JUDGMENT Sulaiman and Gokul Prasad, JJ.
1. This is a plaintiffs' appeal arising out of a suit for sale on foot of a mortgage-deed, dated the 19th of August, 1009, executed by Raja Ram for a sum of Rs. 500. The deed combines features of a usufractuary mortgage deed and a simple mortgage deed. In it certain occupancy holdings were mortgaged with possession for a term of seven years and from the produce of the holding the principal sum secured by the deed was to be repaid in instalments from 1318 fasli to 1324 fasli. In case of failure to pay the sum, or if the occupancy holding went out of the possession of the mortgagee, the deed provide that the mortgagee would be entitled to recover his mortgage money by sale of three groves and a well situate in the village. The plaintiffs' case was that having been dispossessed from the occupancy holdings they are entitled to recover the money by sale of the hypothecated property. Several pleas were taken in defence, one of them being that, the mortgage being one of an occupancy holding, it was void and the suit was not maintainable. The court of first instance decreed the suit. The lower appellate court, however, has dismissed it on the ground that the main object of the deed was to place the plaintiffs reap indents in possession of the occupancy holding, which amounted to a transfer not recognized bylaw, and the suit was therefore not maintainable. The plaintiffs have come up in second appeal to this Court and it is contended on their behalf that the mortgage deed must be split up into two parts; that although the deed, so far as it was a mortgage of the occupancy holding, was not enforceable, nevertheless there was nothing to prevent the plaintiffs from enforcing their remedy as against the groves and the well, which were saleable.
2. In our opinion the mortgage deed embodies one single trans-fiction the main purpose if the deed was to mortgage the occupancy holding, and it was provided that, in the event of the mortgagee not obtaining possession of the occupancy holding, he would lo entitled lo recover his mortgage money with interest by sale of the other property detailed therein. The effect of this deed really was lo make a mortgage of the occupancy holding with an indemnity clause entitling the mortgagee to recover his money in another way prescribed therein. In our opinion it is impossible to split up the deed into two distinct parts. The whole deed embodies one single transaction, and the right to recover the amount by sale of the groves and the well is dependent upon, and comes into existence after the failure of the mortgagor to give effect to the mortgage of the occupancy holdings which, in our opinion, is not enforceable. This case is very much similar to the case of Ram Pratap Rai v. Ram Phal Teli (1912) 18 Indian Cases 9, where "A had advanced a loan to B under an agreement that if B failed to pay A the interest from year to year, B will put A in possession of an occupancy holding, the transfer of which was forbidden by law. In the agreement there was a covenant of indemnify that in case of failure to put A in possession, A might sue for principal and interest," Piggott, J., held that the plaintiff was not even entitled to sue upon what may be described as a covenant of indemnity, that is, a stipulation that in case of failure to put A in possession, A might sue for principal and interest; and he held that the alternative promise was really incapable of being separated altogether from the illegal portion of the agreement. In the present case, as the deed is worded, it is quite clear that it was intended primarily to be a mortgage of the occupancy holding. The right to recover the amount of the principal and interest by sale of the other property was made dependent on the failure of the mortgagors to put the mortgagee in possession of the occupancy holding. The two portions of the deed, in our opinion, are inseparable. If the plaintiff cannot compel the mortgagor to put him in possession of the occupancy holding, he is not entitled to recover the money on the ground that the mortgagor has failed to carry out the illegal part of the contract. In the case of Poor an Singh v. Jai Singh (1912) 17 Indian Cases 522 Mr. Justice Chamier held that where P executed a bond in favour of J and on the same date gave him a lease of his ' occupancy holding, that the two documents formed really one transaction, the plaintiff was not entitled to recover the money on the bond because a lease of the occupancy holding, was illegal and the two transactions could not be separated from each other. On behalf of the appellant reliance is placed on the case of Bajrangi Lal v. Ghura Rai (1916) I.L.R. 38 All. 232. In that case the plaintiff had first executed a sale deed of his occupancy holding and also his fixed-rate holding for consideration, and then brought a suit to set aside the sale on the ground that the transaction was illegal inasmuch as the transfer of an occupancy holding was void. The High Court held that, so far as the fixed-rate holding was concerned, the suit could not be decreed. In case of a sale out-and-out, if it so happens that part of the property conveyed is not saleable, the whole sale cannot be bad. The inclusion of a property which is not saleable will of course not prevent the passing of the interest in the other property to the vendee. Further, the Court seems to have been of opinion that the plaintiff himself could not come to court and ask for a declaration that the deed executed by him was illegal. In the case of Rajendra Prasad v. Ram Ratan Rai (1917) I.L.R. 39 All. 539 there was a mortgage of occupancy and fixed-rate holdings prior to the passing of the present Tenancy Act, The plaintiff brought a suit for sale of the fixed-rate holding only. It was held that such a suit was maintainable and that the relief against the fixed-rate holding could be enforced. This was a case in which both occupancy and fixed-rate holdings had been mortgaged jointly. The court held that it was open to the mortgagee to give up part of his security and enforce his claim as against the other. The charge on the fixed-rate holding could very easily be separated from that purported to have been created on the occupancy holding. That case is, therefore, clearly distinguishable from the present case where the mortgage was primarily one of occupancy holding only, and it was only' in the event of the mortgagee not retaining possession of the occupancy holding that a right was given to him to realize his money by sale of the other property; this right could come into force only on the failure of the mortgagor to carry out the illegal contract of transferring his occupancy holding to the plaintiff. In our opinion the view of the lower appellate court is correct. The appeal fails and is hereby dismissed with costs.