JUDGMENT <NAME>, J.

(1) The plaintiff (<ORG>) has filed the present suit for the grant of permanent injunction restraining the defendant, its servants, agents, representatives, dealers and workmen from infringing its registered copyright to "OK Washing Soap Wrapper" belonging to it. The plaintiff also seeks a permanent injunction restraining the above-said persons from manufacturing selling, offering for sale to dealers washing soap under 521 wrapper which is a colourful imitation of its wrapper and from giving an impression that the defendant's washing soap was that of the plaintiff or was connected with the plaintiff in any manner what soever amounting to passing off. An order for destruction of the impugned wrappers, labels, blocks, dyes and other trade literature concerning the adoption and use of the impugned wrapper mark is also sought. The plaintiff also prays for rendition of the defendant's accounts of sales of washing soap under the wrapper objected to by it and further prays that a decree for the amounts so determined be passed in its favor and against the defendant with costs.

(2) The case of the plaintiff is that it carries on an old established business for decades past engaged in the manufacture and sale, inter alia, of washing soaps, detergents, toilet soaps and toilet preparations including hair oils, shampee and eau de Cologne. The plaintiff alleges that one amongst its well-known products is "OK Brand Washing 'soap" wrapper of which consists of a distinctive colour scheme wherein the legends and description are given in red and blue colour against white background. The upper portion of the wrapper shows A Tata Product, in white colour, arranged in a blue coloured diamond device, appearing on either side with the expression Ok arranged in a shield device in red colour, appearing in the centre of the two blue diamond devices. The panels consists of two blue coloured diamond devices containing the expression Ok appearing in vernacular language. According to the plaintiff its Ok washing soap wrappers are in regular and continuous since the year 1976 in relation to its washing soap. The plaintiff claims to have built up large and important sale for its washing soap exceeding Rs. 300 lakhs.

(3) The plaintiff aware that it holds protection for its wrapper through Registration No. A-1 8305/77 granted to it under the Indian Copyright Act , 1957, besides registration Nos. 13573/77 and A-l 8595/77. The grievance of the plaintiff is that the defendant (<ORG>, Hathroi Fort, Jaipur) has recently introduced in the market washing soap under a wrapper in respect of their washing soap whose adoption and the use of the lay-out, colour combination and artistic representation exactly resembles that of the plaintiff and that such a user by the defendant is with the deliberate intention to deceive and cause confusion to earn profits in illegal manner knowing fully well that the plaintiff's washing soap marketed under Ok wrapper has acquired a high reputation because of the excellant quality and marketting potentialities offered by the plaintiff and that their (defendant's) quality of product is inferior. The plaintiff contends that apart from infringing its Ok washing soap wrapper, the defendant is passing off and further liable to pass off their washing soap as that of the plaintiff and to cause confusion and deception by giving an impression that the washing soap so packed under the impugned wrapper is that of the plaintiff or, in any manner connected with the plaintiff and its business.

(4) The plaintiff in. respect of its prayer for the grant of (i) permanent injunction restraining infringement of copyright, (ii) permanent injunction restraining passing off (iii) an order for destruction of the labels, wrapper, dyes, blocks etc. and (iv) for rendition of accounts has valued each of the said reliefs for the purposes of court-fee at Rs. 200 each and has paid separately court-fee of Rs. 20 on each of the reliefs sought. For the purposes of jurisdiction plaintiff for the first three reliefs has fixed the same value as was fixed by it for the purposes of court-fees but in respect of its prayer for rendition of account, the plaintiff has fixed the value at rupees one lakh being the estimated valued of its loss due to the defendant's sale of the washing soap under the impugned wrapper.

(5) Along with the suit the plaintiff has filed the present application under Order 39 Rules I and 2 read with section 151 of the Code of Civil Procedure re-iterating its averments made in the plaint has prayed that during the pendency of the suit, the defendant, its servants' agents, dealers, representatives and workmen be restrained from manufacturing, selling and/or offering for sale, directly or indirectly dealing in washing soap under 521 wrapper which is a colourable imitation of the plaintiff's wrapper, 'and from giving an impression that the defendant's washing soap is that of the plaintiff or is connected with the plaintiff in any manner whatsover, amounting to passing off, and from infringing the registered copyright pertaining to Ok washing soap wrapper belonging to the plaintiff.

