Report No. 69
8.41. Section 13 reads.-
"13. Facts relevant when right or custom is in question:-Where the question is as to the existence of any right or customs, 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, recognized, or exercised, or in which its exercise was disputed, asserted or departed from".
8.42. The illustration to the section deals with a right to fishery, and enumerates certain transactions or instances as relevant facts. Since these are of a non-controversial nature, the illustration is not of much help in solving the controversy that has arisen under the section1.
1. See infra under "Judgments" and "Statements".
8.43. Extent and scope of the section.-
It may be pointed out that clause (a) of the section is not confined to evidence of a grant creating the right. It includes transactions and instances as evidence of facts relevant to the fact in issue in any particular case1, and it thus makes these transactions and instances relevant for the purpose of establishing any right or custom. Similarly, clause (b) of the section is not confined to particular instances in which the right was asserted. The clause speaks of the particular instances in which the right was (i) claimed, or (ii) recognised, or (iii) exercised, or (iv) in which its exercise was disputed or departed from.
1. Secretary of State v. District Board, Rangpur, AIR 1939 Cal 758 (762).
8.44. Significance of section 13.-
The need for such a provision can be explained without much difficulty. Rights or customs are intangible facts or invisible phenomena; they are abstractions; and they are static. Their existence can, in general, be ascertained, only from concrete instances-e.g. transactions by which they were created, claimed, modified, recognised, asserted or denied, or which are inconsistent with their existence, or from particular instances evidencing such claim, recognition or exercise or the contrary thereof.
In other words, the right can, in general, be conveniently proved by cumulative instances and transactions, and not by a single document or fact or an isolated transaction or instance-except where the single document itself creates the right. This is the assumption on which the section is founded. Dominion or ownership is characterised by particular acts of enjoyment1, these acts being fractions of that sum total of enjoyment which characterises dominium.
1. Jones v. Williams, 2 M&W 326; followed in Sabram v. Ocloy, 1922 ILR 1 Pat 375.
8.45. The most cogent evidence of rights and customs would be judgments between the parties. But such evidence is rarely available. The least cogent evidence of rights would be the expression of opinion. The examination of actual instances and transactions in which the alleged custom or right has been acted upon or not acted upon, or of acts done, or not done, involving a recognition or denial of their existence, lies in the middle. Such evidence is usually available without much difficulty. "In the absence of direct title-deed, acts of ownership are the best proofs of title."1
1. Collector v. Deorga, (1865) 2 WR 212 (Cal) (Jackson, J.).
Acts of ownership, when submitted to, are analogous to admissions or declarations by the party submitting to them that the party exercising them has a right to do so, and that he is, therefore, the owner of the property upon which they are exercised. But such acts are also admissible, of themselves, proprio vigore, for they tend to prove that he who does them is the owner of the soil1. The section is applicable for the latter purpose.
1. Starkie Evidence, p. 470, cited by Woodroffe.
8.47. The principle of the section is, thus, sound enough. But the phraseology in which it is couched-particularly, the word "transaction"-has proved to be a fruitful source of controversy. It will be necessary to discuss this aspect of the matter in detail.
8.48. "Transactions" and "Instances".-
The facts made relevant by section 13 are (a) transactions, and (b) instances. Neither of these terms is defined by the Act.
A "transaction" is the doing or performing of any business; management of any affairs, performance; that which is done; an affair, as the transactions on the exchange. A transaction is something already done and completed; a "proceeding" is either something which is now going on, or, if ended, is still contemplated with reference to its progress or successive stages.1 "We use the word 'proceeding' in application to an affray in the street, and the word 'transaction' to some commercial negotiations that have been carried on between certain persons. The 'proceeding' marks the manner of proceeding, as when we speak of proceedings in a Court of law." The "transaction marks the business transacted, as the transactions on the exchange. "2
A "transaction", as its derivation denotes, is something which has been concluded between persons by a cross or reciprocal action as it were.3
"Transaction", in its largest sense, means that which is done4. Garth, C.J. said5 "A transaction, in the ordinary sense of the word, is some business or dealing which is carried on or transacted between two or more persons."
1. Webster's Dictionary, 'Transaction'.
2. Grabb's Synonyms, cited in Woodroffe.
3. Gujju v. Fatteh, 1880 ILR 6 Cal 171 (185), (per Jackson, J.)
4. Gujju v. Fatteh, 1880 ILR 6 Cal 171 (175), (per Mater, J.).
5. Gujju v. Fatteh, 1880 ILR 6 Cal 171 (186), (per Garth, C.J.).
8.49. The qualifying character of the "transaction" spoken of in the section are-(a) creation (b) claim, (c) modification, (d) recognition, (e) assertion, (f) denial, (g) inconsistency. Of these, (b) and (d) are also qualifying characters of "instances."1
8.50. An "instance" is that which offers itself, or is offered, as an illustrative case; something cited in proof or exemplification; a case occurring; and example.1
1. Webster's Dictionary, 'Instance'.
8.51. Statements how far admissible.-
The section distinguishes between a claim and an assertion. Under clause (b), however, instances are admissible in which the exercise of a right or custom was asserted. The word "assertion" includes both a statement and enforcement by act. Ordinarily, the evidence tendered under this section will be evidence of acts done, but a verbal statement not amounting to, and not accompanied by, any act would also be admissible if it amounted to a "claim". We shall revert to this aspect later.