JUDGMENT M.C. Desai, C.J. - I agree with my learned brother that a transferee of a mortgaged property does not become joint debtor with the mortgagor within the meaning of Section 9 of the Act. I respectfully agree with the decision of Seth, J. in the case of Mohan Lal v. Gokaran Singh, AIR 1950 Allahabad 87. The Act does not explain who is a debtor; much less does it explain who is a joint debtor. In this case we are not concerned with the meaning of "debtor"; we are concerned with the meaning of "joint debtor." Even if we find that A is a debtor and B is a debtor, we may not find them to be joint debtors. Even if we hold that Parbhawati was a debtor, it does not follow that she was a joint debtor. It seems to me that two debtors cannot be joint debtors unless their liabilities arise from the same source. Moti Lal, Madho Prasad and Patru Lal were joint debtors, because the liability of each arose from the mortgages executed by them jointly. The liability of Parbhawati arose, if at all, not from the execution of the mortgage but from her purchase of the mortgaged property subsequent to the execution of the mortgage. The source of her liability being entirely different from that of the liability of Moti Lal, Madho Prasad and Patru Lal, I do not understand how she could be said to be a joint debtor with Moti Lal, etc. even if she was held to be a debtor. 2. Put in other words, two debtors cannot be joint debtors unless the nature of their liability is same. The nature of the liabilities incurred by Moti Lal, Madho Prasad and Patru Lal was exactly the same; they jointly borrowed money from the respondents on the security of their property. If any of them died and his estate was inherited by his sons, they would be also joint debtors along with the remaining two mortgagors. But if one of them sold the mortgaged property to a third person, the latter would not become a joint debtor with the two original mortgagors. The nature of the liability of a mortgagor is distinct from the nature of the liability of a transferee from him of the mortgaged property. He is personally liable, whereas the transferee is not personally liable. The nature of the liability of a mortgagor is distinct from the nature of the liability of a transferee from him of the mortgaged property. He is personally liable, whereas the transferee is not personally liable. It is of the essence of the meaning of "joint debtors" that the nature of the liabilities of the persons alleged to be joint debtors is exactly the same. 3. The very provision that the Special Judge should apportion the liability of the joint debtor who applies under Section 4 of the Act, i.e. separate it from that of other joint debtors presupposes that the liability is capable of quantitative separation. There cannot possibly arise any question of apportionment if the liability cannot be separated. There can be apportionment of a liability if it is a total of two liabilities and it would be a total of two liabilities only if the two liabilities were of the same nature. Since the apportionment of a liability is nothing but splitting it up into two or more liabilities, it must be an aggregate of liabilities in order to be capable of being split up. There is such an aggregate of liabilities when two persons jointly borrow money on the security of their property, but not when a sole borrower of money on the security of his property transfers the property to another person subject to the encumbrance. There was only one pecuniary liability on the execution of the mortgage by him; since there was only one borrower, there could arise no question of its being split up. It certainly does not become severable because he transfers the mortgaged property to another person, even after the transfer the liability remains one and indivisible. The property is liable to be proceeded against in discharge of the mortgage debt notwithstanding the transfer and if it proves to be insufficient to discharge the debt, other property of the mortgagor would be liable. It is evident that the liability that was one and indivisible on the execution of the mortgage does not cease to be so on the transfer of the mortgaged property to the other person; in other words, even after the transfer the liability remains one and indivisible and that there cannot arise any question of apportioning the liability between him and the transferee. The position is not different when out of two mortgagors one transfers his share in the mortgaged property. If the transferee does not become a joint debtor with him, he cannot become a joint debtor with the other mortgagor. So even if Parbhawati could be said to be a debtor, she was certainly not a joint debtor with Madho Prasad. 