What facts are relevant to determine the right or custom in question?

Question: What facts are relevant to determine the right or custom in question? [U.P.C.J. 1985, 1999]

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Answer

Section 13 of the Indian Evidence Act lays down what facts are relevant and may be proved when the question at issue is whether any right or custom exists.

Section 13 says,

“Where the question is as to the existence of any right or custom, the following facts are relevant:-

1) any transaction by which the right or custom in question was created, claimed modified recognized, asserted, or denied, or which was inconsistent with its existence.

2) Particular instance in which right or custom was claimed, recognized, or exercise or in which its exercise was disputed, asserted or departed from.

Illustration- The question is, whether A has a right to a fishery. A deed conferring the fishery on A’s ancestors, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by A’s father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.

The cases this section is intended to meet are those in which the right or custom in question is regarded as capable of surviving repeated instances of its assertion and denial, where transactions may be supposed to have gone on modifying, asserting, denying, creating, recognizing it, or being inconsistent with its existence, leaving it, after all that has been given in evidence, fair matter for judicial consideration, as to whether the court should or should not decree it. The section is not confined to public rights but covers private rights also; as per the illustration.

The term “custom” is a particular rule which has existed from time immemorial and has obtained the force of law in a particular locality.

In Rajender Ram v. Devendra Das, AIR 1973 SC 268 it was observed that

“A custom to be valid must have four essentials-

1) it must be immemorial

2) it must be reasonable

3) it must have continued without interruption since its immemorial origin and

4) it must be certain in respect of its nature.”

There has been controversy among the different High Courts about the meaning of the word 'right’ as used in Section 13, Evidence Act.

According to Calcutta High Court, the word 'right’ in Section 13 means only public and incorporeal rights, such as the right to ferries, the right to roads, the right to fisheries, and so on. According to this view, the word 'right’ in Section 13 does not include private and corporeal rights, i.e., ownership of material objects, such as ownership of a house or a chattel, and so on.

Contrary to this view of the Calcutta High Court, the High Courts of Allahabad Bombay and Madras have held that “rights under Section 13 must be understood as comprehending all rights recognized by law, and, therefore, including a right of ownership and not being confined to incorporeal rights only.”

To establish, it is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decision but only any custom applicable to the parties concerned that can be the rule of decision in a particular case.

Under section 13 the proof of existence and non-existence of custom may be done either:

1. By transaction- A transaction, in the ordinary sense of the word, is some business or dealing which is carried on or transacted between two or more persons. Under Section 13(1) a transaction is that by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied or which is inconsistent with its existence is relevant to prove the existence of a custom or a right. Under this section, a judgment that has become final can be said to be a transition evidencing a right or instance. The sale deed, deed of gift, cases of res judicata, etc. are instances of transaction.
2. By instances- Section 13(2) provides for particular instance which simply means an example, something which has already been occurred. In other words, the particular instance refers to instances in which,-

1. 1. the right or custom was claimed, recognized, exercised or
   2. its existence was disputed, asserted or departed. It must be the instances prior to the present suit in question. It may be or may not be inter-parties.

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Important Mains Questions Series for Judiciary, APO & University Exams

1. Law of Evidence Mains Questions Series Part-I
2. Law of Evidence Mains Questions Series Part-II
3. Law of Evidence Mains Questions Series Part-III
4. Law of Evidence Mains Questions Series Part-IV
5. Law of Evidence Mains Questions Series Part-V
6. Law of Evidence Mains Questions Series Part-VI
7. Law of Evidence Mains Questions Series Part-VII
8. Law of Evidence Mains Questions Series Part-VIII
9. Law of Evidence Mains Questions Series Part-IX
10. Law of Evidence Mains Questions Series Part-X