1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLICATION NO. 1192 OF 1999 CIVIL REVISION APPLICATION NO. 1192 OF 1999 CIVIL REVISION APPLICATION NO. 1192 OF 1999 Brigadiar Harjit Singh, ) son of late Shri Inder Singh, ) adult, Retired Army Personnel, ) Brigadiar in the Indian Army ) prior to his retirement, at ) present residing at P-5, ) Sultania Lines, Bhopal (M.P.) ).. Applicant (Org. Applicant) Versus 1. Messrs. Rangmahal Theatre, ) a Partnership firm registered) under Indian Partnership Act,) (Summons in prescribed form ) under section 31E(2) of ) Bombay Rent Act, to be ) served on its partner ) Shri Hardip Singh Gulabsingh ) residing at 30, Punam, ) 7th floor, 67,Nepean Sea Road) Bombay 400 006. ) 2. Smt. Tej Khanna, wife of Shri) Gokulchand Khanna, adult, ) 2 Occupation Household,residing) at 1, Shriram Road, Delhi. ).Respondents Mr. Mohan Bir Singh, Advocate a/w Mr. Dinesh P. Shah, Advocate, for the applicant. Mr. V.A.Thorat, Senior Counsel, a/w Mr. R.A.Thorat, Advocate, for respondent No.1. CORAM: J.H.BHATIA,J CORAM: J.H.BHATIA,J CORAM: J.H.BHATIA,J. JUDGMENT RESERVED ON: 7.12.2007 JUDGMENT RESERVED ON: 7.12.2007 JUDGMENT RESERVED ON: 7.12.2007 JUDGMENT PRONOUNCED ON: 20.12.2007. JUDGMENT PRONOUNCED ON: 20.12.2007. JUDGMENT PRONOUNCED ON: 20.12.2007. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. Being aggrieved by dismissal of his application under Section 13A1 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for brief, "Bombay Rent Act"), the applicant has preferred the present Revision Application. 2. To state in brief, the dispute pertains to the flat No.30, on the 7th floor of Punam Apartments in Poonam Co-operative Housing Society Limited situated at 67, Nepean Sea Road, Bombay.l The flat consists of three bedrooms, hall, kitchen and a servant room. The flat originally belonged to one Gurumukh Nihal Singh who died 3 in December, 1969 leaving behind son Prahlad Singh and four daughters, viz. Harbans, Surjeet, Tej Khanna and Satwant. Son Prahlad had half share in the said flat while each of the four daughters had 1/8th share. Prahlad transferred his half share in favour of his two sisters Harbans and Tej Khanna and thus share of each of these two sisters became 3/8th in the flat. Harbans transferred her share to Tej Khanna and thus Tej Khanna hold 3/4th share in the suit flat. The applicant is the son-in-law of Surjeet, who, according to the applicant, made a gift of her 1/8th share in favour of the applicant on 30.3.1993. However, the gift deed was not registered. On 3.6.1994, she executed a Deed of Confirmation of the gift and that document was duly registered on 3.6.1994. Prior to that, on 10.3.1993, Satwant also sold her 1/8th share in favour of the applicant on 10.3.1993. About that sale also, there is no registered document. The present applicant claims to have thus become owner of 1/4th share in the said flat. He made an application to the Society for recording his name in the Register of Society and by Resolution date 12.8.1993, the Society recorded the name of the applicant as one of the co-owners/co-sharers of the flat. 3. The flat was given to respondent No.1 on leave and license agreement dated 16.10.1970 for the purpose 4 of residence of its partner, Hardeep Singh. The applicant was in the service of the Indian Army and retired from the Army as a Brigadier on 1.5.1993. He was suffering from Thyroid Cancer for a long period and since February, 1987, he was taking treatment at Tata Memorial Hospital and Research Centre at Mumbai and for the purpose of treatment he was required to regularly pay visit to the said Hospital. In view of this, he decided to settle at Mumbai after retirement. He did not have any other premises for residence in Mumbai after retirement. His Commanding Officer who was Area Commander where he had served, issued a certificate to the effect that he was in service of Army and did not have any premises within the local limits of Mumbai where he wanted to settle. Respondent No.2 - Tej Khanna She has given her consent to the applicant to reside in the suit premises. In such circumstances, the applicant filed an application under Section 13A1 of the Bombay Rent Act for eviction of respondent No.1 and for possession of the flat for his own residence as he bonafide required the same for occupation of himself and his family members. 4. Respondent No.2 appeared and admitted the claim of the applicant and she also filed an affidavit dated 5th June, 1993 giving consent in favour of the applicant. 5 5. Respondent No.1 - occupant of the premises contested the application by filing written statement. Respondent no.1 has denied the claim of the applicant that he has become co-ownerr of 1/4th share by virtue of a sale deed and gift deed. It is also denied that the applicant is suffering from cancer and that he bonafide requires the suit premises for residence of himself and his family members. It is also denied that he had obtained the certificate from the Area Commander of the Armed Forces certifying that he has retired from the service of Army and does not have any premises within Mumbai for his own residence. It is contended that when the application was filed, the applicant was not owner of the suit flat nor he was the landlord of respondent No.1. Therefore, it is contended that the applicant is not entitled to get an order of eviction under Section 13A(1). It is further contended by respondent No.1 that respondent No.2 and other co-opwners had filed RAE Suit No.66/316/1979 in the Court of Small Causes, Bombay against respondent No.1 for eviction and possession on the ground that they bonafide required the premises for their own