(6) The defendant in its written statement controverting the allegations of the plaintiff resists the suit, among other, on the grounds that this Court has no jurisdiction to try the suit, that the suit Is not properly valued for the purposes of court-fee and jurisdiction in that the value for the purpose of jurisdiction under section 8 of the Suits Valuation Act, 1887, has to be the same as the value adopted by the plaintiff for the purposes of court fee ; that the wrapper of the plaintiff is not distinctive as alleged or that the colour scheme adopted by the plaintiff is distinctive and/or that the plaintiff has any right thereof independently of the rest of the wrapper, and that the alleged offending wrapper is neither identical nor deceptively similar to that of plaintiff. The defendant deny that their wrapper has caused any confusion and/ or deception and/or that the plaintiff has been or is likely to be put to any loss whether in business or reputation as alleged.

(7) The defendant alleges that it is a partnership firm registered under the Indian Partnership Act , 1932, and that it had been in the business of manufacture and sale of soaps since 1931. It is alleged from 1931 to 1976 they were adopting the manual process of soap manufacture but from the year 1976 onward they had introduced automation in the manufacture of their soaps by installation of machines and that the wrappers used by them were first introduced by them in. January, 1977, which were subsequently changed in April, 1977. The defendants deny that they had represented in then- wrappers the layout and/or colour combination and/or artistic representation of the plaintiff's wrapper or that the defendant's wrapper had been deliberately made and/or caused to be made to appear as that of the plaintiff and/or that the defendant was motivated by any intention to deceive and/or cause confusion and/or to earn profits in an illegal manner. The defendant further deny that they are passing off and/or likely to pass off their washing soap as being that of the plaintiff or that their washing soap packed in the allegedly offending wrappers has caused or is likely to cause confusion and/or deception as being that of the plaintiff and/or as being in any manner connected with the plaintiff and/or its business.

(8) The defendant's stand in their reply to the interim application is practically the same as the one taken in the written statement. The same, therefore, is not required to be noted.

(9) It may bear mention here that subsequently to their filing the written statement and reply to the interim application, the defendant's impugned wrapper had been registered under the Copyright Act , 1957, by the Copyright office as No. A 20449/78. The defendant accordingly by I.A. No. 2861 of 1978 submit that in the interest of Justice they may be allowed to refer to and rely on the registration of the wrapper in their name.

(10) It would be appropriate to first deal with the preliminary objections urged against the maintainability of the suit in this Court.

(11) The jurisdiction of this Court was sought to be ousted on the ground that the Suit arises under Chapter Xii of the Copyright Act, 1957, and that the original jurisdiction in respect of such suits or other civil proceedings arising under the said Chapter is that of <ORG> under section 62 of the said Act. Section 62 of the Copyright Act, 1957, reads as under :

"62(1) Every suit or other civil proceeding arising under this chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this act shall be instituted in <ORG> having jurisdiction.

(2)For the purpose of sub-section (1), a "district court having jurisdiction shall notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in, force, include <ORG> within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such person, any of them actually and voluntarily resides or carries on, business or personally works for gain".

(12) The learned counsel for the defendants submitted that a plain reading of the above-noted section makes it clear that every suit or other civil proceeding arising under Chapter Xii in respect of the infringement of copyright in any work or the infringement of any other right conferred by the Copyright Act , 1957, shall be instituted in <ORG> having jurisdiction. I do not agree. The Copyright Act does not define the expression '<ORG>'. The question, therefore, is what is meant by the said expression. Sub-section (4) of section 2 of the Code of Civil Procedure defines the term District. According to the said definition 'district' means the local limits of the jurisdiction of a principal civil court of original jurisdiction (herein- after called a "<ORG>"), and includes the local limits of the ordinary original civil jurisdiction of <ORG>. It is thus evident that by the term "<ORG>" what is enivsaged is the principal civil court of original jurisdiction in a district. There can be no dispute that the expression "<ORG>" by virtue of section 62(1) of the Copyright Act, has the meaning assigned to the expression in the Code of Civil Procedure, 1908. Now under sub-section (2) of section 5 of the Delhi High Court Act, 1966, notwithstanding anything contained in any law for the time being in force, <ORG> in respect of the Union Territory of Delhi has the ordinary original civil jurisdiction in every suit the value of which exceeds fifty thousand rupees, as amended by section 3 of the Delhi High Court (Amendment) Act, 1969. It would, therefore, be seen that after the coming into force of Delhi High Court Act , 1966, as amended, <ORG> has become the principal civil Court of original jurisdiction with respect to every suit the value of which exceeds fifty thousand rupees. [See also <CITATION> . (1971) I Delhi 615(1)].

