Section 11 BSA: Facts relevant when right or custom is in question

Bharatiya Sakshya Adhiniyam, 2023

Section 11 BSA at a Glance

Section 11 BSA deals with facts relevant when right or custom is in question. It replaced Section 13 IEA on 1 July 2024.

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Section 11 BSA Bare Act Text

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.

Source: Section 11, Bharatiya Sakshya Adhiniyam, 2023

Section 11 BSA in Simple Words

Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 sets out which facts are relevant when a court has to decide whether a right or a custom exists. It lets parties bring forward past dealings and specific occasions that either support or go against the claimed right or custom.

Under Section 11 BSA, a party can rely on any transaction through which the right or custom was set up, claimed, altered, accepted, insisted upon, or rejected. A party opposing the claim can also point to a transaction that conflicts with the existence of that right or custom.

The Adhiniyam also makes specific past occasions relevant. A party can show occasions when people claimed, accepted, or used the right or custom, or occasions when others challenged, resisted, or stepped away from it. In the illustration to Section 11 BSA, a person claims a fishery right. An ancestral deed, a mortgage or conflicting grant by the father, past fishing, and occasions when neighbours stopped it are all relevant facts.

When Section 11 BSA Applies

  • A party in a case where the court has to decide whether any right or custom exists.
  • A party relying on a transaction that set up, claimed, altered, accepted, insisted upon, or rejected the right or custom, or a transaction that conflicts with it.
  • A party pointing to specific occasions when the right or custom was claimed, accepted, or used, or when its use was challenged, insisted upon, or not followed.

Example of Section 11 BSA

In August 2024, Priya files a suit in a court in Pune claiming a village custom of grazing cattle on land held by Farhan. Priya relies on a village record that recognised the grazing custom and specific occasions when villagers grazed cattle on the plot. Farhan brings a lease of the plot for crop farming that conflicts with open grazing, along with past occasions when watchmen turned the cattle away. Under Section 11 BSA, the village record, the conflicting lease, and the past occasions of grazing and refusal are relevant facts on whether the custom of grazing cattle on the land exists.

Section 11 BSA in the IEA (Previous Law)

Section 11 BSA replaces Section 13 IEA from the old criminal code.

Section 13 of the Indian Evidence Act, 1872 became Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. No substantive change. The label "Illustrations" reads "Illustration".

FAQs on Section 11 BSA

What is Section 11 BSA?▼

Section 11 of the Bharatiya Sakshya Adhiniyam, 2023 states which facts are relevant when a court has to decide whether a right or a custom exists. It covers transactions and specific past occasions that support, challenge, or conflict with the right or custom.

Can a party use past occasions when a custom was not followed under Section 11 BSA?▼

Yes. Section 11 BSA makes relevant any specific occasion on which the exercise of a right or custom was challenged, insisted upon, or departed from. In the illustration, occasions when neighbours stopped the father from fishing are relevant facts.

Does Section 11 BSA apply to a transaction that goes against the claimed right?▼

Yes. Under clause (a) of Section 11 BSA, any transaction that denied the right or custom, or that was inconsistent with the right existing, is a relevant fact.

What is Section 11 BSA in IEA?▼

Section 13 IEA. Section 13 IEA became Section 11 BSA on 1 July 2024 with no substantive change, and the heading for the example reads Illustration instead of Illustrations.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Bharatiya Sakshya Adhiniyam, 2023 ·