it has declared that the person has such a legal character, or (C)
that it has declared that the legal character of a person which subsisted had ceased to exist. So
a decree of divorce, though conclusive upon all persons that the parties have been divorced
and that the parties are no longer husband and wife is not relevant to prove the cause for
which the decree was pronounced.

Probate Jurisdiction

Under Section 41 of the Evidence Act the judgment of probate court is relevant and
conclusive proof only with respect to the various legal characters or declarations made in
those proceedings insofar as they are within the scope of the proceedings. If the civil court
instead of granting probate or a will declares it to be forged, the finding will not be binding8.

6
Shri Ram v. Prabhu Dayal 1972 Raj 180.
7
AIR 1957SC 875.
8
State of Maharashtra v. Yeshwant Kao, 1978 Cri LJ 1434.

4
Also, a judgment in rem in order to have the binding effect must be of a competent court, that
is a court having jurisdiction over the parties and the subject-matter.9

Matrimonial Jurisdiction

Section 41 of the Evidence Act provides, inter alia, that the decree of the matrimonial court
is conclusive proof that any legal Character which it takes away from any person ceased at
the time from which such judgment or decree declared that it has ceased or should cease.
Judgment in rem declares the status of a person or a thing to the world generally. But it is not
conclusive evidence of the facts constituting the reasons for the decision in another
proceeding in court of co-ordinate jurisdiction10.

CHAPTER – 2

JUDGMENTS IN PERSONAM

A judgment “in personam” can be defined as a judgment that defines, positively,

claims against competing individuals in respect of a particular matter, or to compel the
performance of a particular act – for example, the discharge of a debt, or the payment of an
award for damages for breach of contract, or requiring that a particular aspect of a contract is
performed. There are very limited scenarios where such judgments are relevant. This
relevancy is majorly based on the qualification of the subject matter of the present issue to be
between the same parties.

Judgments in personem are all the ordinary judgments not affecting the status of any subject
matter, any person or anything. In such judgment the rights of the parties to the suit or
proceedings are determined. The judgment is binding only on the parties to the suit on the
proceeding and their privies. Privies in such situations may be divided into three classes:

9
Smt. Satya v. Teja Singh, AIR 1975 SC 105 : (1975) I SQ 365:1975 Cri LJ 52.
10
Sheo Charan v. State AIR 1965 All 511

5
(iv) Privies-in-interest (or estate) as donor-donee, lessor-lessee, mort gator-
mortgagee or vendor-vender
(v) Privies in blood as ancestor, half or coparcenary.
(vi) Privies in law (or representation), as testator or executor,

The same rule applies to these privies as to original parties, i.e., a person claiming through
another is bound by the judgment in the same manner as to original party. The earlier decree
can be relied upon in a subsequent suit between the same parties.

Res Judicata

Under Section 40 of the Indian Evidence Act, the existence of a judgment, decree, or order, is
a relevant fact, if by law, it has the effect of preventing any court from taking cognizance of a
suit or holding a trial. It is intended to include all cases in which a general law of res judicata
inter parties applies. The main object of this principle is to prevent duplicity of suits and
interminable disputes between litigants. The term Res Juidicata means a thing upon which a
court has already applied its judicial mind. However, it must be kept in mind that while the
principle is applicable on both the parties to a suit but it doesn’t include a disabled and
dependent child of any party11.

This section however has nothing to do with the question of evidence beyond admissibility of
the judgments, because of plea of res judicata is not a plea as to matter of evidence, but only
a plea barring an action as to matter of procedure as distinguished from the rules of
evidence.12 Also, it must be kept in mind that the judgment of a criminal court that a person
did or didn’t commit an offence doesn’t act as res judicata to a civil court for determining
such question for the purpose of a suit.13

The judgment of acquittal of a co-accused rendered in an earlier trial arising out of the same
transaction was held to be holly irrelevant in the case of the present accused who was tried
separately. It was not admissible under Sections 40 to 44. The case of the co-accused leading
to his acquittal was decided on the basis of evidence produced in that case where as the case
of the present accused was decided on the basis of evidence adduced in his trial.14

The very basic principle of judgment inter parties is that the judgments are not judgments in
11
Shamlata v. Tukaram, AIR 2008 Bom 155
12
Udit Beri v. State of Rajasthan, AIR 2001 Raj 147
13
Ram Lal v. Tula Ram, (1881) 4 All 97
14
Rajan Rai v. State of Bihar, AIR 2006 SC 433

6
rem but declaratory and operative only as between them. 15

It is a well-recognized principle of law that a conviction in a criminal case is no evidence of

the facts on which the conviction is based in a civil case in which those facts are in issue or
form the subject matter of the suit. But the authorities are clear that when a conviction is
based on a plea of guilty, the plea is relevant and to prove in the judgment in the criminal
case is admissible in the subsequent civil suit in which the facts are in issue or form the
subject matter of the suit.16 A judgment in personam which is not inter parties has been held
to be not admissible as evidence.

CHAPTER – 3

OTHER JUDGMENTS

Judgments, orders or decrees other than those mentioned in Section 41, are relevant if
they relate to matters of a public nature relevant to the enquiry; but such judgments, orders
or decrees are not conclusive proof of that which they state. Judgments, orders or decrees
other than those mentioned in Section 41 are relevant if they relate to the matters of public
nature, but such judgments, orders or decrees are not conclusive proof of that which they
state. Under Section 42 judgments are admissible not as res judicata.