(13) Reference here may also be made to <CITATION> . In. that case the plaintiff challenged the infringement of its trade mark. Under section 2(e) of the Trade and Merchandise Marks Act , 1958, the expression "<ORG>" has the meaning assigned to it in the Code of Civil Procedure, 1908. On May 5, 1964, when the suit was filed <ORG>, within the territorial limits of which the cause of action was alleged to have arisen was closed for summer vacation and no Judge competent to exercise the powers of <ORG> was functioning in <ORG> on duty on that day. At the request of the plaintiff <ORG> entertained the plaint and also an application for interim injunction. <ORG> granted the interim injunction in terms of prayer in the application. In appeal before <ORG> the defendants contended that <ORG> had no jurisdiction to entertain the action instituted by the plaintiffs and had no powers to make an order issuing a temporary injunction as the action as framed could properly be instituted in <ORG>. Rejecting the contention, it was observed that the expression "<ORG>" has by virtue of section 2(e) of the Trade Mark and Merchandise Act , 1958, the meaning assigned to that expression, in the Code of Civil Procedure, 1908. Section 2(4) of the Code defines a "District" as meaning the local limits of the jurisdiction of a principal civil court called <ORG> and includes the local limits of the ordinary original civil jurisdiction of <ORG>. Their Lordships accordingly held, if <ORG> was possessed of ordinary original civil jurisdiction. It would, when exercising that jurisdiction be included for the purposes of the Trade and Merchandise Marks Act , 1958, in the expression "<ORG>". It was accordingly held that <ORG> was competent to exercise original jurisdiction under section 105 of the Trade and Merchandise Marks Act , 1958, if invested with the ordinary original civil jurisdiction of a <ORG>.

(14) <ORG> having ordinary original civil jurisdiction in respect of the Union territory of Delhi in every suit the value of which exceeds fifty thousand rupees is competent to entertain and try the present suit.

(15) It was then contended that assuming that the suit is maintainable in this <ORG>, facts necessary to give territorial jurisdiction to the <ORG> are non-existent in the present suit. The contention was that the defendant neither resides nor works for gain nor carries on business in Delhi and that no part of the alleged cause of action had arisen or was alleged to have arisen within the territorial jurisdiction of this <ORG>. There is no merit in this submission. The plaintiff has invoked the territorial jurisdiction of this <ORG> on the allegation that it is marketing its washing soap under Ok wrapper through its office at 28, Asaf Ali Road, New Delhi, where it carries on its business and works for gain, besides averring that the washing soap under the infringing wrapper is available at Delhi and elsewhere, and so even under Common Law, this <ORG> has jurisdiction to entertain the suit. Sub-section (2) of section 62 of the Copyright Act, 1957, noted above, carves out an exception to the provision of section 20 of the Code of Civil Procedure and enables a plaintiff seeking remedy for infringement of Copyright to file the suit in the <ORG> within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on. business or personally works for gain. There being no traverse to the plaintiff's averment that it is marketing its washing soap under the Ok wrapper through its office at 28, Asaf Ali Road, New Delhi, where it carries on its business and works for gain, it has to be held that this <ORG> has jurisdiction to entertain and try the suit. The bare denial of the defendant that no part of the alleged cause of action arose or is alleged to have arisen within the territorial jurisdiction of this <ORG> is of no consequence.

(16) The learned counsel for the defendant then submitted that there being no allegation that the defendants are selling or causing to be sold the infringing product in Delhi, the suit for the redress of the plaintiff's grievance regarding passing off was not friable by this <ORG>, more so when the defendants have categorically contended that their sales are effected mainly in the State of Rajasthan and to a very limited extent at Amritsar and Nepal. It may bear mention here that the plaintiff in paragraph 13 of the plaint had contended that the washing soap under the infringing wrapper is available at Delhi. The rival contentions of the parties at best may be said to necessitate an enquiry being made in the matter by the framing of an issue but on a prima facie view of the matter it cannot be said for the present that this <ORG> has no jurisdiction to entertain and try the suit in respect of the allegation regarding "passing off".

(17) It was then contended though not specifically pleaded, that a suit for account must be founded on an obligation to render an account. The Plaintiff having not averred such an obligation, the suit for an account was not competent. Support for this argument was sought to be drawn, from <NAME> v. <NAME>, 1961 Klt 360(3) wherein it was observed that the mere fact that the plaintiff asks an account or brings his suit on account or that accounts have to be gone into in order to determine the account, if any. due to the plaintiff, will not make the suit for an account, and that every bill for an account must be founded upon an obligation to render an account.

