LAW OF EVIDENCE 591
2. Scope of the word custom.
A custom is not limited to ancient custom but includes customs and usages. Usage would include what people are now or recently in habit of doing in a particular place. It may be that the particular habit is of a very recent origin or it may be existed for a very long time. If it is one which is ordinarily practised there is usage.
B. Custom may be
(i) Private custom—Family custom,
(ii) General Custom-—Custom common to a considerable class of people and may be
(a) local
(b) caste or class
(c) Trade customs or usages.
(iii) Public—Not defined.
C. The Section applies to all customs and to all usages.
- The evidence to be given is to be evidence of a transaction or of instances in which the right or custom arose.
A. Meaning of transaction and instance
(1) Transaction—some business or dealing carried on between two or more persons.
(2) Instance—Case occuring—individual acting in a particular way.
B. Proof is not restricted to previous transactions in cases between the parties to the proceedings. The use of the word any shows that it need not be between the parties to the litigation. It may be between strangers or it may be between a party to the litigation and a stranger.
C. The word transaction and instance has given a deal of trouble and the question has been raised whether it includes a judgement decree and the litigation in which they were pronounced not being between the same parties (and not being of a public nature), as evidence of a transaction or instance.
The question was considered in the leading case Gajju Lull vs. Fatteh Lal. 6 Cal. 171.