Section 41 of the Indian Evidence Act, 1872

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;

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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.

Comments:

Section 41 deals with,— (i) relevant judgment of a competent court exercising probate, matrimonial, admiralty or insolvency jurisdiction, (ii) the judgment confers upon or take away from any person any legal character or declare any person to be entitled to any such legal character, and (iii) the judgment is conclusive proof of matters mentioned in number (i).

Principle:

For the purpose of relevancy judgment is either judgment-in-rem or judgment-in-personam. This section usually deals with judgment-in-rem. As a matter of principle a person is not bound by any transaction to which he is not a party. Therefore, judgment between the parties is binding upon third party, but Section 41 is an exception and the judgment which is in judgment-in-rem is admissible under this section. To attract Section 41 judgment has to be pronounced. Mere pending of two proceedings whether civil or criminal, however, by itself would not attract the provisions of Section 41 of this Act.

Judgment-in-rem:

It means a judgment against the whole world. According to Taylor “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 the purpose. A judgment-in-rem under this section is conclusive in a civil as well as in criminal proceeding. Both the proceedings may run simultaneously.

If the judgment of a civil court is not binding on a criminal court, a judgment of a criminal court is not to be binding in civil court. Such judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matters actually decided.” In Section 41 judgments of courts exercising probate, matrimonial, admiralty or insolvency jurisdictions are judgments-in-rem.

Judgment-in-personam:

It means a judgment between the parties in contract, tort or crime. Judgment-in-personam binds the parties and their representative- in-interests. This sort of judgment is not relevant in any subsequent proceeding under section 41.

Bindingness of judgment-in-rem:

The judgment-in-rem is conclusive proof of matters showing that: (a) it has conferred legal character, or (b) it has declared that person has such legal character or (c) it has declared that such legal character has ceased to exist. The legal character means a legal status. To say that a person is not a partner of a firm is not to declare his status or legal character; it is merely to declare his position with respect to the particular firm.

Under section 41, a judgment-in-rem dealing with legal character of a person can be pronounced by the courts exercising probate, matrimonial, admiralty and insolvency jurisdiction.

1. Probate jurisdiction:

Probate jurisdiction means jurisdiction of a court under the Indian Succession Act, 1925 in respect of testamentary and intestate matters. By exercising probate jurisdiction the court can pronounce the genuineness of will of a deceased person and grant letter of probate in favour of a person who may act for the deceased in execution of his will. A judgment by a probate is a judgment-in-rem by which legal character of a person is granted. The court must also satisfy its conscience before it passes an order. A judgment of a court of probate is conclusive proof and is binding on the entire world. The grant of probate is the decree of a court which no other court can set aside except for fraud or want of jurisdiction.

2. Matrimonial jurisdiction:

A court having matrimonial jurisdiction can decide matrimonial causes under various Act. By virtue of this jurisdiction the court can decide the legal status of a person whether he is married or she is widow or divorcee. The judgment of a Matrimonial court is judgment-in-rem and is admissible under section 41. A decree of nullity and divorce under Marriage Law has the same effect.

3. Admiralty jurisdiction:

Admiralty jurisdiction is exercised by the High Court under the Letters Patent. The finding of a court of admiralty is judgment-in- rem. The admiralty court decides cases arising out of war claims.

4. Insolvency jurisdiction:

A court having insolvency jurisdiction exercises its power under the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920. By exercising insolvency jurisdiction the court can determine legal status of a person whether he is insolvent or he is discharged from insolvency or annulment of his insolvency. The judgment of the court is judgment-in-rem and binding on all.