Whether Section 13 of IEA applicable to Private Rights ?
To answer the referred question we would have to scan Section 13 of the Indian Evidence Act, 1872 (IEA) that talks about relevancy of facts as to existence of right or custom—[1]
Section 13 [r/w Sections 32(4) and 48] of the Indian Evidence Act, 1872 (IEA) enumerates those facts which are relevant while determining the existence of right or custom is in question. These facts are—
- 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,
- particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
- Opinion of the persons who knew about their existence.
- Judgments of the court.
Applicability of Section 13–
Section 13 applies to all kinds of rights—both public and private, limited ownership & absolute ownership, corporeal & incorporeal rights etc.
Illustration: The question is whether A has a right to a fishery. Following facts are relevant—
- 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.
[1] . Question: What facts are relevant when the existence of any right or custom is in dispute? In what way can a custom be proved under the Indian Evidence Act?
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