​KembaraXtra – Bharatiya Sakshya Adhiniyam (BSA) – Facts Relevant When Right or Custom is in Question [Section 11]
1. Meaning of Section 11
Section 11 deals with:

• Facts relevant when the existence of:
  • A right, or
  • A custom
    is in question.

The section makes relevant:

• Transactions relating to such right/custom, and
• Instances showing exercise or denial of such right/custom.

2. Facts Relevant Under Section 11
The following facts are relevant:
(a) Transactions
Transactions by which the right or custom was:

• Created,
• Claimed,
• Modified,
• Recognised,
• Asserted,
• Denied,
  OR
• Inconsistent with its existence.

(b) Particular Instances
Instances where the right/custom was:

• Claimed,
• Recognised,
• Exercised,
• Disputed,
• Asserted,
• Departed from.

3. Illustration
Question:
Whether A has a right to fishery.
Relevant facts:

• Deed granting fishery rights to A’s ancestors,
• Mortgage of fishery,
• Later grant inconsistent with mortgage,
• Exercise of fishery rights by A’s father,
• Objections by neighbours.

👉 All are relevant facts.

4. Scope of Section 11
Section 11 lays down rules for:

• Proof of customs,
• Proof of rights.

The section recognizes:

• Historical transactions,
• Practical exercise of rights/customs,
  as evidence.

5. Purpose of the Section
The section helps courts determine:

• Whether a right/custom exists,
• Its origin,
• Its recognition,
• Its exercise over time.

6. Custom Defined
A custom is:

• A rule existing from ancient times,
• Accepted continuously,
• Having force of law in a locality or group.

7. Salmond’s Definition of Custom
According to Salmond:
Custom embodies principles accepted by society as:

• Truth,
• Justice,
• Public utility.

8. Types of Customs
(a) Legal Custom

• Has force of law itself.

(b) Conventional Custom

• Depends on agreement or acceptance by parties.

9. Characteristics of Custom
A custom:

• Cannot extend to whole country generally,
• Applies to:
  • Particular locality,
  • Family,
  • Community,
  • District.

10. Essentials of a Valid Custom
A valid custom must be:
✔ AncientExisting from time immemorial.
✔ CertainClear and definite.
✔ ContinuousUniformly followed.
✔ InvariableConsistently observed.
✔ ReasonableNot arbitrary or unfair.
✔ EnforceableCapable of legal enforcement.
✔ Established by Clear EvidenceMust be proved properly.

11. Invalid Customs
A custom is invalid if:

• Immoral,
• Against public policy,
• Contrary to statute,
• Opposed to justice, equity and good conscience.

12. Proof of Custom
Custom is:

• A question of fact,
• Not logic or assumption.

It must be proved through evidence.

13. Important Principles Regarding Proof of Custom
(a) Custom is Matter of Fact
Custom cannot be presumed merely from theories.
It must be proved by:

• Oral evidence,
• Historical evidence,
• Public records,
• Village customs,
• Conduct.

(b) Court Must Accept Custom As It Exists
Court examines:

• What custom actually is,
  NOT
• What custom ought to be.

14. Modes of Proving Custom
Custom may be proved by:
(i) Persons Having Special KnowledgeUnder Section 42.
(ii) Statements Under Section 26(d)**(iii) Transactions**Under Section 11(a).
(iv) Particular Instances**Under Section 11(b).

15. Meaning of Right
Section 11 applies to all kinds of rights:

• Ownership rights,
• Easement rights,
• Fishery rights,
• Public rights,
• Private rights,
• Corporeal rights,
• Incorporeal rights.

16. Transactions Under Clause (a)
Relevant transactions include:

• Deeds,
• Grants,
• Mortgages,
• Transfers,
• Agreements.

These show:

• Creation,
• Assertion,
• Denial,
• Modification of rights.

17. Example of Transaction
If A’s father mortgages fishery rights:
👉 Mortgagee gets rights.
Later grant inconsistent with mortgage:
👉 Earlier mortgage becomes relevant to deny later claim.

18. Meaning of Transaction
Transaction means:

• Something concluded between persons,
• Reciprocal dealings,
• Completed legal act.

19. Meaning of Instance
An instance means:

• Example,
• Practical exercise,
• Actual occurrence showing existence of right/custom.

20. Transactions vs Mere Statements
Relevant:✔ Transactions asserting or denying right.
Not Relevant:❌ Mere statements asserting rights.
Example:

• Mere recital in deed is not transaction,
• But may become relevant under other provisions.

21. Relevancy of Judgments Not Inter-Partes
Judgment between strangers may still be relevant:

• To show existence of transaction,
• Conduct of parties,
• Subject matter of dispute,
• Assertion of rights.

But:
❌ Findings of fact are not proof in another case.

22. Important Case – Shrinivas Krishna Rao Kango v Narayan Devji Kango
Held:
Previous judgment regarding maintenance and joint family property was admissible:

• To prove extent of joint family property,
• As collateral evidence.

23. Important Distinction
Relevant:✔ Transaction itself,
✔ Conduct,
✔ Assertion of rights.
Irrelevant:❌ Findings of fact from previous judgment as proof of truth.

24. Important Principles
​✔ Section 11 deals with proof of rights and customs
✔ Transactions and practical instances are relevant
✔ Custom must be ancient, certain and reasonable
✔ Mere statements are not enough
✔ Rights may be public or private
✔ Previous judgments may be relevant for collateral purposes only

25. Quick Revision Points

• Section 11 = relevancy of facts relating to rights/customs.
• Transactions creating or denying rights are relevant.
• Instances of exercise of rights are relevant.
• Custom must be ancient, certain and reasonable.
• Mere assertions are not sufficient.
• Judgments not inter-partes are admissible only for collateral purposes.