DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

TITLE OF THE PROJECT

Relevancy of Right

SUBJECT

LAW OF EVIDENCE

NAME OF THE FACULTY

Dr. C.M. RAO

A. J. L. Nikhil Kalyan Reddy

2017126 & 5th Semester
 ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected Law of
Evidence Professor, Dr. C.M. Rao, for giving me this golden opportunity to take up this
project regarding “(Relevancy of Right)”. I have tried my best to collect information about
the project in various possible ways to depict clear picture about the given project topic.

I would also like to thank my University ‘’Damodaram Sanjivayya National Law University”
for providing me with all the required materials for the completion of my project and I also
came to know many new things.

CERTIFICATE

This is to certify that A.J.L.Nikhil Kalyan Reddy, studying in semester V bearing roll number
2017126 has completed this project all by myself with the guidance of the faculty of the Law
of Evidence Professor, Dr. C.M. Rao and with the help of DSNLU library.

Signature of the student Signature of the faculty

 RESEARCH METHODOLOGY

This project is purely Doctrinal and based on primary and secondary sources such as
websites, books, journals and internet sources. The referencing style followed in this project
is BLUE BOOK 19th Edition's format of citation. This Research process deals with
collecting and analyzing information to answer questions. The Research is purely descriptive
in its boundaries of the topic
 CONTENTS

Abstract………………………………………………………………….

1. Right……………………………………………………………

2. Section 13……………………………………………….

a. Principle

b. Purpose of section

c. Applicability

d. Transaction

e. By which

f. Claimed

g. Asserted

h. Instance

3. Section 32………………………………

a. General and public Rights

b. Declaration ante-litem mortem

4. Section 48

5. Conclusion
 Law of Evidence Abstract

Topic: Relevancy of Right

Section (13) -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,
recognized, asserted, or denied, or which was inconsistent with its existence;

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

Scope:
Section 13 deals with the facts as to proof of existence of any right or custom. When any
question as to the existence of any right or custom is in issue the following facts under clause
(a) and clause (b) are relevant:

Clause (a): Any transaction by which the right or custom in question was,— (i) created (ii)
claimed (iii) modified (iv) recognized (v) asserted or (vi) denied or (vii) which was
inconsistent with its existence.

Clause (b): Particular instance in which the right or custom was: (i) claimed or (ii)
recognized, or (iii) exercised or in which its existence was (iv) disputed (v) asserted, or
departed from, is relevant.

Principle:

The cases in this section are intended to meet are those in which right or custom is in question
regarded as capable of surviving repeated instances of its assertion and denial, where
transactions may be supposed to have gone on modifying, asserting, denying, creating,
recognising it, or being inconsistent with its existence , leaving it, after all that has been given
in evidence, fair matter for judicial consideration, as to whether the Court should or should
not decree it.

Illustrations-

The question is whether A has a right to a fishery.

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, instances in
which A’s father exercised the right, or in which the exercise of the right was stopped by A’s
neighbours, are relevant facts.

Cases:

Gujjulal v. Fateh Lal (1880) ILR (6) Cal. 171

Banchordas v. Babu,. ILR10 Bom. 439

Ramswamy V. Appu, ILR 12 Mad. 96

Collector of Gorkphur V. Akshwanvi; ILR 12 All. 1.

Rangai V Innasimuthu, AIR 1956 Mad. 226.

Right:
The rights contemplated by this section are taken to mean “the standard of permitted action
within a certain sphere” which can be established by proof of “cumulative instances and
transactions.” It is the capacity of a person to control the actions of others. Prof. Salmond
defines right as “an interest recognized and protected by the rule of right.” According to the
section it does mean continuing rights. The Section 13 applies all kinds of right so far
recognized by the rule of law. For example corporeal and incorporeal rights, public and
private rights, antecedent and remedial right, perfect and imperfect rights etc.

Right—Court’s views:
The word “right” used in Section 13 has been the subject matter of controversy among High
Courts. The Calcutta High Court held that the word ‘right’ means public and incorporeal
rights but does not include corporeal right. On the other hard the Allahabad, Bombay and
Madras High Courts have given wider interpretation. According to these High Courts all
rights recognized by this section include right of ownership as well as incorporated rights. It
is now settled law that the right includes every right known to the law, private or public,
corporeal or incorporeal.