(18) The observations in the above noted case were made in a wholly different context. The <ORG> was not dealing with a case for infringement of the copyright. The argument sought to be urged has to be repelled in view of the provisions of section 55 of the Copyright Act which prescribes civil remedies that are available to the owner of the copyright for infringement of this copyright. Among other remedies that are available to the owner of the copyright is the remedy to sue for accounts. It being a statutory remedy available under law it is futile to contend that the defendant in such a suit must stand in some such "relation to the plaintiff as that of agent, or belie or receiver or trustee or partner or mortgagee."

(19) The next submission of the learned counsel for the defendant was that the suit had not been properly valued for the purposes of jurisdiction. It was contended that the plaintiff having valued the relief for the purpose of court-fees in respect of this prayer, viz., restraining infringement of copyright, for permanent injunction restraining passing off, for an order for destruction of labels, wrappers, dyes, blocks etc. and for rendition of account at Rs. 200 each in accordance with the provision of section 7(iv) of the <ORG>-fees Act, 1870, the same valuation has to be taken to be the value for the purposes of jurisdiction under section 8 of (The) Suits Valuation Act, 1887, in that the value as determinable for computation of <ORG>-fees and the value for purposes of jurisdiction shall be the same. There can be no dispute to this proposition of law. Indeed their Lordships in <CITATION> , , have held that there can be little doubt that the defect of the provisions of section 8 of (The) Suits Valuation Act is to make the value for the purposes of jurisdiction dependent upon the value as determinable for computation of <ORG>-fees. The result is that it is the moment at which the plaintiff has valued the relief sought for the purposes of court-fees that determines the value for jurisdiction in the suit and not vice versa.

(20) The learned counsel for plaintiff, however, contended that <ORG> at Lahore had framed rules under section 9 of the Suits Valuation Act, 1957, with regard to the manner and determination of the value of certain types of suits for the twin purposes of court-fees and jurisdiction and that the said rules are applicable in <ORG> by virtue of section 7 of the Delhi High Court Act, 1966, and that the valuation' placed by the plaintiff with regard to the jurisdiction was in consonance with the said rules. That being so, the suit, it was urged, is friable by this Court. The learned counsel for the defendants contest the correctness of this assertion. The question' accordingly is whether the rules framed by <ORG> at Lahore were applicable in <ORG> or not.

(21) In order to determine the respective contention of the parties, it would be appropriate to note the relevant provisions of the Suits Valuation Act and the rules made there under by <ORG> at Lahore.

SECTION 9 of the Suits Valuation Act , 1887, reads as under : "DETERMINATIONof value of certain suits by High Court Where the subject matter of suits of any class, other than suits mentioned in Court-Fees Act , section 7 , paragraph (v) and (vi), and paragraph, (x), clause (d) is such that in the opinion of <ORG> it does not admit of being satisfactorily valued <ORG> may, with the previous sanction of <ORG> direct that the suits of that class shall, for the purposes of the Court- fees Act, 1870, and of this Act and any other enactment for the time being in force, be treated as if their subject- matter were of such value as <ORG> thinks fit to specify in this behalf".

(22) <ORG> at Lahore in 1942 with the previous sanction of the State Government under the powers conferred by section 9 of the Suits Valuation Act of 1887 and all other powers in that behalf made rules regarding the manner of determining the value of suits for purposes of jurisdiction specified in section 9 of Suits Valuation Act, 1887. Rules 3 and 4 of the said, .Rules are relevant for our purposes.

RULE3 reads as under :

"SUITSin which the plaintiff in the plaint asks for accounts only not being :

(I)suits to recover the amount which-may be found due to the plaintiff on taking unsettled accountes between him and the defendant (II)suits of either of the kinds described in order Xx, Rule 13 of Code of Civil Procedure' VALUE: (a) For the purposes of the Court-fees Act , 1870. . .Rs. 200.00 (B)For the purposes of the Suits Valuation Act , 1887, and the Punjab Courts Act, 1918. ...............Rs. l,000/".

WHILERule 4 reads as under :

"4(I)Suits in which the plaintiff in the plaint seeks to recover the amount which may be found to the plaintiff on taking unsettled accounts between him and defendant ;

(II)Suits of either of the kinds described in, Order Xx, rule 13 of the Code of Civil Procedure .

VALUEfor the purposes of court-fee.........as determined by the Court-fees Act , 1870.

