CASE NO.: Appeal (civil) 2158 of 1999 PETITIONER: <NAME> RESPONDENT: <NAME> AND ORS. DATE OF JUDGMENT: 08/04/1999 BENCH: S. SAGHIR AHMAD & R.P. SETHI JUDGMENT:

JUDGMENT 1999 (2) SCR 518 The Judgment of the Court was delivered by <NAME>, J, Leave granted.

Notice was issued to the respondent to show cause why the compensation amount in favour of the appellant be not further enhanced. Respondent No. 3-New India Insurance Company has filed the counter affidavit submitting therein that there is not documentary evidence to show that the appellant was at all employed anywhere at the time of the accident and in the absence of proof regarding his income; the amount of compensation cannot be enhanced. It is submitted that as the appellant had claimed Rs. 2,90,919.15 and was awarded Rs. 2,25,000 with interest, there is no justification for him to claim enhancement of the compensation amount.

The facts giving rise to the filling of the present appeal are that the appellant who was 23 years of age had met with an accident and received severe injuries causing damages to his spinal cord. He remained under treatment for about 90 days and became permanently disabled. He had preferred a claim for Rs. 63,00,9i19.15 from the owner, driver and the insurer of the vehicle for injuries suffered by him in the motor accident. <ORG> (hereinafter referred to as `the <ORG>') after appreciating the evidence led in the case held that the appellant was travelling as an agent of the construction firm when he met with the accident and awarded him a compensation of Rs. 1,64,037 with interest at the rate of 10 per cent per annum. Both the appellant and the insurance company preferred appeals before <ORG> which were disposed by the impugned judgment holding the appellant entitled to Rs. 2.25.000 as compensation payable with interest at the rate of 12 per cent per annum instead of 10 per cent as awarded by the tribunal. It is not disputed that the appellant had met with a road accident in which he was seriously injured, underwent operations of his spinal cord/ kidney number of times and has become invalid for all practical purposes for the rest of his life. The appellant had claimed that his income was Rs. 2,000 per month at the time of accident when he was 23 years of age. Me had prayed for applying the multiplier of 55 for granting him compensation in lieu of loss of income which he would have earned in the absence of accident in which he has admittedly been totally incapacitated. The learned counsel appearing for the insurance company submitted that there was no proof of his income and that he was not proved to have been employee Of his father in the work where the vehicle was begin utilised at the time of the accident. It is however, hot disputed that at the time of the accident, the appellant was assisting his father in the construction work of <ORG> at Deposit No. 40 in Township of Kailash Nagar for renewing of fencing m front of residential and non-residential quarters providing C.C. coping with glasses for compound walls of Kailash Nagar when he met with the accident. He has claimed his income to be Rs. 2,000 per month. The appellant, a young man cannot be disputed to be contributing and augmenting the income of his father. Some guess work has to be applied while assessing the loss. This Court in <CITATION> ) pvt. Ltd & Ors.,  1 SCC 551 had held : "Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of the life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, ran or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

It was further held that whenever a tribunal or court is required to fix the amount of compensation in cases of accident, it involves some quash work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. However all such elements are required to be viewed with objective standards. White assessing damage, the court cannot base its opinion merely on speculation or fancy though conjectures to some extent or inevitable.

In the instant case, the appellant has been awarded Rs. 94,037 as expenses incurred on medical care, Rs. 20,000 for special diet and expenses for attendant during treatment. For his becoming permanently disabled and paraplegic on account of the injury and damages caused to his spinal cord, the appellant, who admittedly has been held permanently incapacitated has been granted only Rs. 1,00,000. We are of the opinion that the appellant was right in claiming his income at Rs, 2,000 per month while working with his father at the time of the accident and even if we apply the multiplier of 16, he is entitled to the claim of Rs. 3,84,000 on account of loss of expectation to life besides disappointment, frustration and mental stress particularly when he has to keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. 1,14,000 to which the appellant has rightly been held entitled on account of expenses incurred on medical care and for the pain sufferings during the period of treatment, the appellant is entitled to a total sum of Rs. 4,98,000 which we round up to Rs. 5,00,000 inclusive of costs of litigation. The aforesaid amount is liable to be paid by the respondent-insurance company as was held by <ORG> In the result, this appeal is allowed by modifying the order impugned holding the appellant entitled to a compensation of Rs. 5,00,000 with interest at the rate of 12 percent per annum as awarded by <ORG> No further costs.


JUDGMENT

1. Plaintiff sues for partition and delivery to him of one-third of the properties annexed to the plaint which are claimed to be the properties of the joint family consisting of himself and of the first and second defendants. He also prays for the settlement of a scheme for the management of the charitable and religious endowments mentioned in Part III of the second schedule.

2. The defence of the first defendant is that the properties are impartible. His contention is that he and his ancestors were the hereditary gurus of the family of the <NAME> of Tanjore and that these properties appertain to the office of guru as such. He further contends that his ancestor who was brought to Tanjore as his guru by the then <NAME> was also the head of a mutt and that these properties appertain to that mutt.

3. The Subordinate Judge has found that the parties formed an ordinary Hindu family and has decreed partition. This is an appeal against that decision,

4. Most of the properties specified in Parts I and II of schedule II were given by the then Maharaja of Tanjore to one <NAME> stated to be a disciple of <ORG> in Mannargudi. He had an only son <NAME> who left an adopted, son <NAME> who died in 1854. His adopted son, Sriramasethuswami, died in April 1886 leaving three sons, the plaintiff and the first and second defendants and two daughters. From the date of the gift there was no occasion for partition. That gift seems to have been made by the Maharaja to <NAME>, as the latter was accepted by the <ORG>a as his guru. Till the extinction of the <ORG>, the ancestors of the first defendant continued to be the gurus and after the resumption of the <ORG>, by the British <ORG>, the first defendant's father and after him the first defendant, continued to be recognized as the gurus of the Royal Family. It is the case of the first defendant, appellant, that the gift was made to his ancestor on account of his being the <ORG>a's guru and those properties together with the rest which form an accretion to that estate are attached to that office of <ORG>a Guru, cannot be separated therefrom and are therefore impartible.

5. <NAME>, it is said, also established a mutt, and it is contended these properties appertain to that mutt. Mutts are usually associations of Sanyasis, or celibates, devoted to divine worship, who give upadesam or instruction to deserving candidates. There are also matams of which the members are allowed to marry. The house in which they live is also called mutt. The office of the Raja guru and the headship of the mutt are attained at the same time.

6. The first defendant's predecessors were all married men when they became <ORG> gurus. His father is not alleged to have become a sanyasi. His grandfather and great grandfather became sanyasis in their last momenta. The disciples do not live with the first defendant. There is no doubt the residence of the first defendant is generally called a mutt. It is however also called ' Aramani' by some and ' house' by others.

7. In support of his contention that there is an office of guru of <NAME> family the appellant relies upon the ceremonies which were performed at the time when, on the death of one guru, the eldest son succeeded to the office. Evidence has been given in this case of the ceremonies that were performed at the time of the first defendant's installation. It appears that a few days before his father's death in the presence of the heads of certain other mutts, the first defendant was taught Rama Mantram by his father and a few days after his death he was installed as the head of the mutt. Various persons were invited to attend the said ceremony. The first defendant was made to wear a dress made of kashaya cloth which the head of the mutt should wear. Ha was made to sit on what is called an 'adhistanapalaki' which consists of two wooden planks--one to sit on and the other to lean against. The head of <ORG>, who is said to be the guru hereditarily of the first defendant's mutt placed the first defendant on that seat. Then his disciples made obeisance to him and he gave upadesam to one or two of the disciples. The representative of the Maharaja's family then placed him on what is called the ' Gadi ' which is a raised seat with a mattress on it. He had the Dhandam (stick) given him. After that he started on a procession from his house, went to the Hanuman temple and as far as the Raja's palace and after receiving alms from the palace he came back,

8. It is said that no other person is entitled to sit on the gadi and the right to sit on the gadi is supposed to have been conferred upon the first defendant and his predecessors as they were the gurus of the royal family of Tanjore.

9. It is also alleged and proved that a flag is raised on the new year's day on the mutt and that the anniversaries of all the predecessors of the firsts defendant are also performed, The sandals used by the predecessors of the first defendant are worshipped on the respective anniversary days.

10. The first defendant and his predecessors, in addition to their ordinary names, have also got spiritual name?, the first defendant being called <NAME>, his father was called <NAME>, his grandfather <NAME>, and his grandfather's father <NAME>, and his father, the first guru, <NAME>.

11. The first defendant's predecessors except his father who were gurus had also samadhis. These facts are no doubt clearly proved and they show, undoubtedly, that the family is one of great importance in that locality. They have been called Raja gurus no doubt from their having been the gurus of the Maharajas of Tanjore. It is also clear from the evidence that the first defendant and his predecessors were also called Madhathipathies,

12. The question for our consideration is, however, whether there are properties attached to this office or belong to the mutt as such and for that reason whether they are impartible.

