Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Introduction
The distinction between rights in rem and rights in personam forms the bedrock of legal understanding in property law, contract law, and procedural jurisprudence. This fundamental classification, deeply rooted in Roman law and adopted into Indian legal system through English common law, determines how rights are enforced, against whom they can be exercised, and their scope of application. The recent Bharatiya Sakshya Adhiniyam (BSA), particularly Section 35, provides a compelling illustration of how this distinction operates in contemporary Indian law, especially regarding judgments that confer legal character.
Conceptual Framework: Defining the Rights
Rights in Rem (Jus in Rem)
Rights in rem represent absolute rights that are enforceable against the entire world. These rights are intrinsically linked to property or status and create obligations on everyone to respect the right-holder's position. The Latin phrase "in rem" literally means "against the thing," emphasizing that these rights relate to specific property or legal status rather than personal relationships.
Key characteristics include:
Universal enforceability against all persons
Negative obligations on others to refrain from interference
Property-centric nature focusing on ownership, possession, or legal status
Permanence until legally transferred or extinguished
Rights in Personam (Jus in Personam)
Rights in personam are relative rights enforceable only against specific individuals or defined groups. These rights emerge from contractual relationships, promises, or specific legal obligations between parties. The term "in personam" means "against the person," highlighting the personal nature of these obligations.
Distinguishing features include:
Limited enforceability against specific parties only
Positive obligations requiring specific performance or action
Relationship-based origin from contracts or specific legal relationships
Personal nature with no universal application
Section 35 of Bharatiya Sakshya Adhiniyam: A Case Study
The Legislative Framework
Section 35 BSA represents a significant codification of how certain judicial determinations create rights in rem rather than mere rights in personam. This section specifically addresses judgments from courts exercising probate, matrimonial, admiralty, or insolvency jurisdiction that confer, declare, or take away legal character.
Scope of Application
The section applies to final judgments, orders, or decrees that:
Confer legal character upon any person
Take away legal character from any person
Declare entitlement to legal character
Declare absolute entitlement to property (not merely against specific persons)
Creating Rights in Rem Through Judicial Determination
Probate Jurisdiction Examples
Grant of Probate: When a probate court appoints an executor, this judicial act creates a legal character that operates as a right in rem. The executor's authority to administer the estate becomes enforceable against all persons, not merely those who were parties to the probate proceedings.
Consider the case where Court grants probate to Mr. Sharma as executor of late Mr. Gupta's will. This creates:
Universal recognition of Mr. Sharma's executorial authority
Obligation on all third parties to acknowledge his legal character
Rights enforceable against anyone interfering with estate administration
Legal status independent of any contractual relationship
Matrimonial Jurisdiction Applications
Divorce Decrees: Court declarations dissolving marriage create legal character (divorced status) that operates in rem. This status is binding on society at large, not merely between former spouses.
Marriage Validity Determinations: When courts declare marriages valid or void, these determinations affect legal character with universal application.
Insolvency Jurisdiction Impact
Insolvency Declarations: Court determinations of insolvency create legal character affecting the person's capacity to contract, binding on all potential creditors and contracting parties.
Conclusive Nature Under Section 35(2)
The section makes such judgments conclusive proof of:
Timing of legal character acquisition or loss
Existence of declared entitlements from specified dates
Property rights from designated time periods
This conclusive nature transforms personal determinations into universal rights, creating rights in rem from what might otherwise be personal adjudications.
Practical Distinctions and Applications
Comparative Analysis
Aspect Rights in Rem Rights in Personam
Enforcement Scope Universal (against world) Limited (against specific parties)
Legal Foundation Property/Status based Contract/Relationship based
Third Party Effect Binding on all No effect on third parties
Transferability Generally transferable Usually non-transferable
Judicial Recognition Section 35 BSA judgments Ordinary civil judgments
Evidence Value Conclusive against all Conclusive between parties only
Real-World Implications
Property Transactions
When A owns land (right in rem), this ownership is respected universally. However, A's contractual right against B for property purchase creates only rights in personam against B specifically.
Business Operations
A trademark registration creates rights in rem against infringement by anyone, while a non-disclosure agreement creates rights in personam only against the specific contracting party.
Family Law
Adoption orders create parental legal character (right in rem) affecting inheritance, guardianship, and social recognition, unlike mere contractual caregiving arrangements (rights in personam).
Contemporary Relevance and Challenges
Digital Age Applications
With increasing digitization, the distinction becomes crucial in areas like:
Intellectual property rights: Patents and copyrights as rights in rem
Digital contracts: E-commerce agreements creating rights in personam
Online identity: Legal character in digital spaces.
