ivil Appeal Nos 88 to 93 to 1974
From the Judgment and Order dated 101
1973 of t he Bombay High Court in Appeal Nos 102 to 107 of 1966
Dr V Gauri Shankar and Ms A Subhashini for the Appe l lants
Nemo for the Respondents
The Judgment of the Court was delivered by 133 PATHAK CJ
These appeals by special leave raise t he question whether the High Court is right in holding that t he proviso to sub section
1 of section 25 of the Wealth Tax Act cann ot be invoked by the Revenue on the facts of this case
The respondent is assessed in the status of an individ u al under the Wealth Tax Act 1957 and these appeals rela te to the assessment years 1958 59 1959 60 and 1960 61 f or which the corresponding valuation dates are 31 March 195 8 31 March 1959 and 31 March 1960 respectively
The respondent is a share holder in Walchand and Compa ny Private Limited
On each of the three valuation dates s he held 140 shares in the Company
For the purpose of asses s ment under the Wealth Tax Act the respondent adopted t he valuation of the shares at their break up values with pa id up capital and reserves as there was no market quotation f or those shares
When making the assessment Orders for each of the three assessment years the Wealth Tax Officer reject ed the valuation of the shares as claimed by the responden t and estimated their value on the basis of capitalisation of profits at six per cent for the assessment year 1960 61 a nd on the basis of the break up value with certain modific a tions for the assessment years 1958 59 and 1959 60
T he respondent appealed to the Appellate Assistant Commission er of Wealth Tax and the Appellate Assistant Commission er determined the value of the shares on the basis of capital i sation of the investment income at six per cent and oth er income at twelve and half per cent
He allowed the appea ls of the respondent in part by separate orders dated 10 Nove m ber 1961
The Commissioner of Wealth Tax preferred appea ls to the Appellate Tribunal on the question relating to valu a tion of the shares
The Appellate Tribunal passed a consolidated order on 23 July 1963 dismissing the appeals for the three asses s ment years
It observed that the valuation of the shares of the company on the relevant valuation dates determined by two valuers on arbitration in the case of another assess ee should be taken as the valuation in the case of the assess ee also
The value of the shares the Appellate Tribunal sai d worked out to an amount much less than the valuation dete r mined by the Appellate Assistant Commissioner and ther e fore the question of enhancing the value determined by t he Appellate Assistant Commissioner did not arise
The Appe l late Tribunal did not reduce the values determined by t he Appellate Assistant Commissioner as no appeals had be en filed by the respondent
Meanwhile however during the 134 pendency of the appeals before the Appellate Tribunal t he respondent preferred revision applications on 29 June 19 62 under subsection 1 of section 25 to the Commissioner of Wealth Tax in respect of the aforesaid assessment years a nd contended that the valuation of the shares adopted by t he Appellate Assistant Commissioner was unreasonable and exce s sive and should be duly modified
The Commissioner made an order dated 12 August 1964 rejecting the revision applic a tions on the ground that they were incompetent in view of cl
b of the proviso to sub section
1 of section 25 of the Ac t
Against that order the respondent filed a writ petition in the High Court of Bombay and contended that the Commission er had erred in dismissing the revision applications as inco m petent
On 10 11 October 1966 a learned Single Judge of t he High Court allowed the writ petition holding the revisi on applications to be competent and accordingly directed t he Commissioner to entertain and dispose of the revision appl i cations in accordance with law
The Commissioner appealed to a Division Bench of the High Court and the appeal was di s missed on 10 January 1973
The relevant provisions of section 25 of the Wealth Tax A ct read as follows Powers of Commissioner to revise orders of subordina te authorities