Judgments inter parties are relevant under Section 40. They are conclusive and bar
subsequent proceedings. Judgments in rem though not inter parties admissible under Section
41 and are conclusive for any legal character Judgments neither inter parties nor in rem are
relevant under Section 42, if relate to matters of public nature and if that matter of public
nature is relevant to the enquiries. But, it should be remembered that judgments relating to
matters of public nature relevant under Section 42 neither work as res judicata nor they are
conclusive as judgments in rem. They can be used as any other evidence in the proceeding.
Section 42 is intended for judgments, orders or decrees, which relate to matters of public
nature. Under this section the judgments are admitted as a piece of evidence.

Under Sections 40 and 41 judgments are admitted as a conclusive proof about the matters
they relate to. But under this section judgment is admitted as a piece of evidence. On a
15
Motiram Roshanlal Coal Co. (P) v. District Committee And Ors. on 24 November, 1961
16
Chetty v. Kuttimalu. (1958) Ker 39.

7
question of custom, a decision in a case as regards the existence or nonexistence of the
custom is good evidence in other cases17.

Public Nature

According to Section 42 of the Indian Evidence Act a judgment other than the one mentioned
in Section 41 is relevant if it relates to matters of a public nature relevant to the enquiry. The
words "matters of a public nature" as used in Section 42 are wide enough to include matter in
which a large section of the public is interested. In order that a matter may be of a public
nature it is not necessary that the whole of the public in locality may be interested in it18.

In the case of Bai Baiji v. Bai Santok,19 it was held that under this section the decrees of
competent courts are good evidence in matter of public interest, such as the existence of a
custom of succession in a particular community, etc. However, a judgment in a criminal case
is not a matter of public nature and is not admissible in evidence in civil proceedings under
this section.20

17
Ram Kishore v. B. Kavindra, AIR 1955 All 59 (FB)
18
Tula v. Sadh, AIR 1962 HP 28
19
(1894) 20 Bom. 53.
20
Bishen Das v. Ram Kabhaya, (1915) Pr No. 106 of 1915 (Civil)

8
 CONCLUSION

Ordinarily a judgment binds only the parties to it. It is known as a judgment in personam.
The judgment for which provision is made are usually called judgments in rem, a phrase
which denotes certain judgments which are conclusive not only against the parties to them
but also against all the world. A judgment in rem is not defined in the Act It is defined by
Bower as one “which declares, defines or otherwise determines the status of a person, or of a
thing, that is to say, the jural relation of the person or thing, to the world generally” In cases
before the passing of the Evidence Act there was a tendency to regard decisions by
competent courts on legitimacy, adoption and like matters as judgments in rent binding on
strangers. The subject was ably discussed by Holloway J, in Yarakalamma v. Anakala,
where the history of judgment in rem is fully discussed. He summed up thus: “The result
seems to be that the rule which makes a judgment conclusive only against the parties and
those who claim under them is subject to certain exceptions which are the offspring of
positive law, and the reasons for the exception may be generally stated to be both in English
and Roman law that the nature of the proceedings, by which there is a fictitious, though
generally not unjust extension of parties, renders it proper to use the judgment against those
not formally parties.”
A judgment in rem has been defined to be “an adjudication pronounced, as its name indeed
denotes, upon the status of some particular subject-matter, by a tribunal having competent
authority for that purpose.” In general, therefore, a judgment in rem furnishes conclusive
proof of the facts adjudicated, as well against strangers as against parties; but this rule does
not extend either to criminal convictions, which are subject to the same rules of evidence as
ordinary judgments inter partes. Inquisitions in lunacy, inquisitions post mortem, or other
inquisitions, which though regarded as judgments in rem. so far as to be admissible in
evidence of the facts determined against all mankind, are considered as not exclusive
evidence.

9
 BIBLIOGRAPHY

JOURNALS & BOOKS

• RATANLAL & DHIRAJLAL, ‘THE LAW OF EVIDENCE’ 21th Edn. (2004)

• SUDIPTO SARKAR’S, ‘LAW OF EVIDENCE’ 17th Edn. (2010)
• BATUK LAL, ‘LAW OF EVIDENCE” 20th Edn (2014)

CASES REFERRED

• Abdur Raheman v. Agasthenju AIR1952 TC 156.

• Bishen Das v. Ram Kabhaya, (1915) Pr No. 106 of 1915 (Civil)
• Chetty v. Kuttimalu. (1958) Ker 39.
• Jerbanoo Rustomji Garda v. Pootlamai Manecksha Mehta AIR 1955 Bom 447
• Motiram Roshanlal Coal Co. (P) v. District Committee And Ors. on 24 November,
1961
• Rajan Rai v. State of Bihar, AIR 2006 SC 433
• Ram Kishore v. B. Kavindra, AIR 1955 All 59 (FB)
• Ram Lal v. Tula Ram, (1881) 4 All 97
• Ram Sarup v. Puran AIR 1971 Punj 101.
• Shamlata v. Tukaram, AIR 2008 Bom 155
• Sheo Charan v. State AIR 1965 All 511
• Shri Ram v. Prabhu Dayal 1972 Raj 180.
• Smt. Satya v. Teja Singh, AIR 1975 SC 105 : (1975) I SQ 365:1975 Cri LJ 52.
• State of Maharashtra v. Yeshwant Kao, 1978 Cri LJ 1434.
• The Secretary Of State For India In v. Syed Ahmad Badsha Sahib (1921) 41 MLJ 223
• Tula v. Sadh, AIR 1962 HP 28
• Udit Beri v. State of Rajasthan, AIR 2001 Raj 147

10