# I I 0 R. VENKATASWAMI NAIDU AND ANOTHER v. NARASRAM NARAINDAS

- **Citation:** [1966] 1 S.C.R. 110
- **Court:** Supreme Court of India
- **Decided:** 1965-04-27
- **Case number:** Civil Appeal No. 146 of 1965
- **Bench:** A. K. Sarkar, K. SUBBA RAo, M. HIDAYATULLAll, ]. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-i-0-r-venkataswami-naidu-and-another-v-narasram-naraindas-3472
- **Pages:** 10

## Headnote

MadrM City Tenants Protection Act, 1922, "· 2(4), 3, 9 and 12Tenants building on land in breach of covenant whether entitled to il.tM-
{iJs under ss. 3 and 9.
The appellants were tellllots who held over after the expiry of their
lcale aqd !milt structures on the land in breach of a covenant not to
build. In a suit for their ejectment they aslr.ed the Court to direct the
landlord to sell the land to them under s. 9 of the Madras City Tenants
Protection Act, 1922 which had, pending th~ suit, been extended to the
area. The benefit under s. 9 was available to tenants who were entitled
under s. 3 to compensation for their structures. According to s. 3 every
tenant would on e;ectment be entitled to be paid as compensation tho
value of any buildmg whi~b may
have been
erected by him. The
appellant's claim to the benefit under s. 9
was accepted
by the trial
Court, the first appellate Court and a single Judge of the High Court.
But in the Letters Patent Appeal the Division Bench took the view that
aince a covenant not to build is enforceable in law and a superstructure
in contravention of it is liable to be demolished it would be anomalous
to compensate the tenant under s. 3 for such a structure, and therdore
1. 3 could not be applicable to tenants who built structures in breach ol
their covenant.
It also took note of the words in the preamble that the
Act was intended to protect tenants who had constructed buildings on
olhers land& "in the hope that they would not be evicted.''
HELD : ( i) The covenant entered into by the tenants could not be
taken into account for the purpose of construing the scope of s. 3. The
HiBI> Court had fallen into this error. [l 15F]
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(ii) The word 'tenant" in s. 3 must be understood only in the sense
"f
that the word is defined in the Act There is no reason for saying that
the word 'tenant' in s. 3 excludes tenants who put up structures on the
land in breach of a covenant not to build. (114 C-DJ
(iii) A covenant not to buid, if it could affect the right of the tenant
to claim compensation under s. 3, would be of no effect for under s. 12
nothing in any contract shall take away a tenant's rights under the Act
Therefore in spite of the covenant the tenanta were entitled to their righll
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under s. 3 and s. 9. (114 F-0]
(iv) Since the language of s. 2(4) and ss. 3 and 9 w~ clear ~d
unambiguous there was no need to resort to the preamble for mterpret101
these scction9. A preambl£ cannot operate to annul a secllon. [ 115 C·D]
"N. Vajrapani Naidu v. New Theatre Carnatlc
Talkies Lid., A:.I.ll.
( 1964) S.C. 1440, refcned to.
H
Per Hidayatullab, J. (i) Section 3 is general and applies to cv~ry
tenant and would include all and sundry tenants as also tenants holding
<1Ver. [1170]
•
•
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R. v. NAIDU v. NARAINDAS (Sarkar, J.)
111
A
(ii) The kind of building hinted at in the preamble
namely, one
constructed "in the hope" of the continuance of the tenancy does ilot
find any mentipn in the operative part of the Act or in the defini.tiion
of building. It is therefore difficult to read this limitation (as. was contended) i)l ss. 3. and 9 where 'building' is used without any qualification
and implies only a construction. [118 F-0)
B
c
Deo v, Brandling, (1828) 7 B & C, 643, referred to.
(iii) Sections 3 and 9 are imperative and s. 9 is expressly made applicable to pending suits in cjcctment such as the present one.
Appellants
made application undeir s. 9 within
the
time limited therefor.
The
result must obviously follow unless the latter part of s. 12 could save the
respondent. That could only be if the stipulations by the tenant not to
build had been 'in writing registered', but the lease-deed in
question,
though in writing, is not registered. [119 B.C]
. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 146 of
1965.
Appeal from the judgment and order dated September 21,
1962 of the Madras High Court in L.P.A. No. 29 of 1961.
