(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.
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, particular 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.
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 relevants:
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.
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.
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.
A custom means those principles which have received recognition and acceptance as principles of justice and public utility. It is a transcendent law. Salmond defines “custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principle of justice and public utility. A custom is generally taken to mean the particular rule of a family, a locality or a district which has existed from the time immemorial or from long usages and has obtained the force of law. The requirement of long usage in essential and the practice must be shown to have continued in such circumstances and for such length of time that it has come to be exercised as of right.
Under section 13 a custom can be used as evidence provided it has the force of law. For example in Hindu marriage seven steps before sacred fire is essential to give validity. It is both custom and law. Thus it must be valid.
Requisite conditions of valid custom
(à) It must be ancient i.e. its existence is beyond human memory—“Time whereof the memory of man runneth not to the contrary.”
(b) It must be continuous and conform. It means that if possession for some time is disturbed, the claim to enjoy custom is not abandoned.
(c) It must be peaceable.
(d) It must be certain, define and constant.
(e) It must be compulsory and not optional.
(f) It must not be against morality or public opinion.
(g) It must be reasonable.
(h) It must not be expressly forbidden by law or statute.
Classification of Customs:
(a) General custom:
General custom are those customs that prevail throughout its territory of the state. The burden of proving that a general custom is not recognized in a particular locality lies on the person who makes allegation.
(b) Private custom:
It affects particular family or group of families. The burden lies on him who claims advantages from such custom. The family custom must be alleged and proved with distinctness and certainty.
(c) Public custom:
Public custom is such type of custom which govern the common interests of public at large of the particular area.
Right to way, right to bath etc.
(d) Local custom:
The local customs means those customs which apply only to a definite locality. The local customs may be (i) Geographical local and (ii) Personal local customs. Local custom is ‘binding in all persons in the local area and differs entirely from family custom.’
(e) Custom without sanction:
Customs without sanction are those which are non-obligatory.
(f) Custom having sanction i.e. legal custom:
These customs are binding having the force of law. They are recognized by the courts and have become part of the law.
(g) Conventional custom:
Conventional customs are those customs which govern the parties to an agreement. Such customs are binding “not due to any legal authority independently possessed by them, but because it has been expressly or impliedly incorporated in a contract between the parties to it.”
Proof of Custom:
Under section 13 the proof of existence and non-existence of custom may be done either: (1) by transaction or (2) by instances.
In this section the term ‘transaction’ is understood as something already done or completed. “Whatever may be done by one person which affects another’s rights and out of which a cause of action may arise, is transaction.” “A transaction in ordinary sense of the word is some business or dealing which is carried on or transacted between two or more persons. It must be genuine and bona fide. Under this section ‘transaction’ also includes a contract but it is not confined to a dealing with property between person inter vivos. A transaction must always be genuine and bona fide transaction. A benami transaction which is fictitious in nature is not valid transaction.
Most important test for determining a benami transaction is the source from which the consideration came. The burden of proof is no doubt upon the person who claims contrary to the tenor of a deed but it can be proved only by circumstantial evidences. The transaction is one in which the vendor asserted his competency to transfer property i.e. he had some saleable interest.
Thus, according to Section 13(a) a transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied or which is inconsistent with its existence is relevant to prove the existence of a custom or a right. Under this section a judgment which has become final can be said to be a transition evidencing a right or instance. The sale deed, deed of gift, cases of res judicata etc. are instances of transaction.
Section 13(2) provides for particular instance which simply means an example, something which has already been occurred. In other words, the particular instance refers to instances in which,—(i) the right or custom was claimed, recognized, exercised or (ii) its existence was disputed, asserted or departed. It must be the instances prior to the present suit in question. It may be or may not be inter-parties.
A plea of res judicata being an instance in the present suit is admissible. Documents produced in support of inter-parties suits viz., sale deeds, mortgage deeds, are admissible under this section.
On the other hand, judgments not inter-parties are also admissible under this section, although there is conflicting judgments, when right was claimed in subsequent suit. In a dispute as to succession to the office of a Mohunt, previous judgment is made admissible. In this case the present Mohunt had been successful to assert his right as a spiritual collateral of the former Mohunt. A judgment not inter-parties is admissible in proof of a transaction or a particular instance in which the relationship was asserted, recognized or denied.