4. I do not think that Parbhawati can be said to be even a debtor. The Property purchased by her from Moti Lal, Madho Prasad and Patru Lal was subject to the mortgage encumbrance and could be sold in discharge of the mortgage, it does not necessarily follow that she was under a pecuniary liability. She was under no liability at all; only her property was liable. There cannot be a debt in the absence of a pecuniary liability and there cannot be a debtor unless there is a debt. Only a human being can be a debtor; a property cannot be a debtor. Parbhawati would not be a debtor unless she was under a pecuujary liability; she purchased from Moti Lal, Madho Prasad and Patru Lal their property and not their pecuniary liability. Though the property is liable to be proceeded against in discharge of the mortgage debt, it cannot be said that she herself became pecuniarily liable. The mortgaged property could be sold in discharge of the mortgage, but not because she, its owner, was under a pecuniary liability but because it was subject to the mortgage and remained so even after the transfer. Reliance on the provisions of Section 4 of the Act by the learned Judges who decided the case of Shambhoo Dayal v. Kundan Lal, 1940 AIR Oudh 87 seems to be in vain. Section 4 divides landlords and not debtors into two classes, one of those who are subject to a debt, and the other of those whose property is encumbered with a debt. It is a landlord who is entitled to apply under Section 4 and not a debtor and it is illogical to contend from the fact that a landlord whose property is encumbered with a debt is entitled to apply that he is a debtor like another landlord who is entitled to apply on account of his himself being subject to a debt. 5. 5. The Special Judge himself excluded the property purchased by Parbhawati from the proceedings under the Act when the whole property was held not to be governed by the provisions of the Act, it is not open to Parbhawati to claim the benefit of any provision of the Act in regard to it. As said earlier, the liability was not hers but of her property and the property was held not to be subject to the provisions of the Act. Consequently she could not resist a decree for sale of the property in satisfaction of the mortgage debt. 6. I, therefore, agree that Secs. 9 (5) and (6) of the Act did not apply and the respondents were entitled to proceed against the property for satisfaction of the mortgage debt. The decree was rightly passed in their favour by the lower appellate court, and this appeal must be dismissed but without any order as to costs. Ramabhadran, J.-7. This second appeal has been referred to a Bench by Mr. Justice B. Dayal, as, in his opinion, it was necessary to set at rest the conflict of Judicial decisions on the question whether a transferee of property who, by law, becomes liable to pay part of the mortgage debt, is a co-debtor within the meaning of Section 9 of the U.P. Encumbered Estates Act of 1934. The learned single Judge has referred to Mohan Lal v. Gokaran Singh, AIR 1950 Allahabad 87 as well as Shambhoo Dayal v. Kundan Lal, 1940 AIR Oudh 87, where conflicting views were expressed. 8. The undisputed facts of the case as stated in the order of reference, are as follows: One Moti Lal and his two sons Madho Prasad and Patru Lal, executed a mortgage deed on 10-11-1925 in favour of Sheo Nath Prasad and Bishu Nath Prasad for a sum of Rs. 600 and hypothecated four distinct properties. One of the properties so mortgaged consisted of a five anna and four pies share in a house and fifteen shops. Subsequent to the mortgage, the mortgagors sold a part of the above property to Smt. Parbhawati. Similarly the rest of the mortgagor's interest in the above property was purchased by the same Smt. Parbhawati in an auction sale. Thus Smt. Parbhawati stepped into the shoes of the original mortgagors as far as the entire property was concerned. Subsequent to the mortgage, the mortgagors sold a part of the above property to Smt. Parbhawati. Similarly the rest of the mortgagor's interest in the above property was purchased by the same Smt. Parbhawati in an auction sale. Thus Smt. Parbhawati stepped into the shoes of the original mortgagors as far as the entire property was concerned. One of the original mortgagors, i,e., Madho Prasad, filed an application under Section 4 of the U.P. Encumbered Estates Act, which was numbered as case No. 657 of 1936, showing all the four properties, mentioned in the opening portion of this judgment, as his property and showing the mortgage in favour of Sheo Nath and Bishu Nath Prasad as one of the liabilities. During the pendency of that application the mortgagees, namely, Bishu Nath Prasad and Sheo Nath Prasad, filed the suit out of which this second appeal has arisen. That suit was numbered as 495 of 1937 of the court of the City Munsif of Azamgarh. It was for the enforcement of the mortgage against the mortgagors and their transferees. Proceedings in the suit were stayed under Sec. 7(a) of the above Act and the plaintiffs mortgagees put in their claims under Sec. 9. An objection under Section 11 of the above Act was put in by Smt. Parbhawati in respect of the property purchased by her from the original mortgagors. The Special Judge held that the provisions of the Encumbered Estates Act would not apply to the property purchased by Parbhawati. The suit was proceeded with by the City Munsif but was dismissed on the ground that no decree could be passed, as no apportionment had been made by the Special Judge of the liability of the mortgage bet ween Smt. Parbhawati on one side and the original mortgagors on the other. The plaintiffs went up in appeal and the Additional Civil Judge of Azamgarh, who heard the appeal, granted the plaintiffs a decree under Or. 34, R. 4, C.P.C. for a sum of Rs. 1015-5-6. It is against the appellate decision of the Civil Judge that this second appeal has been filed by Ram Krishna Tripathi, the successor-in-interest or Smt. Parbhawati who died in the meanwhile. 9. 34, R. 4, C.P.C. for a sum of Rs. 1015-5-6. It is against the appellate decision of the Civil Judge that this second appeal has been filed by Ram Krishna Tripathi, the successor-in-interest or Smt. Parbhawati who died in the meanwhile. 