Section 13 of Indian Evidence Act: Facts Relevant When a Right or Custom Is in Question
When a legal right or custom is disputed, past transactions and particular instances of its recognition, exercise or denial may help prove whether it exists. The corresponding current provision is Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Statutory provision: Section 13 of the Indian Evidence Act, 1872
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.
This is the substantive rule reproduced from the original article. The corresponding provision under the BSA is Section 11, titled Facts relevant when right or custom is in question.
Meaning and scope of the rule
Right in this context refers to an asserted legal entitlement, such as a right to use property, enjoy an easement or exercise a fishery. Custom refers to an established practice asserted to have legal recognition. The provision concerns the relevance of evidence; it does not automatically validate every asserted practice or right.
Clause (a): Transactions concerning the right or custom
Documents and dealings through which the claimed right was created, transferred, modified, recognised, asserted, denied or contradicted may be relevant. Depending on the dispute, these may include grants, deeds, mortgages, agreements, official records and other legally provable transactions.
Clause (b): Particular instances of exercise or dispute
Specific occasions when a claimed right was exercised, acknowledged, resisted or abandoned may also be relevant. A party should identify the instances with sufficient particulars and connect them to the right or custom in issue. The court then assesses their reliability and evidentiary weight.
Original statutory illustration: Right to a fishery
Question: 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.
Explanation: The deed and later dealings show transactions concerning the asserted right. Instances of fishing and neighbours preventing its exercise show whether the right was exercised or contested. Each item is relevant to the inquiry, but relevance alone does not establish ownership or conclusively prove the custom.
Practical applications
- Access and pathway disputes: Earlier grants and documented instances of using or obstructing a pathway may bear on a claimed right of way.
- Community or local customs: Reliable evidence of consistent recognition and specific past instances may be relevant to whether a custom exists, subject to the requirements of substantive law.
- Water or fishing rights: Deeds, licences, historical grants and proved exercises or denials of the claimed right may be relevant, depending on the governing law.
How a court evaluates the evidence
The party relying on a transaction or instance must prove it through admissible evidence. Documentary authenticity, witness credibility, the applicable burden of proof and any special statute governing the right remain important. Section 11 of the BSA is a rule of relevancy; it is not a substitute for proving the substantive legal conditions for a valid right or custom.
Repeal, commencement and pending proceedings
Section 170 of the BSA repeals the Indian Evidence Act, 1872, with savings addressing specified applications, trials, inquiries, investigations, proceedings and appeals pending immediately before 1 July 2024. Whether the former Act or BSA governs a particular proceeding should be determined by that provision and the procedural history of the case.
Official law and related reading
Consult the Bharatiya Sakshya Adhiniyam, 2023 (official PDF) and the India Code legislation record. For the earlier statutory framework, see the Indian Evidence Act overview.
This article is for general legal information and does not replace advice on a particular dispute.