M.C. Desai, J. - (1.) 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. 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.;