VALUEfor the purposes of jurisdiction for the purpose of the Suits Valuation Act , 1887, and the Punjab Courts Act, 1918, as valued by the plaintiff in the plaint subject to determination by the Court at any stage of the trial"

(23) The learned counsel for the plaintiff submitted that the rules framed by <ORG> at Lahore and since followed in the said <ORG>, the East Punjab <ORG>, the Punjab <ORG> and the Courts in Delhi even after the constitution of the Delhi <ORG> pertain to the practice and procedure followed by the said Courts with regard to the manner and determination of the value of certain types of suits for the purposes of court-fees and jurisdiction and that the said practice and procedure, with the necessary modifications apply in relation to the <ORG> of Delhi by virtue of section 7 of the Delhi <ORG> Act 1966. The learned counsel accordingly submitted that the said rules are applicable to all suits friable by this <ORG>.

(24) By virtue of sub-section (2) of section 5 of the Delhi High Court Act, 1966, notwithstanding anything contained in any law for the time being in force, <ORG> has in respect of the Union Territory of Delhi ordinary original civil jurisdiction in money suit the value of which exceeds twenty five thousand rupees, since raised to fifty thousand rupees by section 3 of the Delhi High Court (Amendment) Act, 1969 (Act No. 37 of 1969).

(25) Section 7 of the Delhi High Court Act, 1966, deals with the practice and procedure to be followed in, <ORG>. The said section reads as under : "SUBJECTto the provisions of this Act, the law in force immediately before the appointed day with respect to practice and procedure in <ORG> shall, with the necessary modifications, apply in relation to <ORG> and accordingly <ORG> shall have all such powers to make rules and orders with respect to practice and procedure as are immediately before the appointed day exercisable by <ORG> and shall also have powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction", (26) The question accordingly is whether the rules made by <ORG> are rules pertaining to practice and procedure with regard to the manner and determination of the value of certain types of suits for the purposes of court-fees and jurisdiction as was sought to be contended by the learned counsel for the plaintiff.

(27) The learned counsel for the defendant contended that a matter of practice and procedure generally speaking arises in the course of am action and that practice in its larger sense denotes the mode of proceeding by which a legal right is enforced as distinguishable from the law which gives the right. He accordingly submitted that "practice." in the common and ordinary sense of the word denotes the rules that guide the cursus curise and regulates the proceedings in a cause within the walls of the <ORG> itself while "procedure" including the whole course of practice, from the issuing of the first process by which the suitors are brought before the <ORG> to the execution of the last process on the final judgment. In other words, the learned counsel submitted, procedure concerning all steps necessary to be taken in litigation for the establishment of a right in order that the right may be judicially recognised and declared in such manner as will enable the party asserting the right legally to enjoy it. In the practice, the learned counsel urged that before a party approaches the <ORG>, the party must ensure the provision of law under which it invokes the pecuniary and territorial jurisdiction of the <ORG> which cannot be a matter of practice and procedure but embodied in statute.

(28) Now, what is the meaning of the words practice and procedure ? <NAME> in his book on jurisprudence, 3rd Edition at page 535 slates that procedure is the body of rules that govern the process of litigation while practice regulates the proceedings in a case within the four walls and limits of the <ORG> itself.

(29) In "Words and Phrases" Volume 33 published by West Publishing Company at page 188 "practice and procedure" are said to relate to the legal rules directing the manner of bringing parties into the <ORG>, and the method of the <ORG> after they are brought in, in hearing, dealing with, and disposing of, matters in dispute between them.

(30) JOWITT'S Dictionary of English Law, Second Edition (page 1400) describes practice as the form and manner of conducting and carrying on suits, actions, or prosecutions at law or in equity, civil or criminal, through their various stages from the commencement to final judgment and execution, according to principles and rules laid down, by the several courts. It is further stated at page 1438 that procedure is the mode in which the successive steps in litigation, are taken.

(31) It is, therefore, evident that practice and procedure relate to the body of rules prescribing the method for seeking the remedy and not the enforcement of a right. The object of the Suits Valuation Act is to prescribe the method of valuing certain suits for the purposes of detremining the jurisdiction of <ORG> with respect thereto. Section 9 of the Suits Valuation Act deals with that class of suits which do not admit of being satisfactorily valued. The said section provides that in such suits <ORG> may provide for the valuation of those suits. The rules framed under section 9 of the Suits Valuation Act by <ORG> of Judicature at Lahore provide a mode for valuing the suits for the purposes of jurisdiction in suits which do not admit of being satisfactorily valued. The said rules provide a mode by which a plaintiff is to proceed for the enforcement of his legal rights. if practice and procedure relate to the body of rules directing the manner of bringing the parties into <ORG>, it is not understood as to why the rules in question, cannot be said to provide a mode for bringing the parties into <ORG>.

