Section 11 of Bharatiya Sakshya Adhiniyam, 2023: Facts Relevant When Right or Custom Is in Question

Understand Section 11 of the BSA, 2023, including its meaning, illustrations, examples, relevant case laws and importance in proving rights and customs.

Introduction

Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) deals with facts that become relevant when a court has to determine whether a particular right or custom exists. It is an important provision under Chapter II, which deals with the relevancy of facts.

In legal disputes, the existence of a right or custom may not always be established through a single document or direct declaration. Courts may need to examine historical transactions, previous claims, recognition of the right, and instances in which the right was exercised or challenged.

For example, if villagers claim a customary right to use a pathway passing through private land, the court may examine earlier instances of use, objections raised by the landowner, documents relating to the pathway and other relevant circumstances.

Section 11 allows such facts to be considered when the existence of the claimed right or custom is in dispute. The provision is particularly important in property disputes, easementary rights, customary practices and disputes concerning traditional rights.

Section 11 of the BSA substantially corresponds to Section 13 of the Indian Evidence Act, 1872. The provision was carried forward under the new evidence law, which came into force on 1 July 2024.

Bare Act: Section 11 of the Bharatiya Sakshya Adhiniyam, 2023

Section 11 provides:

“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.”

The section also contains an illustration concerning a disputed right to a fishery, demonstrating how historical documents and previous instances of exercising a right may be relevant.

Meaning and Explanation of Section 11 BSA

In simple terms, Section 11 means that when the existence of a right or custom is disputed, the court may consider relevant past transactions and specific instances that help establish whether that right or custom exists.

The provision recognises that some rights and customs are best understood by examining how people have historically claimed, recognised, exercised or challenged them.

For example, A claims that the residents of a village have a customary right to draw water from a well situated on B’s land. B denies that any such right exists.

The court may consider evidence of earlier agreements, documents acknowledging the right, previous instances of villagers drawing water, and objections made by B or previous landowners.

These facts may help the court determine whether the claimed right exists. However, their relevance does not automatically establish the right. The court must evaluate the evidence and apply the applicable substantive law.

Essential Elements of Section 11

1. The existence of a right or custom must be in question

Section 11 applies when a dispute arises concerning whether a particular right or custom exists.

A right may include a legally recognised entitlement to use property, access a pathway, draw water or exercise another lawful claim.

A custom generally refers to a practice that has acquired legal recognition under the applicable law. A practice does not become legally binding merely because people have followed it for some time.

2. Transactions relating to the right or custom are relevant

Under clause (a), transactions through which a right or custom was created, claimed, modified, recognised, asserted or denied may be relevant.

Examples include:

• A deed granting a right to use a pathway.
• An agreement recognising a customary right.
• A document modifying the terms of an existing right.
• A transaction in which a person asserts or denies the existence of a right.
• A transaction inconsistent with the alleged existence of the right.

The relevance of a transaction depends on its connection with the right or custom in dispute and the circumstances of the case.

3. Particular instances of exercising or disputing the right are relevant

Clause (b) covers specific instances in which a right or custom was claimed, recognised, exercised, disputed, asserted or departed from.

For example, if villagers claim a customary right to use a particular pond, evidence that they regularly used it, that the landholder acknowledged their use, or that the landholder objected to it on particular occasions may be relevant.

Such evidence can help the court understand the history and nature of the claimed right.

4. Relevant facts do not automatically prove the claim

Section 11 is a rule of relevancy, not a rule that conclusively establishes a right or custom.

The court must determine the evidentiary value of the material presented. A document or past instance may support the claim, contradict it or have limited significance depending on the circumstances.

Also Read: Section 3 – Evidence may be given of facts in issue and relevant facts – BSA 2023

The party asserting the right or custom must satisfy the applicable legal requirements for establishing it.

Clause (a): Transactions Relating to a Right or Custom

Clause (a) focuses on transactions connected with the creation, modification, recognition, assertion or denial of a right or custom.

The term “transaction” is not limited to a transaction that creates a right. It also covers transactions that claim, recognise or deny the right, as well as transactions inconsistent with its existence.

Example 1: A deed recognising a pathway

A claims that the previous owner of B’s land granted A’s family a right to use a pathway across that property.

A produces a deed recording the grant. The deed may be relevant because it concerns the creation or recognition of the claimed right.

The court will still need to examine the document’s authenticity, legal effect and other relevant evidence.

Example 2: A transaction inconsistent with the claimed right

A claims that B has a permanent right to use a particular portion of A’s land. A produces a relevant transaction that appears inconsistent with the existence of that right.

The transaction may be relevant under clause (a). Its effect will depend on the facts, the nature of the transaction and the applicable law.

