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KembaraXtra – Indian Evidence Law – Bharatiya Sakshya Adhiniyam – Declarations Giving Opinion as to Public Right or Custom or Matters of General Interest (Section 26(d))
1. Basic Principle of Section 26(d)Under Section 26(d) of the Bharatiya Sakshya Adhiniyam, the law provides that:
Statements expressing opinions about public rights, customs, or matters of general interest are relevant, when made by a person who is unavailable as a witness, provided such statements were made before any dispute arose (ante litem motam).
2. Nature of Such Declarations
3. Essential Conditions (Note Form)For admissibility under Section 26(d):
4. Meaning of Key Terms(i) Public Right
(ii) General Right
(iii) Custom
5. Scope of the Provision
6. Important Limitation❌ Not applicable to:
7. Evidentiary Value
8. Key Legal Principle👉 Opinions about public rights or customs made before any dispute by knowledgeable but unavailable persons are admissible as relevant evidence.
9. Purpose of Section 26(d)
10. Key Takeaways
One-Line Summary👉 Opinions of unavailable persons regarding public rights or customs, made before dispute, are relevant evidence but do not apply to private rights.
1. Basic Principle of Section 26(d)Under Section 26(d) of the Bharatiya Sakshya Adhiniyam, the law provides that:
Statements expressing opinions about public rights, customs, or matters of general interest are relevant, when made by a person who is unavailable as a witness, provided such statements were made before any dispute arose (ante litem motam).
2. Nature of Such Declarations
- These are:
- Opinion-based statements
- Made by:
- Persons who:
- Are dead, or
- Cannot be called as witnesses
- Persons who:
- Public or community-related matters
3. Essential Conditions (Note Form)For admissibility under Section 26(d):
- ✔ Unavailability of Maker
- Person must be:
- Dead or otherwise unavailable
- Person must be:
- ✔ Nature of Statement
- Must be:
- An expression of opinion
- Must be:
- ✔ Subject Matter
- Must relate to:
- Public right, OR
- Custom, OR
- Matter of general/public interest
- Must relate to:
- ✔ Knowledge Requirement
- Person must be:
- Likely to have knowledge of the subject
- Person must be:
- ✔ Ante Litem Motam
- Statement must be made:
- Before dispute arose
- Statement must be made:
4. Meaning of Key Terms(i) Public Right
- Rights enjoyed by:
- All members of the public
- Right to use public roads
(ii) General Right
- Rights affecting:
- A considerable section of society
- (Linked to Section 42)
(iii) Custom
- A practice:
- Accepted and followed over time
- Recognized by:
- Community or group
5. Scope of the Provision
- Applies to:
- Community-wide or public matters
- Does NOT apply to:
- Private rights or titles
6. Important Limitation❌ Not applicable to:
- Private property disputes
- Family customs
- Individual rights
- Boundary disputes of private land
- Private right of way
- Family customs
7. Evidentiary Value
- ✔ Statements are:
- Relevant evidence
- They reflect:
- Long-standing public understanding
8. Key Legal Principle👉 Opinions about public rights or customs made before any dispute by knowledgeable but unavailable persons are admissible as relevant evidence.
9. Purpose of Section 26(d)
- Facilitates proof of:
- Public rights and customs
- Recognizes:
- Difficulty in producing direct evidence of:
- Ancient or customary practices
- Difficulty in producing direct evidence of:
10. Key Takeaways
- Section 26(d) deals with:
- Opinion on public rights and customs
- Conditions:
- Unavailable witness
- Knowledge of subject
- Ante litem motam
- Excludes:
- Private rights
One-Line Summary👉 Opinions of unavailable persons regarding public rights or customs, made before dispute, are relevant evidence but do not apply to private rights.
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