(32) <CITATION> 1922 Madras, 421(5), it was observed that the power , under which fees were levied the original side of <ORG> was derived from the general powers to issue general rules for regulating the practice and procedure of the <ORG>.

(33) If that be so, the rules in question cannot be said to be other than the one for regulating the practice and procedure of the <ORG>.

(34) Reference here may be made to <NAME> v. Minors (1881) 7 Q.B.D. 329(6). Therein Lush L.J. observed that practice in its larger sense denotes the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which by means of the proceeding's the <ORG> is to administer.

(35) It may bear mention here that <NAME>'s case (supra) was considered in A.G. v. <NAME> (1864)10 H.L.C. 704(7) but therein <NAME> observed that "practice" means the same thing as procedure and denotes "rules that make or guide cursus curise and regulate the proceedings in a case within the walls or limits of the <ORG> itself".

(36) Sillem (supra) was noticed in <CITATION> . 370 (8). The question under consideration, in <NAME> case was whether the provision's of Order 6 Rule 17 of the Civil Procedure Code were applicable to proceedings before <ORG>. Their Lordships approving the observations of <ORG> that practice and procedure denotes "rules that make or guide the 'cursus curise' and regulate the proceedings in a case within the walls or limits of the <ORG> itself" observed that these proceedings include' all steps, which might be taken in the prosecution or defense thereof, including an application for amendment.

(37) But it has to be borne in mind that the observations of their Lordships were made in, a wholly different context regarding the applicability of the provisions of Order 6 Rule 17 of the Code of Civil Procedure to a proceeding before <ORG>.

(38) The learned counsel for the defendants, however, strenuously contended that the procedure must be in, relation to the proceedings in <ORG> after it had taken seisin of the matter and that such an implication was inherent in the term procedure. Support for this argument was sought from <CITATION> , . Their Lordships in the above case were interpreting the term procedure appearing in section 96(l)(b) of the Employees' Estate ln,surance Act, 1948. It was in that context that it was observed that apart from the implication inherent in the term procedure appearing in section 96(l)(b) , the power to prescribe by rules any matter falling within the ambit of the term must be the "procedure to be followed in proceedings before such <ORG>". It was further observed that the word "in" emphasised by them, furnished a clue to the controversy that procedure must be in relation to proceeding's in, <ORG> after if had taken seisin of the matter. It would, therefore, be seen that their Lordships' observations were made only in the context of section, 96(l)(b) of the Employees' State Insurance Act , 1948.

(39) It may be noted here that a Full Bench of this Court in <CITATION> (1974) Ii Delhi 491(10) had an occasion to consider this question. The Full Ben,ch noticed the controversy between the parties regarding these rules but left the question' open to be canvassed before the lear- ned Single Judge observing that it was not determinative of the question referred to the Full Bench. However, at page 500 the Full Bench had observed that prima facie the rules are applicable to Delhi. The Full Bench further observed that if there' are rules made by <ORG> under section 9 of the Suits Valuation' Act, 1887, and the same are applicable, the valuation for the purposes of court-fees under section 7(iv) of the Court-fees Act will have to be according to such rules. It was also observed that so far as the rules made by <ORG> are concerned, it has to be noted that Rules 3 and 4 contemplate separate valuation for the E purpose's of court-fees an,d for the purposes of jurisdiction. It was further observed that if the said rules are applicable, the valuation for the purposes of court-fees would be separate from the valuation for the purposes of jurisdiction as provided in the said rules.

(40) From the observations of <ORG> it is clear that Rules on a prima facie consideration were held to be applicable to Delhi.

(41) The learned Single Judge on the matter being remitted to him observed that these rules were made in the year 1942 by the o <ORG> at Lahore under section 9 of the Suits Valuation Act, 1887, and have since been followed in the said <ORG> and in, the successor <ORG>s, the East Punjab <ORG>, the Punjab <ORG> and in Courts in Delhi even after the constitution of the Delhi <ORG>. ( <CITATION> (1976) Ii Delhi 745(11).

(42) The learned counsel for the defendants strenuously con- tended that the learned Single Judge was doubtful about the appli- cability of these rules to <ORG>. In support of his i submission he drew my attention to the subsequent observation of the learned Single Judge in, his judgment.