Example 3: Recognition of a customary right

A village authority or landholder previously records or acknowledges that villagers may use a particular water source under an established customary arrangement.

That record may be relevant when a later dispute arises over the existence of the claimed right, subject to the applicable evidentiary requirements.

Clause (b): Particular Instances of Claiming, Exercising or Disputing a Right

Clause (b) focuses on particular instances connected with the right or custom. These instances may demonstrate how the alleged right was treated in practice.

The provision covers both conduct supporting the claim and conduct challenging it.

Particular instance	Example	Relevance
Claiming a right	A person demands access to a pathway as a claimed legal entitlement	May show that the right was asserted
Recognition of a right	A landholder acknowledges that villagers may use a well	May support the claimed right
Exercise of a right	Villagers repeatedly use a pond under an alleged customary entitlement	May help establish the history of the claim
Dispute over a right	A landholder blocks access and villagers object	May show that the right was contested
Departure from a claimed custom	Members of a community stop following a previously claimed practice	May be relevant to the existence or continuity of the custom, depending on the circumstances

The court must distinguish between use as a matter of legal entitlement and use permitted merely by tolerance, permission or temporary arrangement. The fact that a person used property does not, by itself, prove that the person possessed a legal right to do so.

Illustration Under Section 11 BSA: Right to a Fishery

The statutory illustration concerns a dispute over whether A has a right to a fishery.

The illustration identifies the following potentially relevant facts:

1. A deed conferring the fishery on A’s ancestors.
2. A mortgage of the fishery by A’s father.
3. A subsequent grant of the fishery by A’s father that is irreconcilable with the mortgage.
4. Particular instances in which A’s father exercised the right.
5. Particular instances in which A’s neighbours stopped the exercise of the right.

These facts are relevant because they may help the court determine the existence and history of the claimed right to the fishery.

The illustration also demonstrates that evidence may support or contradict a claim. A court must consider the competing transactions and instances rather than assume that every historical document or act proves the right conclusively.

Practical Examples of Section 11 BSA

Example 1: Customary Right to Use a Village Pathway

Residents of a village claim that they have a customary right to use a pathway passing through privately owned land. The owner denies the claim.

The residents produce older records acknowledging the pathway and evidence of previous use. The owner produces evidence of earlier objections and disputes concerning access.

The documents and particular instances may be relevant under Section 11. The court must then determine whether the claimed right has been established under the applicable law.

Example 2: Right to Draw Water from a Well

A group of villagers claims that they have a customary right to draw water from a well located on another person’s land.

Evidence that the villagers previously exercised the right, that the landowner acknowledged it, or that the exercise of the right was disputed may be relevant.

However, occasional use with the landowner’s permission does not necessarily establish a customary right. The surrounding circumstances and applicable legal requirements remain important.

Example 3: Dispute Over a Traditional Community Practice

Members of a community claim that a particular practice gives them a legally recognised entitlement to use a common resource.

Evidence of earlier recognition, specific instances of the practice being followed, and occasions on which the entitlement was challenged may be relevant under Section 11.

The court must separately determine whether the practice satisfies the requirements for legal recognition as a custom or right.

Important Case Laws Relating to Section 11 BSA

Section 11 substantially carries forward Section 13 of the Indian Evidence Act, 1872. Decisions interpreting the earlier provision may therefore assist in understanding the corresponding evidentiary principle. The following cases are relevant to the treatment of historical evidence, prior judgments and customary rights, although they should not all be described as direct interpretations of Section 11 BSA.

1. Tirumala Tirupati Devasthanams v. K.M. Krishnaiah

Citation: (1998) 3 SCC 331

Also Read: Bharatiya Sakshya Adhiniyam, (BSA) 2023 Notes: Complete Chapter-Wise Guide

Legal principle: The Supreme Court considered the evidentiary significance of an earlier judgment in a subsequent dispute concerning property rights.

Relevance: The decision is discussed in connection with the evidentiary value of prior judgments and Section 13 of the Indian Evidence Act. It illustrates that an earlier judgment may be relevant to a later dispute in appropriate circumstances, but its effect depends on the issue, the parties and the applicable rules of evidence and res judicata.

A prior judgment should not automatically be treated as conclusive proof of a right in every subsequent proceeding.

2. Sital Das v. Sant Ram Das

Citation: AIR 1954 SC 606

Legal principle: The Supreme Court considered issues relating to succession to a religious office and the evidence relevant to establishing the nature of the office and associated rights.

Relevance: The case is useful for understanding how historical evidence, prior recognition and established practices may assist a court in determining rights connected with religious institutions and customary arrangements. Its relevance should be understood in the context of the particular issues decided rather than as a universal rule that any past practice establishes a legal right.