D
P. Ram Redd,v and R. Ganapathy Iyer, for the appellants.
C. B. Agarwala and R. Gopalakrishnan, f

## Text

I I 0
R. VENKATASWAMI NAIDU AND ANOTHER
v.
NARASRAM NARAINDAS
April 27, 1965
[A. K. SARKAR, K. SUBBA RAo, M. HIDAYATULLAll AND
]. R. MUDHOLKAR, JJ.)
MadrM City Tenants Protection Act, 1922, "· 2(4), 3, 9 and 12Tenants building on land in breach of covenant whether entitled to il.tM-
{iJs under ss. 3 and 9.
The appellants were tellllots who held over after the expiry of their
lcale aqd !milt structures on the land in breach of a covenant not to
build. In a suit for their ejectment they aslr.ed the Court to direct the
landlord to sell the land to them under s. 9 of the Madras City Tenants
Protection Act, 1922 which had, pending th~ suit, been extended to the
area. The benefit under s. 9 was available to tenants who were entitled
under s. 3 to compensation for their structures. According to s. 3 every
tenant would on e;ectment be entitled to be paid as compensation tho
value of any buildmg whi~b may
have been
erected by him. The
appellant's claim to the benefit under s. 9
was accepted
by the trial
Court, the first appellate Court and a single Judge of the High Court.
But in the Letters Patent Appeal the Division Bench took the view that
aince a covenant not to build is enforceable in law and a superstructure
in contravention of it is liable to be demolished it would be anomalous
to compensate the tenant under s. 3 for such a structure, and therdore
1. 3 could not be applicable to tenants who built structures in breach ol
their covenant.
It also took note of the words in the preamble that the
Act was intended to protect tenants who had constructed buildings on
olhers land& "in the hope that they would not be evicted.''
HELD : ( i) The covenant entered into by the tenants could not be
taken into account for the purpose of construing the scope of s. 3. The
HiBI> Court had fallen into this error. [l 15F]
B
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(ii) The word 'tenant" in s. 3 must be understood only in the sense
"f
that the word is defined in the Act There is no reason for saying that
the word 'tenant' in s. 3 excludes tenants who put up structures on the
land in breach of a covenant not to build. (114 C-DJ
(iii) A covenant not to buid, if it could affect the right of the tenant
to claim compensation under s. 3, would be of no effect for under s. 12
nothing in any contract shall take away a tenant's rights under the Act
Therefore in spite of the covenant the tenanta were entitled to their righll
G
under s. 3 and s. 9. (114 F-0]
(iv) Since the language of s. 2(4) and ss. 3 and 9 w~ clear ~d
unambiguous there was no need to resort to the preamble for mterpret101
these scction9. A preambl£ cannot operate to annul a secllon. [ 115 C·D]
"N. Vajrapani Naidu v. New Theatre Carnatlc
Talkies Lid., A:.I.ll.
( 1964) S.C. 1440, refcned to.
H
Per Hidayatullab, J. (i) Section 3 is general and applies to cv~ry
tenant and would include all and sundry tenants as also tenants holding
<1Ver. [1170]
•
•
•
•
R. v. NAIDU v. NARAINDAS (Sarkar, J.)
111
A
(ii) The kind of building hinted at in the preamble
namely, one
constructed "in the hope" of the continuance of the tenancy does ilot
find any mentipn in the operative part of the Act or in the defini.tiion
of building. It is therefore difficult to read this limitation (as. was contended) i)l ss. 3. and 9 where 'building' is used without any qualification
and implies only a construction. [118 F-0)
B
c
Deo v, Brandling, (1828) 7 B & C, 643, referred to.
(iii) Sections 3 and 9 are imperative and s. 9 is expressly made applicable to pending suits in cjcctment such as the present one.
Appellants
made application undeir s. 9 within
the
time limited therefor.
The
result must obviously follow unless the latter part of s. 12 could save the
respondent. That could only be if the stipulations by the tenant not to
build had been 'in writing registered', but the lease-deed in
question,
though in writing, is not registered. [119 B.C]
. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 146 of
1965.
Appeal from the judgment and order dated September 21,
1962 of the Madras High Court in L.P.A. No. 29 of 1961.
D
P. Ram Redd,v and R. Ganapathy Iyer, for the appellants.
C. B. Agarwala and R. Gopalakrishnan, for the respondents.
The Judgment of Sarkar, Subba Rao and Mudholkar, JJ. was
delivered by Sarkar J. Hidayatullah J. delivered a separate Opinion.
