________________
92
APPENDIX B.
the English constitution. A series of political changes have been made without any legislative enactment whatever. A whole code of political maxims has grown up without any aid of the legislature."
So on usage may be described as a custom in the making. All the atributes of definiteness, certainty, freedom from immorality and illegality must necessarily characterise a valid usage as much as a valid custom. But a custom must be hoary and immemorial. Whereas an usage need not be equally timehonoured. This distinction, from the nature of things, would affect the quantum and character of the evidence which would be held to be sufficient to establish a custom or an usage. In the famous Ramnad case, Collector of Madura v. Mattu Ram Linga (12 M. I. A. 397, at p. 436). The Privy Council say:The duty of an European Judge, who is under the obligation to administer Hindu Law, is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage."
Mr. Roy, at p. 29 of his Customs and Customary Law, says:
"It should be noted that this rule of immemorial antiquity is to be restricted to custom only and not to usage. As we have already stated a usage may be of quite recent growth; yet, if established, will be valid."
This position is unusually fortified by the remark of that learned Judge. Mr Justice West, in I. L. R., 4 Bom. 545, at p. 561, that: "Judgment in accordance with a usage as existing, does not imply of necessity either that it always has existed, or that it always must exist, so as to limit the opera