(43) It is no doubt true that the learned Judge in' a subsequent part of his judgment has observed that in relation to the reliefs of accounts, injunction, and recovery of money court fee has to be paid and valorem under the appropriate sub-clauses of clause (iv) of section 7 of the court-fees Act and that neither of the two suit under consideration could be said to belong to the category of suits which were exempt from the operation of section, 8 and that the value of the suits for purposes of jurisdiction in relation to these reliefs has to be the same as has been determined for the purposes of court- fees, unless there was anything in the Rules of the Lahore High Court, if applicable, which provide to the contrary. The words "if applicable" used by the learned Single Judge do not lend support to the argument of the learned counsel for the defendants that the learned Single Judge was doubtful about the applicability of the rules made by <ORG> at Lahore to <ORG>.

(44) <NAME> in <NAME> v. State of Haryana and others 1977 2nd (Delhi) 181(12) has held that the rules framed un,der section 9 of the Suits Valuation Act by <ORG> at Lahore are applicable to suits filed in this Court because of section 7 of the Delhi High Court Act. I am in respectful agreement with the view of my learned brother.

(45) Besides the Division Bench judgment of this Court in <CITATION> , is an authority in support of the proposition that all the rules and orders of <ORG> which were applicable in the Union Territory of Delhi on the coming into existence of <ORG> continue to operate by virtue of section 7 of <ORG> Act. Even on the assumption that rules made by <ORG> at Lahore under section 9 of the Suits Valuation Act, 1887, are substantive law, the same remain operative in the Union Territory of Delhi as held by the Division Bench in the above-said case.

(46) It may be noted here that the rules as framed by <ORG> at Lahore in respect of the manner of determining the value of suits for purposes specified in section 9 of the Suits Valuation Act, 1887. have been' embodied in Chapter III-C of the Rules and Orders (Volume 1) of <ORG> and that the said Rules and Orders are applicable in the Union Territory of Delhi. That being so, the grievance sought to be made by the defendants is misconceived and untenable.

(47) It was then contended that clause 27 of the Letters Patent of the <ORG> of Judicature at Lahore empowered the said <ORG> to frame rules for practice and procedure and that the <ORG> of East Punjab inherited this power for framing rules under clause 7 of the <ORG>s (Punjab) Order, 1947. The submission was that by virtue of the said clause subject to the provisions of the said Order the law in force immediately before the' appointed day with respect to practice and procedure in the <ORG> at Lahore shall, with the necessary modifications', apply in relations to the <ORG> of East Punjab, and accordingly that <ORG> shall have all such powers to make rules and orders with respect to practice and procedure as were immediately before the appointed day exercisable by the <ORG> at Lahore with a proviso that any rules or orders which were in force immediately before the appointed day with respect to practice and procedure in the <ORG> at Lahore shall, untill varied or revoked by rules or orders made by the <ORG> of East Punjab apply with any necessary modifications in relation to practice and procedure in the <ORG> of East Punjab as if made by that Court.

(48) It was accordingly contended that only such rules as had been framed in the exercise of the power under clause 27 of the Letters Patent by <ORG> at Lahore and preserved under clause 7 of the High Courts (Punjab) Order, 1947, have been made applicable to <ORG> under section 7 of <ORG> Act. The rules in question, it was submitted, were framed under section 9 of the Suits Valuation Act and, therefore, are not attracted by section 7 of <ORG> Act. I do not agree. On a proper construction of section 7 of Delhi High Court Act, it is evident that the rules in question have been made applicable to <ORG>.

(49) Proviso to section 7 of the Delhi High Court Act envisages that any rules or orders which were in, force immediately before the appointed day with respect to practice and procedure in <ORG> shall, until varied or revoked by rules or orders made by <ORG>, apply with necessary modifications in relation to practice and procedure in <ORG> as if made by that High Court. It is, therefore, evident that the rules or orders which were in' force immediately before the appointed day with respect to practice and procedure in <ORG> have been made applicable to <ORG> as if made by <ORG>. Rules framed under section 9 of the Suits Valuation Act were rules in force immediately before the appointed day with regard to practice and procedure in. <ORG> and would, therefore, be applicable in <ORG>. This view is fortified by the judgment of <ORG> of this Court in case <NAME> and others (supra).