E
Sarkar J.
By an unregistered instrument of lease dated
February 3, 1953, the respondent let out a piece of vacant land in
the town of Coimbatore to the appellants for the term of one YCllr
at a rent of Rs. 30 /- per month. The tenants held over after the
expiry of the term reserved and the tenancy was continued. The
lease provided that the tenants "shall not raise any building whatF
soever in the vacant site" but they committed a branch of the
covenant by putting up a building on the land.
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On December 4, 1956, the lessor filed a suit for ejectrnent of
the tenants and their sub-tenants. Pending the suit, the Madras
City Tenants' Protection Act, 1921, was on February 19, 1958
inade applicable to the town of Coimbatore and thereupon the
tenants made an application in the suit under s. 9 of the Act for an
order directing the lessor to sell the land to them.
The trial
Court, a learned Sub-Judge in first appeal and Anantanarayanan J.
in second appeal to the High Court of Madras held that the tenants
were entitled to the order. A Division Bench of the High Court
took a contrary view in a Letters Patent Appeal preferred by 'the
lessor. The tenants have appealed to this Court against the judgment of the Division Bench.
1 1 2
SUPREME COURT REPORTS
[1966] I S.C.R.
The question naturally turns upon the provisions of the Act the
A
relevant parts of which we will, therefore, set out at once.
S. 2 (4). 'Tenant means tenant of land liable to pay
rent on it. ........ "
S. 3. "Every tenant shall on ejectment be entitled to
be paid as compensation the value of any building which
B
may have been cr~ctcd by him."
S. 9. "Any tenant who is entitled to compensation
under section 3 and against whom a suit in ejcctment has
been instituted .... may ...... apply to the court for an
order that the landlord shall be directed to sell .... the
extent of land to he ~pecificd in the application."
S. 12. "Nothing in any contract made by a tenam
shall take away or limit his rights under this Act, provided that nothing
herein contained
shall affect any
stipulations made by the tenant in writing registered as
to the erection of buildings in so far as they relate to builddings erected after the date of the contract."
lt will be noticed that a tenant entitled to purchase under s. 9
must be a tenant entitled to compensation under s. 3.
The real
question, therefore, is whether the tenants in the present case were
entitled to compensation under s. 3.
We may observe that we
shall not in the present case be concerned with the proviso to s. 12
as the lease was not by a registered document and hence references
in this judgment to that section will be to that section without the
proviso. We should also state that by virtue of s. I 0, s. 9 is applicable to suits pending in Coimbatore courts when the Act w~
applied to that city.
It was not disputed in this Court that if the covenant was left
out of consideration, the tenants would be entitled to the benefit of
ss. 3 and 9.
They would be tenants within the definition of that
word in the Act and the ingredients of the other two sections
would be fully satisfied. The learned Judges of the Division Bench
also accepted this position.
The question then is, Does the covenant make any difference?
The learned Judges thought, in our opinion wrongly, that it did.
They put the matter in this way :
A covenant not to build is
valid. If it is valid, it must be enforceable all along and, therefore,
also after the termination of the lease by an order for demolition.
If it can be so enforced, s. 3 which gives the tenant a right to compensation for the building cannot be applicable to a case where
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R. v. NAIDU v. NARAINDAS (Sarkar, J.)
113
there was such a covenant for the Act could not at the same time
have countenanced a compulsory demolition of a building at the
instance of the lessor and a right in the tenant to compensation for
that building. The enforceability of the covenant, therefore, indicated the scope of s. 3 in spite of its wide terms and the equally
wide definition of the word "tenant" in the Act. That scope was
that the section had no application here there was such a covenant.
Learned counsel for the lessor advanced the same reasoning summarising the position by the observation that the erection contemplated by s. 3 was a lawful erection, that is, not in breach of any
covenant not to build.
It seems to us that this reasoning is clearly fallacious.
The
learned Judges held that the covenant not to build was valid. They,
therefore, must have held that it did not affect a right under s. 3
for if it did, it must have been ineffective under s. 12. Now when
the learned Judges held that the covenant did not affect the right
under s. 3, they must have decided what that right was and who
were the tenants entitled to it. In deciding the validity of the covenant they must, therefore have fully and finally interpreted the section and decided its scope and effect.
After that they could not
again proceed to ascertain the scope of the section.