13. In order to decide this question we have to consider the documentary evidence adduced. Exhibit 0 series are apparently the sanads by which the Maharajas of Tanjore granted the properties in part II of the second schedule as well as the properties shown in part III of the said schedule, which are admittedly devoted to charitable purposes, to the predecessor in title of the first defendant. The earliest of them exhibit 03 is of 1739, and the latest of them is about 1760. Exhibit C3 purports to be a grant made by the Maharaja of Tanjore to <NAME>. It is not stated to have been given to him for the maintenance of the office, nor was it given to him as the head of the mutt. In fact he is not referred to in these documents as the Rajah's guru or even as the head of the mutt. His spiritual name also is not given. The sanad itself is in the form of an order issued to his officials by the Maharaja reciting that these grants have been made to Sri <NAME> with the exception of exhibit C3 where he is styled <NAME>, There is also a direction in the sanad which is translated thus: "Let it be conducted from sons to grandsons in succession. Let not the objection of a renewed document itself be taken every year."

14. The appellants' pleader relies upon these words to show that this 'sanad' cannot be treated as evidence of an absolute personal gift since the obligation is laid upon the revenue officials to see that the injunctions of the Maharaja are carried out and it could therefore only refer to the performance of the duties by <NAME> of his office or as the head of the mutt. We are unable to accept this construction in the absence of anything in the body of the document itself to show that it appertained to the office, or the mutt, It may probably be intended to show that any further sanad was unnecessary every year or in case of succession on the grantee's death.

15. In the case of the properties which were granted for charitable and religious p reference the purpose is recited in the sanad itself (exhibit 02) and there is a specific direction "let the charity be conducted perpetually." On a comparison of these two recitals it appears to us to be clear that these were only directions to the officials by the Maharaja to see that in the case of the charities they were properly performed and in the case of the other properties the descendants of the grantee enjoyed them. After these ' sanads' by <NAME>, the only other sanad that we have is exhibit II which purports to be a grant of a village by the then Governor of the Madras Presidency in exchange for some salt pan which the Government seems to have taken up for public purpose. This was in 1808. In that, the grantee is described as the domestic priest to the Maharaja of Tanjore.

16. Of course the property newly granted possesses the same incidents as the one resumed. In the absence of any recital in exhibit II itself to show that these properties were either attached to the office or they were granted to the <NAME>, we must assume that they were held on the same tenure as the properties of the grantee under the C series were held.

17. <NAME> was resumed by the British Government about 1855. The grandfather of the first defendant died in the year 1854; and in 1856 his widow presented a petition to <ORG> in which, after referring to her husband's death and his adoption, before his death, of the first defendant's father, she stated that his installation ceremony including procession was not performed either by her husband or the Maharaja "to qualify him for my husband's adhinam and the" Maharaja's priesthood," and she stated that until the abhishekam is performed he is ineligible for the priesthood. And she also stated that in collusion with the subordinate revenue officials, the first defendant's father without her own consent and without the permission of the <NAME> of Tanjore had performed the abhishekam and the procession and taken possession of the properties. She alleged that till then the property was in her possession. But <ORG> referred her to the officiating Residant. There are statements made by the widow about her husband's atheenam and the necessity of an installation which support the first defendant. But her claim to hold the properties is against him. The properties, however, seem to have been placed under attachment, a report called for, and the matter in dispute appears to have been finally disposed of by an order which is exhibit Z in the case. That order was mainly based upon a report by the then Commissioner of Tanjore. The Commissioner referred to the death of the <NAME> in 1854. He also said that the adoption was perfectly legal and conferred on the adoptee the first defendant's father all the rights of the deceased <NAME>. With reference to the properties which were called ' <NAME> inams ' he was of opinion that the inams would necessarily fall into the hands of the adopted son. He further pointed out that it was the practice of the Tanjore <NAME>s themselves to appoint as managers of the estates persona for whom the <NAME>s entertained feelings of regard; and that in the case of this family the agent of the <NAME>'s estates had, for some time after 1826, been also looking after the affairs of the inams but that the inam proceeds never reached the servants of <NAME> as such and that "the revenue derived from the inams as well as the inams themselves were in nowise interfered with by the <NAME> and the <NAME> was quite free to hoard or dissipate their produce as to him seemed best.'' No accounts were rendered to the <NAME> himself or to any one about his durbar or person."

18. If the <NAME> was interested in those properties, it is scarcely likely that the <NAME>'s officials would have refrained from any such interference, more especially when we take into consideration the fact that the native <NAME>s in ancient days actively interfered in the management of religious institutions.

19. Then, in finally passing orders, the Government observed that the lands could in no way be treated as service lands or endowments attached to the priestly office conferred for the performance of duty but that they were simple personal grants unconditionally bestowed from favour and affection, and the properties were accordingly made over be the first defendant's father. Those assigned for the maintenance of chattrams and charities were charged with the support of the institutions for which they were granted. This is undoubtedly strong evidence against the first defendant's contention.

20. In the subsequent enquiry by the <ORG> Commissioner, that officer seems to have acted on the same view. Exhibit L series are extracts from <ORG> Registers and exhibits D series are the inam title-deeds. The title deeds of the lands which were granted for charitable purposes, those in part II of the plaint schedule, wore granted to the first defendant's father, as the manager for the time being and his successors so long as the charity and the religious institutions are properly maintained. The lands which were treated by the <ORG> as personal inams were confirmed to the grantee and his heirs as personal inams. If these lands were attached to the office it was probably open to the <ORG> to have them resumed. If they were properties belonging to the mutt, they would certainly have been so treated, The conduct of the first defendant's father after obtaining possession of the properties also is only consistent with the same view as was adopted by the <ORG> and the <ORG> Commissioner. In 1867 he sold certain properties for a sum! of Rs. 5,000. In 1875 he made a gift of certain properties to his foster daughter and in 1877 he sold certain other items of property for Rs. 14,000. In 1878 he mortgaged certain other properties for a large sum of Rs, 60,000. In all these, the properties were treated by him as his own; and a security bond (exhibit A-3) executed by him contemplates the possibility of a suit for partition. But there is no suggestion anywhere of the properties appertaining to either the office or to the mutt,

21. When he appointed an agent in 1878 he specified certain properties as chattram properties and the other properties he treated as his own, The first defendant's father died in the year 188S, when he (the first defendant) was a minor. <ORG> seems to have taken possession of the property, and managed it till 1889. They managed the property not only on behalf of the first defendant but on behalf of the first defendant and his brothers (see exhibits T, T1, and 02): and they never attempted to dispute the validity of any of the alienations made by the first defendant's father on the ground that he had only a life interest in the property, and that they appertained to the office of <NAME> or that they belonged to the mutt.

22. The first defendant seems to have succeeded to the management in 1890. He also recognised his father's alienations and undertook (see exhibit A9) to discharge the balance of what remained due of the debt of Rs, 60,000 under exhibit A4. On that occasion (exhibit A9) he treated the property as family property, neither the office nor the mutt being referred to. Suits were brought not against the first defendant solely but against the first defendant and. his brothers with reference to these properties by third parties and in the written statement filed by the first defendant and his brothers and in the Razi that followed (see exhibits O and 03) the properties were treated as joint family properties and then a decree for specific performance was passed against the first defendant and also against his brothers--not against him alone (see exhibit 04). Similarly he filed suits with his brothers as co-plaintiffs. On one occasion he seems to have protested on the ground that he alone is entitled to sue and that it was unnecessary to make others parties to the suit as he was in exclusive possession of the estate on that occasion. The Sub-Collected out that ho originally sued as the managing member of an undivided family and refused his prayer After the estate was delivered to the first defendant by <ORG> in 1890, pattas were granted by him in the capacity of the manager of an undivided family (exhibit E).

23. Mortgages were taken in the name not only of the first defendant but also of his brothers and the discharge was also signed by them all. All this evidence can lead only to one conclusion and no document has been referred to before the date of this plaint in which the first defendant ever asserted his exclusive title as against the other members of the family.

24. Assuming that the defendant's predecessors were holders of an office or heads of a mutt, they were also competent to acquire property for the benefit of themselves and descendants, including the female members of the family, and there is no presumption feat properties acquired by them were acquired for the office or mutt and not for their own use and benefit. Other members of the family also may have acquired properties. The properties referred to in exhibit LI4 included in this suit are alleged to have been acquired by a lady who is a member of this family. It would require strong evidence to show that these properties also were devoted to the office or mutt.

