1. The only question now in controversy in this suit is as to the effect of the deed of the 19th of June 1903. By this deed, the plaintiff advanced to the defendants a sum of Rs. 99-15-9. As one of the considerations for this loan, the obtaining of which was the single object of the agreement, so far as the defendants were concerned, the plaintiff obtained from them an agreement that if they failed to pay him the interest from year to year, they would put him in possession of a certain tenant's holding. This was an occupancy holding, the transfer of which is forbidden by law. A part of the consideration obtained by the plaintiff in return for his loan was unlawful and this deed of the 19th of June 1903, consequently, constitutes a void agreement by reason of Section 24 of the Indian Contract Act IX of 1872. I do not consider that Section 58 of the same Act applied to the present case as there was no alternative promise capable of being separated altogether from the illegal portion of the agreement. The illustration to that section shows clearly the class of cases to which it is intended to apply. Nor is the plaintiff entitled to sue upon what may be described as the covenant of indemnity in this deed of the 19th of June 1903, i.e., the stipulation that in case of failure to put him in possession, he may sue for principal and interest. The defendants could not bind themselves under penalty to do an illegal act, i.e., to give possession of their occupancy holding.
2. I am further of opinion that Section 65 of the Indian Contract Act IX of 1872 has no application to a case like the present, where it cannot be said that any agreement between the parties was discovered to be void after it had been entered into or that the contract became void after it had been entered into. The parties entered into an unlawful agreement under which it was sought to bind one of them to do something forbidden by law and the entire agreement was of such a nature that, if permitted, it would defeat the provisions of law. The parties are in pari delicto and as the defendants have not permitted the plaintiff to obtain possession of the holding, he is entitled to no relief. I dismiss this appeal with costs.