9. Learned counsel for the appellant urged vehemently that the Civil Judge was in error in thinking that Smt. Parbhawati was not a debtor within the meaning of Section 9 (5) of the Encumbered Estates Act. In coming to that conclusion the lower appellate court relied upon Mohan Lal v. Gokaran Singh, AIR 1950 Allahabad 87. There the facts were: "Bhola Singh and his son, Hakim Singh having mortgaged certain properties, sold the equity of redemption of a moity share in one of the items of property to one Subedar Singh. Mohan Lal obtained a decree on the basis of the mortgage in the year 1932, against Bhola Singh and his son, Hakim Singh, without impleading Subedar Singh as a defendant. Bhola Singh and his two sons applied for relief under the Encumbered Estates Act in the year 1936, and Mohan Lal, having set up a claim in those proceedings, under the mortgage decree, obtained a fresh decree under the Act in the year 1939. Subedar Singh sold the property purchased by him from Bhola Singh to Gokaran Singh in the year 1940. In 1942 Gokaran Singh filed an objection under Secs. 11, claiming that the property purchased by him was not liable for the payment of the debts of the applicants under the Encumbered Estates Act. His claim was allowed in the year 1944. Mohan Lal then applied under Section 9 (5), Encumbered Estates Act, praying that the debt due to him be apportioned between the landlord applicants and Gokaran Singh, and that the liability of Gokaran Singh be determined. The learned Special Judge allowed this application and determined the amount payable by Gokaran Singh. The lower appellate court set aside the order of the learned Special Judge and, holding that Section 9 did not apply to a case such as the present case, dismissed Mohan Lal's application." Seth, J. observed: "The question for consideration is whether Gokaran Singh can be described to be a debtor within the meaning of the Act. The lower appellate court set aside the order of the learned Special Judge and, holding that Section 9 did not apply to a case such as the present case, dismissed Mohan Lal's application." Seth, J. observed: "The question for consideration is whether Gokaran Singh can be described to be a debtor within the meaning of the Act. In ordinary parlance he would be considered to be a debtor, but the question that has to be determined, is whether he is a debtor also within the meaning of the Act. This word has not been defined in the Act. Although `debt' has been defined in Sec. 2(a) to include a pecuniary liability except a liability for unliquidated damages; the contention of the learned counsel for the respondents is that this is the property in the hands of Gokaran Singh, which is under a liability created by the mortgage, and that Gokaran Singh himself is not subject to any pecuniary liability. He cannot, therefore, be held to be subject to a debt and consequently cannot be held to be a debtor. Sec. 2 does not make it very clear whether a person whose property is subject to some pecuniary liability is to be regarded or not to be regarded to be a debtor. Sec. 4 of the Act, however, is helpful in solving this problem. This section enables a landlord to apply for the benefits of the Act, and divides landlords into two categories, the first category being of landlords, who are subject to private debts, the other category being of landlords, whose property is encumbered with private debts. A person, who is himself subject to a debt is certainly a debtor. If it was intended by the Act that a person whose property is encumbered with debts, but who is not personally liable to pay such debts, should also be regarded to be a person subject to a debt and thus a debtor within the meaning of the Act, there was no object in making a distinction between the two classes of persons mentioned in the section. It would have been enough to say, `a landlord who is subject to a debt' or a debtor landlord. It would have been enough to say, `a landlord who is subject to a debt' or a debtor landlord. Having regard to the provisions of the Act, I am of opinion that a person whose property is subject to an encumbrance is not a debtor within the meaning of Section 9 of the Act." Learned counsel for the appellant submitted that Seth, J. did not consider the decision of a Division Bench consisting of Ziaul Hasan and Hamilton, JJ. of the former Chief Court of Oudh reported in A.I.R. 1940 Oudh 87. That was an appeal from an order of the Special Judge I Grade, Lucknow directing that the subsequent transferees of the property mortgaged be impleaded in the proceedings under the Encumbered Estates Act. Before the Bench it was argued that Sec. 9(5) of the Act did not contemplate the inclusion of subsequent transferees of a mortgaged property in the expression "joint debtors" but that it referred only to those persons who had borrowed money jointly and were consequently personally responsible to repay the debt. Repelling that argument, the learned Judges observed: "Under Sec. 2(a) "debt" includes any pecuniary liability except liability for unliquidated damages. The definition, therefore covers a decretal debt also so that the persons mentioned in para. 9 of the respondent's written statement must be deemed to be joint debtors with the present appellants and as such, the Special Judge shall have to apportion the debt among them. In fact it appears to us that Sec. 9(5) of this Act makes it compulsory that joint debtors, who have not joined in making the application under Section 4 should be made parties to proceedings before the Special Judge and so it was incumbent on the learned Judge to make the order that he did when it was brought to his notice that persons other than the applicants were parties to the respondent's decree as judgment debtors." It was, accordingly, urged that the status of Smt. Parbhawati was that of a joint debtor and consequently it was the duty of the Special Judge to apportion the debt among the various debtors. 