Statements Relating to Public Right or Custom under Section 26(d) of the Bharatiya Sakshya Adhiniyam, 2023

Public rights are old. A right of way over a village path, a right to bathe at a ghat, a right of the community to take water from a tank or to hold a procession along a street — none of these was created by a document anybody kept, and every person who could speak to its origin died generations ago. Clause (d) of Section 26 meets the difficulty by admitting what such persons said about the right while they were alive, provided they spoke before any dispute about it had arisen.

1. The Provision

Clause (d) corresponds to Section 32(4) of the Indian Evidence Act and is carried forward unchanged. The Illustrations to the section give the familiar example: where the question is whether a particular road is a public way, a statement by a deceased headman of the village that it was a public way is a relevant fact.

2. What Makes This Clause Unusual

Two features distinguish clause (d) from the rest of Section 26 and indeed from most of the Adhiniyam.

The first is that it admits an opinion. Everywhere else the section deals with statements of fact, and opinion evidence is confined to the separate group of provisions in Sections 39 to 45. Clause (d) expressly admits what the deceased thought about the existence of the right, and it does so because the existence of a public right is not the sort of thing anybody witnesses. It is a state of affairs known to a community, and what the members of that community believed about it is the best evidence available of what it was.

The second is that clause (d) is a double exception. It sets aside the rule against hearsay, because the maker cannot be cross-examined, and it sets aside the rule confining opinion evidence to experts and to the specified categories. The justification for taking both steps is necessity of an unusually strong kind: without the clause, an ancient public right could very often not be proved at all.

3. The Requirements

3.1 Unavailability

As with every clause of Section 26, nothing operates until the maker is shown to be dead, untraceable after a diligent search, incapable of giving evidence, or not producible without delay or expense the court regards as unreasonable. In practice the makers of such statements are almost always long dead, and the condition is rarely contested, but it must still be established.

3.2 The subject must be a public right, a public custom, or a matter of public or general interest

The clause does not reach private rights. A statement by a deceased neighbour that a particular strip of land belonged to the plaintiff is not within clause (d), however well placed the neighbour was to know, because the right asserted is a private one. What the clause covers is a right or custom enjoyed by the public at large, or by a defined section of it, and matters in which the community as a whole has an interest.

Typical subjects are the public character of a road, path or lane; a right of the villagers to graze cattle on common land; a right to take water from a tank or a channel; a customary right of way to a burial ground; the right of a community to worship at a shrine or to carry a procession along a particular route; the boundaries of a village; and the customary incidents of a tenure prevailing in a locality.

3.3 The maker must have been likely to be aware of the right

The clause requires that the maker be a person of the existence of the right 'of which, if it existed, he would have been likely to have been aware'. This is not a demand for special expertise. It is a demand for position: the maker must have been so placed that, had the right existed, he would in the ordinary course have known of it.

A village headman, an old inhabitant of the locality, a former manager of the temple or of the estate, a revenue official long stationed in the area, an elder of the community concerned — each is likely to have been aware. A person who never lived in the locality, or who had no connection with the community claiming the right, is not, and his opinion adds nothing whatever the strength of his conviction.

3.4 The statement must have been made before any controversy arose

This is the condition on which most clause (d) evidence is challenged, and it is the heart of the exception. The value of the statement lies in its disinterestedness. A person speaking about the character of a road at a time when nobody was disputing it has no reason to say anything but what he believes. Once a controversy has begun, everyone connected with the locality acquires a side, and what they say ceases to be a reflection of common understanding and becomes a contribution to the quarrel.

The controversy need not be a suit. It is enough that a dispute about the right had arisen — an obstruction placed across the path, a notice served, a complaint made to the authorities, or an open assertion by one party denied by another. What matters is the point at which the matter ceased to be settled in the minds of the community.

4. The Forms Such Statements Take

Clause (d) says 'written or verbal', and both are common. The material that reaches courts under this clause tends to fall into recognisable groups.

• Oral statements, deposed to by a witness who heard the deceased say that the road was public, that the villagers had always grazed cattle on the land, or that the procession had always taken that route.
• Depositions and statements in earlier proceedings unconnected with the present dispute, where the deceased spoke about the right in the course of some other matter. Where the earlier proceeding satisfies the conditions of Section 27, that provision may apply as well.
• Entries and recitals in old documents — settlement records, revenue papers, village maps, temple records, endowment deeds and inspection notes — where a person now dead recorded his understanding of the right.
• Correspondence and reports by officials or managers, written in the ordinary discharge of duty, describing the right as it was then understood. Such material will often fall within clause (b) as well.

Where the statement is contained in a document, the document must be proved in the ordinary way under Sections 56 to 60, and where it is electronic, under Sections 57, 61 and 63. Ancient documents produced from proper custody attract the presumption under Section 92, which is of considerable practical importance in this field, since the writers and attestors of such papers have invariably died.

5. How Clause (d) Fits with the Other Provisions

Litigation over a public right rarely turns on a single provision. The material available is usually thin and old, and a party will assemble it from several sources at once.

Section 42 and clause (d) are the closest neighbours and are frequently confused. They differ in one respect only, but it is a large one. Section 42 admits the opinion of a person who is available and who comes to court to give it; clause (d) admits the opinion of a person who cannot be produced, and requires in addition that the opinion have been expressed before the controversy began. A living witness may give his opinion today about a right that has been in dispute for years; a dead man's opinion is receivable only if he formed and expressed it before the dispute existed.

6. Weight

Relevance under clause (d) admits the statement; it says nothing about what the statement is worth. Several matters bear on that, and they follow from the conditions themselves.

The position of the maker is the first. An opinion expressed by a person who had lived in the locality for fifty years, or who had managed the institution concerned, carries far more than one expressed by a casual resident. The clause requires only that he be likely to have been aware; how likely is a matter of weight.

The interval before the controversy is the second. A statement made decades before any dispute arose is stronger than one made shortly before the quarrel broke out, because the further back it goes the less possible it becomes that the maker was anticipating a controversy and positioning himself.

The manner of proof is the third. An opinion recorded in a contemporaneous document is a good deal stronger than one reported orally by a witness recalling a conversation from decades ago. Where the statement is oral and the witness is connected with one of the parties, the court will scrutinise it closely.

Finally, consistency with the other material matters more here than almost anywhere else. Clause (d) evidence rarely stands alone. Its function is to confirm the pattern established by the instances of user proved under Section 11 and by the old maps and records, and where it fits that pattern it is very difficult to displace. Where it stands against the pattern, it will not carry the case by itself.

7. The Position Stated Shortly

1. Unavailability is the gateway, as with every clause of Section 26.
2. The clause admits an opinion, not a statement of fact, which makes it an exception to two rules at once.
3. The subject must be a public right or custom, or a matter of public or general interest. Private rights are outside it, and must be established under Section 11.
4. The maker must have been likely to be aware of the right — a question of his position in the community, not of expertise.
5. The statement must precede any controversy. This is the condition on which such evidence is usually attacked, and it protects the disinterestedness on which the clause depends.
6. Section 42 is the parallel provision for living witnesses, and requires no such temporal condition.
7. The evidence works with Section 11, Section 30 and Section 92 rather than in isolation, and its weight depends largely on whether it confirms the pattern those provisions establish.

8. Related Topics and Provisions