Judgment in Rem and Judgment in Personam under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Difference and Effect

Almost every judgment an Indian court delivers binds only the people who fought the case. A small class binds everybody, including persons who never heard of the proceeding. The Adhiniyam draws the line in Sections 35 and 37, and the reason for drawing it where it does is that some questions cannot sensibly have different answers for different people. Whether a will is valid, whether a marriage subsists, whether a person is insolvent — these are conditions of the world, not arrangements between litigants.

1. The Two Concepts

A judgment in personam determines the rights of the parties before the court against one another. It says that A owes B a sum of money, that C must deliver possession to D, that E must perform his contract with F. It binds A and B, C and D, E and F, and their representatives in interest. It binds nobody else, and it establishes nothing against a stranger.

A judgment in rem determines a status or a title against the world. It says that this document is the will of the deceased, that this marriage is dissolved, that this person is an insolvent, that this ship is condemned. It is not a decision about a dispute between two people; it is a determination of a legal condition, and the determination is good against everybody.

The Latin is unhelpful if taken literally. Res means a thing, and the phrase originated in admiralty, where the proceeding really is against a ship. But a judgment in rem in the modern sense is not confined to proceedings about things. What it determines is a legal character — a status which the world must take as it finds it.

2. Where the Adhiniyam Draws the Line

The two provisions together produce the scheme. Judgments in the four named jurisdictions are conclusive against everybody. Judgments about matters of a public nature are relevant against everybody but not conclusive, under Section 36. Every other judgment is irrelevant except as to its existence. The statutory list is closed, and a judgment does not become one in rem because a court has described it as such or because the question it decided was important.

3. The Comparison

4. Why Some Judgments Bind the World

The justification is practical rather than doctrinal. Take probate. A will is either valid or it is not. If a grant of probate bound only the parties to the probate proceeding, the same will could be valid as against one legatee and invalid as against another, valid in a suit brought by a creditor and invalid in a suit brought by an heir. The estate could never be distributed, because no distribution would be safe against a challenge by somebody who had not been a party.

The same reasoning applies to each of the four jurisdictions. A marriage that subsisted for one purpose and had been dissolved for another would make the status of the parties, of any subsequent marriage, and of any children born of it entirely indeterminate. An insolvency binding only some creditors would defeat the whole object of a collective proceeding. A ship condemned as against one claimant but not another could never be sold with good title.

What makes the rule tolerable is that in each of these jurisdictions the proceeding is designed to give the world an opportunity to be heard. A probate petition is advertised and citations issue; an insolvency is notified and creditors are called in; an admiralty proceeding against a ship is publicised and claims are invited. The world is bound because the world was, in a formal sense, invited.

5. What 'Conclusive Proof' Means Here

Section 35 does not merely make these judgments relevant. It makes them conclusive proof, and the expression takes its meaning from Section 2(1)(b): where a fact is declared to be conclusive proof of another, the court must regard the second as proved and shall not allow evidence to be given for the purpose of disproving it.

The consequence is that a party against whom a judgment in rem is produced cannot lead evidence that the will was in fact a forgery, or that the marriage was in fact never dissolved. He may show under Section 38 that the court had no jurisdiction, or that the judgment was obtained by fraud or collusion; those are the only routes. He may not invite the court to reach a different conclusion on the merits.

6. Common Misconceptions

6.1 A criminal judgment is not a judgment in rem

A conviction or an acquittal is a judgment in personam. It binds the State and the accused, and in a subsequent proceeding between different parties it is irrelevant except as to its existence. A defendant sued in a civil suit for damages arising out of an accident cannot prove his acquittal on the criminal charge as evidence that he was not negligent, and a plaintiff cannot prove a conviction as evidence that he was.

The reasons are two. The parties are different, the State having prosecuted and a private plaintiff now suing. And the standards are different, an acquittal meaning only that the charge was not proved beyond reasonable doubt, which says nothing about whether negligence is established on a preponderance of probabilities. Section 37 gives effect to both points.

6.2 A declaratory decree is not a judgment in rem

The confusion arises because such a decree declares a right rather than ordering a party to do something. But the form of the relief is immaterial. What matters is whether the judgment falls within one of the four jurisdictions in Section 35, and a declaration of title to property does not.

6.3 A judgment in rem is not the same as res judicata

The two are frequently confused because both prevent a matter being reopened. They operate quite differently. Res judicata binds the same parties in a later suit; it is a rule of law under Section 11 of the Code of Civil Procedure, and it requires identity of parties, of title and of the matter in issue. A judgment in rem binds strangers, requires no identity of parties at all, and operates as a rule of evidence under Section 35. A judgment in personam may create a res judicata bar between the parties while remaining wholly irrelevant against anybody else.

6.4 Binding the world does not mean beyond challenge

Section 38 applies to a judgment in rem as much as to any other. A grant of probate obtained by concealing the existence of a later will, or by suppressing the fact that a caveator had entered an appearance, may be attacked for fraud by anybody against whom it is produced, and the principle that a judgment obtained by fraud is a nullity applies with full force.

7. Proving the Judgment

A judgment relied upon under Section 35 must be proved like any other document, and this is ordinarily straightforward because a judgment is a public document within Section 74. A certified copy is produced, and Section 78 permits the court to presume that it is genuine.

Three matters must be established beyond production of the copy. That the court which pronounced it was competent, since Section 35 requires a competent court and Section 38 permits want of competence to be shown. That the judgment is final, since the section applies to final judgments, orders and decrees. And that it was pronounced in the exercise of one of the four jurisdictions, which is a question of the nature of the proceeding rather than of the court's general powers — the same court may exercise probate jurisdiction in one case and ordinary civil jurisdiction in another.

8. The Position Stated Shortly

1. A judgment in personam binds the parties; a judgment in rem binds the world.
2. Section 35 contains a closed list of four jurisdictions — probate, matrimonial, admiralty and insolvency. A judgment outside them is not in rem however important the question it decided.
3. What a judgment in rem determines is a legal character or status, or title to a thing absolutely rather than as against a specified person.
4. The justification is that status cannot vary between persons, and the rule is made tolerable because in each of the four jurisdictions the world is formally invited to be heard.
5. Conclusive proof means no evidence in rebuttal, under Section 2(1)(b), and is confined to the matters Section 35 specifies.
6. A criminal judgment is in personam and is irrelevant in later civil proceedings except as to its existence.
7. A judgment in rem is not the same as res judicata. One binds strangers as a rule of evidence; the other binds the same parties as a rule of law.
8. Section 38 applies to judgments in rem, and want of competence, fraud or collusion may always be shown.

9. Related Topics and Provisions