Rights and customs that endure for generations rarely rest on a single document. They exist in the pattern of the transactions that created or asserted them, and in the particular instances in which the community lived them out. Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) opens a specific relevance route for that kind of proof — where the question is the existence of a right or custom, transactions creating or affecting it, and instances of its exercise or denial, are relevant.
11. 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, recognised, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognised 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, 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 11 reproduces Section 13 of the Indian Evidence Act, 1872 (IEA) without any change in wording. The BPRD BSA-to-IEA correspondence table records "No change." The section's role is to open the evidentiary door for the kind of historical and pattern-based material that rights-and-customs disputes require.
Two independent limbs
The two limbs are complementary. Clause (a) captures the jural events — deeds, grants, mortgages, releases, decrees, mutations, notifications, orders — that record steps in the creation, transmission, or contestation of the right. Clause (b) captures the events on the ground — actual acts of exercise, acts of dispute, acts of departure. Together, they let counsel build a picture of both the paper trail and the factual life of the right.
The wide reach of the language
Clause (a) is deliberately capacious. It admits transactions bearing on the right or custom in six enumerated ways: creation, claim, modification, recognition, assertion, denial — plus a catch-all for transactions inconsistent with the right's existence. This last phrase does real work. It admits documents and events that do not directly touch the right by name but whose existence is inconsistent with it — for instance, a grant by the same grantor of an overlapping right to a third party, which would be inconsistent with the exclusivity of the right claimed.
Clause (b) has a parallel breadth. It admits particular instances where the right was claimed, recognised, or exercised — the positive events — and instances where its exercise was disputed, asserted (that is, asserted against), or departed from — the negative events. A right that was exercised routinely for decades, and never disputed, will build a strong case; a right that was frequently disputed or departed from will not.
The fishery illustration, unpacked
Rights, customs, and the section's application
Section 11 does not distinguish between different types of "right or custom." It applies equally to private rights (fishery, right of way, easements, tenancy, and other transferable interests) and to communal rights (village customs, public rights of way, community easements). Where the right or custom is a general one held by a considerable class of persons, Section 42 of the BSA also makes the opinions of persons likely to know of its existence relevant. The two sections work in tandem: Section 11 for the transactional and instance-based proof, Section 42 for the opinion-based community proof.
Its relation to Sections 6-9
| Section | Function |
|---|---|
| 4 (same transaction) | Broad general rule of relevance for facts forming part of the same transaction as a fact in issue |
| 6 (motive/preparation/conduct) | Motive, preparation, and previous or subsequent conduct |
| 9 (otherwise irrelevant) | Otherwise irrelevant facts made relevant if inconsistent with, or highly probable/improbable of, a fact in issue |
| 11 (right or custom) | Specialised rule for transactions bearing on, and instances of the exercise of, rights and customs |
Section 11 is one of the specialised relevance provisions that operate alongside the general rules of Sections 4 to 9. Its specialisation matters because the general rules would not easily accommodate the long time-frames and pattern-based inferences that rights-and-customs cases require. Without Section 11, counsel arguing a fishery, easement, or community-right case would have to fit each piece of the historical picture into one of the general Section 6-9 rules; Section 11 spares them that argument and makes the whole historical picture directly admissible.
Modern applications
Section 11 remains a live tool in a range of modern disputes. Ancestral-property litigation regularly turns on the section, as owners establish patterns of transactions, mutations, and physical possession across generations. Easement disputes over rights of way, water rights, and light-and-air rights depend on it. Panchayat- and community-rights cases — grazing rights, festival-route rights, temple-management rights — rely on both the transactional (clause a) and instances-based (clause b) proof the section admits. In cases involving reclaimed or contested land where possession has shifted through generations of encroachment and litigation, Section 11 supplies the mechanism to admit the long, uneven historical record.
Key Takeaways
- Two limbs of relevance: transactions bearing on the right or custom (clause a) and particular instances of exercise or dispute (clause b).
- Wide reach of clause (a): creation, claim, modification, recognition, assertion, denial, and anything inconsistent with the right's existence.
- Wide reach of clause (b): particular instances of claim, recognition, exercise, dispute, assertion against, and departure.
- Complements Section 42: where the right is general and community-scale, opinion evidence under Section 42 works alongside transactional and instance-based proof under Section 11.
- Unchanged from Section 13 IEA: the recodification preserved the provision verbatim.
Conclusion
Section 11 provides the specialised evidentiary architecture that rights-and-customs cases require. It recognises that such cases turn on both the paper trail — deeds, mortgages, grants, decrees — and the lived history of the right, and it admits both directly on the existence-of-the-right question. Reproduced verbatim from Section 13 of the 1872 Act, it continues to open Indian courts to the long, patient historical proof that establishing a right or custom typically demands.