Existence of Right or Custom under Section 11 of the Bharatiya Sakshya Adhiniyam, 2023: Transactions, Particular Instances and Essentials of a Valid Custom

Rights and customs are not events. They are legal states of affairs that come into being over long periods and are established by accumulation rather than by a single act. Section 11 recognises this by making relevant two categories of material: the transactions by which a right or custom was created, modified or denied, and the particular instances in which it was exercised or disputed. It is the provision under which most title, easement, tenure and customary-right litigation in India is conducted.

1. The Provision

Section 11, BSA — 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, recognised, asserted or denied, or which was inconsistent with its existence;

(b) particular instances in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.

Section 11 corresponds to Section 13 of the Indian Evidence Act and is carried forward unchanged. The provision is confined to questions of right and custom; where the question is of a different character, the ordinary heads of relevancy apply.

1.1 The Illustration

The question is whether A has a right to a fishery. The following are relevant facts: 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; and instances in which the exercise of the right was stopped by A's neighbours.

The Illustration is instructive because it admits material on both sides. The deed and the exercise of the right support A's claim; the grant irreconcilable with the mortgage and the interruptions by neighbours tell against it. Section 11 is neutral as between the parties: it admits transactions and instances inconsistent with the right as readily as those supporting it.

2. Meaning of 'Right'

The word is used in its widest sense. It is not confined to rights in property, though those are the commonest subject of litigation under the section.

Category	Examples
Corporeal rights	Ownership of land or a building; possession; tenancy; a right to occupy
Incorporeal rights	Easements — a right of way, of light and air, of support, of drainage; a right to take water; a profit à prendre such as a right of fishery or of grazing
Public rights	A right of way over a public path; a right to bathe at a ghat; a right of access to a public place; a right of navigation
Private rights	Rights arising under a grant, a contract, a will, a partition or a family arrangement
Rights of a religious or communal character	A right of worship; a right to manage a religious institution; a right to conduct a procession; hereditary office in a temple
Rights under personal law and tenure	Rights of maintenance; rights of a coparcener; tenure rights; rights of a hereditary occupancy tenant

A distinction is drawn between a general or public right and a particular or private right, and it matters chiefly for the neighbouring provisions rather than for Section 11 itself. Section 42 makes relevant the opinions of persons likely to know of the existence of a general custom or right; it does not extend to a purely private right. Section 11, by contrast, applies to rights of every description.

3. Meaning of 'Custom'

A custom is a rule which, in a particular family, class, locality or trade, has by long usage obtained the force of law. It operates as an exception to the general law and, where established, displaces it in the matters it governs.

3.1 Essentials of a valid custom

Essential	What must be shown
Antiquity	The usage must be ancient. It must have existed for so long that its origin is beyond memory, or at least for a period sufficient to show that it has become established
Continuity	It must have been observed without interruption. A usage abandoned and later revived does not qualify
Certainty	Its terms must be clear and definite, so that the court can state what the rule is
Reasonableness	It must not be unreasonable or opposed to good sense; a usage that is absurd or oppressive will not be enforced
Obligatory force	It must be observed as of right and as binding, not merely as a matter of convenience, courtesy or occasional practice
Peaceable enjoyment	It must have been enjoyed peaceably and openly, without concealment and without force
Consistency	It must not be inconsistent with an express statutory provision, and must not be opposed to public policy or morality
Uniformity	It must be observed uniformly by the family, class, locality or trade concerned

⚠ A custom must be pleaded and strictly proved

A party setting up a custom must plead it specifically and prove it by clear and unambiguous evidence. A custom in derogation of the general law is construed strictly, and the burden lies on the party asserting it. The material by which it is proved is precisely what Section 11 admits: transactions recognising or denying it, and particular instances of its exercise. Isolated instances are not enough; the instances must be numerous enough and consistent enough to establish a usage rather than a series of individual acts.

4. Clause (a) — Transactions

A transaction is an act or a series of acts by which a legal relationship is brought about, altered or extinguished. Under clause (a) six kinds of transaction are relevant, and a seventh category is added by the closing words.

Operation	Meaning	Typical instrument or act
Created	The transaction brought the right or custom into existence	A grant; a sanad; a deed of conveyance; a lease; an award; a decree
Claimed	The right was asserted by one party against another	A notice; a plaint; an application to a revenue authority
Modified	The content or extent of the right was altered	A supplementary deed; a partition; a family arrangement; a compromise
Recognised	The right was acknowledged by a party or an authority	An entry in a revenue record; a receipt for rent; an admission in a document; a settlement record
Asserted	The right was insisted upon in the face of a challenge	A protest; a suit; an objection filed in proceedings
Denied	The right was repudiated	A written denial; refusal to permit exercise; a decree rejecting the claim
Inconsistent with its existence	A transaction which cannot stand with the right claimed	A subsequent grant irreconcilable with an earlier mortgage, as in the Illustration; a sale by a person who is asserted to have had no title

The closing words of clause (a) are the most useful in practice. They admit material that undermines the claim, and they operate independently of the pleadings, so that a defendant may rely on an inconsistent transaction even where he has not himself set up any positive title.

5. Clause (b) — Particular Instances

Clause (b) admits instances rather than instruments. Where clause (a) is concerned with legal acts, clause (b) is concerned with what actually happened on the ground.