Right-In Gujju Lal v. Fatteh Lal1, Garth, C.J., said as follows:

"It may be difficult, perhaps, to define precisely the scope of the word right' but I think it was
here intended to include those the only of an incorporeal nature, which in legal phraseology
are generally called 'rights’, more especially, as it is used in conjunction with the word
‘custom’. It is certainly used in that sense in subsequent part of the Act (see Sec. 48 and sub-
section (4) of Sec. 32], which deal with matters of public or general right of custom' and in
Sec. 13 the word is probably intended to in include both public or private rights of that
nature. The ‘right of fishery’ mentioned in the illustration is a right which may be either
public or private on according to circumstances.

"That the expression is used in this limited sense is shown also as it seems to me by the words
with which it is associated. The right mentioned in the section is one which can be 'created or
exercised', which expressions are perfectly appropriate when speaking of an incorporeal right,
but would be wholly inapplicable to the word 'right when used in its more extended sense. It
would be quite correct to speak of the creation or the exercise of a right of way or of a

1
I.L.R. 6 Cal. 171 (F.B.)
franchise, but no lawyer would think of saying that a right to chattel or to damages had been
'created or exercised."

In Tipu Khan v. Rajani Molun Das2, Banerjee, J., observed:

"It has been said that the right spoken of in this section is an incorporeal right. I do not think
that there is any sufficient reason for putting this limitation on the meaning of the term as
used in the section."

This also is the view of Bombay High Court where in Ranchoddas Krishna Das v. Bapu
Narhar3 it was held that "right and customs in Sec 13 must be understood as comprehending
all rights and customs recognized by law and therefore including a right of ownership

There is also a ruling of the Allahabad High Court where it is said that the term "right"
comprehends every right known to law.

With regard to the term "rights" in Sec. 13 it is worthy of remark that it only occurs once in
the Code before that section and that is in the definition of “fact in issue", where it must
necessarily have been used in its largest sense. In the absence, therefore, of any qualification,
such as is to be found in Sec. 48, its and customs" in Sec. 13 must be understood as
comprehending all rights and customs recognized by law, and, therefore, including a right of
ownership.

In this connexion reference may also be made useful to another decision of Bombay High
Court in Mohamad Amin v. Hasan in which Beaman4. L. observed:

"We must take it as settled for the present by the weight of judicial authority, that the term
'right, in the section, comprehends every right known to the law."

However, Wort, J., in Ramkishun v. Niranjan Pandes stated: "I hold rather strong views about
this section. The view taken in leading case of Guju Lal v. Fateh Lal, in my the judgment, is
the true view to be taken of Sec. 13. That case takes the view that when the word 'right used
in Sec. 13 of the Evidence Act it means incorporeal' right and cannot possibly refer to any
question of owner ship of property in contradistinction to incorporeal rights."

2
I.L.R.25 Cal.522at p. 527
3
I.L.R. 10 Bom. 439at p.442
4
I.L.R. 31 Bom. 143at PP.
The interpretation placed upon the words "right and transaction" in Gujju Lal V. Fatteh Lal,
seems not to have been accepted by the Privy Council and Ram Narain ChakerbattiRam V.
Narain Singh5 and its correctness is questioned in the Full Bench judgment in Collector of
Gorakhpur v. Palakdhari Singh, in so far the exclusion of such judgments from being
received as evidence under any section is concerned. If Sec. 13 be not largely construed, the
result would be, that a class of judicial proceedings, which were always considered as
furnishing cogent evidence on the question of possession, would be excluded.

The illustration to the section shows that the right mentioned in the section is not a public
right only, the right there mentioned being a private one, viz., A's right to a fishery.

There are no words in Sec. 13 which could not be applied to a right of ownership but it is
difficult to see what could, within the meaning of Sec. 13, Cl. (a), be a "transaction by which
the right" of a man to have it declared that he is the son of another man out of a particular
woman or that he is some other man could be said to be "created" or "modified". What be the
meaning of the word "right" in Cl. (a) of Sec. 13, the meaning of that word in CL(b) must,
according to the principles of construction, be the same. It is settled beyond controversy that
the expression "right" in Sec. 13 includes a private land.

