Facts Relevant When a Right or Custom Is in Question (s. 11) — BSA (Law of Evidence) Notes

Facts Relevant When a Right or Custom Is in Question (s. 11)

A village claims a centuries-old right to graze cattle on common land. How do you prove a custom? Not with a deed — customs are rarely written. You prove them by pointing to the many past occasions on which the right was actually used and recognised. Section 11 is the section that lets those past instances in.

When the dispute is about the existence of a right (a right of way, a right to fish, an easement) or a custom (a communal or family usage), the ordinary relevancy sections are a poor fit — a custom has no single “fact in issue” moment. Section 11 [IEA s. 13] supplies the tailored rule.

Where a right or custom is in question, the following are relevant:

Any transaction by which the right or custom was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; and
Any particular instance in which the right or custom was claimed, recognised or exercised, or in which its exercise was disputed, asserted or departed from.

Why the rule exists. A right or custom is established not by one event but by a pattern of dealings over time. Section 11 lets the court look at that pattern — the past grants, the previous occasions the right was used, the times it was challenged — to decide whether the right or custom truly exists.

One caution. Section 11 admits transactions and instances, not mere opinions or assertions of a right in the abstract. The instance must be a real occasion of exercise, recognition or dispute, not just someone’s say-so.

🧩 WORKED EXAMPLE — proving a right of way

Facts. A claims a right of way across B’s field. B denies it ever existed.

Rule. Section 11 makes relevant transactions creating/recognising the right and particular instances of its exercise or dispute.

Apply. A may prove: an old deed granting the way (a transaction creating it), and dozens of past occasions on which villagers openly used the path without objection (instances of exercise and recognition).

Conclusion. These transactions and instances are relevant under s. 11 to establish the right of way — the pattern of dealing proves what no single document could.

Section 11, BSA 2023: “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.”

In Simple Terms: To prove a right or a custom, you may bring in the past dealings that created or recognised it and the individual occasions it was used or challenged — the history of the right is evidence of the right.

flowchart TD
    ROOT["Right or custom in question (s. 11)"]:::root
    ROOT --> A["Transactions<br/>creating, recognising,<br/>modifying or denying it"]:::leaf
    ROOT --> B["Particular instances<br/>of exercise, recognition<br/>or dispute"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Collector of Gorakhpur vs Ram Sundar Mal (1934) — instances of past dealings and recognition are relevant to establish the existence of a right or custom under s. 13 IEA (now s. 11).

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