The Commissioner may either of his own moti on or on application made by an assessee in this behalf ca ll for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to hi m and may make such inquiry or cause such inquiry to be mad e and subject to the provisions of this Act pass such ord er thereon not being an order prejudicial to the assessee as the Commissioner thinks fit Provided that the Commissioner shall not revise a ny order under this sub section in any case a where an appeal against the order lies to t he Appellate Assistant Commissioner or to the Appellate Trib u nal the time within which such appeal can be made has n ot expired or in the case of an appeal to the Appellate Trib u nal the assessee has not waived his right of appeal b where the order is the subject of an appe al before the Appellate Assistant Commissioner or the Appella te Tribunal
135 The High Court has taken the view that cl b of the prov i so to sub section
1 of section 25 of the Act operates as a bar to a revision application by an assessee before the Commission er only where the assessee has also filed an appeal before t he Appellate Tribuanl
According to the High Court the b ar does not come into operation against an assessee where t he appeal before the Appellate Tribunal has been filed by t he Revenue
It seems to us that the view taken by the Hi gh Court cannot be sustained
Where an appeal is filed befo re the Appellate Tribunal against an order of the Appella te Assistant Commissioner the impugned order merges in t he order of the Appellate Tribunal when the appeal is dispos ed of on merits
If meanwhile a revision application has be en filed before the Commisioner against the same order of t he Appellate Assistant Commissioner it will not be open 10 t he Commissioner to pass any order in revision against the ord er of the Appellate Assistant Commissioner as the latter wi ll have merged with the order of the Appellate Tribunal
It is immaterial that the appeal and the revision application ha ve not been filed by the same party
This would be plainly so as in the present case the subject matter of the appe al before the Appellate Tribunal is the same as that of t he revision application before the Commissioner
Here t he subject matter of the appeal before the Appellate Tribun al was the valuation of the shares held by the respondent
So it was also in the revision application before the Commi s sioner
In the circumstances we are unable to agree with t he reasoning adopted by
the High Court
The High Court h as proceeded on the view that it was open to the Commission er to dispose of the revision applications filed by the r e spondents
The High Court it seems to us omitted to co n sider that the appeals filed before the Tribunal had be en disposed of and the impugned order of the Appellate Assis t ant Commissioner must be taken to have merged in the ord er of the Appellate Tribunal
The revision applications in short had become infructuous
What the respondent should have done on coming to kn ow of the filing of the appeal by the Revenue before the Appe l late Tribunal was to have withdrawn the revision petitio ns filed before the Commissioner and filed her own appea ls before the Appellate Tribunal with an application for cond o nation of delay under sub section
3 of section 24 in case t he period of limitation had expired and accordingly both t he sets of appeals would have been disposed of by the Appella te Tribunal
In case the respondent came to know of the fili ng of the appeals by the Revenue before the Appellate Tribun al and had not yet applied in revision to the Commissioner s he should not have filed the revision 136 applications but should have preferred her own appea ls before the Appellate Tribunal
It must be noted that t he Appellate Tribunal is a superior body to the Commissione r as will be clear from sub section
1 of section 26 which provid es that an appeal will lie to the Appellate Tribunal from an order under sub section
2 of section 25 of the Commissioner
The re would have been no difficulty in the Appellate Tribun al considering the appeals of both parties and passing suitab le orders in regard to the valuation of the shares
There is no difficulty now in dealing with such a situation in view of sub section
2A of section 24
In the case of the other respondents there is a simil ar history of proceedings with similar orders passed therei n and this judgment will be considered as disposing of t he appeals filed here in those cases also
In the result the appeals are allowed and the impugn ed orders of the Division Bench and the Single Judge on t he writ petitions are set aside and the writ petitions a re dismissed
In the circumstances of the case there is no order as to costs
HLC Appeals allowed


Summary:
This is defendants  appeal arising out of a suit for part i tion
One Mallappa Kulkarni had two sons Veerappa and Gura p pa