use and occupation. Respondent No.1 also filed a Standard Rent Application bearing No.1652/SR/1975 in the Court of Small Causes, bombay. During the pendency of the suit, settlement took place between the parties and all the plaintiffs in the 6 eviction suit agreed to sell the suit flat in favour of wife and son of Hardeep Singh, who is the actual occupant of the flat as a partner of the firm. However, inspite of the agreement dated 14.4.1987, the sale deed was not executed by the owners and, therefore, Mrs. Raminder and Pradeep Singh, the wife and son respectively, of Hardeep Singh filed Suit No.3372 of 1988 for specific performance of the contract and that suit is pending in the High Court. It is contended that in these circumstances the present applicant being, an Army Officer was introduced only with an intention to secure decree of eviction and possession against respondent no.1. However, the applicant is not entitled to get such a decree in view of the facts pleaded by respondent No.1 and the application is liable to be dismissed. 6. Several issues were framed by the Competent Authority. The applicant examined himself and several other witnesses in support of his claim. ON behalf of respondent No.1, Hardeep Singh was examined. After hearing the evidence of the parties, the Competent Authority came to the conclusion that the applicant had failed to prove that he is the landlord of respondent No.1 and also that the certificate was issued to him by the Area Commander to the effect that he had retired from service of Army and had no premises within the 7 local limits of Bombay for his residence. The Competent Authority has also held that the applicant had failed to prove that he bonafide required the suit premises for occupation of himself and his family members. With these findings, the Competent Authority found that the applicant is not entitled to an order of eviction and possession under Section 13A1. 7. Heard learned Counsel for the parties. The learned Counsel for the parties have taken me through the evidence led by the parties, the impugned judgment and the relevant provisions of law. 8. Mr. Mohan Bir Singh, learned Counsel for the applicant vehemently contended that the approach of the Competent Authority was wrong in appreciating evidence and the circumstances because the Competent Authority observed that the applicant had failed to prove his case beyond shadow of reasonable doubt on all the major points. The learned Counsel contended that the standard of proof as required in eviction proceedings cannot be the standard of proof required in the criminal prosecution. These observations of the Competent Authority reveal that he had not decided the matter on the basis of probabilities as required in civil matters. Learned Counsel also pointed out that the legal provisions have not been considered by the Competent 8 Authority while rejecting the contention of the applicant that the Area Commander had given necessary certificate. He also contended that respondent NO.2 who holds 3/4th share in the suit flat has given her consent in favour of the applicant and she has also filed affidavit to that effect before the Competent Authority. He also contended that on the basis of gift of 1/8th share of his mother-in-law, Surjeet and sale of remaining 1/8th share by Satwant, the sister of mother-in-law, he has become co-owner to the extent of 1/4th share and this has been accepted by the Co-operative Society and name of the applicant has been recorded as such in the record of the Society. Therefore, as a co-owner he is entitled to occupation and residence in the suit flat and particularly when respondent no.2, the owner of the remaining 3/4th share, has given consent for that purpose, he is entitled to file petition for eviction and possession. It is also contended that there is sufficient evidence on record to corroborate the plea of the applicant that he is a cancer patient and needs the premises for his self occupation and he has no other premises within Mumbai where he wants to settle for the purpose of treatment. 9. Mr. Thorat, learned Senior Counsel for respondent No.1, however strongly supported the impugned judgment and order passed by the Competent Authority. 9 According to him, the sale deed of 1/8th share allegedly executed by Satwant in favour of the applicant on 10.3.93 was not registered at any time and similarly the gift deed of 1/8th share dated 30.3.93 allegedly executed by Surjeet was also never registered. Only confirmation deed about that gift came to be executed and registered no 3.6.1994. According to Mr. Thorat, on the basis of these two documents, the plaintiff could not claim title over the suit property. At the most, he could claim right over the property only when his name was recorded in the record of Society in August, 1993. The application for eviction was filed on 5.6.93 when the applicant had no title over the property. As such, neither he was the owner of the property nor there was any relationship of landlord and tenant between the applicant and respondent no.1 beore he retired from Army and before he filed the eviction proceedings.Respondent No.1 had never attorned the tenancy in favour of the applicant nor the applicant received rent of the premises from respondent No.1 at anytime. According to him, even if the certificate issued by the Area Commander is believed, still the applicant is required to prove that he bonafide required the suit premises for his own occupation by independent evidence and the evidence placed before the Court is not sufficient to prove the same. Learned Senior Counsel for respondent No.1 contended that in such circumstances the rejection 10 of the application by the Competent Authority is justified. 