JUDGMENT 1. This appeal arises out of a suit to enforce a mortgage security, dated the 13th Aswin 1301 B. S., corresponding to 28th September 1894, executed by one Karim Neoaz Khan in favour of the Plaintiff. The Court below has given a modified decree and hence this appeal by the Plaintiff. The suit was instituted on the 12th August 1896 against the heirs of the mortgagor, he having died in the meantime ; and it was laid at Rs. 93,460, the amount alleged then to be due to the Plaintiff. Pending the suit, one of the properties mortgaged, that is, the property No. 4, which is a putni taluq, was sold for arrears of rent accruing on the taluq itself, on the 26th September 1896, and was purchased by the Plaintiff for Rs. 26,500. On the 8th September 1897 a written statement was put in by three of the Defendants, who are some of the heirs of the said Karim Keoaz Khan, namely, the Defendants Nos. 3, 4 and 8. In this, they raised the question of the validity of the mortgage bond propounded by the Plaintiff upon the ground that there was no intelligent execution thereof by Karim Neoaz Khan, and that no consideration passed thereunder. And they stated that the property No. 4 had been purchased by the Plaintiff, and that if he be found entitled to any money, the mortgage debt should be apportioned between all the properties hypothecated, and that they could be held liable only for the amount justly attributable to the share of the properties in their possession. 2. On the 29th March 1898, two petitions were presented to the Court below, one by the Plaintiff, and the other by the Defendants Nos. 1, 3, 4, 7 and 8, stating that they had come to a compromise between themselves and that the sum of Rs. 1,08,000 was then justly due to the Plaintiff under the mortgage bond in question, that the said Defendants were liable in the sum of Rs. 85,500 in respect of a 12 anna 13 gunda 1 kara 1 krant share, that being their share in the mortgaged properties ; that they had sold their share in the properties, other than properties Nos. 3 and 4, for the said sum of Rs. 85,500 in respect of a 12 anna 13 gunda 1 kara 1 krant share, that being their share in the mortgaged properties ; that they had sold their share in the properties, other than properties Nos. 3 and 4, for the said sum of Rs. 85,500 to the Plaintiff, and that the compromise come to was to the effect that they should be absolved from further liability; and further that the suit should proceed against the other Defendants in respect of the sum of Rs. 22,500 due by them in respect of their 3 anna 6 gunda 2 kara 2 krant share. 3. On the 29th April 1898, one of the Defendants who had not joined in the compromise, namely, Hyatunnissa put in a written statement, in which she reiterated the objections which had been raised by the Defendants Nos. 3, 4 and 8 in their written statement, and questioned the principle upon which the compromise was entered into by those Defendants and the Plaintiff, On the 2nd August 1899, and on some date in September of the same year, one Gyanada Sundari and others presented two petitions stating that they had purchased from the heirs of Sayela Bibi, Defendant No. 5, and from the Defendant Hyatunnissa Bibi, their respective shares in some of the mortgaged properties, and asking that the share of the mortgage debt attributable to the property purchased by them might be ascertained. The Subordinate Judge by his order of the 1st December 1898 directed that these persons might be made party-Defendants. 4. At the trial, certain issues were raised between the parties, one of them being as to the genuineness and validity of the mortgage bond in question, and the other issues related to the effect of the purchase made by the Plaintiff of the property No. 4 and to the relief that the Plaintiff was entitled to against the Defendants. The Subordinate Judge has held, that the mortgage bond is a valid and genuine transaction, and binding upon the heirs of Karim Neoaz Khan, and referring to the purchase of property No. 4 by the Plaintiff, he has expressed the opinion, relying upon the case of Goluk Chunder Das v. Ram Sunker Sutt 4 C. W. N. 268 (1899) that, inasmuch as the Plaintiff after his purchase was bound to have given notice, as prescribed by sec. 167 of the Bengal Tenancy Act, for the purpose of cancelling the encumbrance upon the property No. 4 and as he failed to do so, he must be taken to have purchased the said property subject to that encumbrance. Then he proceeds to find what may be the true value of the property No. 4, and finding that it is Rs. 34,741-9 as., he deducts this amount from the sum of Rs, 93,460, the amount stated in the plaint as due on the mortgage, and the balance Rs. 58,718 being considered as due from all the Defendants, he has awarded a 3 anna 6 gunda 2 kara 2 krant share thereof, namely, Rs. 12,232-15 as against the Defendants Nos. 5, 6 and 9 and the added Defendants, with proportional costs and interest. Dissatisfied with this judgment, the Plaintiff, as already indicated, has preferred this appeal. 