But tnis is
what they did and this is where their principal error lay. Basing
themselves on one interpretation of the section they held the covenant to be valid and basing themselves on the validity of the covenant so found, they gave the section a second and a different interpretation. In deciding the validity of the covenant they had not
said that s. 3 had no application where the covenant existed. If
they had, they would have decided what they called the scope of the
section without any aid from the covenant and there would have
been no need for deciding the scope of the section again on the
basis of the validity of the covenant. Therefore, on the second
occasion thHY found the scope to be different from what they bad
found it to be on the first occasion. But, of course, a section bas
only one interpretation and one scope; a process resulting in more
than one interpretation and scope is clearly erroneous.
Now when decidjng that the covenant did not affect the right of
tenants under s. 3 and was, therefore, valid, the learned Judges
did not say that a tenant who built in breach of it was not a tenant
as contemplated by s. 3 and was not entitled to its benefits; in fact
they expressly took a contrary view. They said, and in our view
rightly, "there is no express provision in the Act, limiting the
operation of section 3 ...... to the tenants who were authorised
by the terms of the lease to put up a building.
Prima facie,
114
SUPUMB OOUllT llJ!PORTS
[1966) l S.C.R.
A
therefore, the term 'tenant' might not exclude one who puts up a
superstructure on the land in breach of a covenant not to build."
They stated that this was the view to be gathered from a conside>-
ration of the entire Act But clearly there was nothing else they
could legitimately consider for interpreting s. 3.
It would, therefore, appear that the words "prima facie" with which they qualified their observation were inapposite. In effect then the learned
•
Judges said this : The contract was valid as it did not affect the
right under s. 3 of any tenant as defined in the Act and since
the contrac~ was valid, a tenant who had built in breach of it was
not entitled to any right under s. 3.
This is a wholly untenable
proposition.
We think that the word "tenant" ins. 3 must be understood only
in the sense that that word is defined in the Act. We repeat that
there is no reason for saying that the word "tenant" in s. 3 does not
include all tenants as defined in the Act.
None has been shown
apart from that given by the learned Judges which we think is ill
D
founded.
Therefore the appellants are tenants as contemplated by
s. 3.
Now the covenant says that the tenants shall not build.
Either that affects the right of the tenants to claim compensation
for the buildings constructed in breach of it at the termination of the
lease or it does not.
If it does not, then no further question arises;
there will then be nothing purporting to disentitle the tenants of
E
their rights under s.
3 and the case will be the same as where
there is no covenant at all.
If such is the case then, as we have said
earlier, there is no dispute that the tenants are entitled to their
rights under ss.
3 and 9. If however, the covenant not to build
affects the right to claim compensation under s. 3, such a covenant
would be of no effect, for under s.
12 nothing in any contract
F
shall take away a tenant's rights under the Act.
The case will then
also be the same as if there was no covenant at all.
That is why
we think that the covenant not to build does not affect the question
in hand.
The tenants must be held entitled to their rights under
ss. 3 and 9 in spite of the covenant not to build and a breach of it
by them.
G
Before Anantanarayanan J.
the argument for the lessor was
somewhat different.
It wa~ said that s. 3 had to be read in harmony with the general law, that is, s. 108(h) of the Transfer of
Property Act, which gave the tenant a right to build when the lease
did not prohibit building and, therefore, the erection under s. 3
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must be one permitted by law.
The learned Judge rejected thi~
.contention, in our opinion rightly, on the ground that s. 3 and
R. Y. NAIDU v. NARAINDAS (Sarkar, J.)
11 5
A s. 9 contained no words justifying it and under s. 12 no contract
could be made affecting the sections earlier mentioned.
He also
pointed out that s.
13 of the Act specifically provided that the
Transfer of Property Act must be deemed to have been repealed to
the extent necessary to give effect to the Act so that there was no
scope for harmonising the Act with the Transfer of Property Act.
B
We entirely agree with the learned Judge's views. We must however observe that this argument was not advanced in this Court.
Before leaving this matter a reference to the preamble of the
Act is necessary. It states that the Act was passed "to give protection to tenants who ...... have constructed buildings on others'
C lands in the hope that they would not be evicted."
The learned
Judges of the Division Bench found it to be too vague to be taken as
defining a definite ascertained class of tenants. In any case, no
resort to the preamble would, we think, be justified in interpreting
the definition of tenant in s. 2(4) as the words used in it are clear
and unambiguous.
