Account-Information-Burden of supplying information is upon the party re-
sponsible for rendering an account

Civil Procedure-Accounting action-s-suit for rents brought before partition of
the land among the co-heirs

Land Law-Rents-Accounting action for rents against co-heirs in possession-
Set-off for improvements to property-Rendering account before partition

1. An heir is entitled to an accounting from co-heirs in possession of
real estate for a share of rents collected or the reasonable rental value of
the property if the co-heirs are using it themselves, but the co-heirs in pos-
session may set off against the sum due a proportion of improvements
which have been made to the property.

* Court: Owen C.J.

2. In an accounting action the burden of producing information on
rents collected is upon the party from whom the accounting is due.

3. An action for account in respect to rents on real estate mav be
commenced prior to the partition of the land among the co-heirs.

Appeal

January 3, 1935. Owen C.J.: The reason for troubling the
Court of Appeal with this deplorable family squabble arises from the
following circumstances.

Liza Kheir, the appellant, claimed that she, as the widow of Girgis
Boulos, was entitled to an account of the rents and profits of certain
properties in Khartoum forming part of the estate of her late husband
by inheritance from his father Boulos Bey Saleeb., She brought her
action in the High Court on January 1, 1933, and assessed the value
of her claim at £E.58.000 m/ms,

When the case came before the judge of the High Court he de-
cided, for reasons that are not clear to me, that appellant's claim could
not be considered unless Boulos Bey Salecb's whole estate (including
property in Omdurman) were partitioned. No objection was raised,
and the proceedings were therefore converted into partition proceed-
ings and the value of the suit raised from £E.58 to £E.2,214. Ap-
pellant appears to have paid the necessary fees, no doubt under the"
impression that she would more easily be able to prove her claim in a
partition case than otherwise. So, in the words of the judgement, the
claim for an account was merged into the partition proceedings and
both suits were heard as one.

They were actually heard by a commissioner. I presume this
procedure was adopted by the consent of the parties-at any rate 1
can find in the record no objection to it-and it is to the report of the
commissioner that the appellant objects. Objections to it were taken
before the learned judge but he (with one small but necessary varia-
tion) adopted it in full and embodied it in the decree which is the sub-
ject of this appeal.

Three points were taken in the Court of Appeal. The first was
that the compensation payable to the appellant in respect of plot 3 F.
East Khartoum was assessed at PT.30 and not PTAS as it should have
been. This is entirely a question of fact. There was evidence upon
which the finding of PT.30 was based and there can be no interference
with such finding. TIle same is true of the second point, that a house

in the Omdurman hosh had been erected by the late Girgis Boulos out
of his own money. It is not a matter into which this court will inquire.

The third point raised by the appellant was that the commissioner
and the judge failed to consider the claim for the account in respect of
which the action was originally framed. But I think the commissioner
did consider it. There is a muddled paragraph in page 3 of his report
from which I think it is fair to infer that in his opinion any rent which
might be due from the property to the other heirs was more than offset
by the improvements which the occupying heirs had made in the prop-
erty. It is always undesirable that questions of this sort should be re-
ferred for decision to unqualified persons, and it can be argued that
the commissioner did not have clearly in his mind the principles which
govern their correct determination. There is no doubt that so long as
certain heirs are occupying property belonging to all the heirs in com-
mon they are liable to account for the rents and profits of the property,
and if they are themselves in actual physical occupation they must ac-
count for a fair rent for such occupation. I think the commissioner
had this in mind though he did not express it clearly. I am unable,
however, to understand the course of the argument in the High Court
on this point. It seems to have been assumed that the appellant was
under some obligation to prove what rents had been received, and
there was some extraordinary reference to a refusal, except on pay-
ment of fees, of the municipal authorities to disclose facts about the
occupation of the houses. It was not for the appellant to secure this
information. It was the occupants' duty to make the account, and if
they were unable to do so the court could proceed to an assessment of
what they ought to have received, or charge them, as I have said, with
reasonable rent for use and occupation. But, I repeat, I think it is fair
to infer that the commissioner's view was that the improvements gen-
erally offset the rent due and I do not propose to interfere further on
the point.

Finally the appellant complains that the court's order as to costs
has thrown the whole burden of paying the court fees for partition on
her shoulders. I have previously expressed the opinion that the parti-
tion of this estate was unnecessary for the determination of the appel-
lant's original claim. But it was agreed to by all parties, and, pre-
sumably, all parties have benefited by it-to the extent at any rate,
that partition is of general benefit. I think therefore that the court
fees should be borne by the heirs generally and not by the appellant
alone. The appeal will therefore be dismissed except in so far as the