5. Referring to the certificate of sale of property No. 4 granted to the Plaintiff, it will appear that it was sold for arrears of rent accruing thereupon, and that it was so sold without any reservation whatsoever. It was not sold subject to any registered and notified encumbrance within the meaning of Chapter XIV of the Bengal Tenancy Act and, therefore, we may take it that there was no such encumbrance upon the property. The sale was apparently a sale under sec. 165 of that Act; and assuming that the Plaintiff did not purchase the property free from all encumbrances, he had certainly the power to annul any encumbrance upon it, as indicated in sec. 164, clause (2) of the Act. And the question here arises, whether he was bound to have served the notice prescribed by sec. 167, declaring that the encumbrance is annulled. It will be observed that the notice contemplated by the said sec. 167 is a notice upon the incumbrancer. That incumbrancer in this case, however, was the purchaser himself; and the question is whether the section was intended by the Legislature to apply in a case like the present. The section, as we understand it, evidently applies in a case where the incumbrancer is a third party, and not where the purchaser and encumbrancer are identically the same person. And that was the view that was adopted in the case of Mastulla Mondal v. Jan Mahmud Sha I. L. R. 28 Cal. 12 (1900). The section, as we understand it, evidently applies in a case where the incumbrancer is a third party, and not where the purchaser and encumbrancer are identically the same person. And that was the view that was adopted in the case of Mastulla Mondal v. Jan Mahmud Sha I. L. R. 28 Cal. 12 (1900). The learned Judges who decided the case, after referring to the various sections of the Bengal Tenancy Act bearing upon the matters, observed as follows :-- If the argument of the learned pleader for the Appellant be correct, the incumbrancer must go before the Collector and ask for service of a notice upon himself and the notice must be served although he himself is to receive it. In our opinion, the proposition is wholly untenable; for looking at the words of the section itself, it appears to us, that the purchaser there contemplated is a purchaser other than the incumbrancer. The Legislature in making this provision had in view, we think, the fact that the person who purchased property under sec. 165 was different from the person who claimed to have a charge or incumbrance on that property and intended that the purchaser, if he wanted to destroy anybody else's interest in the property purchased by him, was bound to proceed in accordance with the provisions of sec. 167. We cannot impute to the Legislature the enactment of any provision of law which in its application would lead to an absurdity." We concur in the view herein expressed. The object of the Legislature in framing the section was evidently that the incumbrancer should be informed that his incumbrance is annulled, so that he might not thereafter be taken by surprise, or prejudiced in his rights and remedies whatever they might be. This object has been fully gained in the present case, the purchaser being the incumbrancer himself; and we hardly think that in a case like the present, it was intended that there should be a formal notice served upon the very person, who may ask the Collector to issue such notice. 6. This object has been fully gained in the present case, the purchaser being the incumbrancer himself; and we hardly think that in a case like the present, it was intended that there should be a formal notice served upon the very person, who may ask the Collector to issue such notice. 6. As to the case of Goluck Chunder Das v. Ram Sunker Sutt 4 C. W. N. 268 (1899), relied upon by the Subordinate Judge, it will be observed that the mortgaged property was sold in execution of a rent decree after the mortgage decree was passed, and that decree provided that the mortgaged properties should be sold in the first instance, and if that should prove insufficient, other properties belonging to the mortgagor should be sold. But the decree-holder, not with standing the provisions in the mortgage decree, applied to sell the other properties without proceeding against the mortgaged property, which he had purchased. It may well be said, that the mortgagee was bound, having regard to the terms of his own decree, to have pursued his remedy against the property purchased by himself before he could touch any other property not comprised in the mortgage. The learned Judges who decided the case were of opinion that, upon the materials before them, they could not hold that the sale in execution of the decree for rent was a sale under sec. 165 of the Bengal Tenancy Act with power to avoid all incumbrances. If so, there could be no doubt, that the decree-holder purchased the mortgaged property subject to incumbrances. The learned Judges, however, expressed the opinion that, even if the sale was a sale under sec. 165, the incumbrance had not been annulled by the proceedings under sec. 167 of the Act. This opinion was, in the circumstances, an obiter dictum. 