A preliminary decree in a partition suit can have the effect of splitting up the integrity of a mortgage and apportioning the liability under the mortgage and for the arrears of rent, so as to constitute in effect and substance two different and separate mortgages.

SATYANARAYANA RAO, J. :- This appeal is by the plaintiffs against the decision of the learned Subordinate Judge of Palghat, dismissing their application, I. A. No. 560 of 1949, for scaling down the debt in O. S. No. 53 of 1945.

2. On 14-7-1933 an usufructuary mortgage was executed by the Tavazhi of the plaintiffs, which was a branch of Manavazhi tarwad, for a sum of Rs. 16000, in favour of the first defendant in the suit, who is the first respondent in this appeal. The mortgage itself seems to be in renewal of certain earlier debts, the details of which are not relevant for this appeal. Contemporaneously with the mortgage there was a lease back of the mortgage property to the mortgagors for a rent of Rs. 1150 per year. A 3/5th share in the equity of redemption on the hypotheca eventually devolved on the 2nd defendant, who is no other than the daughter of the first defendant. On 11-9-1936 the mortgagors surrendered possession of the properties to the first defendant, the mortgagee, and the mortgagee continued in possession of the properties by the date of the suit, O. S. No. 53 of 1945.

That suit was instituted for partition and separate possession of the plaintiffs 2/5th share in the plaint schedule properties, and the second defendant, who owned the undivided 3/5th share, was impleaded as a party. The properties in the tavazhi, other than those which comprised in the suit, were divided earlier, and the suit was, therefore, confined to the property covered by the usufructuary mortgage deed of 1933. With a view to have the debt due to the first defendant ascertained and determined, she was also impleaded as a party to the action. Various defences were raised to the action, and one of the issues in the suit covered the dispute between the parties concerning the correct amount due to the first defendant on account of the mortgage and the lease back.

The first defendant also claimed in the action that she was entitled to the value of the improvements, and an issue on that question was also raised in the suit. The plaintiffs claimed in the suit also a relief under the Madras Agriculturists Relief Act, Act 4 of 1938. The issues in which the first defendant was interested, namely, issues 6 and 7, were also considered by the trial Judge, and findings were recorded on those issues. The correct amount due to the first defendant was determined to be Rs. 16000, the principal of the mortgage, as also the arrears of rent as found under issue 6 and interest thereon was calculated at 10 per cent. As the first defendant failed to establish that she was entitled to any value of the improvements, the issue relating to that was found against the first defendant.

During the course of the trial of the suit, the first defendant agreed and endorsed on the plaint that she was willing to allow partial redemption of the plaintiffs 2/5th share of the mortgage property when they sought to redeem the same. She also agreed to the apportioning of the liability due under the mortgage of the lease back as determined by the court in the ratio of 2/5th to be borne by the plaintiffs and 3/5th by the second defendant. The second defendant, who was a party to the action, did not object to the arrangement to which the first defendant was a party, under which the liability under the mortgage and the lease back was split up in the proportions stated above and which also allowed the plaintiffs to redeem their 2/5th share on payment of the proportionate amount due to the first defendant. In pursuance of this arrangement and the findings recorded by the court, a preliminary decree was passed in the suit on 13-3-1947. Two clauses of this decree are relevant for the decision of this appeal. They are clauses 2 and 3 of the decree. Clause 2 of the decree is as follows :

"That the plaintiffs are liable to pay the first defendant 2 out of 5 shares of the mortgage amount of Rs. 16000 due to her towards the principal as well as 2 out of 5 shares in the arrears of rent which