- (1.)In the suits out of which these appeals arise the plaintiff alleged that he obtained a registered lease of the land in dispute from the Sasaram Municipality who is defendant No, 2 by a registered document dated the 20th October, 1944. The plaintiff thereafter inducted the principal defendant of each suit in the suit land and the houses which the plaintiff had constructed after taking settlement from the Sasaram Municipality. The plaintiff brought the suits against the principal defendants for a declaration that his lease with the Sasaram Municipality is still subsisting find the plaintiff is entitled to realise rent from the respective principal defendants. Both the lower courts dismissed the suits brought by the plaintiff, principally on the ground that the title of the plaintiff has been existinguished by forfeiture of the lease and the plaintiff had, therefore, no right to realise rent from the principal defendant of each suit.
(2.)In support of all these appeals the main contention put forward by the learned Government Advocate is that in view of the provisions of Section 111(g) of the Transfer of Property Act there should be a notice in writing given by the Sasaram Municipality to the plaintiff for the forfeiture of the lease, and since the lower appellate court has come to a finding of fact that no such notice has been given by the Sasaram Municipality in terms of Section 111(g) of the Transfer of Property Act, the title of the plaintiff as lessee still subsisted and the plaintiff was entitled to get a decree for rent from the respective defendants. The opposite view point is Put forward by learned Counsel on behalf of the respondents. It was submitted that in view of the express terms of the registered lease, dated the 20th October, 1944, there was an automatic forfeiture of the lease as soon as there was non-payment of rent", and the title of the plaintiff as lessee had terminated with effect from July, 1953, when the plaintiff discontinued' payment of rent to the Sasaram Municipality. Reference was made in this connection to the following portion of the lease, exhibit 3:--
"Basurat baki rahne keraya mazkoor mokir fariq aual ko akhtiyar kamil hai wo hoga ke zare baqaya mai sud fisad 61/4 rupeya salana bajarie bil notice wo warrant khah bazarie Public Demand Recovery Act ya bajarie charajoi adalat mai kharcha zat wo zaidad mankokir farik doem wo warisan kaem mokamian farik doem se wasul kar lenge our thika mazkoor bela notice fix kar denge wo bela lehaj maiyad bandobasti khud sir dakhal kar lenge."

(3.)It was, however, contended by the learned Government Advocate that even though there was an express provision in the registered lease that there would be forfeiture for non-payment of rent even without notice on the part of the lessor, the ' requirement of Section 111(g-) of the Transfer of Property Act cannot be waived, and in the absence of notice in writing given by the Sasaram Municipality the title of the plaintiff as a lessee continued. In our opinion the argument put forward by the learned Government Advocate is well founded and must be accepted as correct. Section 111(g) of the Transfer of Property Act is in the following terms:--
"111. A lease of immovable property determines * * * * * * (g) by Forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event: and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease."
It is also important to notice that Section 111(f), has been amended by the Amending Act 20 of 1929 and the words 'gives notice in writing to the lessee of have been substituted for the words "does some act shewing". It is obvious that the provision as to notice by the lessor has been inserted in Section 111(g) of the Transfer of Property Act for the benefit of the lessee, and since the policy of the statute is to give this protection to the lessee it is obvious that the parties to the contract cannot waive this particular statutory provision. It is a protective stipulation made by the legislature in favour of the lessees and such a provision cannot be set at nought by a contract entered into between the parties. The principle of construction in a matter of this kind has been clearly put in Craies on Statute Law, 4th edition, at page 225 as follows:--
'Where a statute prescribes that contract shall be in a particular form, or shall or shall not contain terms, the statutory form must be followed, and the statutory terms may not be waived by the parties to the contract. In Netherseal Colliery Co. v. Bourne (1889) 14 AC 228, a case on the Coal Mines Regulation Act, 1872. Lord Halsbury said, at page 235: The statute discloses the view that the mine-owner and the persons employed in the mine were not, in the contemplation of the Legislature, fit to be trusted to make their own bargains'; and he went on to decide that a protective stipulation in the Act in favour of the miners could not be waived by them, and that the principle, quilibet renuntiare protest juri pro se introducto was inapplicable in such a case."
The provisions of Section 114 of the Transfer of Property Act are also important in this connection. Section 114 gives power to the court in a proper case to give relief against forfeiture for nonpayment of rent. The section reads as follows:-- 114. Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. This section is based upon the English principle of equity that a forfeiture clause for non-payment of rent is merely security for the rent, and relief was given upon the principle that as the light of entry was intended merely as security for the rent, the lessor thereby recovered full compensation and wag put in the same situation as if rent had been paid to him when it was originally due. For these reasons the Courts of Equity in England regarded the forfeiture clause for non-payment of rent as security for the rent and granted relief in all cases wherever compensation could be given. This principle is embodied in Section 114 of the Transfer of Property Act and it is in the context of this principle that we must construe the provisions of Section 111(g) of the Transfer of Property Act with regard to the determination of a lease by forfeiture and the provision of a notice in writing given by the lessor to a lessee of his intention to terminate the lease. Our concluded opinion, therefore, is that the provision as to a written notice embodied in Section 111(g) of the Transfer of Property Act cannot be waived by the act of parties. If this conclusion is correct, it follows in the present case that there has been no forfeiture of the lease, because the finding of fact of the lower appellate court is that a notice has not been given by the Sasaram Municipality to the plaintiff of the forfeiture of the tenancy for nonpayment of rent.