7. The Subordinate Judge, it will be observed, has held that, because the Plaintiff did not serve upon himself the notice prescribed by sec. 167, he must be taken to have purchased the property No. 4 "subject to incumbrances." This should not be accepted as correct, bearing (sic) mind the fact that the sale to the Plaintiff was without any reservation, namely, not subject to any incumbrance. 8. No doubt, under sec. 167, he must be taken to have purchased the property No. 4 "subject to incumbrances." This should not be accepted as correct, bearing (sic) mind the fact that the sale to the Plaintiff was without any reservation, namely, not subject to any incumbrance. 8. No doubt, under sec. 82 of the Transfer of Property Act, properties mortgaged are, in the absence of any contract to the contrary, liable to contribute rateably towards the satisfaction of the mortgage debt. But it is obvious that, in the circumstances of the present case, the provisions of the section are not applicable, except as to the property in the possession of the Defendants Nos. 5, 7 and 9. And we may add, that under the terms of the mortgage deed, the mortgagee, the Plaintiff, is at liberty to bring to sale any of the mortgaged properties as he pleases, there being nothing, so far as any question of equity is concerned, to prevent him from doing so. 9. In this connection, we might as well refer to the provisions of sec. 73 of the Transfer of Property Act. That section runs as follows:--"Where mortgaged property is sold through failure to pay arrears of revenue or rent due in respect thereof, the mortgagee has a charge on the surplus, if any, of the proceeds, after payment thereout of the said arrears, for the amount remaining due on the mortgage, unless the sale has been occasioned by some default on his part." The effect of this section is, as we understand it, that the mortgagee (the Plaintiff in this case) has no charge upon the property sold for rent, such charge being taken to be extinguished, and transferred, as it were, to the surplus sale-proceeds. And this seems to be supported by the terms of sec. 101 of the said Act. 10. On these considerations, we are of opinion, that the Subordinate Judge is wrong in holding that the property No. 4 should be regarded as still subject to the mortgage. 11. But supposing the view expressed by the Subordinate Judge to be correct, he was certainly wrong in deducting the entire value of the property No. 4 from the debt due to the Plaintiff, and in regarding that debt to be the amount due only on the date of the presentation of the plaint. 11. But supposing the view expressed by the Subordinate Judge to be correct, he was certainly wrong in deducting the entire value of the property No. 4 from the debt due to the Plaintiff, and in regarding that debt to be the amount due only on the date of the presentation of the plaint. All that he could do was to determine what may be the proportional amount of the mortgage debt justly chargeable upon property No. 4, and to deduct such amount from the claim of the Plaintiff, and then find what may be proportionately due from the Defendants other than those who entered into a compromise with the Plaintiff and he should have determined what may be the amount due to the Plaintiff upon the date of the decree. 12. There is one other matter that we desire to refer to. Under sec. 73 of the Transfer of Property Act already referred to the Plaintiff, the mortgagee (the property No 4 having been sold for arrears of rent) has a charge upon the surplus, if any, of the proceeds of the sale. Such charge, we think, should be declared in this case and the Plaintiff entitled to sell the mortgaged properties other than property No. 4 for the satisfaction of the remainder of his claim. There having been, however, a compromise between the Plaintiff and some of the Defendants, a decree should be given in respect only of a 3 anna 6 gunda 2 kara 2 krant share of the debt minus the surplus, if any, due from the other Defendants, namely, Defendants Nos. 5, 6 and 9 in the lines indicated in the last paragraph of the judgment of the Subordinate Judge. The decree of the Court below will be modified, and this appeal allowed with costs, The court allowed in one-half of the costs of the Paper-book to the plaintiff as we have already stated.