Indian Evidence Act Section 13: Facts relevant when right or custom is in question

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

(a) 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;

(b) Particular instances in which the right or custom was claimed, recognized, or exercised, 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, instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbors, are relevant facts.

Simplified Explanation

Section 13 of the Indian Evidence Act, 1872 deals with the relevancy of facts when the existence of any right or custom is in question. This section allows for the admission of evidence that helps establish or refute the existence of a right or custom, including instances of how the right or custom was exercised, claimed, recognized, or disputed in the past.

Text of Section 13:

“Where the question is as to the existence of any right or custom, the following facts are relevant: (a) 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; (b) particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.”

Explanation:

• Right or Custom: A “right” refers to a legally enforceable claim, such as ownership of property, easement rights, or any other legal entitlement. A “custom” refers to a long-established practice or behavior in a community that has acquired the force of law, such as a customary way of dividing land or conducting business.
• Relevancy of Transactions:
  • Creation or Claim: Evidence of how the right or custom was originally created or claimed is relevant. For example, a deed or a contract that establishes the right.
  • Modification or Recognition: Evidence that shows how the right or custom was modified or recognized over time. For instance, a court order or legal document recognizing or altering the right.
  • Assertion or Denial: Instances where the right or custom was asserted (enforced or exercised) or denied (challenged or refused) are relevant. This could include previous legal disputes or actions taken that either supported or contested the right.
• Particular Instances:
  • Claimed or Exercised: Specific examples where the right or custom was actually claimed or exercised in the past are relevant. These examples can help establish a pattern of behavior that supports the existence of the right or custom.
  • Disputed or Departed From: Instances where the exercise of the right or custom was disputed or where people deviated from the custom are also relevant. These examples can be used to show inconsistency or to challenge the validity of the right or custom.

Example:

Suppose there is a dispute over whether a certain community has a customary right to graze cattle on a particular piece of land.

• Fact in Issue: Whether the community has a customary right to graze cattle on the land.
• Relevant Facts under Section 13:
  1. Creation or Claim: Evidence that the community has been grazing cattle on the land for over 100 years without interruption could be relevant. For example, old village records or testimonies showing that the land was set aside for grazing when the village was established.
  2. Recognition or Modification: Suppose there is a government order from 50 years ago that officially recognized the grazing right, but with certain restrictions on the number of cattle. This document would be relevant as it shows the right was recognized and also modified.
  3. Assertion or Denial: If there was a legal dispute 30 years ago where the right to graze was contested in court, and the court upheld the community’s right, this case would be relevant. Conversely, if the landowner had previously tried to block the community from grazing their cattle and was successful in doing so, this would also be relevant.
  4. Particular Instances: Testimonies from older community members recalling specific instances where they or their ancestors exercised the right to graze cattle on the land would be relevant. On the other hand, if there were instances where the community was prevented from grazing cattle and did not contest it, this could be used to argue that the right may no longer exist.

Significance:

Section 13 is significant because it provides a means to establish or refute the existence of rights or customs through historical and factual evidence. By considering transactions and particular instances related to the right or custom in question, the court can better understand how the right or custom has been treated over time. This helps in delivering a just decision that reflects the legal and social realities surrounding the disputed right or custom.