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Section 13 lays down rules of evidence for the proof of customs and rights. The section applies to all kinds of rights, like full ownership, or rights like a right of easement or a right of way. Similarly it applies to all customs, ancient as well as to those of a comparatively recent origin. The latters are usually referred to as usages.
Customs is one of the chief sources of law. Customs is a particular rule which has existed from time immemorial and has obtained the force of law in a particular locality. It must be continued, unaltered, uniform and constant and should be reasonable. Customs often pose a problem as to its proof. To take an example Section 5 of Hindu Marriage Act, 1955 allows parties who fall under the degree of prohibited relationship to marry provided there is a custom prevailing to that effect in their community. Suppose now that a person has married his mother’s sister’s daughter. This being a prohibited degree of relationship, he is prosecuted for the violation of the Act. His defence is that there is a custom to that effect in his community. How will such a custom be proved? Can he show that many members of his family or community has solemnised similar marriage? But the fact that hundred of persons have violated an Act does not and cannot establish a custom. Often, therefore, the existence of custom becomes difficult to prove.
Similarly, in matters of rights, proof of it poses a problem. If, for example, a person is prosecuted for theft by fishing in a pond and he claims that he has a right to fish in that pond. The only evidence he may be able to show is that he has been doing so before. But previous thefts cannot give him a right.
Modes of proving a custom:
To facilitates the proof of rights and customs, section 13 lays down two important rules of relevancy of facts. The first principle admits facts, which show the origin or creation of the custom or right and its subsequent history. The second principle admits evidence of facts showing the practical instances in which the custom or right in question was followed.
A “transaction” is something already done and completed. Whatever may be done by one person, which affects another’s rights, and out of which a cause of action may arise is a transaction. Though, transaction means some business or dealing which was carried out or transacted between two or more persons, however, under section 12, a transaction is the wide term which also includes a contract. In all cases, it is necessary that a ‘transaction must be genuine and bonafide transaction. A benami transaction which is a fictitious one, it not a valid transaction in the eyes of law.
Thus, 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 is relevant to prove the existence of a custom or a right. Example of a ‘transaction’ are: a gift deed, sale deed, an agreement, coronation, holding a office in a trust, temple, cases of res judicata, and so on. In a case before the Privy Council the question was whether the relationship between A and B was that of partners or of employee. In 1936, shortly after they started the business. A had executed and handed over to B’s lawyer a document in which A had stated that the relationship between the parties was that of employer and employee. The document was held to be admissible. (Hurbert P. James v. Gulam Hussain, AIR 1949 PC 1151)
- By Particular Instance:
It means an example, something which has already occurred. Section 13 (B) speaks of the following particular instances:
- In which the right was claimed; or
- In which its existence was asserted.
For this purpose, it is essential that the instance in which the right or custom was claimed, recognised, exercised etc must be instances prior to the present suit in question. For example, the method or way of property transfer, mortgage, gift etc could be proved by giving instances of previous documents on the subject. The judgment in support of a plea res judicata, lease, oral partition, entries in the maps are admissible for the purpose.