10. On perusal of the record, it appears that the applicant has pleaded and deposed that he was in service of Army and he retired from the Army on 1.5.1993. At that time, he was holding the post of Brigadier in the Army. He also deposed that he was not having any premises within the local limits of Mumbai where he wanted to settle and for that purpose, he had obtained a certificate from his Area Commander. Section 13A1 of the Bombay Rent makes a special provision for recovery of possession of premises required for self occupation by members of armed forces of the Union, scientists or their successor-in-interest. The relevant part of Section 13A1 reads as follows :- "13A(1) Members of armed forces of the Union, scientists or their successor entitled to recover possession of premises required for their occupation. (1) Notwithstanding anything to the contrary contained in this Act or any contract - (A) a landlord, who, - (i) is a member of armed forces of the Union, or 11 was such a member and has retired as such (which term shall include premature retirement), or (ii) .... (iii) .... shall be entitled to recover from his tenant the possession of any premises owned by him on the ground that such premises are bona fide required by him for occupation by himself or by any member of his family, by making an application for the purpose of recovery of possession of the premises, to the Competent Authority; and the Competent Authority shall make an order of eviction on that ground if, - (a) in the case of a landlord who is a member of the armed forces of the Union, he produces a certificate signed by the authorised officer to the effect that, - (i) he is a member of the armed forces of the Union, or that he was such a member and has retired as such, and (ii) he does not possess any other premises 12 suitable for residence in the local area where the premises are situated; or" Sub-section (2) of Section 13A reads as follows :- "(2) Any certificate granted under sub-section (1) shall be conclusive evidence of the facts stated therein. Explanation:- For the purposes of this section,- (1) "authorised officer", in relation to a member of the armed forces of the Union, means his commanding officer or head of service, including- (i) in the case of an officer retired from army, the area Commander," From this legal provision, it is clear that the certificate granted under sub-section (1)shall be conclusive evidence of the facts stated therein and the authorised officer in relation to an officer retired from the army is his commanding officer or head of service including the Area Commander. In the present case, the necessary certificate was issued by the Major 13 General, General Officer Commanding, Madhya Pradesh, Bihar and Orissa under whom the present applicant was serving as Brigadier at the time of retirement. 11. Section 79 of the Evidence Act reads as follows :- "79. Presumption as to genuineness of certified copies. - The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purported to be duly certified by any officer [of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir] who is duly authorized thereto by the central Government]: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper." From this, it is clear that the Court shall presume to 14 be genuine every document purporting to be a certificate which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer of the central Government who is duly authorised the Central Government. Not only this, Section 79 also provides that the Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper. As the certificate issued under Section 13A(1)(2) is declared to be a conclusive evidence, it becomes admissible in law and the commanding officer or head of service including the area Commander is the authorized officer to issue such a certificate. In view of the provisions of Section 79, the Court is bound to presume the certificate issued by the area Commander or the commanding officer, to be genuine and the Court is also bound to presume that the officer by whom such document purports to be signed was, in fact, holding that official character when he signed it. The learned Competent Authority rejected the certificate issued by the Major General, General Officer Commanding, Madhya Pradesh in favour of the plaintiff on the ground that no witness was examined to prove the signature on the certificate. According to the Competent Officer, as per the well-establised principles of law also the 15 certificate produced on record must be proved by the witness who should identify the signature of a person who had signed it. He observed that inspite of production of certificate, the applicant has failed to examine any witness in this behalf and therefore, that certificate is not proved as per the provisions of law. It appears that the Competent Authority was totally ignorant about the legal provisions contained not only in Section 13A1 but also in Section 79 of the Indian Evidence Act. To this extent, the observations and findings of the Competent Officer are not correct. 