25. There is nothing in the account books to show that those were treated as trust property.

26. For these reasons the appellant's contention must be disallowed.

27. It was further contended that the management of the family properties devoted to charitable or religious uses descended according to the rule of primogeniture and that the plaintiff as a junior member is not entitled on partition to any share therein. We are unable to accept this contention. It is now well settled that the right of management ordinarily descends to the natural heirs of the donee (Mayne 439) and there is nothing to take the present case out of the rule. The authorities are collected by <NAME>, J. in <CITATION> (1901) I.L.R. 27 Mad. 192. The way in which the right of management is enjoyed is stated by the learned Judges as follows:

Except in the few oases in which the hereditary office may be descendible only to a single heir, the usage and custom generally is that along with oilier properties the office" (of manager) "is divided also in the sense that it is agreed to be held and the duties thereof discharged in rotation by each member or branch of the family, the duration of their turns being proportionate to their shares in the family property. Even in cases in which recourse is bad to a suit for the partition of the family property the <ORG> give effect to the usage and custom referred to by providing for the management of religious and charitable institution by different members or branches of the family in rotation on the above principles," There can be no doubt that these statements are correct. The case of <NAME> v. Hurritschunder Mitter 2 Morley's 'Digest, 295 appears to show that the usage and custom were well established as far back as the year 1818, and it is now too late to question them. It will be observed that the enjoyment is stated to be divided between the different members or branches of the divided family, and this is in accord ance with the recent decision of this Court in <CITATION> (1909) I.L.R. 32 Mad, 167 that the managing member of an undivided family has the right to manage the family charities and that the other members of the family have no right to participate in the management so long as they continue undivided,

28. We therefore dismiss the appeal with costs.


JUDGMENT <NAME>, J.

(1) This first appeal from order has been filed by the plaintiffs against the order of Mr. <NAME>, Additional District Judge, dated 18th December, 1973 by which the learned Judge has refused the application of the plaintiffs for grant of ad interim injunction restraining the defendants from printing, publishing or selling, etc. deceptively similar or colourable imitation of the plaintiffs <ORG>) in dispute.

(2) The facts of the case leading to the dispute are that the plaintiffs have been printing and publishing the <ORG> (Almanac) since 1894 A.D. year after year, according to <ORG> up to now. The <ORG> bears the name of "'Pt. Shrivallabh Maniram <ORG>" and has a distinctive colour style and title. It is common case of the parties that this <ORG> was being com- piled by a reputed astrologer by name <NAME>, (who is the grandfather of <NAME>, second defendant). The preface of the <ORG> also supports the version that <NAME> was compiling the calculations and it was being printed and published by the plaintiffs. This position lasted till 1905 A.D. when <NAME> is alleged to have died. (According to the defendants, although it is not so stated by them on affidavits <NAME> died in 1909). The ca,se of the plaintiffs is that the publishers and proprietors of the <ORG> were the plaintiffs, while the compilation work was being done by competent persons engaged by the plaintiffs from time to time and after the death of <NAME> this work was being done by <NAME> from 1906 to 1933, by <NAME>, from 1934 to 1944 and by <NAME> from 1945 to 1954. Thereafter from 1955 to 1974, that is to say for the <NAME> 2011 to 2030, the plaintiffs claim that the work of compilation had been done by <NAME>, second defendant herein. On the record, a photostat copy of the agreement dated 28th April, 1961 has been produced. It purports to have been executed by <NAME>, defendant and is to the effect that calculations of the <ORG> for the <NAME> 2021 to 2030 had been absolutely assigned to the plaintiffs. The trouble has arisen subsequently and it appears that the plaintiffs and the second defendant could not finally agree on the terms for the subsequent years, as is apparent from the correspondence on the file. Consequently, the second and the first defendants entered into some agreement. It is significant that the said agreement on which the defendants I and 2 rely, has neither been filed nor relied upon in ihc court, although it is, if genuine, an extremely material document from which the defendants derive support. As is apparent from the photostat copy of a receipt, (alleged to have been signed by defendant No. 2 on 1st June, 1973) the second defendant has purported to assign his copy-right in the <ORG> for the <NAME> 2031 and 2032 for a sum of Rs. 2.000.00 per .annum, out of which he had received Rs, 2.000.00 for the earlier <ORG> and Rs. 500.00 as advance for the following <ORG>. Thereafter, defendant No. 1 has published & <ORG> for the <ORG> 2031 (i.e. 1974-75 A.D.) prior to the institution of the suit and also the <ORG> for the <ORG> 2032 (i.e. for 1975-76) during the pendency of the suit. On the other hand, the plaintiffs have also brought out their <ORG>s and found that the <ORG>s in dispute of the defcndants are deceptively similar to their own. Feeling aggrieved, the plaintiffs have instituted the suit on 22nd October, 1973 in the court below, which has given rise to this appeal.

(3) The allegations made in the plaint are that the plaintiffs are the leading most printers and publishers of the <ORG> and or the title cover of the <ORG> they print religious signs and symbols of a particular pictorial device and on the back side of the covcr also they print and publish device of the planets and that then <ORG> is known as "Mani Ram <ORG>, Ma,nav <ORG> and Shri Vallabh Mani Ram <ORG>". The get up, layout, shape and design of the <ORG> have, according to the plaintiffs, acquired a wide reputation and goodwill by long user and their sales have been to the tune of Rs. 50.000.00 per year. They have contended that the defendants by publishing the <ORG> in dispute are passing off their goods, as the goods of the plaintiffs and that the title printed by them is deceptively similar to the plaintiffs and that the defendants be restrained from publishing or selling the same The suit has been contested by defendant No. 1 as well as by defendant No. 2.

(4) During the trial of the suit, an application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure was filed by the plaintiffs for the grant of an ad interim injunction which was supported by an affidavit. The same had been opposed by the defendants. Defendant No. 1 has contended that the plain tiffs did not have any copyright in the <ORG> and that he had himself acquired the copyright from defendant No. 2, who is author as well as the owner of the copyright and that he had already compiled, published and sold in the market all copies of the firs edition of the <ORG> for the Samvat 2031 and that an injuction would cause irreparable injury. He has also contendcd that the plaintiffs had come to the court very late. The reply of defendant No. 1 is supported by an affidavit. The application has also been contested by defendant No. 2 and he has taken up the plea that the author of the <ORG> was <NAME> who was his grand father and that his copyright in the <ORG> had not been assigned to the plaintiffs, but the same has been inherited by the defendant No. 2. It is significant that defendant No. 2 claims the inheritance of copy-right from his grand father <NAME>, while his own father <NAME> who would be the natural next heir of Pandit <NAME> is still alive. The parties have filed copies of various <ORG>s and the plaintiffs have filed a number of documents relating to the orders and supplies of the <ORG> and the correspondence they have had with the defendants. The defendants have filed a photostate copy of a title of the <ORG> of 1892 A.D. and a copy of the receipt given by the second defendant in respect of remuneration received by him. He has also filed a receipt for Rs. 2.00 , which is said to have been sent to some Registrar. The learned Additional Bistrict Judge by the impugned order has held that the plaintiffs did not have a prima jacie case, as they had claimed exclusive copy-right which they have failed to establish and that the balance of convenience lay in favor of the defendants, who had already published and sold some copies and, therefore, the learned Judge refused the injunction, but directed the defendants to keep accounts of the sales of the <ORG>, Feeling .aggrieved by this order, the plaintiffs have filed this appeal.

(5) I have heard the counsel for the parties at considerable length. In my opinion, the learned Additional District Judge has fallen into an error in not applying the correct principles of law to the case. The learned Judge has failed to appreciate that the case of the plaintiffs was not of infringement of a copy-right. The action that they had instituted was for passing off the goods. "Mark" is defined by section 2(l)(j) of the Trade and Merchandise Marks Act , 1958 (hereinafter referred to as the Act), as a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof while "trade mark" is defined by clause (v) of the said section 2(1) . Section 27 of the Act prescribes that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of. an unregistered trade mark. Sub-section (2) of the said section provides that nothing in the Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Section 105 confers Jurisdiction on <ORG> to try suits for passing off. Clause (c) of the said section provides for suits for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered. Section 106 provides that the relief which a court may grant in any suit for infringement or for passing off referred to in section 105 includes an injunction and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringeing labels and marks for destruction or erasure.

(6) <NAME> in Law of Trade Marks and Trade Names, 10th edition, in paragraph 16-02, on page 362, has stated that it is an actionable wrong for the defendant to represent, for trading purposes, that his goods arc those or that his business is that of the plaintiff and it makes no difference whether the representation is effected by direct statements, or by using some of the badges by which the goods of the plaintiffs arc known to be his, or any badges colourably resembling these, in connection with goods of the same kind, not being the goods of the plaintiff, in such a manner as to be calculated to cause the goods to be taken by ordinary purchasers for the goods of the plaintiff. <NAME> has relied upon an observation in <NAME> v. <NAME> (1896) A.C. 1990), where Lord <NAME> L.C. observed at page 204 that the principles of law may be very plainly slated, that no body has any right to represent his goods as the goods of somebody else and how far the use of particular words, signs, or pictures, docs or does not come up to the proposition enunciated in each particular case must always be a question of evidence. In the same decision Lord <NAME> observed on page 209 that if the defendants were entitled to lead purchasers to believe that they were getting the plaintiffs' manufacture when they were not and thus to cheat the plaintiffs of some of their legitimate rights, it would be regretable to find that the law was powerless to enforce the most elementary principles of commercial morality and that the principle which was applicable to that class of cases had been laid down .by Lord <NAME> in <ORG> v. <ORG> ( I I H.L.C. 538) (^) thus "the fundamental rule is, that one man has no right to put off his goods for sale as the goods of a rival trader and he cannot, therefore, be allowed to use names, marks, Ictlcrs, or other indicia, by which he is selling the manufacture of another person.

