Judgments in Probate, Matrimonial, Admiralty and Insolvency Jurisdiction under Section 35 of the Bharatiya Sakshya Adhiniyam, 2023

Section 35 is the only provision in the Adhiniyam that makes a judgment conclusive against persons who were never parties to it. It applies to four jurisdictions and to no others, and within them it operates with unusual force: the court must accept what the earlier judgment determined, and may receive no evidence to the contrary. The section repays close reading, because its language is precise about what is made conclusive and about what is not.

1. The Provision

Section 35, BSA — 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;

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.

Section 35 corresponds to Section 41 of the Indian Evidence Act and is carried forward unchanged.

2. The Four Conditions

Before the section operates at all, four things must be established, and each is a genuine limitation.

2.1 A final judgment, order or decree

The judgment must be final. An interlocutory order, an order granting interim relief, or an order that leaves the substantive question open is not within the section. Where an appeal has been preferred and is pending, the judgment is not final for this purpose, and where it has been set aside or modified on appeal, it is the appellate decision that operates.

2.2 A competent court

Competence means jurisdiction over the subject matter, the parties and the territory. A grant of probate by a court with no probate jurisdiction, or an insolvency adjudication by a court not empowered to make one, is a nullity, and Section 38 expressly permits want of competence to be shown by any party against whom the judgment is produced.

2.3 In the exercise of one of the four jurisdictions

This is a question about the nature of the proceeding, not about the standing of the court. The same District Judge may exercise probate jurisdiction in one matter and ordinary civil jurisdiction in the next, and only the first attracts Section 35. What must be shown is that the judgment was pronounced in a proceeding of the described kind.

2.4 It must confer, declare or take away a legal character, or declare absolute entitlement to a thing

A legal character is a status recognised by law — heir, executor, administrator, spouse, insolvent, legitimate child, guardian. It is not the same as a right. The section also covers a declaration that a person is entitled to a specific thing not as against any specified person but absolutely, which is the language that brings admiralty decrees within it.

⚠ The words 'not as against any specified person but absolutely'

This phrase does the real work in distinguishing a judgment in rem from an ordinary decree about property. A decree declaring that the plaintiff is entitled to a piece of land as against the defendant is a judgment in personam and falls outside Section 35 entirely. A decree declaring that a person is entitled to a thing absolutely, against all comers, is within it. In practice this limb is confined almost entirely to admiralty, where a proceeding really is directed against the thing itself.

3. Probate Jurisdiction

Probate jurisdiction is exercised in granting probate of a will, in granting letters of administration with or without a will annexed, and in revoking such grants. It is the most frequently encountered of the four.

A grant of probate establishes that the will was duly executed by a testator of sound disposing mind, and that the document propounded is the last will of the deceased. Because succession to the estate turns on that question, and because the estate must be distributed among persons who may be scattered and unknown, the determination is made good against everybody. The procedure reflects this: citations issue, the grant is advertised, and any person interested may enter a caveat and contest.

📖 Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507

Held: The probate court has exclusive jurisdiction to grant probate of a will, and a probate granted by a competent court is conclusive of the validity of the will until it is revoked. No evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. A judgment of the probate court is a judgment in rem and binds not only the parties to the proceeding but all persons, and it is conclusive as against the whole world.

Ratio: The leading authority on the exclusivity of probate jurisdiction and the conclusive character of a grant.

Two limits are worth stating. A probate is conclusive as to the due execution and validity of the will; it is not conclusive of the truth of everything the will recites. Where a will recites that the testator owned a particular property, the grant does not establish the ownership, and the question of title remains open in an ordinary suit. And the conclusiveness is subject to revocation: the grant may be revoked by the probate court on the grounds the succession legislation provides, and may be attacked under Section 38 for fraud, collusion or want of competence.

4. Matrimonial Jurisdiction

Matrimonial jurisdiction determines the marital status of the parties, and a decree pronounced in its exercise operates in rem because status is indivisible. The category includes a decree of divorce, a decree of nullity declaring a marriage void or annulling a voidable marriage, a decree of judicial separation so far as it affects status, and a decree of restitution of conjugal rights.

The consequences of treating such decrees as conclusive are considerable, and they explain the rule. If a decree of divorce bound only the parties, the validity of a subsequent marriage would be open to challenge by anybody, the legitimacy of children born of it would be uncertain, and questions of succession, maintenance and pension would be incapable of settlement. Making the decree good against the world resolves all of these at once.

What is conclusive is the status, and the timing of the change in status that the section specifies — that a character conferred accrued when the decree came into operation, and that a character taken away ceased when the decree declares. A decree of divorce is not conclusive of the findings of cruelty or desertion on which it was granted, and those findings are not evidence in later proceedings between different parties.

5. Admiralty Jurisdiction

Admiralty is where the concept of a judgment in rem originated, and where the phrase is used most literally. A proceeding in admiralty may be directed against the ship itself rather than against her owner, and a decree condemning the vessel, or ordering her sale, determines the title of the purchaser against all the world.

