Opinion as to existence of right or custom, when relevant:
When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.
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Explanation:
The expression “general custom or right” includes customs or rights common to any considerable class of persons.
Illustration:
The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.
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Comments:
Principle:
When there is a question of existence of any general custom and right and on which the court has to form an opinion, the opinion of persons who are aware of the existence of such general custom or right is relevant.
General custom and right:
This section deals with general custom and general right unlike Section 13 which is confined to all kinds of custom or right whether public or private. The general custom means custom prevailing in a locality followed by considerable number of people, on the other hand, the general rights are those rights enjoyed by all people of a locality.
The section says about general opinion of persons. The weight of his evidence would naturally depend on the position and character of the witness and of the persons on whose statements he has formed his opinion but he cannot confine to instances in which he had personally foreseen the usage or custom exercised as a matter of fact.
ADVERTISEMENTS:
The illustration shows that the right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.
Whereas under section 32(4) of this Act the opinion of dead person or a person who cannot be called is admissible. Section 48 concerns with the opinion of a living person only, who would have known the existence of any general custom or right and the opinion of that person is relevant. The person who holds such opinion has to appear in person before the court as per Section 60 which requires that oral evidence must always be direct. Section 48 does not apply where a special right claimed by a particular person is in question.
The explanation appended to this section has further clarified the nature of custom or right. It includes only general custom and general right common to and observed by a considerable number of persons of a locality or class. Private custom or right is totally excluded from operation of this section.