10. Learned counsel for the plaintiff-respondents on the other hand, submitted that having regard to the scheme of the Act, vide Secs. 10. Learned counsel for the plaintiff-respondents on the other hand, submitted that having regard to the scheme of the Act, vide Secs. 4 and 9 thereof, a transferee of property which is encumbered with debts, but who is not personally liable to pay such debts, would not be deemed to be a debtor "within the meaning of the Act under Section 4 at any time within one year after the date on which Ch. III of the Act came into force, any landlord, who is subject to, or whose immovable property is encumbered with, private debts, could apply to the Collector of the district in which his lands were situated, stating the amounts of his private and public debts, both decreed and undecreed, and requesting that the provisions of the Act be applied to him. The Proviso to Section 4 stipulates that no application by a member of a joint Hindu family shall be entertained, unless all the members of such family join and the fact is stated in the application, and unless the applicant expressly declares his intention to separate from the joint family, and states the names and addresses of the remaining members of the family with their shares. There is a further proviso to the effect that if an application is made by all the heirs of a deceased debtor who are not members of a Joint Hindu family then the fact should be stated in the application. Similarly, if an application is made by one or more, but not by all the heirs of the deceased debtor, who are not members of a joint family, then this fact shall be stated in the application, and the names and addresses of those heirs, who have not joined in the application shall be mentioned in the application along with their respective shares. 11. Under Section 6, the application is to be forwarded by the Collector to the Special Judge, and under Section 8 the Special Judge shall call upon the applicant to file a written statement containing full particulars of his public and private debts etc. Under Section 9, the Special Judge shall call for claims in respect of private debts, both decreed and undecreed, against the person or the property of the landlord by whom the application has been made. Under sub-sec. Under Section 9, the Special Judge shall call for claims in respect of private debts, both decreed and undecreed, against the person or the property of the landlord by whom the application has been made. Under sub-sec. (4) of Section 9, if one or more members of a joint Hindu family apply, then under the second proviso to sub-sec. (1) of Section 4 the Special Judge has to apportion the debts due by and the property belonging to the joint family between the members who have so applied and those who have not applied. Similarly, under sub-sec. (5) (a) of Section 9 if one or more of the several joint debtors, who are not members of the same joint Hindu family, apply under Section 4, but all the joint debtors do not apply then the Special Judge has to determine the amount of the joint debt which is due by the debtor or debtors who have applied as well as the amount due by those who have not applied. Further, under sub-sec. (6) if one or more, but not all the heirs of a deceased debtor, who are not members of a joint Hindu family, apply, under Section 4, the Special Judge has to apportion debts due by and the property belonging to the deceased debtor between those heirs who have made the application and those who have not and subject to the provisions of Section 49, that portion of the debt which falls to the shares of the heirs who have applied shall be liquidated from the property allotted to them, and they shall not be responsible for the portion of the debt which falls to the shares of the heirs, who have not joined in the application. Under the proviso to sub-sec. 5 (d) of Section 9, a person who is liable for a debt as a surety is not to be deemed to be a joint debtor. Further, in a suit in respect of a liability of a firm, not being a joint family firm and not being a landlord itself, the creditor shall be entitled to proceed in respect of the whole debt against the property of the firm. 12. Further, in a suit in respect of a liability of a firm, not being a joint family firm and not being a landlord itself, the creditor shall be entitled to proceed in respect of the whole debt against the property of the firm. 12. Thus, according to the scheme of the Act Smt. Parbhawati, being only a transferee of the property of the original debtor, and not being personally liable to pay the debt, could not claim to be a "debtor" within the meaning of the Act. I would, therefore, respectfully agree with the view taken by Seth, J. in AIR 1950 Allahabad 87. 13. In the view I have taken, the second appeal fails and it must be dismissed. In view, however, of the conflict of judicial opinion and the question having had to be referred to a Bench, I would make no order as to the costs of the second appeal.