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As to the proof of customs, the remarks of the Courts in the Oorcad case are pertinent. The High Court at Madras (Shiva Nanja v. Mutuu Ramlinga, 3 Mad. H. Ct. R. P. 75-77) said "What the law requires before an alleged custom can receive the recognition of the Court and so acquire legal force, satisfactory proof of usage, so long and invariably acted upon in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, or district or country; and the course of practice upon which the custom rests must not be left in doubt, but be proved with certainty."
In affirming the above, the Privy Council said :
"Their Lordships are fully sensible of the importance and justice of giving effect to long established usages existing in particular districts and families in India, but it is of the assence of special usages, modifyng the ordinary Law of succession, that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends" (14 Moore's Indian Appeals, p. 585).
The evidence of custom would thus appear to be necessary to establish three points :
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(1) That the custom must be definite or certain; (2) That it must be ancient and continuous;
(3) That it must be reasonable (See Stephen's Commentaries, Vol. I., pp. 26-29).
In other words, the evidence must show the custom to be ancient and invariable, continuous and uniform, reasonable and not immoral, certain and definite, and cumpulsory and consistent.
This evidence may relate to acts of the kind; acquiescence in
APPENDIX B.
