ZAINAB BIBI Vs. SYED BHAUDEEN SAHIB

JUDGEMENT

(1.) THE petitioner obtained a decree for partition. In the final decree a Rs.16,202.97 was found to be due to the petitioner towards her share in the income properties. A decree was passed accordingly, but the court used the expression profits'which is really incorrect. A share of income from the properties which is due sharer cannot be treated as mesne profits. It is really a part of the divisible properties. Babburu Basavayya and others v. Babburu Guruvayya and another, A.I.R. 1951 Mad. Full Bench of this Court had discussed the matter and held that in a suit for partition no question of mesne profits within the meaning of O.20, Rule 12, C.P.C. but it is question of accounting under O.20, Rule 18, C.P.C, and it observed as follows: "THE profits accruing from the common properties pending a suit for partition, like properties themselves, are liable to be partitioned under the final decree even without specific prayer in the plaint for an account of such profits and a division thereof. THE right to an account of such profits is implicit in right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition.".

(2.) THUS the decree passed in favour of the petitioner for a sum of Rs.16,202.97 is a decree for a share in one of the items of properties viz., the income from the other properties. When the petitioner seeks to execute a decree and realise the amount there is no necessity to attach the properties allotted to the share of the accounting party. It is automatically charge over the properties which are allotted to the accounting party. Hence the decree can be executed straight away for realising the amount by bringing to sale the properties which are allotted to the accounting party under the decree.