(7) Copingcr on Copyright, 1llh Edition, in paragraph 230, on page 108., stated that the titles to books, newspapers, and periodicals, lhough often coming before the courts on the question of copyright therein, are not generally in themselves the proper subjects of this right, that it is difficult to say that there is any original literary work in the formation of one or two words into a title and that the words into a little and that the words or phrase chosen may be original in their application to the subject-matter of the work to which they arc applied. Further (in paras 233, 235 on pages 110 and III) the learned author proceeds to say that, titles of books arc, in certain circumstances, protected from imitation by means of a 'passing off' action. The action for 'passing off' lies where the defendant has represented to the public that his goods or business are the goods or business of the plaintiff. A defendant may make himself liable to this action by publishing a work under the same title as the plaintiffs, or by publishing a work where title and 'get up' so resemble that of the plaintiffs to deceive the public into the belief that it is the plaintiff's work. In all these cases the plaintiff has to prove that his publication has been in the market long enough to acquire public reputation and secondly title used by the defendant is calculated to deceive the public. A reputation or goodwill can be built up by substantial sales within a short period of time. Mere intention to deceive is not sufficient, there must be grounds for apprehending actual deception. But it is not necessary to establish that any one, as a result of the passing off, is induced to deal with the defendant in the mistaken view that he was dealing with the plaintiff. <NAME> has on page 133 given a large number of instances, where injunctions in respect of title were granted or refused, e.q. they were granted in "The Wonderful Magazine", "The wonderful Magazine, New Scries Improved", "Minne", "Minie Dale", "London Journal", "Daily London Journal", etc. They were refused in the cases of "Magazine of Fiction". "Monthly M.agazine of Fiction", "<ORG>", 'The Post Office Bradford Directory", etc. (8) A reference may also be made to a decision of <ORG> in <NAME> v. <NAME>, (1878) 8 Chancery Division 606 In this case, the plaintiffs were the publishers of a work instituted "<ORG>'s Royal Modern Tutor for the Pianoforte", a revised edition of which had been brought out in 1867, and which was well known and hsd an extensive sale, but was not so registered as, to secure copyright. In 1874 the defendant employed <ORG> to re,vise an old work, intitled "Jousse's Royal Standard Pianoforte Tutor'", which had formerly been in high repute, but had entirely fallen into disuse. This revised work the defendant brought out under the. title "<ORG>'s New and Revised Edition of Jousse' Royal Standard Pia noforte Tutor", the word "<ORG>'s", both on the outside of the book and on the title-page, being printed in much larger and more conspicuous type than any other of the words. The court of Appeal held that the plaintiff was entitled to an injunction restraining the defendant from offering his work for sale with its present form, title-page, and cover, or any other form, title-page, or cover, calculated to deceive persons into the belief that it was the plaintiff's work. In <ORG> v. <ORG> and <ORG>, 1.970 Reports of Patent, Design and Trade Mark cases 269, the court found that for many years prior to 1952 the petitioners had sold a brand of whisky in distinctively shaped bottles, technically called "Three pinch decanters", but which had come to be known popularly as "Dimple" bottles. This brand was commonly asked for in public houses as "Dimple" whisky- In 1952 the respondent commenced selling whisky nut distilled by the petitioners in bottles of the same shape though the labels were wholly different from those used by the petitioner. The court held that in adopting these bottles the respondents hoped to obtain some advantage from the connection of "Dimple" bottles with the petitioner's whisky. In these circumstances, the court granted an injunction restraining the respondent from selling the whisky not blended by the petitioners in "Dimple" bottles for consumption in the United Kingdom.

(9) <ORG> of India in <ORG> v. <ORG>, . elucidated the difference between an action for infringement of trade mark and for pausing off. It observed that action for infringement is a statutory right and it is dependent upon the validity of registration and other statutory conditions. On the other hand, the gist of passing off action is that A is not: entitled to represent his goods as the goods of B. It is enough that the get up of B's goods has beconic distinctive of them and there is a probability of confusion between them and she goods of A. It is not necessary to prove actual deception, or actual damage, nor to prove the knowledge or intention to deceive. The court laid down that issue in an action for passing off is "whether the defendant is selling the goods so marked as to be designed or calculated to lead the purchaser to believe that they are the plaintiffs goods'. On tlic other hand, the issue in, infringement action is "whether the defendant is using a mark which is the same or which is a colourable imitation of the plaintiffs registered mark."

(10) The distinction between the two actions was vividly brought out by <ORG> in an earlier decision <CITATION> , thus: "If the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get"

(11) In my opinion, the correct legal position is this: Action for infringement. of a trade mark or copyright is a statutory remedy and in. pursuing it, the plaintiff must prove his title and exclusive right to use the trade mark (or work) in question and further establish that the defendant has infringed the same by identical or deceptively similar or colourable imitation of it. In such a case. if otherwise cstablished, it is no valid defense on the part of the defendant that it has been sufficiently indicated on the infringing goods that they arc not of the plaintiff, but of the defendant. On the other hand. aclion for. passing off is a common law remedy and its gist is deceit and not infringeinent of a right to cxclusive user. In such an action, the plaintiff may, if so advised prove his title to the exclusive use of the trado mark (or copyright) but he need not do so. What is. however. essential for the plaintiff to cstablish are (a) distinctive features : (2)substential user wide reputation. The law casts as obligation on the defendant not i0 pass off his own goods (or work) as if they had been produced by the plaintiff and the court will enforce this obligation. In such a case, the defendant can escape the liability by showing that his goods (or work), though similar, distinctly indicate that they do not originate from the plaintiff, but have been produced by the defendant. Element of deceit: may cxist in. both kinds of action, but it is of the essence of the passing off action. Actual deception is not required to be proved, but reasonable ground for apprehending deception must exist.

(12) In the instant: case, the plaintiff's user of the name and title spread over a period of 80 years past is fully established. They have stated that their sales of the <NAME> have. been to the tune Rs. 50,000 a year, which shows that a considerably large number of copies have been sold. With regard to the distinctiveness of the title, it would be clear that plaintiff's almanac contains pictorial devices in a particular style of the Sun god, followed by Saraswati'. <NAME>, <NAME>, <NAME>, <NAME>, <NAME> to whom. salutations have been made at the top, besides nine other pictures have been depieled in a particular style. while, the name of <NAME>. <NAME> is mentioned m a block it is also interesting to note that reference in a block in. the centre is made to the <NAME> of <NAME> under whose benediction the <NAME> has been published. Below it is printed the name oi' plaintiff's press as the printer and publisher possessing the entire rights of reproduction. At the outside of the second page of the title are given the twelve rashis or planets in a device producing particular pictorial cffects and inside of ;<ORG> cover contains a photograph, of late Pandit Mani <NAME>. in the middle of the same page, there is a reference to <NAME> of <NAME> and the name of the press.

(13) In the <ORG> produced by the defendants, which is marked 'B' before me, the first page of the title is exactly similar excepting the necessary change in the Samvat and the year. In the place of the name of the printer and publisher (<ORG>), it may be noticed that the name of the defendants has not been mentioned, but what lias been mentioned is that all rights of publication have been reserved and the genuine <ORG> must be purchased after verifying the photo of Shri. <NAME>. At the outside of the second title page in a block, after referring to <NAME> and mcntioning the the name of <NAME> Sharma, the name of <NAME> has been added with the expression that solo agent is <ORG>, Knari Baoll, Delhi. In the inside of the second title page, while the photograph of <NAME> and the calculations of the day a.nd night have been maintained, the matter at the bottom has been changed. The colour scheme and the arrangement of the title remain the same.

(14) If is, therefore, obvious that. the <NAME> published by the defendants is almost identical and certainly deceptiveiy similar to the plaintiff's <NAME> and is clearly intended to convey the impression that it is the same <NAME> which had been published by the plaintiffs. To further clarify the matter, there is an advertisement under the heading "Good News" in a hand bill printed by Garg & Co., Khari Baoli, defendant No. 1, which freely translated reads "All book-sellers, brethren, were being informed with pleasure that <NAME> (which had previously been published from Bombay) would thereafter be published by us and that <NAME> for Samvat 2031 has been printed and please send us valuable orders for the same. Its price is given as Rs. 60 per 100 or Rs. 600 per thousand". This. shows that the defendants were dearly intending to lead the buyers and the customers into a belief that the <NAME> published by the defendants was. the same that had been published by the pla.intiffs.