Verrappa is survived by his son Lingappa
Gurappa w ho was in the service of Railways married Channavva fir st wife on 16228 but since she remained issueless he rema r ried in 1955 Chinnavva second wife
From this marriage t wo daughters were born viz Shakuntlabai arid Annapoornav a Consequent upon the death of his second wife Gurappa is sa id to have married Nilavva accroding to customary Udiki ma r riage
After retirement Gurappa settled permanently at Hub li where he had house property etc
After the death of Gura p pa his first wife Channavva claimed l3rd share in t he property
Having failed to get the same she sold her 13 rd share to Lingappa
Lingappa also could not procure the 13 rd share from defendants by mutual negotiation
Thereupon he filed a suit for partition claiming his 13rd share in t he immovable properties left by Gurappa
In the suit he i m pleaded Channavva first wife as Defendant No 1 and t he children from 2nd wife as Defendant Nos 2  3 and Nilla va was impleaded as Defendant No 4 who was described as having illegal connections with the deceased Gurappa
The Additional Munsiff Hubli who tried the suit pass ed a preliminary decree for partition of l3rd share of Gura p pa s properties in the hands of the defendants 2 to 4 by metes and bounds
Defendants 2 to 4 contested that Defenda nt No 4 was lawfully married wife of Gurappa
Defendants 2 to 4 appealed to the Civil Judge at Hub li impleading the plaintiff and Defendant No 1 as respodent section The Civil Judge 71 modified the decree and granted I6th share holding the 4 th defendant to be legally married wife of Gurappa
Bei ng dissatisfied by the said order the plaintiff as also D e fendants 2  3 filed appeals in the High Court
The Hi gh Court by the impugned judgment allowed the plaintiff s appeal and restored the decree of the trial Court for l3 rd share and dismissed the defendant s appeal
The High Cou rt held that the 4th defendant was not legally married wife of deceased Gurappa
Hence this appeal by Defendants 2  3 by special leave
The question that was agitated before this Court wa s Whether proof of custom of Udiki marriage was adduced by t he fourth defendant and whether Udiki marriage itself impli ed the dissolution of earlier marriage and if not wheth er separate custom of dissolution of the earlier marriage w as pleaded and proved
Allowing the appeal this Court HELD Custom must be proved and the burden of proof is on the person who asserts it
A custom cannot be extended by logical process
Customs cannot be extended by analogy a nd it cannot be established by a priori method
8lB E Nothing need be proved of which the Courts can ta ke judicial notice
When a custom has been judicially reco g nised by the Court then it passes into the law of the la nd as proof of it becomes unnecessary under section 571 of the Evidence Act
81 F From the evidence on record appreciated in the light of the case law on the subject and the authoritative tex ts relating to the custom of dissolution and Udiki form of marriage prevalent among the Lingayats who are a religio us sect following teachings of Basava the Court entertains no doubt that there has been ancient and unbroken customs of dissolution of marriage and of Serai Udiki marriage amo ng the Panchamasal Lingayats which was judicially noticed by the Courts and that the marriage in the instant case of the fourth defendant with Gurulingappa was proved to ha ve been customarily dissolved and that she was subsequent ly legally married with Gurappa in the valid customary form of Udiki marriage whereafter she lived with Gurappa as hu s band and wife until Gurappa died and that thereafter s he enjoyed the family pension by dint of her being nominated as wife of Gurappa to the knowledge of all concerned
She w as accepted by the community as wife of Gurappa even after h is death
There is therefore no scope for declaring t he marriage illegal posthumously
84F H 85A 72 Virasangappa vs Rudrappa  Anr Madr as 440 Pakhali Jina Magan vs Bai Jethi ILR 5 Sankarlingam vs Subban 1894 17 Madras 479 Shivalingi ah vs Chowdamma AIR 1956 Mys 17 Rahi vs Govinda Val ad Teja Bom 97 Edward vs Jenkins 189 6  Mohammed Ibrahim vs Shaik Ibrahim AIR 19  Ramalakshmi Ammal vs Sivanantha Perumal Sethuraya r 14 MIA 570 Raja Rajendra Narain vs Kumar Gangananda Ors AIR 1925 PC 213 DC Bara Banki vs Receiver of t he Estate of Choudhry  Ors AIR 1928 PC 202 Effuah Amiss ah vs Effuah Krabah AIR 1936 PC 147 Saraswati vs Jagada m bal  and Uzagar Singh vs Mst
Jeo AIR 19 59 SC 1041 referred to