Instance	Illustration in practice
Claimed	A demand made to a neighbour to permit passage; a demand for a share of produce
Recognised	The neighbour allowing passage; payment of a customary due; participation by the community in the ceremony claimed
Exercised	Actual use of the path over many years; taking of fish from the tank; grazing of cattle on the land
Exercise disputed	Obstruction of the path; seizure of the net; impounding of the cattle
Asserted	Removal of the obstruction; a police complaint; a suit for injunction
Departed from	Instances in which the custom was not observed by the very persons said to be bound by it

⚠ Instances departed from are as relevant as instances observed

The words 'or departed from' at the end of clause (b) are frequently overlooked, and they are decisive in custom litigation. A custom must be shown to have been observed uniformly and as of right. Proof that the very persons said to be bound by it have on occasions disregarded it without consequence goes directly to whether the usage had obligatory force. A party resisting a custom does not need to prove a contrary custom; it is enough to establish departures.

6. Transaction and Instance Distinguished

	Transaction — clause (a)	Particular instance — clause (b)
Nature	A legal act by which the right or custom was dealt with	A factual occurrence in which it was exercised or resisted
Ordinarily proved by	Documents — deeds, records, decrees, awards, revenue entries	Oral testimony of persons who saw or took part in the occurrence, supported by documents where available
Number required	A single transaction may suffice, if it created or extinguished the right	Ordinarily a series. Isolated instances do not establish a custom, though they may support a private right
Effect	May establish the right conclusively where it is a valid grant or decree	Establishes the right by accumulation, showing enjoyment as of right over time
Weakness	A document may be a forgery, may be inadmissible for want of registration, or may not bind the party	Instances may be explained as acts of permission, tolerance or convenience rather than of right

The distinction between exercise as of right and exercise by permission is the pivot of most litigation under clause (b). Use enjoyed with the leave of the owner, however long continued, establishes no right, because it is referable to the licence and not to any claim adverse to the owner. Evidence under Section 11 must therefore show not merely that the acts occurred but the character in which they were done.

7. Section 11 and the Neighbouring Provisions

Provision	What it admits	Relationship with Section 11
Section 26(d), BSA	Statements by persons who cannot be called as witnesses, where the statement gives the opinion of the maker as to the existence of a public right or custom, made before any controversy as to such right or custom arose	The principal route for hearsay evidence of reputation as to a public right; Section 11 admits acts, this admits statements
Section 30, BSA	Statements of facts in issue or relevant facts in published maps or charts generally offered for public sale, or in maps or plans made under the authority of Government	Frequently used to prove the existence and location of a public path, watercourse or boundary
Section 42, BSA	Opinions as to the existence of a general custom or right, of persons likely to know of it if it existed	Confined to general or public customs and rights; does not extend to a private right
Section 43, BSA	Opinions as to usages and tenets of a body of persons, and the constitution and government of a religious or charitable foundation	Applies where the custom is that of a defined body rather than a locality
Sections 34 to 38, BSA	Judgments of courts when relevant, including judgments relating to matters of a public nature	A prior decree recognising or rejecting the right is a transaction within clause (a) and may also be relevant under these provisions
Section 92, BSA	Presumption as to documents thirty years old produced from proper custody	Of great practical importance, since the transactions relied upon under clause (a) are often ancient deeds whose execution can no longer be proved by witnesses

⚠ Section 11 confers relevance, not admissibility

An old deed relied upon under clause (a) must still be proved. Where the original is produced from proper custody and is thirty years old, the court may presume under Section 92 that the signature and every part of it in the handwriting of a particular person is in that person's handwriting, and that it was duly executed and attested. Where the presumption is not available, execution must be proved under Sections 65 and 68. A document that is compulsorily registrable and unregistered is inadmissible to prove the transaction, though it may be received for a collateral purpose.

8. Limits of Section 11

The section applies only where a right or custom is in question. It does not admit transactions and instances generally. Where the issue is one of fact rather than of right, the ordinary heads in Sections 4 to 10 apply.
It does not dispense with proof. Each transaction and each instance must itself be established by admissible evidence.
Instances must be shown to have been enjoyed as of right. Acts of permission, tolerance or neighbourly convenience establish nothing, however long continued.
A custom in derogation of the general law is strictly construed. The burden lies on the party asserting it, and the material must be clear and unambiguous.
Transactions between strangers are of limited value. A transaction to which neither party was privy may show what the parties to it believed, but it does not bind the parties to the present suit; its weight depends on how far it forms part of a consistent course of dealing in the locality.

9. Related Topics and Provisions

Topic or provision	Connection
Facts Relevant for Determining Damages — Section 10	The preceding head of relevancy
State of Mind, State of Body and Bodily Feeling — Section 12	The following head
Facts in Issue and Relevant Facts — Section 3	The gateway provision to which Section 11 supplies content
Section 26(d), BSA	Statements as to the existence of a public right or custom, made before any controversy arose
Sections 30 and 31, BSA	Statements in maps, charts and plans, and in Acts and notifications
Sections 42 and 43, BSA	Opinion as to the existence of a general custom or right, and as to usages and tenets
Sections 34 to 38, BSA	Judgments of courts when relevant
Section 92, BSA	Presumption as to documents thirty years old produced from proper custody