Facts relevant when any right is in question:

When any right is in question, every act of an enjoyment or possession is a relevant fact,
since the right claimed is constituted by an indefinite number of acts of user exercise animo
domini.

“Section 13: Facts relevant when right or custom is in question:

5
I.L.R22 Cal.533
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,
recognized, asserted or denied, or which was inconsistent with its existence;

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

Analysing the section, it will be seen that

(A) Clause (a) refers to “transactions” by which the right or custom in question was created,
claimed, modified, recognized, asserted or denied or which was inconsistent with its
existence, and

(B) Clause (b) refers to ‘particular instances’ in which right or custom was claimed,
recognized or exercised, or in which its exercise was disputed, asserted or departed from.

Illustrations-

The question is whether A has a right to a fishery.

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, instances in
which A’s father exercised the right, or in which the exercise of the right was stopped by A’s
neighbours, are relevant facts.

The first part [clause (a) deals with transaction. Where the question is as to whether a certain
right or custom exists, 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 may be proved

The second part [clause (b)] deals with instances. Where the question is as to whether a right
or custom exists, the particular instances, in which the right or custom was claimed,
recognised, exercised or in which existence was disputed, asserted, or departed, may be
proved.
Principle

The general rule as to relevancy is that a party may prove all facts that are relevant to the
facts in issue and no other. The rule is well-illustrated by cases of possession, and especially
by the possession of real rights, whether incorporeal, as an ancient watercourse, or corporeal,
as a field or road strip.
In such cases, every act of enjoyment or possession is a relevant fact, since the right claimed
is constituted by an indefinite number of acts of user exercised animo domini. Ownership
may be proved by proof of possession; and that can be shown by particular acts of enjoyment,
these acts being fractions of that sum total or enjoyment which characterises dominium. This
also is the best evidence, with the exception of that afforded by judicial recognition, which is
only admissible in proof of matters of public nature, i.e., public or general rights and customs.
Opinion also is admissible in proof of such rights and customs. But the most cogent evidence
of rights and customs is not that which is afforded by the expression of opinion as to their
existence, but by the examination of actual instances and transactions in which the alleged
custom or right has been acted upon, or not acted upon, or of acts done or not done, involving
a recognition or denial or their existence. ‘In the absence of direct title-deeds, acts of
ownership are the best proof of title.’ Acts of ownership, when submitted to, are analogous to
admissions or declarations by the party submitting to them that the party exercising them has
a right to do so, and that he is, therefore, the owner of the property upon which they are
exercised. But such acts are also admissible of themselves proprio vigore, for they tend to
prove that he who does them is the owner of the soil.
Purpose of section.-

Section 13, Evidence Act, consists of two parts. The first part deals with transactions and the
second part with instances.

This section does not contemplate evidence of any incident or right in the sense of evidence
of any grant creating these incidents or rights. It contemplates only certain transactions and
instances as evidence of facts relevant to the fact in issue in any particular case and it makes
these transactions and instances relevant for the purpose of establishing any right or incident
thus making such transactions or instances evidence of the fact in issue.

Clause (b) of Sec. 13 does not bring in the Scope of CL (b) of the section particular instances
in which the right was explained and illustrated asserted. The clause speaks of the particular
instances (1) in which the right was claimed... or (2) in which its exercise was asserted. The
word "claimed" implies a demand which involves the presence of the party against whom
such demand is made.

Consequently statements in documents such as a mortgage decree or a mortgage-deed or a

kobala executed by a mortgagor to which the landlord was not a party are not admissible in
evidence under Sec. 13 (b), Evidence Act, against the landlord in a suit for recovery of
arrears of rent instituted by him inasmuch as they are not instances in which the niskar right
was exercised or its exercise was asserted by the tenant. Moreover, the section does not bring
in the statement itself but only the instances in which the exercise of the right was asserted.

