Report No. 185

Section 48

This section says where 'opinion as to existence of right or custom, when relevant'. It reads as follows:

"48: When the court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence, if it existed, are relevant.

Explanation: The expression "general custom or right" includes customs or rights common to any considerable class of persons."

There is an illustration below section 48.

It reads:

"The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section".

The 69th Report refers in Chapter 19 to sec.32(4), to this section (i.e. Section 48) and to the next section (Section 49) which deal with evidence in matters of custom or usage and point out that there are slight differences as to the phraseology used in these sections. Section 32(4) refers to a 'public right or custom or matter of public or general interest', sec.48 speaks of 'general custom or right' (with an explanation) and Section 49 speaks (usages and tenets of any body of men or family). The 69th Report says that the words used in section 32(4) are the 'widest' i.e. "public right or custom or matter of public or general interest" and should be brought into Section 48 which refers to 'general right' and 'general custom', in as much as section 48 would not have been intended to be broader than Section 32(4).

The result will be to redraft Section 48 as follows:

"48. Opinion as to existence of right or custom, when relevant.- When the Court has to form an opinion as to the existence of any general or public right or custom or any matter of general or public interest, the opinions, as to the existence of such right or custom or such matter, of persons who are likely to know of its existence if it existed or of that matter, as the case may be, are relevant.

Explanation: The expression 'general or public right or custom or any matter of general or public interest` includes rights or customs or matters common to any considerable class of persons.

Illustration:- The right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section."

We recommend accordingly.