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Bharatiya Sakshya Adhiniyam, 2023 — Section 42: Opinion as to existence of general custom or right

§ SECTION 42 · BSA 2023 · CHAPTER II — RELEVANCY OF FACTS

Opinion as to the existence of a general custom or right, when relevant

When the Court must decide whether a general custom or right exists — one shared by a considerable class of persons — the opinions of those likely to know of it are relevant.

How to read Section 42

A right of the many, proved by those who know.

The question

Whether a general custom or right exists.

Whose opinion

Persons likely to know of it, if it existed.

“General”

A custom or right common to a considerable class — not a private one.

The bare Act

The section in its own words — colour-keyed by what each phrase does.

Section 42 · verbatim

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.
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.

In short: a right belonging to a whole class — a village, a trade, a community — is often best proved by the shared knowledge of the people who would know it. So the law makes the opinions of persons likely to know the custom or right relevant on whether it exists.

→ This carries forward IEA 1872 § 48 — opinion on a general custom or right.

Glossary

general custom or right

A custom or right common to a considerable class of persons — not a private one.

considerable class of persons

A sizeable group — e.g. the villagers of a village, the members of a trade or community.

likely to know

Persons whose position or association would give them knowledge of the custom or right, if it existed.

opinion

Here, a belief in the existence of the custom/right — made relevant by this section.

private right

A right personal to individuals — outside this section, which is for general/class rights.

village well (illustration)

The classic example — the villagers’ right to the well is a general right.

The picture

A right of the class — and those who would know it.

a GENERALcustom or righte.g. the villagers’ wellthose likely to knowvillagers · elders ·members of the classtheir opinion is RELEVANT“general” = common to a considerable class of persons

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

the ruleWhen the Court asks those who would know

In one lineWhen the question is whether a general custom or right exists, the opinions of persons likely to know of it — if it existed — are relevant.
1A general rightdoes a whole classshare this custom/right?2Ask those who’d knowvillagers, elders —people likely to know it3→ opinion relevanttheir belief in the rightis a relevant factthe collective knowledge of those who would know is evidence of a general right
When the Court has to form an opinion as to the existence of any general custom or right,the trigger · a general custom/rightwhen the Court must decide whether a general custom or right exists…
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,who · those likely to know…the opinions of persons who would likely know of it (if it existed)…
are relevant→ relevant…are relevant.
ExampleWhether the villagers have a right to draw water from a certain well. The opinions of villagers and elders likely to know of the right are relevant on whether it exists.
✗ Not thisIt must be a general custom or right — one shared by a class — not a private right between two people. And the opinion-giver must be someone likely to know: a stranger with no connection to the class does not qualify.

what is ‘general’?Shared by a class, not just two people

In one lineA custom or right is “general” when it belongs to a considerable class of persons (like a whole village) — not merely a private right between individuals.
the village wellvillagersvillagersa right common to the whole classA general right — e.g. the villagers’ right to the well — is one shared by a whole class of persons.
The expression “general custom or right”‘general’ meansthe phrase “general custom or right”…
includes customs or rights common to any considerable class of persons.= common to a sizeable class…includes any custom or right shared by a considerable class of persons (a whole village, a trade, a community).
ExampleThe Act’s illustration: the right of the villagers of a particular village to use the water of a particular well is a general right within this section — it belongs to the class of villagers.
✗ Not thisA private right — say, one neighbour’s personal easement of way over another’s land — is not a “general” right; this section’s opinion-evidence is for rights common to a class.

Connected provisions

§ 11

Right or custom

Where a right or custom is in question, § 11 makes transactions and instances relevant; § 42 adds the opinions of those who would know.

§ 26

Statements of the dead

Clause (d) admits a deceased person’s opinion on a public right made before the dispute — a cousin of § 42.

§ 43 · next

Opinion on usages, tenets, etc.

The next opinion-relevancy provision in Chapter II.

lineage

IEA 1872, § 48

Carried forward — opinion on a general custom or right.