The purpose of Sec. 13 is clear. It is to enable a right which may be constituted by a number
of facts by the exercise of the right itself animo domini on numerous occasions to be proved
by transactions or particular instances in which the right or custom if question was asserted or
denied but by evidence otherwise admissible. A judgment is admissible because it is the
evidence or integration of a litigation or a judicial proceeding, a transaction within the
meaning of Sec. 13, Evidence Act, for the purpose of ascertaining the parties to the dispute
and the contentions of the parties, the subject of the dispute and the final decision of the
Court, but not for the purpose of proving the reasons for the Court's decision and for using its
findings of fact as evidence of those facts in another case.
The section does not abrogate all other sections of the Evidence Act; it does not, for instance,
make any gossip or rumour of hearsay evidence. It has to be read with the other sections of
the Evidence Act It merely lays down, consistently with other sections of the Evidence Act,
what is relevant evidence of a right of custom when then question is as to the existence of any
right or custom.
TRANSACTION
A transaction, in the ordinary sense of the word, is some business or dealing which is carried
on or transacted between two or more persons. Transaction is something which has been
concluded between persons by a cross or reciprocal action and in the largest sense it means
that which is done.
According to Stephen in his digest “A transaction is a group of acts so connected together as
to be referred to by a single legal name as a crime, contract, a wrong or any other subject of
inquiry which may be in issue. Every fact which is part of the same transaction as the fact in
issue, is deemed to be relevant to the facts in issue, although it may not be actually in issue
and although if it were not part of the same transaction it might be excluded as hearsay.
Whether any particular fact is or is not part of the same transaction, as the fact in issue, is a
question of law upon which no principle has been stated by authority and on which single
judges have given different decisions.”

Sale deeds are evidence quantum valeant as transactions and instance in which rights are
asserted and recognised and so admissible under section 13.

In Venkatarava Gopala Raya v. F. Narasayya6, it is held that a written statement could not
be described as a transaction within the meaning of Sec. 13(a) Evidence Act. The term
"transaction" in the realm of law, bears, as pointed out in the Concise Oxford Dictionary of
Current English, in the sense of "any act affecting legal rights.....” which is not confined to a
dealing with property between two persons inter vivos but can, without any strain on the
Language, be taken to include a testamentary dealing with the property. The nature of a
tenancy mentioned in a will may be regarded as a statement made in the course of a
transaction by which certain property was bequeathed to a taken as legatee under the will and
consequently the statement made in the wall may taken as evidence under Sec. 13, Evidence
Act.

This doubtful whether the execution of a benami document by which nothing really passes
can be called a transaction. It is obviously a fictitious transaction and as such would not come
within Sec. 13. A suit in the eye of law is no transaction at all.

6
A.I.R. 1950 Mad 746
A judgment other than a judgment referred to in Sec. 40 to 42 may be admissible to prove
that right was asserted or denied under Sec. 13, Evidence Act or to explain or introduce facts
in issue or to explain the history of the case

In view of the numerous decisions of the various High Courts in this country as well as the
decisions of the Privy Council in Dinomoni Chowdhrani v Brojo Mohini 7, it is too late to
say that a litigation or a suit is not a transaction and that the word "right" as used in Sec. 13
must be interpreted in the somewhat narrow sense in which it was construed in Gujju Lal v.
Fatteh Lal.

There seems no valid justification for attributing any such restricted import to the words
"right" and "transaction" as used in Sec. 13 of the Evidence Act Lastly, under the Evidence
Act, admissibility is the rule and exclusion the exception; and as such the words used in the
enactment has to be construed with a leaning to include evidence, and not to exclude it.

Relevancy of "Transactions" in Questions Relating to the Existence of Any Right or

Custom.—
The ‘right’ and ‘custom’ referred to in this section are not confined to public rights and
customs but include all kinds of rights and customs. The word ‘right’ in s. 13 includes not
only incorporeal rights, but it must be understood as comprehending all rights and customs
recognised by law including a right of ownership [see Ranchhoddas v. Bapu : 10 B 439;
Collector of Gorakhpur v. Palakdhari : 12 A 1 FB; Tepu Khan v. Rajani , 2 CWN 501, 504].
The illustration shows that the right referred to is not confined to public right only [Surjoo
Narain v. Bissambhar : 23 WR 311]. The words ‘right’ and ‘transaction’ are used in a wide
sense. "A transaction in the ordinary sense of the word, is some business or dealing which is
carried on or transacted between two or more persons" [per GARTH CJ, in Gujju Lal v.
Fatteh Lal , 6 C 171, 186]. "A transaction as the derivation denotes, is something which has
been concluded between persons by a cross or reciprocal action as it were"

