What Is BSA Section 11?

Bhartiya Sakshya Adhiniyam, 2023 - Section 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.

Brief Detail

Section 11 of the Bhartiya Sakshya Adhiniyam, 2023 deals with facts that are relevant when determining the existence of a right or custom. The section lists two major categories of facts that are important:

1. Transactions related to the right or custom: These include any actions by which the right or custom was created, modified, denied, or disputed.
2. Instances of claiming or exercising the right or custom: This includes particular events where the right was claimed, recognised, exercised, or even disputed.

An illustration further clarifies this with an example of a fishery right, where deeds, mortgages, grants, and instances of the right being exercised or disputed provide relevant facts to determine the existence of the right.

Question & Answers

Q1: What does Section 11 of the Bhartiya Sakshya Adhiniyam, 2023 focus on?

A1: Section 11 of the Bhartiya Sakshya Adhiniyam, 2023 outlines the facts that are relevant when determining the existence of a right or custom. It focuses on transactions related to the right and instances where the right was claimed or exercised.

Q2: What are the two categories of facts mentioned in Section 11?

A2: The two categories of facts mentioned in Section 11 are:

1. Transactions by which the right or custom was created, claimed, modified, recognised, asserted, or denied.
2. Particular instances in which the right or custom was claimed, recognised, exercised, disputed, asserted, or departed from.

Q3: How is an example used in Section 11 to explain relevant facts?

A3: The example of a fishery right illustrates how various facts such as deeds, mortgages, grants, and specific instances of the right being exercised or disputed provide relevant evidence when determining whether the right exists.

Q4: What type of transactions are considered relevant according to Section 11?

A4: Relevant transactions include those that create, modify, claim, recognise, assert, or deny a right or custom, or those that are inconsistent with the existence of the right or custom.

Q5: Why are particular instances of exercising the right important?

A5: Particular instances of exercising the right are important because they help demonstrate whether the right has been recognised, disputed, or exercised, thus aiding in determining the existence of the right or custom.

Example

1. Right to Fishery

• A deed confers the fishery right to A's ancestors.
• A's father mortgages the fishery, followed by a subsequent grant of the fishery.
• These documents and instances where A's father exercised the right, or where A's neighbours disputed it, help determine the existence of the right to the fishery.

2. Custom of Land Use

• A family has used a piece of land for farming for several generations, passing it down through deeds and oral traditions.
• Instances of neighbours disputing the right or the land being used differently are considered facts when determining the legitimacy of the custom.