JUDGMENT

1. This is a plaintiffs' appeal arising out of a suit for sale on fact of a mortgage-deed dated the 19th of August 1909, executed by Raja Ram for a sum of Rs. 400. The deed combines features of a usufructuary 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 re-paid 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 provided 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-respondents in possession of the occupancy holding, which amounted to a transfer not recognised by law, and the suit was, therefore, not maintainable. The plaintiffs have come up in record 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 proves and the well, which were saleable. In our opinion the mortgage deed embodies one single transaction. The main purpose of 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 be entitled to recover his mortgage money with interest by sale of the other property detailed therein. The effect of this deed really was to 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 Partap Rai v. Ram Phal Teli 18 Ind. Cas. 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, 8 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 indemnity 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 ease, 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 mortgagor 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 n