(15) It is further interesting to notice that in the inside pages or the <ORG> containing the subject matter, it is written in the <ORG> of the plaintiffs that the material had been provided by <NAME>. Similarly, in another page, it had been written that calculations had been prepared by <NAME>. In the intervening page the local time of Bombay is given under the toot-note that "in Bombay when auspicious hour is to be calculated. the timings given of Ramgarh are not helpful and so the timings ol Bombay have been given." All these have exactly been repeated in the defendants' <ORG>. Tt is not the case of the defendants that they have acquired by <ORG> or otherwise any rights from <NAME>. They have laid their claim, only through <ORG>. But in the <ORG>, they have unauthorisedly also copied the results of labour of <NAME> and the timings of Bombay have been utilised while they would be expected to give the timings of the place where their <ORG> had been printed and was likely to be sold. Under the circumstances, the counsel for the plaintiff-appellants rightly submits that there is not the slightest doubt that he defendants have published their <ORG>s to deceive the public into belief that they are purchasing the <ORG> which had been published by the plaintiffs. These would prima fade salish the ingredients of action for passing off and would show that the plaintiffs have a prima fade case and the learned Additional District Judge <NAME> erred, in holding to the contrary.

(16) 'THE defendants have strongly relied upon the tact that the <ORG> was being prepared for the plaintiffs by the grandfather of defendant No. 2 and so on the expiry of any arrangement with the grandfather, the right would devolve on defendant No. 2. There is a fallacy in the submission. Sections 17 and 18 of the Copyright Act, 1957 show where the copyright vests. If a work is done by an author for a consideration for a publisher, the copyright in it would normally vest in the publisher subject to any contract to the contrary, as is provided by section 17 of the said Act. It can be legitimately said that this section 18 has been inserted in the Act oi 1957, but the rule of law has been the same even prior to this statutory provision. Secondly, as provided by section 18 . the copy- right could be assigned, and if it is so done, it would be vested in the purchaser. This would show that if <NAME> had any copyright, it must have been vesting in the publishers. But. it is not at all necessary to express any opinion on this question for thc time being. The reason is that the copyright, if any. which vested in <NAME> would really relate to the calculations compiled in the <NAME> made from year to year, which were likely to be different every year. <NAME> has never claimed any copyright in the get up, style, design and title, which would obviously be vesting in the publisher and nothing has been brought on record to show that <NAME> claimed any copyright in the design or get up or retained the same with him which could pass by inheritance. Moreover, what clinches the issue finally is the provision of section 22 of the Copyright Act, which reads as follows: "22.Term of copyright in published literary, dramatic, musical and artistic works.-Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until fifty years from the beginning of the calendar year next following the year in which the author dies." <NAME> died in 1905 as contended by the plaintiffs (or in 1909 as contended by the defendants), at all events, he died more than 50 years ago. Considered from any point of view, after 1960 copyright in the work or <NAME> of Mani Ram, if any, could not subsist in the hands of his legal heirs or in the hands of defendant No. 2. On this proposition of law, the counsel for both the partics are in agreement. Furthermore, <NAME> had a son, who is the father of defendant No. 2 and if any copyright, were still subsisting and had to pass by inheritance, it would be inherited by the second defendant's father and not by him. At all events, considered from any point of view, defendant No. 2 did not possess any copyright in the work of <NAME> in the year 1973 or 1974, when he is purported to have assigned it to defendant No. 1, which assignment must be held to be void and ineffective.

(17) Lastly, the counsel for the defendant submits that the plaintiffs have themselves accepted defendant No. 2 as the author of the copyright vide his agreement of 1961 copy of which has been placed on record. The submission of the counsel does not have any force. The said assignment of copyright is clearly confined to <ORG> (or calculations) made for a period of 10 years from <ORG> 2021 to 2030. There is no doubt that if any calculations had been made by <NAME>, second defendant, he had a right to assign them to the plaintiff or to the defendants after the expiry of the said contract. But this is not the question arising before me. The quesion in the appeal relates to copyright purporting to have remained in <NAME>, and neither the plaintiffs nor the defendants can legally claim any copyright in <NAME> <NAME>'s work fifty years aftcr his death.

(18) It is significant to notice and I wish to emphasise that the partics before me are not feeling aggrieved with regard to publication of the calculations that defendant No. 2 has which. which he had made for the benefit of defendant No. 1 and which constitute the subject matter of the <NAME>. The defendants are free to publish them if otherwise legally entitled. The plaintiffs have not raised a dispute about them. The grievance of the plaintiffs is confined to the title, get up and the arrangement and style, and their action is for passing off. I am, therefore, of the opinion that the plaintiffs have succeeded in establishing a prima facie case.

(19) The considerations which must weigh with the court, in granting or refusing the injunction arc well established. I find that the injury to the plaintiffs would be almost irreparable as their sales arc alleged to be over Rs. 50,000 a year and they have been in the trade for a period of more than 80 years and have obviously acquired a wide reputation in the title and get up and once it is injured or destroyed, no amount of damages can compensate them. On the other hand, the defendants have recently started the publication only since 1973, for the <ORG> 2031 and thereafter during the pendency of the suit for the year 1975-76. They would, therefore, be not liable to suffer any great injury. Moreover, the defendant No.1 has been publishing other <ORG> and his business may not suffer. Again apart from the get up, the most valuable material of the <ORG>, consists of calculations and predictions published in the body of the <ORG> and the defendants are not being restrained from printing, publishing or using the said material. It establishes that the balance of convenience lies in favor of the granting of injunction against the defendants. The order of the court below must, therefore, be reversed.

(20) Defendant No. 1 has stated that he has paid a substantial sum of money to defendant No. 2 in order to acquire the rights in the <NAME>. Mr. <NAME> explains that although he has not filed any agreement, he has filed copies of the receipts, which show that defendant No. 1 has paid to defendant No. 2 a sum. of Rs. 2500 out of which Rs. 2000 arc consideration for the Sainvat 2031 and Rs. 500 as considcration for the Samvat 2032. This shows that defendant No. I has only paid a sum oF Rs. 2000 to defendant: No. 2, which includes the labour and skill of making the calculations and the predictions in the <NAME> as a whole and only a part of the consideration was paid (if the contention of the defendants be true) for the title of <NAME>. This further shows that the injury by injunction if caused to the defendant is not likely to be of any appreciable value. Defendant No. 1 claims to have been printing, publishing and selling other <NAME>s as well. On the other hand, the plaintiffs arc not publishing any other <NAME>s and so failure lo grant the injunction will cause such a great injury to the plaintiffs as cannot be compensated by damages and if their reputation is once spoilt or allowed to be destroyed, it will be difficult to resurrect the same. The plaintiffs have come to court, at the earliest.

(21) It is, therefore, a lit case where ad interim injunction must be granted, but assurance may be made for payment of compensation to the defendants in the event the suit of the plaintiffs fails. The loss that the defendants may suffer is only the amount alleged to have been paid by defendant No. 1 to defendant No. 2 for acquisition of the rights m the title and compilation, which comes to Rs. 2000 per annum for both. The substantial portion of the <ORG> is really the compilation. In these circumstances, I am of the opinion, that it would just and equitable if the plaintiffs arc directed to deposit a siim of Rs. 150 per month of P..S. 1800 per annum on account to compensation for the period from the date of this order till the decision of the suit, which may be paid to defendant No. 1 in case the suit of the plaintiffs fails. Mr. <NAME>, counsel for the plaintiffs undertakes to deposit the said amount in the court below within one month. The amount will be deposited by 17th April, 1975. Should the trial last longer, the plaintiffs would further deposit the amount at the same rate till the conclusion of the trial. This would be for the period from today. But with regard to the intervening period, i.e. between today and the date of the institution of the suit, no order is made herein.

(22) Under the circumstances, the appeal is allowed, the order of the court below is reversed and the application of the plaintiffs under Order 39 Rules I and 2 read with section 151 of the Code of Civil Procedure, is allowed and the defendants I and 2 and their servants, agents and representatives are restrained from printing, publishing, selling or offering for sale directly or indirectly dealing with Panchang (Almanac) deceptively similar or colourable imitation of the plaintiffs' Panchang by adoption of identical get up, lay-out, design and colour scheme, etc. or from using the name or expression <NAME>, <NAME> (PANCHANG) or <NAME> (PANCHANG). Respondents Nos. I and 2 will pay costs of this appeal to the appellants. The appeal stands disposed of. accordingly.

(23) It may be mentioned that the observations made in this order are tentative and will not prejudice the trial of the suit on its merits according to law.

(24) The partics appearing before me through their counsel are directed to appear betore the court below on 3rd April, 1975 for further proceedings.