The commercial necessity is obvious. A ship sold under an admiralty decree passes into the hands of a purchaser who has no means of knowing what claims may exist against her, and who is buying an asset that will sail to other jurisdictions. If the sale conveyed only a title good against the parties to the proceeding, no purchaser would bid. The decree is therefore made conclusive, and the words of Section 35 about entitlement to a specific thing 'not as against any specified person but absolutely' are directed principally at this situation.

Admiralty jurisdiction in India is now exercised under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, which consolidated a jurisdiction previously scattered across colonial legislation. Section 35 continues to attach to decrees pronounced in its exercise.

6. Insolvency Jurisdiction

An adjudication of insolvency alters the legal character of the debtor and vests his property in a receiver or assignee for distribution among creditors. Both features require the order to operate against the world.

The status is the first. A person is insolvent or he is not, and an adjudication effective against some creditors and not others would be meaningless. The second is the vesting. Property vests in the assignee by operation of the order, and every person dealing with that property — a purchaser, a mortgagee, a person in possession — must be able to know where title lies without litigating the insolvency afresh.

The section covers both aspects. The adjudication is conclusive that the legal character of insolvent was conferred at the time the order came into operation, and an order of discharge or annulment is conclusive that the character ceased at the time declared. Where the order declares property to belong to the estate, it is conclusive that the property was the estate's at the time declared.

7. What Is Conclusive and What Is Not

The section is drafted with care, and its precision is frequently overlooked. Four matters are made conclusive and no more.

Conclusive	Not conclusive
That a legal character conferred by the judgment accrued when the judgment came into operation	The findings of fact on which the judgment was based
That a legal character declared accrued at the time declared	Recitals in the document or proceeding that were not the subject of determination
That a legal character taken away ceased at the time declared	Questions of title to property decided incidentally, unless the judgment declares absolute entitlement
That a thing declared to belong to a person was his property at the time declared	The reasoning by which the court arrived at its conclusion

The practical illustration is the probate case. The grant is conclusive that the will is valid and was duly executed. It is not conclusive that the testator owned the properties the will disposes of, that the attesting witnesses were truthful about the surrounding circumstances, or that any recital in the will is true. Those questions may be litigated in an ordinary suit, and the probate proves nothing about them.

8. Attacking a Section 35 Judgment

Section 38, BSA

Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 35, 36 or 37, and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Conclusiveness under Section 35 is subject to Section 38, and the three grounds it provides are the only routes. A party cannot invite the court to differ from the earlier judgment on the merits; he must show that there was no jurisdiction, or that the court was deceived, or that the proceeding was not a genuine contest.

📖 A.V. Papayya Sastry v. Government of Andhra Pradesh, (2007) 4 SCC 221

Held: A judgment, decree or order obtained by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings. Fraud avoids all judicial acts, and no court is bound to give effect to a decision obtained by deceiving it.

Ratio: The conclusive character of a judgment in rem yields to proof of fraud, and the attack may be mounted in any proceeding in which the judgment is relied upon.

In the case of probate there is an additional and more usual route. The succession legislation provides for revocation of a grant for just cause — where the proceedings were defective in substance, where the grant was obtained fraudulently by making a false suggestion or by concealing something material, or where it has become useless and inoperative. A person wishing to displace a grant will ordinarily apply for revocation rather than attempt a collateral attack, and the probate court's exclusive jurisdiction makes that the appropriate course.

9. The Position Stated Shortly

Four jurisdictions only — probate, matrimonial, admiralty and insolvency. The list is closed, and a judgment outside it is governed by Section 36 or Section 37.
Four conditions must be satisfied — a final judgment, a competent court, the exercise of one of the four jurisdictions, and the conferring, declaring or taking away of a legal character or absolute entitlement to a thing.
A legal character is a status, not a right. Heir, executor, spouse, insolvent and guardian are legal characters; ownership of a field is not.
The phrase 'not as against any specified person but absolutely' distinguishes a decree in rem about a thing from an ordinary decree about property, and is directed principally at admiralty.
The judgment binds everybody, because status cannot be true as between some persons and false as between others, and because in each of the four jurisdictions the world is formally invited to be heard.
Conclusive proof means no evidence in rebuttal, under Section 2(1)(b), and it extends only to the four matters the section specifies.
Findings, recitals and reasoning are not conclusive, and questions of title decided incidentally remain open.
Section 38 always applies, and want of competence, fraud or collusion may be shown against any judgment relied upon under Section 35.

10. Related Topics and Provisions

Topic or provision	Connection
Judgment in Rem and Judgment in Personam	The distinction Section 35 gives statutory form to
Relevancy of Judgments — Sections 34 to 38	The scheme as a whole, including res judicata and double jeopardy
May Presume vs Shall Presume vs Conclusive Proof	The meaning of 'conclusive proof' in Section 2(1)(b)
Section 36, BSA	Judgments relating to matters of a public nature — relevant but not conclusive
Section 37, BSA	The general rule that other judgments are irrelevant
Section 38, BSA	Want of competence, fraud and collusion
Sections 74 to 78, BSA	Public documents, certified copies and the presumption of genuineness
Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017	The statute under which admiralty jurisdiction is now exercised in India