It is inherent in s. 13 that only a judgment which has become final can be said to be a
transaction evidencing a right or instance [Hiralal v. Hari Narain, A 1964 A 302]. No
judgment can be relevant under s. 13 unless it can be called a ‘transaction’ or an ‘instance’.
In some cases it has been held that although the judgment is not a transaction or instance,
the suit in which the judgment was passed is. In Tepu Khan v. Rajani , 2 CWN 501, 504,

7
I.L.R. 29Cal.187
BANERJI J, observed : "If the existence of the judgment is not a transaction within the
meaning of cl (a) of the thirteenth section, it proves that a litigation terminating in the
judgment took place, and the litigation comes well within the meaning of the clause as being
a transaction by which the right now claimed by the defendants was asserted. So again,
litigation which is evidenced by the existence of the judgment was a particular instance
within the meaning of cl (b) in which the right of possession now claimed by the defendants

was claimed.
Under cl (a) the relevancy of transactions is qualified by those transactions only by (and not
in) which the right or custom was (i) created, (ii) claimed, (iii) modified, (iv) recognised, (v)
asserted, (vi) denied or (vii) which is inconsistent with its existence. Under cl. (b) the
relevancy of instances are restricted to instances in which the right or custom was (i)
claimed, (ii) recognized, (iii) exercised, or in which the exercise was (iv) disputed, (v)
asserted, or (vi) departed from. It should be noted that statements in documents by dead
persons which come within cl (a) are admissible under s. 32(7).

It is by no means always easy to say of a transaction whether it is one by which a right in

question was created, claimed, etc. In order to make cl (a) applicable, the right or custom
must be created or claimed or asserted &c, by the transaction; it is not enough if it is a
transaction in which there is an assertion or claim &c of the right or custom.

By Which

In this transaction the expression by which is used and not any transaction in which.’ in
Scripatti V. Fota8 and Bansi singh V. Mirali Amirali9, held that the stress should be laid on
the use of the word by

By using the expression ‘by which’ along with the expression ‘transaction’ it was held that in
order that the transaction should be admissible on the ground that the right was created,
claimed, modified, asserted, or denied, it must be shown to be not apart from the transaction
by which it was created, claimed etc.

8
A.I.R. 1927 Cal. 1 at p. 5
9
11 Cal WN 703.
“CLAIMED”
The word “claim” denotes a demand or assertion in relation to a thing or attribute as against,
or from, some person or persons showing the existence of a right to it in the claimant.
In another case it was held that the word “claim” implies that a right is asserted to the
knowledge and in the presence of a person whose right will be derogated from by the
establishment of the claim. The mere assertion of the right in a document to which the person
against whom the right is asserted, is not a party and of which he knows nothing, is not to
claim the right.
In a suit a widow claimed that her husband died in 1939, whereas others contended that he
died in 1933, the court found that the husband of the widow died in 1939. In a subsequent suit
that judgment was filed to prove that the widow’s husband died in 1939. It was held that a
judgment other than a judgment referred to in sections 40 to 42 may be admissible to prove
that a right was asserted or denied under section 13 or to explain or to introduce facts in issue
or to explain the history of the case, that the finding in regard to the date of widow’s
husband’s death could not be held as altogether inadmissible in law, the court could accept it
at least as an instance of the fact that the right was claimed and asserted and finally
recognised in the previous suit, that hence the prior judgment though not admissible under
sections 40-42, was not barred from admissibility under section 13
ASSERTED
In a case10 one plaintiff filed a suit for recovery of possession with an alternative prayer for
fixing a fair and equitable rent. The defendant claimed that the land is a rent free Fakirana
Grant and filed two documents, a Patta of 1905 and a sale deed in favour of his predecessor
in interest. The Madras High Court, after considering the decisions of other High Courts held
that the recital in those two documents that the land was a rent free Fakirana Grant was
admissible in evidence, on the ground that the claim was asserted and recognised in those two
documents.
It was held in Rangayyan’s case that where the existence of a right is in question it is
permissible for the party relying on its existence to prove any transaction by which it was
recognised by means of recitals of boundaries in document not inter partes.
The word “assertion” in clause ‘b” of this section includes both a statement and enforcement
by an act. It is not necessary to place evidence of acts done. A verbal statement not