JUDGMENT <NAME>, <NAME>, <NAME>

1. This is an appeal from the judgment of <NAME>, J. in a partition suit--from so much of his decree as directed that the first defendant should account for a sum of Rs. 6,500 shown to have come into his hands as part of the joint family assets. The 1st defendant was the manager of a joint Hindu family governed by the Mitakshara Law, the other persons interested being a minor brother, and their mother and sister who were entitled to rights of maintenance. The 1st defendant has become an insolvent and the Official Assignee of Madras on behalf of his creditors represents his interest. The facts so far as they are relevant are that Rs. 6,500 which formed part of the ancestral property were deposited in a <ORG>, and, some years ago, drawn out by the 1st defendant. Of that amount Rs. 2,500 were deposited with Messrs <NAME> & Co., as security for the honesty of the 1st defendant who was entering the service of that firm as cash-keeper. The balance has disappeared. There was a suggestion that it was used by the 1st defendant for purpose of his own marriage or other legitimate family expenses. But this was negatived by his mother who stated that she had found the necessary money for the marriage and by the fact that the sums were drawn out sometime after the marriage, and no evidence was forthcoming of any other necessary family expenditure which could not be met out of the income. The 1st defendant was not called as a witness. .It was suggested that he was helping his relations as against his creditors which might account for the Official Assignee not calling him as a witness. But all his affairs were in the hands of the Official Assignee who had every opportunity of examining the insolvent and ascertaining the true facts. The money was drawn by the 1st defendant in 1914. In 1918 he was found to have committed defalcations in his office of Cash-keeper to Messrs <NAME> & Co., amounting to Rs. 15,000. It is possible that the balance of the money so drawn out by the 1st defendant was invested in some other manner. At the time, he told his mother that he was lending a large part of it to a Muhammadan, a business man; but there is no evidence that this loan is still outstanding, and it is much more probable that it was ultimately used to meet the defalcations in Messrs <NAME> & Co., or to meet the 1st defendant's losses in some unfortunate speculations which led to his making away with this large amount of <NAME>'s money.

2. The learned Judge has held that the 1st defendant has received these moneys and has not accounted for them except as to the Rs. 2,500 mentioned. He has held further that it is a rule of Hindu Law that a co-parcener upon partition is not entitled to call upon the managing member to render an account of his past management so as to debit him with any loss caused to the joint property by his management but can only get his share in the properties available for division at the time of the partition, and for this proposition he quotes <CITATION> (1908) ILR 32 M 271 and Krishnayya v. Guruvayya (1921) 41 MLJ 503. He points out that there is an exception to this rule, when a person is able to establish misappropriation on the part of the manager. He also holds that there is another exception, namely, that if a co-parcener is a minor, the manager can be made to account generally in respect of the corpus of the estate, at any rate where there are no adult members except the manager; and as the plaintiff in this case was at all material times a minor, he holds that the first defendant must bring into account this sum of Rs. 6,500.

3. I agree to the result arrived at, but I do not agree with the reasons given. That a managing member is not bound to give a general account of his dealings, that, in the absence of fraud or misappropriation, the managing member cannot be called upon to justify his past transactions, that the manager is not bound to keep general accounts and that co-parceners cannot complain if the manager in his discretion favours in his expenditure one of the co-parceners at the expense of the others are matters, I think, beyond controversy; nor do I find any authority in support of the proposition that in this matter there is any difference between the position of an infant co-parcener and another. In fact, on an examination of the cases establishing these propositions, it will be found that in most of them there were persons who were minors at the date of the partition or had been minors at the time of the expenditure by the manager. But in respect of assets proved to have come into the hands of the manager, in my judgment,, he has to account. It is not enough for him to say that he has no longer got those assets; nor do I think it right to say, once it had been proved that the assets came into his hands, that the co-parcener has also to prove that they remained in his hands at the date of the partition. In my judgment, capital monies proved to have come into the hands of a manager must be considered as available for partition, in the absence of some evidence showing what has happened to them. It is not necessary in this case to discuss what would be sufficient evidence. It may be that the proof of family necessities which would involve an expenditure greater than the income would lead to the presumption that the assets have been properly expended on behalf of the family. But, in this case, there is nothing of the sort, and I think that the proper inference to be drawn is that these monies have been misappropriated by the managing member. In this connection I think that misappropriation means nothing more than the expenditure of the money on other than justifiable family expenses. Rs. 2,500 were clearly misappropriated. It was a legitimate family purpose to place that money with Messrs <NAME> & Co., as security for the good behaviour of the managing member. But it remained joint family property and, when he caused the loss of that money to the family by his misconduct as an employee of Messrs <NAME> & Co., in my judgment, he clearly misappropriated the money. As regards the balance of Rs. 4,000 it was traced into his hands. It was proved that it was deposited in a <ORG> and that he drew it out. There is no evidence that he spent it on a family necessity, or that there was any family necessity for which such a sum of money would have been required, and, in my judgment, under those circumstances, when the assets are traced into the hands of the managing member, he is bound to account for them on a partition, whether his co-parceners are minors or majors, and in this case the first defendant and the Official Assignee representing him have entirely failed to do so. If authority were required for these propositions, I think, it is to be found in the account that was ordered in <CITATION> (1908) ILR 32 M 271 : 19 MLJ 70, and in the clear judgment on the point of <NAME> and <NAME>, JJ. in <NAME> v. <NAME> (1921) 41 MLJ 503, particularly of <NAME>, J. at page 509 where he states the law correctly. It was suggested that <CITATION> (1921) ILR 45 M 281 : 42 MLJ 570 was an authority to the contrary, but as I read the judgment, particularly on page 287, it supports the view expressed above.

4. The result is that this appeal must be dismissed with costs.

Waller, J.

5. I agree that this appeal must be dismissed with costs. The rule of law, as stated by <NAME>, J. is that a co-parcener can get a share only in such properties as are actually available at the time of partition. If this means that, when a manager is asked to account for missing property, it. is a sufficient answer on his part to point out that it no longer exists, 1 cannot accept it as an adequate statement of the law. The ruling in <CITATION> shows that it is open to a co-parcener to call upon the manager to account for specific items of property which are alleged to have come into his hands. Though he is not entitled to ask for a general account of the management, he is entitled to an account of the property at the time he asks for partition. And by that is meant not the property as it actually exists, but as it ought to be. This is the view taken in <NAME> v. <NAME> (1921) 41 MLJ 503 and there is nothing to the contrary in <CITATION> (1921) ILR 45 M 281 : 42 MLJ 57.

6. In the present case it is clear that the manager had to account for Rs. 6, 500. This sum of money he probably appropriated to his own use. In any event, it has not been proved that he spent it for any necessary or legitimate family purpose. He must therefore make good plaintiff's half share.

7. (Continuation of the Judgment pronounced in open Court this day).

<NAME>, K.C., C.J.

8. Another point arises under the judgment of <NAME>, J. The second and third defendants being the mother and sister of the co-parceners, he directs that they should have a maintenance of Rs. 15 a month, and that the daughter should have a sum of Rs. 2,000 for her marriage. He also holds that they should be allotted each a room in the house item 1, that is, the family house, for their residence. Now, it is objected that the last part of the order will seriously interfere with the most advantageous partition, namely, the sale of the house which is the only valuable family property that there is, if it is to be sold subject to a right of these two ladies each to have one room in that house. It is argued on the other hand that they have an absolute right to them, it being called a light in rent. In my judgment, it is quite wrong to say that the members of a joint Hindu family have rights in rent to residence in a particular house. It is true that, while it is being used as a family house, they have a right to reside there; but I have serious doubts whether they have a right to any particular separate room; but, on partition, it is clearly a matter for the tribunal arranging the partition to say whether it is in the general interest of the co-parceners that residence should be given in a particular house or not; Some other provision can be made if there are more houses than one to choose from. It may be for the general advantage of the family that provision should be made in money instead of in kind. I think that so much of this judgment as purports to hamper the Official Referee's discretion in effecting this partition by giving these two ladies an indefeasible right to occupy a certain part of this house is wrong and that the matter must go before the Official Referee to decide what is best to be done unfettered by any such direction.


JUDGMENT

1. The purchaser in execution of a money-decree passed in one suit (which might be called suit X) between decree-holder A and judgment-debtor B is not the representative of the judgment-debtor B in suit Y when he prefers a claim petition when the properties are or have been attached in execution of the money-decree passed in suit Y between decree-holder A and the judgment-debtor B, though the judgment-debtors are the same in both suits. He (the purchaser) cannot, therefore, take advantage of the provisions of Section 47. Civil Procedure Code , and claim a right to prefer an appeal and a second appeal against the decision in the claim petition in the Y suit. [See observations in <NAME> v. <NAME> 8 Ind. Cas. 429 : 34 M. 417 : (1910) M.W.N. 602 : 9 M.L.T. 152 : 21 M.L.J. 928 as to under what particular circumstances a <ORG> auction-purchaser can be treated as representative of the decree-holder or judgment-debtor and as to what proceedings can be considered as falling under Section 47 , Civil Procedure Code, though a <ORG> auction purchaser who cannot be considered the representative of either the decree-holder or the judgment-debtor is interested in the result of and is, therefore, made a party to the proceedings.]

