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SECTION 13, INDIAN EVIDENCE ACT, 1872
According to Section 13 of the Indian Evidence Act, the following kinds of facts are deemed to be relevant if the question is as to the existence of any custom or right:-
- Any such transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence.
- Particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
Section 13 lays down as to what facts are relevant and may be proved when the question at issue is that whether any right or custom exists. It deals with the proof of existence of any custom or right, so before discussing the section itself, we will have to know that what actually a custom or a right is.
CUSTOM
A ‘custom’ is a rule which has existed from the time immemorial and has obtained the force of law in a particular locality. Generally all the sons succeed to and inherit the properties of their father, but there was a custom among some zamindars that only the eldest son should inherit the property of his father and the rest shall get only maintenance. Similarly as a matter of general law every man has full freedom to sell his land to anyone he likes, but in certain districts it was incumbent upon a person who wished to sell his land, to offer the land for sale to his blood relations and co-sharers and after their refusal only he could sell the land to some stranger. In absence of such offer, sale could be pre-empted by the relations of the co-sharers on the payment of the real consideration. Suppose A sold his land to B for rs 5lac without making any offer to E, his brother. E might bring a suit of pre-emption and on payment of rs 5lac to B he would get the property.
The chief characteristics of a custom is that it cannot extend to the whole realm nor can it embrace the whole of the public. To be concise “ a custom is a rule which in a particular family or district, has from long usage, obtained the force of law.”
Validity of a custom
Rajendra Ram v. Devendradas AIR 1973 SC 268– A custom to be valid in India must have the following attributes:
- It must be immemorial
- It must be reasonable
- It must have continued without interruption since its immemorial origin
- It must be certain in respect of its nature generally, as well as in respect of the locality where it is alleged to obtain and the persons to whom it is alleged to effect.
Kinds of custom
- Private custom- Private custom is that custom which governs a particular family, such as, the custom of an estate, the custom of pre-usage nature and impartibility prevailing in some estates or take an example from England the custom of a particular manner.
- General custom- The expression ‘general custom’ is defined to include customs common to any considerable class of people (Section 48 of the act). These are-
- Local custom: termed as deshachar, g., in the Broach and other Gujrat districts Waqf property which is alienable according to Mohammedan Law, may be bu custom of the district alienated. In Eastern Bengal, the right of pre emption which was based on Mohammaden Law was allowed and enforced by custom between Hindus also.
- Caste or class custom: This kind of custom governs person of a particular caste or class. For example the Khojas and Cutchi Memons (Mohammadens) in the Bombay Presidency are governed in matters of inheritance and succession by the Hindu Law.
- Trade, custom or usages
- Public Custom- Public custom has not been defined in the Evidence Act. In speaking of matters of public and general interest the terms ‘public’ and ‘general’ are sometimes used as synonymous meaning merely what concerns a multitude of persons [Section 32 (4)]. Under English Law a distinction has been made between them; the term ‘public’ being strictly applied to that which concerns every member of the State and the term ‘general’ being confined to a lesser, though still a considerable portion of the community. But the Indian Evidence Act makes no such distinction.
Proof of custom-
Section 13 makes the instances and transactions relevant to prove or disprove a custom; it has nothing to do with the mode of proof. A custom is a mixed question of law and fact. First certain facts are to be proved and from those facts the inference of existence of a valid custom is drawn. Where a custom is pleaded by one party and denied by other, the onus is on the party pleading it to show its existence.
Ramakrishna v. Gangadhar AIR 1958 Ori 26: A custom may be proved or disproved in any of the following ways-
- By opinions of persons likely to know of its existence of having special means of knowledge thereof.
- By statements of persons who are dead or whose attendance cannot be procured by unreasonable delay or expenses, provided they were made before any controversy as to such custom arose and were made by persons who would have been or likely to have been aware of the existence of such custom if it existed.
- By any transaction by which the custom in question was claimed, modified, recognized, asserted, or denied or which was inconsistent with its existence.
- By particular instances by which the custom was claimed, recognized or exercised or knowledge of its existence was disputed, asserted or departed from.
RIGHT
There has been controversy among the different High Courts regarding the meaning of the word ‘right’ as used in Section 13 of the act.
Gujja Lall v. Fatteh Lall, 6 Cal. 171– According to Calcutta HC, the word ‘right’ under Section 13 only means public or incorporeal rights such as right to ferries, right to roads, right to fisheries and so on and not private or corporeal rights such as ownership of material objects, ownership of a house or a chattel and so on.
Ranchhoddas v. Bapu, 10 Bom. 439- The HCs of Allahabad, Bombay, and Madras under this 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”.
Hence, it is almost settled that Section 13 applies to all kinds of rights whether rights of full ownership or falling short of ownership, e.g., right of easement. A right may be public or private, corporeal or incorporeal.
Author: Rudra Gupta,
B.A. LL.B. 5th Semester, Aligarh Muslim University.