10
Rangayyan v Innasimuthu Mudali, 1956 Mad 226.
amounting to and not accompanied by any act would also be admissible if it amounts to a
“claim”.
In a suit for declaration that the plaintiff was not married to the defendant, a report of the
Government handwriting expert in a criminal case arising out of a complaint by the plaintiff’s
father for the alleged forgery of a marriage certificate was filed into the court, it was held that
the report could be used as a evidence in the suit, on the ground that a particular fact was
asserted and denied in the criminal case
Instance:

The term "instance" means an example; something which has once occurred. This clause does
not bring in the particular instance in which the right was asserted. The clause speaks of
particular instances (1) in which the right was claimed, or (2) in which its existence was
asserted. The word "claim" implies demand. The section does not bring in the statement itself
but only the instances in which the exercise of the right was asserted. The mere statement in a
deed of sale that the vendor had a particular right cannot be said to be instance in which the
exercise of the right was asserted.

I must be borne in mind that the instances in which the right or custom was claimed,
recognised, exercised, etc., must be instances prior to the suit inquestion, because this clause
is the past tense throughout11.

11
Brajendra Kishore V Mohin Chamdra, AIR 1927 Cal.1.
Section 32:

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot
be found, or who has become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expense which, under the circumstances of the case,
appears to the Court unreasonable, are themselves relevant facts in the following cases:

Section 32 (4)-Or gives opinion as to public right or custom, or matters of general

interest:
When the statement gives the opinion of any such person, as to the existence of any public
right or custom or matter of public or general interest, of the existence of which, if it existed
he would have been likely to be aware, and when such statement was made before any
controversy as to such right, custom or matter had arisen. The conditions to be fulfilled
include:

(i) The existence of public right, custom or matter of general interests,

(ii) The declaration must come from competent person, and

(iii) The statement is not merely hearsay. Public rights are those rights which affect public at
large, such as, right to use public highways, ferries, funeral places, right of bathing in river
etc.; general rights are rights affecting a considerable section of the population or community,
such as parochial or manorial rights.

It is to be noted that: (i) rights claimed must not be private right, and (ii) the declaration must
have been expressed before the controversy as to the existence of that right, custom or
matters of interest i.e. ante litem motam (before the dispute arose).

Example of public right:

A statement, in a gift dead, to the effect the mosque was constructed by certain person as a
matter of charity, was held to be relevant.

Clause (4)—Scope and applicability-Clause (4),

Sec. 32 would manifestly be inapplicable to a document purporting to deal with the rights of
a private individual as against the public, in which the interest of individual formed the
subject-matter of the statement.
The question of the limits of a particular revenue mahal is not a matter of Act. public right or
public or general interest so as to be within Sec. 32(4), Evidence Act.

Declarations made ante litem motam by persons who are now dead in respect of a question
relating to a matter of general or public interest, are admissible.

Grounds of admissibility.-The grounds on which declarations regarding public or general

rights are admissible are: (a) death; (b) necessity ancient facts generally being incapable of
direct proof; and (c) the guarantee of truth furnished by the public nature of the rights.

The admissibility of declarations of deceased persons in cases of public right or custom, or

matters of public or general interest, is allowed, as these rights or customs are generally of
ancient and their existence is not, therefore, demanded.

The principle on which the exception of reputation regarding public right rests in that the
reputation can hardly exist without the concurrence of many parties interested to investigate
the subject, and such concurrence is presumptive evidence on which the exception of
reputation regarding public rights rests in of the existence of an ancient right, of which direct
proof cannot be given in most cases."

The admissibility of the declarations of deceased persons in such cases is sanctioned, because
in local matters, in which the community are interested, all persons living in the
neighbourhood are likely to be conversant, because, common rights and liabilities being
naturally talked of in public, what is dropped in conversation respecting them may be
presumed to be true; because conflicting interests would lead to contradiction from others the
statements were false; and thus a trustworthy reputation may arise from investigating the
subjects.

Public and general rights.-Public rights are those common to all members of the State, e.g.,
rights of highways or of ferry or of fishery. General rights are those affecting any
considerable section of the community, e.g.. disputes as to the boundaries of a village The
right must have been one of whose existence the declarant should be aware. If the declaration
is made otherwise than upon the declarant own knowledge it will be rejected

This clause is inapplicable to a document purporting to deal with the rights of a private
individual as against the public, in which the interests of the individual form the subject
matter of the statement. A map prepared by a person who is dead, in a previous case not inter
parties showing the limits of a particular district, is not admissible as it is not matter of public
right or public or general interest within the meaning of this clause.