We observe that the language used in ss. 3 and
D
9 also admits of no doubt as to the meaning intended. A preamble
cannot of course operate to annul a section.
We must here also
say that learned counsel for the lessor did not rely on the preamble
to support his contention.
We think it right to point out before we conclude that N. VairE apani Naidu v. New Theatre Carnatic Talkies Ltd. to which our
attention was drawn, does not touch the point with which we
are concerned, for it turned on the proviso to s. 12 and that proviso
' has no application to the present case.
For these reasons we think that the judgment under appeal was
F erroneous and must be set aside. We agree with Anantanarayanan
J. that the appellant tenants had a right under s. 9 of the Act to
purchase the land leased in spite of the covenant not to build and
the breach of it by them. The covenant cannot be used for interpreting s. 3 or s. 9.
G
The appeal is allowed. The judgment of the Division Bench is
set aside and that of Anantanarayanan J. is restored. The appellants will get the costs in this Court and in the Division Court.
ffidayatullah, J.
I agree that this appeal must succeeded but I
would like to state the reasons somewhat differently. Appellants 1
ff and 2, who were tenants of the respondent landlord, seek the enforcement of s. 9 of the Madras City Tenants' Protection Act, 1921,
which was extended to Coimbatore on February 19, 1958. By a
I I G
SUPREME COURT
REPORTS
[1966] l S.C.R
written (but not registered) lease-deed the appellants 1 and 2 took
on lease for a year from February IO, 1953, a vacant site on a rent
of Rs. 35 per month.
The lease-deed contained a term that no
building should be built on the land.
Without the knowledge and
consent of the landlord the appellants I and 2 built structures on the
vacant site and continued to hold over even after the expiry of the
year.
They inducted sub-tenants. The respondent-landlord sued
in ejectment in 1956 and the suit stood closed for arguments on
February 25. 1958.
On that date appellants 1 and 2 applied
under s. 9 of the above Act claiming the right to purchase the
land.
The cas.! was re-opened and some more
evidence
was
received. The District Munsif, Coimbatore by his judgment date4i
April 8, 1958 accepted the claim of appellants 1 and 2 and took
action to determine the price for the land as required by the Act.
An appeal by the respondent-landlord before
the
Subordinate
Judge, Coimbatore and a second appeal in the High Court failed.
The present appeal is from the judgment dated September 21.
1962 of the Division Beach in an appeal filed under cl. 15 of the
Letters Paten! and by certificate from the Division Bench.
By
that judgment the decision of the Single Judge was reversed and
the application under s. 9 of the Act was ordered to be dismL'>SCd.
There was, however. a remit for disposal on other points.
The Act which is relied upon by the appellants is an Act which
was intended 10 apply in the first instance to th~ Madras City but
could be extended to other towns and villages. It was, as the Jong
title shows. intended "to give protection to certain classes of tenant'
in Municipal towns and adjoining areas in the State of Madr!I-'".
11te last eleven words were substituted for the words "in the City
of Madras" by an amending Act of 1955. The preamble of the
Act reads:
"Whereas it is necessary to give protection to tenants
who in mutticipa/ towns and adjoinini: areas in the State
of Madras have constructed buildings on others' lands in
the hope that they would not he evicted so long as they
pay a fair rent for the land; .......... ".
"lbe words underlined were substituted for the words "in many paru
of the city of Madras" by the same amending Act.
The Act defines the word "building" so as to include every structure, permanent or temporary und 'land' to exclude "buildings"
and "tenants" as "tenant of land liable to pay rent on it, every
person deriving title from him", and including "persons who conA
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R. v. NAIDU v. NARAINDAS (Hidayatullah, !.)
11 T
tinue in possession after the termination of the tenancy".
The
appellants 1 and 2 were thus tenants of land excluding the buildings.
The Act then give new rights of various sorts to tenants,.
and some of the sections are set out below :
"3. Payment of compensation on ejectment.
Every tenant shall on ejectment be entitled to be paid
as compensation the value of any building, which may
have been erected by him, by any of his predecessors-ininterest, or by any person not in occupation at the time
of the ejectment who derived title from either of them,
and for which compensation has not already been paid.
A tenant who is entitled to compensation for the value
of any building shall also be paid the value of trees
which may have been planted by him on the land (and
of any improvements which may have been made by
him)."
The section is general and applies to every tenant and would include all and sundry tenants as also tenants holding over.