2. The lower <ORG> view that no appeal lay to it is correct and we dismiss this second appeal with costs.


ORDER

1. This case is about writing off of bad debts.

2. It is well settled that whether a debt has become bad or the point of time when it became bad are pure questions of fact.

3. There is no question of law involved in this appeal. We, therefore, declined to go into the controversy raised. The appeal is dismissed. There will be no order as to costs.


JUDGMENT <NAME>, J.

(1) This appeal is directed against the order of a learned Single Judge of this court dismissing an application under Order 39, rules I and 2, read with Section 151 of the Code of Civil Procedure, moved by the appellant in Suit No. 381 of 1976, filed by it in this court claiming that the respondents herein were guilty of passing off their goods bearing the appellant's trade-mark and in consequence praying for the issue of a permanent injunction restraining respondents from using the trade mark of the appellant and holding that they arc liable to render accounts, pay damages and surrender all goods bearing the appellant's trade mark. Pending the disposal of the suit, the appellant prayed for issue of temporary injunction interms of its prayer for permanent injunction against the respondent.

(2) The appellant manufactures and markets various textiles including voiles and mulls. Respondent No. 1 is also a manufacturer of textiles, including voiles and mulls. Respondent No. 2 is the proprietor of respondent No. 1. Respondent No. 3 is a processor who is supplied unbleached textiles, including voiles, by manufacturers for being processed, dyed and printed with marks which are ultimately marketed by the manufacturers.

(3) The appellant's case is that it is manufacturing voiles and from the year 1973 up to the end of 1975 got the same processed by respondent No. 3. Thereafter it is getting goods manufactured by it processed from another party. It is claimed that the appellant directed respondent No. 3 after processing to put the trade mark in question on its voiles and respondent No. 3 complied with that direction. From 1976 the appellant gave this processing work to another party and is getting the same trade mark placed n its goods. However, in the middle of 1976 it came to know that respondents 1 and 2 arc using the identical mark for voiles manufactured by it by getting it processed from respondent No. 3.

(4) The respondents' case is that the said trade mark is a mark developed by and belongs to respondent No. 3. It is a processor's mark which it used to previously affix on the voiles processed by it for the appellant but is now affixed by it on the voiles processed by it for respondents 1 and 2. It is also claimed by respondents that the said mark is common to the trade.

(5) There was some confusion caused as to what the mark in suit is. We would first like to clarify that. The mark in question are the words "RAJARANI" and these two words arc written or embossed or printed or stamped in a particular manner. The proprietory interested claimed by the appellant is only to the extent mentionedabove. The appellant docs not claim any proprietary interest in any pictures printed or embossed or stamped on textile goods including voils. No proprietorship in any device of "Man and Woman" or "Kings or Queen" is claimed by the appellant.

(6) As noticed earlier, the proprietary interest in the aforesaid trade mark is claimed by the appellant by virtue of user. This claim is contested on the grounds, (a) that the mark belongs to respondent No. 3, (b) that the mark is common to the trade, and (c) there have been registrations of this mark prior to 1973 in one case even with a disclaimer in the use of the words "<ORG>".

(7) The learned Single Judge on the material placed before him came to the conclusion that although, prima facic, the trade mark cannot be said to be the processor's mark, as claimed by the respondents; yet the appellant would not be entitled to the discretionary relief of injunction inasmuch as (a) the words "RAJARANI" were common to- the trade, (b) there have been cases where applications for registration of the words "RAJARANI" have been declined by the trade mark registry, and (c) it appeared that both the appellant and respondent No. 3 were guilty of piracy in adopting a mark which was well known earlier. It may be noticed that the learned Single Judge, has observed that the appellant had used the mark in question even prior to 1973 and tharespondent No. 3 cannot be said to be the originator of the mark when it started processing the goods of the appellant. In short, therefore, the learned Single Judge was, prima facie, of the view that neither of the respondents can claim proprietary interest in the mark in question but then the appellant also could not claim proprietary interest on account of the prima facie evidence of earlier registrations of the mark "RAJARANI" and the view of the trade mark registry that no proprietary interest can be given in. the words "RAJARANI" or "King and Queen".

(8) In granting or not granting ad interim injunction, it is settled law. three factors have to be kept in view, namely, the establishment of a prima facie case, the balance of convenience between the parties and whether if the interim injunction is not issued it will cause irreparable injury to the applicant.

(9) The prima facie case in favor of the appellant stands established by admitted user of the mark by the appellant on voiles produced and marketed by it. It has been rightly so held even by the learned Single Judge. But this prima facie case made out by the appellant is said to be considerably watered down or weakened by the fact that the mark is alleged to be common to the trade and the various registrations adverted to in the learned Single Judge's order. The first point, therefore, that arises for consideration is whether this approach is correct. It must be remembered that the suit is one based on a claim of passing off. It is not a suit for infringement of a registered trade-mark. In a passing off action registration of the trade mark is immaterial. Section 27 of the Trade and Merchandise Marks Act ; 1958, hereinafter referred to as the Act, reads as under :-

"27.No action for infringement of unregistered trade mark :--

(1)No person shall be entitled to institute any proceeding to prevent, or recover damages for the infringement of an unregistered trade mark.

(2)Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof."

The relevant parts of Section 106 of the Act read as under :--

"106.Reliefs in suits for infringement or for passing off :-

(1)The relief which a court may grant in any suit for infringement or for passing off referred to in Section 105 includes an injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for delivery-up of the infringing labels and marks for destruction or erasure.

(2)Notwithstanding anything contained in sub-section (1), the court shall not grant relief by way of damages (other than nominal damages) or an account of profits in any case-

(A)...

(B)...

(C)where in a suit for passing off the defendant satisfies the court-

(I)that at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and (II)that when he came aware of the existence and nature of the plaintiff's trade mark, he forthwith ceased to use the trade mark complained of."

From a reading of the above sections it is clear that registration of mark in the trade mark registry would be irrelevant in an action for passing off. Furthermore, it will be clear that in deciding whether a particular mark is common to the trade use of that mark would be extremely relevant. Mere registration would not be enough.

(10) In <ORG> v. <ORG>, I.L.R. 1976 (1) Delhi 278 (1), the law regarding registered and unregistered trade marks has been very succinctly enunciated by <NAME> J. and this we say with great respect. In that case two industries were engaged in the manufacture of dress hooks which are generally used in garments. One was <ORG> and the other was <ORG>, respectively referred to in the judgment as <ORG> and <ORG>. The latter, i.e. <ORG> got their mark Kismat (word per se) registered with <ORG> in December, 1967. In December, 1969 <ORG> made an application for registration of their trade mark KISMAT. This application was advertised in the trade mark journal in November, 1970. In February, 1971 <ORG> filed an opposition. <ORG> had sought registration of a label mark of which the word Kismat was the dominant part claiming that 'they were using the label mark Kismat since 1963. The Assistant Registrar held that <ORG> were prior users of the trade mark KISMAT. In April, 1971 <ORG> made an application for rectification of the register under Section 56(2) of the Act vis-a-vis the registration granted to <ORG>. That is how the matter came before <NAME> J. He observed :-

"NOWit will appear that <ORG> were first in the field. Their user dates back to April 1, 1963. But they are later in registration. Malhotras were the first to get their trade mark registered. In other words <ORG> were prior in use and anterior in Registration while Malhotras were prior in registration but posterior in use. Who has got a better right of the two. That is the question.

"INthis appeal against the order of rectification four points arise for decision. First is the question of use of the trade mark. Use plays an all important part. A trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade. The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. Registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced and obtained throughout "<ORG> and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected."

(11) <CITATION> ., , it was observed that "A trader acquires a right of property, in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade- The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market. Registration under the statute does not confer any new right to the mark claimed or any greater rights than what already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced ana obtained throughout the State and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the Statute. Common law rights are left wholly unaffected. Priority in adoption and use of a trade mark is superior to priority in registration.

(12) For the purpose of claiming such proprietorship of a mark, it is not necessary that the mark should have been used for considerable length of time. As a matter of fact, a single actual use with intent to continue such use eo instanti confers a right to such mark as a trademark. It is sufficient if the article with the mark upon it has actually become a vendible article in the market with instent on the part of the proprietor to continue its production and sales. It is not necessary that the goods should have acquired a reputation for quality under that mark. Actual use of the mark under such circumstances as showing an intention to adopt and use it as a trade-mark is the test rather than the extent or duration of the use. A mere casual, intermittent or experimental use may be insufficient to show an intention to adopt the mark as a trade mark for specific article or goods. ."