Declaration ante-litem mortem:

To make a statement relevant under this clause it is not only necessary that the declarant was
possessed of adequate knowledge but also that the latter was not at the time of making his
statement under a controlling motive or misrepresentation. The declarant must be
disinterested at the time when he made the statement. If it is proved that the speaker had some
interest to misrepresent, his declaration would be rejected. It is, therefore, necessary to the
admissibility of declarations of this description that they should be made before the dispute
had arisen in regard to which they are tendered in evidence. The reason why the statements of
deceased persons are admitted upon the public right made ante-litem mortem (when there
was no existing dispute respecting them) is that these declarations are considered as
disinterested and dispassionate and made without any intention to serve a particular cause or
mislead the posterity.

Lis mota:

The declaration should have been made ante litem motam, i.e., before the beginning of any
controversy, and not simply before the commencement of any suit, involving the same
subject matter. The operation of bias is thus excluded 12. Where the declarations are made
after the commencement of the situation from which the controversy arises, they are
admissible, if they are made before any dispute has actually sprung.

Under Sec. 32, Cl(4) the statement in order to be admissible must have been made "before
any controversy as to such right, custom or matter had arisen." When the Court has to form
an opinion as to the usage and tenets of any body of men or family the opinion of persons
having special means of knowledge there on are relevant facts.

Where the declarations are made after a dispute springs up, they will be inadmissible,
although the declarant might have no knowledge of the dispute, as that is a collateral matter
which might be impossible to be proved. A declaration made subsequently to the
commencement of the dispute will be inadmissible, although it might have been fraudulently
commenced with the view of excluding the declaration. Where the declarations are made

12
A.I.R. 1948 Oudh 307
after the dispute arises, they will be inadmissible, even though it might involve different
parties, or relate to different property or claims. To render declaration inadmissible, as being
post litem motam at the time of their being made, there must be not merely facts which may
lead to a dispute, but a lis mota, or suit, or controversy preparatory to a suit, actually
commenced, or dispute arisen, and that upon the very same pedigree or subject-matter which
forms the question under litigation13.

Declaration as to the right will be relevant, though they may have been made for the express
purpose of preventing future disputes. Declaration as to the right will be relevant, though they
are made after a claim had been asserted, but finally abandoned. Declaration as to the right
are relevant, although they are made after the existence of non-contentious legal proceedings
involving the same rights. Declaration as to the right are relevant, although they are made
after the existence of contentious legal proceedings, involving different rights, or even the
same right, if only collaterally and not directly14.

13
Davies V Lowndes
14
Freeman V philips
Section 48

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.

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.

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.

Scope:-

Section 13 applies to all rights and customs, public, general and private and refers to specific
facts which may be given in evidence. Section 32 clause (4) refers to the reception of second-
hand opinion evidence in case in which the declarant cannot be brought before the court,
whether in consequence of death or due to some other cause, upon the question of the
existence of any public right or custom or matter of public or general interest made ante litam
mortam: and the seventh clause of Section 32 refers to statements contained in certain
documents. The present section also deals with opinion evidence, but it refers to the evidence
of living person examined before the court.

It is clear that only the persons who are likely to know about the custom in question are
competent to give opinion evidence contemplated by this section. It is absolutely necessary
for the person that he should have personal knowledge about the facts to be proved. But it
must prove that his opinion is based on some information.
Competency of Person Whose Opinion is Relevant.-It will appear from the above that this
section lets in reputation evidence as to the existence of any custom or right like section 32(4)
although in the present case it is the opinion of a living person. But as in section 32(4) 3214)
reputation evidence should not be repetition of mere hearsay:; it should be the opinion of a
person of competent knowledge. The expression used in both sections as to requirement of
qualifications is identical, viz. “likely to be aware “[s 32(4) or “likely to know” [ S 48]. It
does not appear absolutely that the person stating his opinion should have personal
knowledge of the existence of the right or custom although such knowledge supported by
instances would be most satisfactory.