In·
other words, the appellants would be included.
Sections 4 and
5 lay down the procedure for determination of compensation.
Section 6 provides for determination of rent. They are not relevants
here and we are not concerned with ss. 7, 7 A and 8.
Section 9
(omitting portions not relevant here) then states:
"9. Application to court for directing the landlord to sell land.
(I) Any tenant who is entitled to compensation under
section 3 and against whom a suit in ejectment has been
instituted or proceeding under section 41 of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may, within one month of the date of Madras City
Tenants' Protection (Amendment) Act, 1955, coming
into force or of the date with effect from which this Act
is extended to the municipal town or village in which the
land is situate or within one month after the service 011'
him of summons, apply to the court for an order that
the landlord shall be directed to sell the land for a price
to be fixed by the court. The court shall fix the price
according to the lowest market value prevalent within
seven years preceding the date of the order and shall
order that, within a period to be determined by the
court, not being less than three months and not more
than three years from the date of the order, the tenant
118
SUPP.l!MB COUllT REPORTS
(1966] I S.C.R
shall pay into court or otherwise as directed the price
A
·so fixed in one or more instalments with or without
interest.
(2)
( 3) On payment of the price the court shall pass a
fmal order directing the conveyance of the land by the
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landlord to the tenant. On such order being made the
suit or proceeding shall stand dismissed, and any decree
or order in ejectment that may have been passed therein
but which has not been executed shall be vacated.
Section IO expressly applies ss. 4, 5, 6, 8 and 9 to pending suit~
in ejectment and to decrees passed in such suits but not yet executed. Section 12 provides as follows :
"12. Effect of contracts made by tenants.
Nothing in any contract made by a tenant shall take
away or limit his rights under this Act, provided that
nothing herein contained shall affect any stipulations
made by the tenant in writing registered as to the erection
of buildings, in so far as they relate to buildings erected
after the date of the contract."
Section 13 provides that the provisions of the Transfer of Property
Act in its application to the area where the Act was in force, to
the extent necessary to give effect to the provisions of the Act,
shall be deemed to have been repealed or modified. The Act is
thus self-contained and the ordinary law of transfer of property
has no application.
The first point to notice is that the kind of building hinted at
in the preamble, namely, one constructed "in the hope" of the
continuance of the tenancy does not find any mention in the operative part of the Act or in the definition of building. It is, therefore, difficult to read this limitation (as was contended) in ss. 3
and 9 where "building" is used without any qualification and implies only a construction. A preamble is a key to the interpretation of a Statute but is not ordinarily an independent enactment
conferring rights or taking them away and cannot restrict or widen
the enacting part which is clear and unambiguous.
The motive
for legislation is often recited in the preamble but the remedy may
extend beyond the cure of the evil intended to be removed. See
Maxwell on Interpretation of Statutes, 11th Edn. p. 45. If the
enacting portion takes in all buildings without qualification, it is
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R. v. NAIDU v. NARAINDAS (Hidayatullah, J. )'
119•
A not possible to give the less extensive import of the preamble a
greater value against the enacted provision. See Deo v. Brandling
-(1828) 7 B & C 643, 660 per Lord Tenterden.
What then is the position ? Sections 3 and 9 are imperative
and s. 9 is expressly made applicable to pending suits in ejectB ment such as this was. Appellants 1 and 2 made the application
within a week of the extension of the Act to Coimbatore and were
within the time limited for their action. The result must obviously
follow unless the latter part of s. 12 can save the respondent. That
can only be if the stipulations by the tenant as to the erection of
the building in so far as they related to buildings erected after the
c date of the lease-deed had been "in writing registered". The leasedeed is in writing but is not registered. By the first part of s. 12
the tenant is protected against his own contract. The landlord is
protected by the second part, but the landlord here cannot seek the
protection of the second part because the lease-deed is not registered.
D
The appellants also claimed that the words "stipulations as to·
the erection of buildings" cannot take in a covenant not to construct at all, as laid down in N. Vajrapani Naidu and Another v.
New Theatres Carnatic Talkies Ltd.('). The ruling certainly is in
the appellants' favour but it is not necessary to rely on it for the
E disposal of this case.
As at present advised, I would not like to
rest my judgment on that point of view.
I agree with the order proposed but for the reasons given·
here.
Appeal allowed ...
(1) A.l.R. 1964 S.C. 1440.