(13) <ORG> in <CITATION> ., laid down the rule vis-a-vis user of a mark as opposed to registration of mark. It observed that the onus of proving user is on the person who claims it. It did not approve of looking into the register of trade marks where a mark may be entered to be any proof of user. To quote from the speech of <NAME>, J. : "Now, of course, the presence of a mark in the register does not prove its user at all. It is possible that the mark may have been registered but not used. It is not permissible to draw any inference as to their user from the presence of marks in the register (14) Thus, the law is pretty well-settled that in order to succeed at this stage the appellant had to establish user of the aforesaid mark prior in point of time than the impugned user by the respondents. The registration of the said mark or similar mark prior in point of time to user by the appellant is irrelevant in an action passing off and the merepresence of the mark in the register maintaned by the trade mark registry did not prove its user by the persons in whose names the mark was registered and was irrelevant for the purposes of deciding the application for interim injunction unless evidence had been led or was available of user of the registered trade marks. In our opinion, these clear rules of law were not kept in view by the learned Single Judge and led him to commit an error.

(15) It has been urged on behalf of the respondents that inasmuch as the appellant had failed to show exclusive user, no prima facie case had been made out by it for issue of an interim injunction. The gist of the law relating to a passing off action was said to be as enunciated in <ORG>. v. <ORG> Ld., <ORG>, <ORG> and F. A. Marlow, 1957 R.P.C. 388(4) and T. Oertli A.G. v. <ORG>. and others, 1959 R.P.C.I.(5) (16) In <ORG>'s case while dismissing an action based on passing off it was observed that the plaintiffs had not made out the requisite association in England of the word "Turmix" with the machine of the plaintiffs' manufacture. When the above matter went to <ORG>, whose decision is reported in 1959 R.P.C. I, the decision of <ORG> was upheld.

(17) From a reading of the judgments in <ORG> case we cannot accept the contention that there is any rule of law laid down by any court that exclusive user must be shown before a case can be said to have made out for issue of an interim injuction. Mr. <NAME> has invited our attention to <CITATION> the need for establishment of exclusive user by the appellant. The decision relied upon has no bearing on this aspect. Indeed, this was a decision arising out of a claim for infringement of a registered trade mark and also of alleged passing off.

(18) It was next contended that a passing off action is an action in deceit and the appellant had to prove that either there has been actual passing off or the use of the mark by the respondents has actually caused confusion or damage to the appellant. This proposition also, in our opinion, cannot be accepted. As was held in <ORG> case, referred to above :- "WEemphasise that this appeal is concerned solely with passing off and not with the infringement of Trade Mark or Patent rights. It is, of course, essential to the success of any claim in respect of passing off based on the use of a given mark or get up that the plaintiff should be able to show that the disputed mark or get up has become by user in this country distinctive of the plaintiff's goods so that the use in relation to any goods of the kind dealt in by the plaintiff or that mark or get up will be understood by the trade and the public in this country as meaning that the goods are the plaintiff's goods. The gist of the action is that the plaintiff, by using and making known the mark or get up in relation to his goods, and thus causing it to be associated or identified with those goods, has acquired a quasi-proprietary right to the exclusive use of the mark or get up in relation to goods of that kind, which right is invaded by any person who, by using the same or some deceptively similar mark or get up in relation to goods not of the plaintiff's manufacture, induces customers to buy from him goods not of the plaintiff's manufacture as goods of the plaintiff's manufacture, thereby diverting to himself orders intended for and rightfully belonging to the plaintiff."

(19) Even the Supreme Court in <NAME>'s case, referred to earlier, observed that the use by the defendant of a trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in an action for infringement. <NAME> in his Law of torts (Twelfth Edition) described the basis of passing off action in the following words :- "THEcourts have wavered between two conceptions of a passing off action-as a remedy for the invasion of a quasiproprietary right in a trade name or trade mark, and as a remedy analogous to the action on the case for deceit. for invasion of the personal right not to be injured by fraudulent competition. It has recently been said that 'the true basis of the action is that the passing off.... injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business'. In general the violation of a right to property 19 actionable, even though it is innocent and though no damage has been proved. At common law it was necessary to prove an 'actual fraudulent intention' but a different view was taken in equity, and since the Judicature Acts it has been generally accepted that it is not necessary in an action for passing off to prove fraud that is to say, an intent to deceive. It is sufficient in all cases to prove that the practice complained of is calculated (that is to say, likely) to deceive."

In our view the proof of actual damage or fraud is unnecessary in a passing off action whether the relief asked for is injunction alone or injunction, accounts and damages. If there is a likelihood of the offending trade mark invading the proprietary right, a case for injunction is made out. We are fortified in coming to this conclusion by the observations in a bench decision of this court in <ORG> and others v. <NAME> and others, I.L.R. 1974 (1) Delhi 545(7).

(20) Mr. <NAME>, learned counsel for the respondents has relied on <ORG>, case, referred to above, to contend that a pirated mark cannot be protected. His contention is that in view of the appellant and, perhaps also respondent No. 3, having pirated the mark "RAJARANI" from the proprietors of the same registered trade mark, namely, M/s. <NAME> of Chirala, Andhra Pradesh and <NAME> of Amritsar, the appellant cannot claim protection of this court. The reliance by the learned counsel on <ORG>' case is misplaced. In that case as a matter of fact it was found that the plaintiff was not the proprietor of the mark but someone else. In the present case relying on the observations of <NAME>, J. in the case of M/s. L. D. Malhotra Industries, v. M/s. Ropi Industries, I.L.R. 1976 (1) Delhi 278(1), we are of the opinion that the appellant has made out a case which requires consideration. In any case even on the evidence on record till now the registration in favor of M/s. <NAME> of Chirala, Andhra Pradesh, is restricted to Andhra Pradesh whereas the registration in favor of <NAME> of Amritsar is with a disclaimer to the use of the words "RAJARANI". It may be noticed that the registered trade marks of Andhra Pradesh and Amritsar are not the trade marks which are pleaded by the appellant and which we have already described. The appellant is, admittedly, a prior user of this mark vis-a-vis the respondents. That the said mark has some novelty and attractiveness is evident from the fact that both the appellant and the respondents have applied for registration of that mark in their favor. That the applications of the parties are still pending is neither here nor there. The registration of the mark in favor of either party would create a situation in which an action for infringement may be relevant. We are only concerned with the prima facie case in an action for passing off. We are in agreement with the learned Single Judge that the appellant has made out a prima facie case.

(21) We now come to the question of balance of convenience. It has been urged on behalf of the respondents that the mark "RAJA- RANI" is common to the trade and for this purpose reliance has been placed on the registration in Andhra Pradesh and Amritsar. There is a distinction between a mark being "common on the register" and "common to the trade". There is no evidence on record to show that there is actual user of this mark by any party other than the parties before us. Inasmuch as trade mark is property right, an invasion of it should be protected and the balance of convenience would obviously be in favor of the appellant who was admittedly the first user of this mark. We cannot accept that there is any prima facie evidence of respondent No. 3 being the owner of the mark. Indeed, this is belied by the registration applications filed by respondent No. 2. As was observed by <ORG> in <NAME> v. <NAME> and others, 1939(3) A.E.R. 513(8) - "INpassing off cases, however, the true basis of the action is that the passing off by the defendant of his goods as the goods of the plaintiff injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business. . . . ".

This right is to be protected and the balance of convenience is in favor of the person who has established a prime facie right, to property.

(22) We now come to the question of irreparable injury. It is said that there is nothing on the record to show that any loss has been occasioned to the appellant and, in any case, the respondents can be ordered to keep accounts. We do not agree. The irreparable injury would be the likely confusion that may be caused if respondents arc allowed to use the mark which we have held prima facie as being the mark of the appellant. It will take some time before the suit is decided. If the respondents are not restrained by means of an interim injunction they would continue to market their goods with the offending mark. That ultimately might be held to be long user and the ultimate relief of permanent injunction may be refused on the plea of common or concurrent user. At the moment no plea of common or concurrent user has been raised by the respondents but there is nothing to prevent them from doing so in future if they are allowed to use the trade mark for the duration of the pendency of the suit. The likelihood of confusion being caused and the likelihood of the plea of common or concurrent user being raised by a later stage would be the irreparable injury to the appellant.

(23) We, therefore, accept this appeal, reverse the judgment of the learned Single Judge and issue an interim injunction against the respondents restraining them from using the trade mark described by us earlier on any voiles that they may manufacture or market or process. We are restricting this injunction to voiles only, as is claimed by the appellant.

(24) Before we part, we may notice one other submission on behalf of the respondents and that is that voiles is textile goods and the trade mark is registered or accepted under the Act for textile goods. The contention is irrelevant, for the present suit is confined to an action regarding voiles only. Rule 137 of the Rules framed under the Act is relevant in this behalf.

(25) The appeal is disposed of with the above observations but we do not make any order as to costs at this stage.