The experiential Qualification should be insisted upon where available, because anybody who
has experience of the custom from his connection with the matter by living in the
neighbourhood or being a member of the community in question is more competent than
others. Failing this evidence founded on information derived from reliable persons who were
in a position to know of the existence of the custom or right would also be relevant under the
section see [Sariathullah v. Prannath, 26 C 187; Daniraiji v. Vahuji, A 1971 G 188]. 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 be confined
to instances in which he had personally foreseen the usage or custom exercised as a matter of
fact. [Balwinder Singh v. Sm Gurpal Kaur, A 1985 Delhi 14, 20: Rajdhani LR 658]. But it
must be the expression of independent opinion based on such information and not mere
repetition of hearsay. The test is whether the person giving his opinion was likely to have had
reliable knowledge, which may be personal or otherwise. The witness's qualification must be
examined from the specific point of view. The data on which such knowledge is based are
therefore very important. Opinion founded on mere reputation on hearsay would be of no
worth. See s. 51 under which the grounds on which opinions are based are also relevant.

"Ordinarily speaking, such a witness must, in his examination-in-chief, speak to facts only,
but under this section he will be allowed to give his opinion as to the existence of the general
right or custom. He will not be confined to instances in which he has personally known the
right or custom exercised as a matter of fact. Custom is not a matter whenever similar
conditions arise: and though a bare opinion is worth nothing without ascertaining the data on
which it is founded; yet is always to be remembered that S51 is to be read with section, and
that the grounds for the witness's opinions are sure to be elicited in cross-examination, even if
they should not be elicited in the cross- examination, even if they should not be elicited in the
examination in chief, or demanded by the judge. A boundary between villages; the limits of a
village town: a right to collect tools: a right to trade to the exclusion of others a right to
pasturage of waste lands; liability to repair roads, or plant trees; right to water-courses tanks,
ghats for washing: rights of common and the like, will be found the most ordinary in mofussil
practice").

Opinion as to Existence of any General Custom or Right.-

(For the meaning of the word “right” see Gujju Lal V. Futtueh Lal . A living person may state
his opinion on the existence of a family custom and may state as grounds there of information
derived from deceased persons, but it must be the expression of independent opinion and not
reputation of here say .The opinions of responsible members of the family as to the existence
of a family custom and the grounds of their opinion, though generally in the nature of a
family tradition, are clearly admissible [Raja Ajai v. Vijai Kunari, A 1939 PC 22: 1939 Kar
98]. Answers in Wilson's Manual on questions of customary law are clearly admissible under
s. 48.

The term “general custom or right “probably includes public custom or rights. It would seem
that the terms “public” and “general” used in this act are synonymous.

Explanation: The explanation to this section excludes private rights from the operation of
this section. Opinion or reputation evidence is not admissible to prove such rights , they must
be provided by facts such as ownership. The explanation of this section adopts the sense in
which the term “general” is used by the English writers.
Conclusion:

The word “right” used in Section 13 has been the subject matter of controversy among High
Courts. The Calcutta High Court held that the word ‘right’ means public and incorporeal
rights but does not include corporeal right. On the other hard the Allahabad, Bombay and
Madras High Courts have given wider interpretation. According to these High Courts all
rights recognized by this section include right of ownership as well as incorporated rights. It
is not settled law that the right includes every right known to the law, private or public,
corporeal or incorporeal.

The general rule as to relevancy is that a party may prove all facts that are relevant to the
facts in issue and no other. The rule is well-illustrated by cases of possession, and especially
by the possession of real rights, whether incorporeal, as an ancient watercourse, or corporeal,
as a field or road strip.
Sec. 32 would manifestly be inapplicable to a document purporting to deal with the rights of
a private individual as against the public, in which the interest of individual formed the
subject-matter of the statement.

The principle on which the exception of reputation regarding public right rests in that the
reputation can hardly exist without the concurrence of many parties interested to investigate
the subject, and such concurrence is presumptive evidence on which the exception of
reputation regarding public rights rests in of the existence of an ancient right, of which direct
proof cannot be given in most cases."

Declaration as to the right will be relevant, though they may have been made for the express
purpose of preventing future disputes. Declaration as to the right will be relevant, though they
are made after a claim had been asserted, but finally abandoned. Declaration as to the right is
relevant, although they are made after the existence of non-contentious legal proceedings
involving the same rights.

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