Proving the Existence of a Right or a Custom

How does one prove the existence of a right or a custom in any proceeding before the Court? Is there a specific provision which applies to such a circumstance? In what context does the exercise become relevant? To address these and such questions, one must look to Section 13 of the Evidence Act, 1872, which is reproduced below:

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.

Illustration

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 neighbors, are relevant facts.

Does the provision apply to inter partes proceedings/in personam rights, or does it apply only to rights which have a public or a quasi-public character? What would qualify as a “transaction” within the meaning of Clause (a)? Would a judgement, wherein the right or custom was discussed, qualify as a transaction? Or would   the judgement, or the legal proceeding where the judgement was delivered, qualify as an “instance” within the meaning of Clause (b)?

One of the earliest judgements on the provision was delivered by a Full Bench of the Calcutta High Court in 1880 in Fatten Lall vs Gujju Lall. Compared to other statutes, given that the analysis of judgements relating to the Evidence Act is even more guided by the facts of the cases they were delivered in, it becomes important to understand the backdrop in which the judgement was delivered.

In the judgement under discussion, a person X sued Y with respect to title over an immoveable property P and the issue of X’s succession from another person Z had a bearing on X’s right with respect to the property. In a previous proceeding initiated by Y against Q, it was established that X was indeed a successor of Z. Consequently, X wanted to place reliance on the judgement delivered in the previous proceeding (“earlier judgement”) in his current suit against Y on the ground that the said judgement was a “transaction” within the meaning of Section 13, and was therefore admissible. Y objected to the reliance on the judgement on the ground that it was inadmissible in evidence in X’s suit against Y since X was not party to the previous proceeding.

By 4-1 majority, the Bench held that the previous judgement was inadmissible in evidence. While the entire judgement makes for an extremely enlightening read on Sections 11, 13, 32, 40-43 and 48 of the Evidence Act, the quality of analysis in the minority and majority opinions is a treat for litigators.  

The minority opinion of Justice Mitter discussed the possibility of pegging the earlier judgement under Sections 40-42 of the Evidence Act, which deal with relevancy of judgements, orders or decrees of Court, and concluded that the earlier judgement while not attracting Sections 40-42, would certainly attract the window provided under Section 43. Section 43 provides that "judgments, orders, or decree, other than those mentioned in Sections 40, 41, and 42, are irrelevant, unless the fact that such a judgment, order, or decree existed is relevant under some other provision of this Act. He, therefore, concluded that the earlier judgement was relevant under Sections 11 and 13 of the Act.

According to Justice Mitter, the word transaction was wide enough to take within its ambit an earlier judgement and since there was no restriction on the nature of right or custom referred to in Section 13, it included even in personam rights. He further added that the existence of the earlier judgement was itself a relevant fact within the meaning of Section 11 since its existence would affect the fact in issue in the current suit. The fact that X was not a party to the earlier judgement did not affect its admissibility under Section 13, according to Justice Mitter. Also, he was of the view that the Indian Evidence Act did not necessarily mirror the English law of evidence in every way.

On these, the majority opinions disagreed with Justice Mitter. One of the majority opinions observed that Section 13 did not relate to the issue of ownership of property, but was limited in its application to incorporeal rights, and that a judgement was not a transaction in any sense of the word. As regards the applicability of Section 11, it was held that while the existence of the earlier judgement could be treated as a fact, the judgement in itself was not a fact but an opinion and therefore did not attract Section 11. The substance of the majority opinion is, perhaps, best expressed in the words of the then Chief Justice who was part of the Bench:

“73. I suppose it must be generally acknowledged, that, with some few exceptions, the Indian Evidence Act was intended to, and did in fact, consolidate the English law of evidence.

74. The different chapters of the Act deal seriatim with the relevancy and consequent admissibility of the different kinds of evidence, and upon this principle, Sections 5 to 16 deal with the admissibility of facts, whilst Sections 40 to 45 deal expressly with judgments; and I cannot help thinking, with all deference to the opinions of those learned Judges who have expressed a contrary opinion, that if it had been really the intention of the Legislature to depart entirely from the English rule, and to make a very large class of judgments admissible here, which had never been admissible before the Act, either in England or in this country, they would have expressed their intention more plainly, by means of suitable provisions introduced into that portion of the Act which deals exclusively with judgments.

75. If there is one rule of law which is better known and approved than another, as being founded upon the most manifest justice and good sense, it is this; that (except in the case of judgments in rem and judgments relating to matters of a public nature, which are governed by a different principle) no man ought to be bound by the decision of a Court of Justice, unless he or those under whom he claims were parties to the proceedings in which it was given.”

On the intent and purpose of Sections 40-43, following were the findings of the Chief Justice:

“81. Section 40, in my opinion, admits as evidence all judgments inter partes which would operate as res judicata in a second suit. Section 41 admits judgments in rem as evidence in all subsequent suits where the existence of the right is in issue, whether between the same parties or not. And Section 42 admits all judgments not as res judicata, but as evidence, although they may not be between the same parties, provided they relate to matters of public nature relevant to the enquiry.

83. It is obvious that, if the construction which the respondent's counsel would put upon Section 13 is right, there would be no necessity for Sections 40, 41, and 42 at all. Those sections would then only tend to mislead, because the judgments which are made admissible under them would all be equally admissible as "transactions" under Section 13, and not only those, but an infinite variety of other judgments which had never before been admissible either in this country or in England. And it is difficult to conceive why, under Section 42, judgments though not between the same parties should be declared admissible so long as they related to matters of a public nature, if those very same judgments had already been made admissible under Section 13, whether they related to matters of a public nature or not.

84. But then it is said, that Section 43 expressly contemplates cases in which judgments would be admissible under other sections of the Act, which are not admissible under Sections 40, 41 or 42. This is quite true. But then I take it, that the cases so contemplated by Section 43 are those where a judgment is used not as a res judicata or as evidence more or less binding upon an opponent by reason of the adjudication which it contains, (because judgments of that kind had already been dealt with under one or other of the immediately preceding sections). But the cases referred to in Section 43 are such, I conceive, as the section itself illustrates, viz., when the fact of any particular judgment having been given is a matter to be proved in the case. As for instance, if A sued B for slander, in saying that he had been convicted of forgery, and B justified upon the ground that the alleged slander was true, the conviction of A for forgery would be a fact to be proved by B like any other fact in the case, and quite irrespective of whether A had been actually guilty of the forgery or not. This, I conceive, would be one of the many cases alluded to in Section 43.”

In other words, under Section 43, a previous judgement in an inter partes dispute between two or more parties cannot become admissible in evidence against one of the parties in a subsequent proceeding involving that party and a stranger to the earlier proceeding. In the next few posts, I will continue with my discussion on Sections 11, 13 and 40-43 by referring to a few more judgements.