12. From the language of Section 13A1, it is clear that a member of armed forces shall be entitled to recover from his tenant the possession of any premises owned by him on the ground that such premises are bonafide required by him for occupation by himself or by any member of his family. Therefore, it is necessary that he should be owner of the premises and it should be in possession of his tenant and he should bonafide require it for occupation of himself or by member of his family. Admittedly, respondent No.1 was a tenant in the suit premises since 1970. The applicant retired from service on 1.5.93 and he claims to have received 1/8th share in the property on 10.3.93 on the basis of the sale deed and 1/8th share on the basis of the gift deed executed on 30.3.93. Prior to that, he had no interest 16 or share in this property. Admittedly, respondent No.1 was not tenant of the applicant nor the applicant was receiving rent from respondent No.1. Respondent No.1 had never attorned tenancy in favour of the applicant. The question is when and how the applicant became landlord and owner of the property. The gift deed of immovable property, irrespective of its valuation, is compulsorily required to be registered under section 17(1)(a) of the Registration Act, 1908. The sale deed of immovable property of the value of one hundred rupees and above is also compulsorily required to be registered. In the present case, according to the applicant, he had purchased 1/8th share from Satwant for consideration of Rs.4 lakhs. Therefore, the sale deed was required to be compulsorily registered. Admittedly, this document was never registered. Even the gift deed was not registered. The deed of confirmation of the gift deed was executed and registered on 3.6.1994. Under Section 41 of the Maharashtra Co-operative Societies Act, 1960, nothing in clauses (b) and (c) of sub-section (1) of Section 17 of the Indian Registration Act, shall apply to any instrument relating to shares in a society, notwithstanding that the assets of the society consist in whole or in part of immovable property. In view of this provision, non-testamentary instrument or a conveyance deed or an acknowledgment of the conveyance deed relating to a share in a society, 17 notwithstanding that the assets of the society consist in whole or in part of immovable property, are exempted from being registered under Section 41. However, it will be clear that such exemption is not available to the instrument of gift of immovable property which fall under Section 17(1)(a) of the Registration Act. Therefore, the gift deed of his share in immovable property in a co-operative society or a gift of a share in the society which has the effect of transfer of rights over the immovable property is not exempted from being registered. Similar view is taken by this Court in Jetu Jacques vs. Soleshop Industries 2006 (1) MHW Jetu Jacques vs. Soleshop Industries 2006 (1) MHW Jetu Jacques vs. Soleshop Industries 2006 (1) MHW 21 21 21. As the gift deed was not registered, it was not valid under the law and it could become effective at the most on the day when the deed of confirmation was executed and registered on 3.6.94. Therefore, the gift deed could take effect only from 3.6.94 and not before that. 13. Admittedly, the applicant made an application to the co-operative society for transfer of 1/4th share in his favour in the suit flat and as per the evidence of two witnesses from the said co-operative society, it is clear that the 1/4th share was transferred in favour of the applicant by resolution dated 12.8.93 by the society. Under Section 38(1) of the Maharashtra Co-operative Societies Act, every society shall keep a 18 register of its members and enter therein the name, address and occupation of each member, date of admission of each person as member, the date on which any person ceased to be member. Section 38(2) provides that the register shall be prima facie evidence of the date on which any person was admitted to membership and of the date on which he ceased to be member. Therefore, the entry taken in the register of the society, on the basis of resolution dated 12.8.93, is prima facie evidence to show that the applicant had become member of the society on that date. 14. Learned Counsel for the applicant contended that the share held in Tenant Co-partnership Housing society is not immovable property and the transfer does not require registration. In support of this, he relied upon the authority in Usha Arvind Dongre vs. Suresh Usha Arvind Dongre vs. Suresh Usha Arvind Dongre vs. Suresh Raghunath Kotwal, 1990 Mh.L.J.306 Raghunath Kotwal, 1990 Mh.L.J.306 Raghunath Kotwal, 1990 Mh.L.J.306. In that case, the learned Single of this Court had held that in the case of a tenant co-partnership housing society, the title to the flat remains in the society and is not affected by the transfer of share in the society and only right to occupy a flat flows from ownership of share in such a co-operative society. It is contended that in view of this, merely because the documents of sale deed and gift deed were not registered, they do not adversely affect the claim of the applicant. However, I have already 19 pointed out that even if these two documents are kept aside, the applicant can claim to be the shareholder of the society only from the date when 1/4th share was transferred to him in his name by passing a resolution on 12.8.93 and not before that. Taking into consideration the circumstances and the legal position, it must be held that the applicant/plaintif was neither owner of the flat nor landlord when he retired from service and also in June, 1993 when he filed an application for eviction against respondent No.1 and on that count itself the application for eviction was liable to be rejected. 15. The learned Counsel for the applicant vehemently contended that as per Section 47 of the Registration Act, a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. But this provision will not be applicable in respect of the sale deed of 1/8th share in favour of the applicant because that sale deed was never registered. The question is whether this benefit can be given in respect of