Section 11 BSA 2023: Facts Relevant When Right or Custom Is in Question
Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 identifies the facts that become relevant when a court must decide whether a particular right or custom exists. It covers both transactions connected with the creation, recognition, assertion, modification or denial of the claimed right or custom and particular instances showing how it was claimed, exercised, disputed or departed from.
Text and meaning of Section 11
Section 11 - 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.
In simple terms, Section 11 permits the court to look at the historical acts, dealings and specific examples that tend to show whether the alleged right or custom actually existed and how the persons concerned treated it in practice.
What is a "right or custom" for Section 11?
Section 11 does not separately define the words "right" and "custom". In this provision, a right may be a legally asserted entitlement, such as a right over land, water, a pathway, fishery or another property or usage. A custom is a practice or usage whose existence and legal recognition are in issue.
The section is an evidentiary rule. It does not by itself create the right or custom. Instead, it identifies the kinds of facts that are relevant when the existence of that right or custom has to be proved or disproved.
Two categories of relevant facts under Section 11
1. Transactions connected with the right or custom
Clause (a) makes relevant a transaction that created, claimed, modified, recognised, asserted or denied the right or custom. A transaction inconsistent with the existence of the alleged right or custom is also relevant.
Depending on the dispute, relevant material may include:
- grants, deeds, conveyances, mortgages or settlements concerning the claimed right;
- agreements or other dealings recognising or restricting the right;
- transactions in which a person expressly asserted or denied the right; and
- transactions that are inconsistent with the existence or extent of the claimed right or custom.
2. Particular instances of claim, recognition, exercise or dispute
Clause (b) focuses on specific occasions showing how the right or custom operated in practice. Instances where it was claimed, recognised or exercised may support its existence. Instances where its exercise was disputed, asserted against another person or departed from may also be relevant.
Illustration under Section 11
The statutory illustration concerns a dispute about A's right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage by A's father, a later grant inconsistent with that mortgage, particular occasions when A's father exercised the fishing right, and occasions when neighbours stopped that exercise are all relevant facts.
Practical application of Section 11
| Question before the court | Examples of facts that may be relevant |
|---|---|
| Was a right created or recognised? | A grant, deed, agreement, settlement or other transaction acknowledging the right. |
| Was the right later changed or denied? | A later transaction modifying, restricting, rejecting or acting inconsistently with the earlier claim. |
| Was the right actually exercised? | Specific occasions showing use or enjoyment of the claimed right. |
| Was the exercise challenged? | Specific disputes, objections, obstruction or departures from the asserted usage. |
| Does a custom exist in practice? | Transactions and particular instances showing consistent recognition, exercise, challenge or non-observance of the asserted custom. |
Relationship with other BSA provisions
Section 11 deals with facts relevant to proving the existence of a right or custom. Other provisions of the BSA may also become relevant depending on the evidence offered. For example, Section 42 concerns opinion evidence relating to the existence of a general custom or right. Questions of documentary proof, electronic records, presumptions and burden of proof are governed by their respective provisions in the BSA.
The official section list and text can be checked on India Code.
Key points to remember
- Section 11 applies when the existence of a right or custom is in question.
- Transactions creating, claiming, modifying, recognising, asserting or denying the right or custom are relevant.
- A transaction inconsistent with the existence of the alleged right or custom is also relevant.
- Specific instances of claim, recognition, exercise, dispute or departure are relevant.
- The provision concerns relevancy of evidence; it does not itself create the substantive right or custom.
Related BSA sections
This page explains the statutory provision for general legal information. For a dispute involving a specific right, custom, title or evidentiary issue, the complete BSA and other applicable substantive laws should be examined.