3. Ramchandra Singh v. Partapsingh

Citation: Judgment dated 23 April 1965

Legal principle: The dispute concerned a claimed customary right or customary easement. The court discussed the distinction between these concepts and the requirements for establishing a customary right.

Relevance: The decision illustrates the importance of evidence showing that a claimed custom has been consistently followed and accepted as governing the relevant community or locality. It also demonstrates why the nature of the claimed right must be clearly identified before applying the relevant evidentiary and substantive rules.

For current legal work, the full judgment should be consulted for its precise citation and factual context.

Difference Between Section 11 and Section 10 of the BSA

Sections 10 and 11 deal with different categories of relevant facts under Chapter II of the BSA.

Basis	Section 10	Section 11
Subject	Facts relevant to determining the amount of damages	Facts relevant when the existence of a right or custom is in question
Main purpose	Helps the court assess damages	Helps the court examine evidence concerning a claimed right or custom
Typical evidence	Financial records, repair bills and evidence of loss	Deeds, historical transactions and particular instances of exercising or disputing a right
Corresponding provision under the old law	Section 12, Indian Evidence Act, 1872	Section 13, Indian Evidence Act, 1872

Difference Between Section 11 and Section 42 of the BSA

Both provisions may be relevant in disputes involving rights and customs, but they address different evidentiary questions.

Section 11 deals with transactions and particular instances concerning a right or custom that is in question.

Section 42 deals with opinions concerning the existence of a general custom or right when the court has to form an opinion on that matter. Such opinions may be relevant when expressed by persons who would be likely to know of the custom or right if it existed.

For example, in a dispute over a village’s general right to use a well, Section 11 may make relevant particular instances of use or recognition, while Section 42 may make relevant the opinions of persons likely to know whether the general right exists.

The provisions operate differently and should not be treated as interchangeable.

Importance of Section 11 for Law Students

Section 11 is important for examinations, civil litigation and understanding the law of evidence because it explains how historical facts may be used to establish or challenge a right or custom.

The key points to remember are:

• Section 11 of the BSA corresponds substantially to Section 13 of the Indian Evidence Act, 1872.
• It applies when the existence of a right or custom is in question.
• Clause (a) covers transactions relating to the creation, modification, recognition, assertion or denial of a right or custom.
• Clause (b) covers particular instances in which a right or custom was claimed, recognised, exercised, disputed, asserted or departed from.
• The statutory illustration concerns a disputed right to a fishery.
• Relevance does not mean that a fact conclusively proves the claimed right.
• The legal requirements for establishing a custom or substantive right must still be satisfied.
• Section 42 BSA separately addresses opinions concerning the existence of a general custom or right.

Frequently Asked Questions (FAQs)

1. What is Section 11 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 11 identifies facts relevant when the existence of a right or custom is in question. It covers transactions relating to the right or custom and particular instances of claiming, recognising, exercising or disputing it.

2. Which section of the Indian Evidence Act corresponds to Section 11 BSA?

Section 11 of the BSA substantially corresponds to Section 13 of the Indian Evidence Act, 1872.

3. What is the main purpose of Section 11 BSA?

Its purpose is to identify historical transactions and particular instances that may assist the court in determining whether a claimed right or custom exists.

4. What is the statutory illustration under Section 11?

The illustration concerns whether A has a right to a fishery. It identifies a deed, a mortgage, a subsequent inconsistent grant and particular instances of exercising or obstructing the right as relevant facts.

5. Does Section 11 apply only to property disputes?

No. Although it is particularly relevant to property and easementary disputes, it may also apply to other disputes involving the existence of a legally relevant right or custom.

6. Does long-standing practice automatically establish a custom?

No. A practice does not become legally binding merely because it has existed for a long time. The party relying on the custom must satisfy the applicable legal requirements, including the requirements concerning its nature, certainty and recognition.

7. Are past judgments relevant under Section 11?

A prior judgment may be relevant in appropriate circumstances, particularly where it concerns a claimed right or custom. Its evidentiary effect depends on the issues involved, the parties and the applicable rules. A judgment is not automatically conclusive in every later dispute.

8. What is the difference between Section 11 and Section 42 BSA?

Section 11 deals with transactions and particular instances concerning a right or custom. Section 42 deals with opinions about the existence of a general custom or right expressed by persons likely to know of its existence.

Conclusion

Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 provides that transactions and particular instances relating to a claimed right or custom are relevant when its existence is disputed. It enables courts to examine historical documents, earlier recognition, actual exercise of a right and instances in which its exercise was challenged.

The provision is particularly useful in disputes concerning customary rights, pathways, water sources, fisheries, easements and traditional practices. However, the relevance of past transactions or conduct does not automatically establish a legal right. The court must evaluate the evidence and apply the substantive law governing the claimed right or custom.