Section 13 of the Indian Evidence Act, 1872 – “Right or Custom”

Right or custom – 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:

Image Source: ccrweb.ca

(a) Any transaction —

(i) By which the right or custom was created, claimed, modi­fied, recognised, asserted or denied;

(ii) Which was inconsistent with its existence;

(b) Particular instances which —

(i) The right or custom was clai­med, recognised or exercised, or

(ii) 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.

This section applies to all kinds of rights, whether rights of full ownership or falling short of ownership, e.g., rights of easements. A right may be public or general or private. Further, a right may be incorporeal, e.g., a right of way, or corporeal, e.g., right of ownership. (Rangayyan v. Innasimuthu, A.I.R. 1956 Madras, 226.)

From the Illustrationtration (above), it appears that not only public rights, but private rights are also covered by S. 13.

Transaction:

A transaction is a business or dealing which is carried on or transacted between two or more persons; it is something which has been concluded between persons by a cross or reciprocal action; and in the larger sense, it means that which is done. (Rangayyan v. Innasimuthu, A.I.R. 1956 Madras, 226)

A transaction is not confined to a dealing with property between two persons inter vivos, but can be taken also to include a testamentary dealing with the property. (Periasamiv. Varadappa, A.I.R. 1950 Mad. 486)

Custom:

The requisites of a valid custom are that it should be ancient, certain and reasonable, and that it should not be opposed to decency or morality. No custom which is opposed to public policy can be recognised. It must also not be contrary to justice, equity and good sense. It may be general or special.

Judgments Not Inter Parties when Relevant:

The words ‘transaction’ and ‘particular instances’ in S. 13 have given rise to a number of conflicting decisions as to whether judgments not inter parties (i.e., not between the same parties) are admissible as ‘transactions’ or ‘particular instances’.

The various rulings of the High Court’s lay down that previous judgments not being between the same parties are relevant under this section as being transactions or particular instances in which a right or custom (not of a public nature) was asserted, denied, etc. in a litigation, but not as embodying the judicial opinion pronounced therein, i.e., not as res judicata.