(50) Another contention sought to be urged was that the rules in, question were applicable only to <ORG>s which enjoyed ordinary original civil jurisdiction and that there was no question of these rules being applicable to <ORG> at Lahore, <ORG> and <ORG> as these <ORG>s were not exercising ordinary original civil jurisdiction. It was because of the absence of this jurisdiction, goes the argument, that <ORG> has been vested with the said jurisdiction by virtue of the section 5 of the Delhi High <ORG> Act. That being so, it was submitted, the rules in question would not be applicable to <ORG> as on the appointed day when <ORG> came into being the rules were applicable only to <ORG>s which were exercising ordinary original civil jurisdiction. It was submitted that section 7 of the Delhi High <ORG> Act makes applicable to <ORG> the law in force immediately before the appointed day with respect to practice and procedure in <ORG> but these rules being not applicable in <ORG> would not apply in relation to <ORG>. The argument is without any merit and cannot be countenanced in face of section 16 of the Delhi High <ORG> Act. The said section envisages that all proceedings pending immediately before the appointed day in any subordinate <ORG> in the Union, Territory of Delhi in or in relation to any such civil suit as is referred to sub-section (2) of section 5 shall on, that day stand transferred to <ORG> which shall proceed to try, hear and determine the matter as if it had been pending therein. Such a suit it is conceded on standing transferred to <ORG> shall retain its valuation already fixed under the rules in question for the purposes of <ORG>-fees and (The) Suits Valuation Act . If that be so, it is not understood as to how the rules in question would not apply to a suit filed directly in <ORG>. The rules apply to all suits in which the plaintiff seeks to recover the account. which may be found due to the plaintiff on taking unsettled accounts between him and defendant. The plaintiff has been given the liberty to value his claim for the purposes of <ORG>-fees in a suit where it is difficult to value the claim with any precision or definiteness with I further liberty to put such value as he may think proper for the purposes of jurisdiction subject to determination by the <ORG> at any stage of the trial.

(51) Lastly, it was submitted that the suit is otherwise not properly valued for the purposes of court-fee and jurisdiction. The submission was that for seeking the relief for accounts the plaintiff has to seek a declaration that its copyright had been infringed and that the defendants are passing off their goods as that of the plaintiff. If that be so, it was urged, the relief for accounts would be cnsequential relief flowing from the relief of declaration sought. There is a fallacy in this submission which is wholly misconceived. Sub-section (1) of Section 55 of the Copyrigt Act, 1957, envisages that where copyright in any work has been infringed, the owner of the copyright shall except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. The remedies available to the holder of the copyright in case of the infringment of his work are statutory remedies, independent of each other, entitling the aggrieved party to sue for any or all the reliefs available to him under the law.

(52) This brings me to the merits of the case. The case of the plaintiff, as already noted above, is that the defendants are committing infringement in respect of its wrapper registered against No. A- 18305/77- Apart from it, the defendants are alleged to be passing off their washing soap as that of the plaintiff by giving an impression that the washing soap packed under the impugned wrapper is that of the plaintiff, or, in, any manner connected with the plaintiff and its business.

(53) The defendants in denying these allegations submit that they are in the business of manufacture and sale of soaps since 1931. They submit that the wrappers used by them in respect of their brand of soap being "521 washing soap" which brand of washing soap was first introduced by them in January 1957 went a change in April 1957.

(54) With a view to appreciate the rival contentions it would be appropriate to note the law on the subject. In <ORG> and another v- M/s. <ORG> and another , <ORG> of this Court observed that distinction between an action for infringement and for passing off is well known. The latter is a common law remedy being in substance an action for deceit, that is passing off by a person of his own goods as those of another. The former is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods. The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine quo non in the case of an action for infringement. In an action for infringeroent, the plaintiff must no doubt make out that the use of the defendant's work is likely to deceive, but where the similarity between the plaintiff's and defendant's work is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. In other words, if the essential features of the trade mark of the plaintiff have been adopted by the defendant the fact that the get up, packing and other writing or marks on the goods or on the packets in which the defendant offers his goods for sale show marked differences or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.

SIMILARview was taken earlier by a Division Bench of this Court in <CITATION> . and was reiterated by this Court in <CITATION> .

(55) <CITATION> . (1977) Ii Delhi 709(17), it was held by a Division Bench of this Court that registration of mark in the trade mark registry would be irrelevant in an action for passing off. 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. Further, registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute. Priority in adoption and use of a trade mark is superior to priority in registration. For the purposes of claiming such proprietorship of a mark, it is not necessary that the mark should have been used for a considerable length of time. As a matter of fact, a single actual use with intent to continue such use co instanti confers a right to such mark as a trade mark. It is sufficient if the article with the mark upon it has actually become a ven,dable article in the market with intent 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 the duration of the use.

(56) <CITATION> 1968 Dlt 321(18) it was observed that broadly speaking copyright is claimable only in respect of the form in which the ideas or opinions are expressed. What is protected is not original thought or information but the original expression of thought or information in some concrete form. Accordingly, it would be an infringement only if the defendant makes an unlawful use of the form in which the thought or information is expressed.

(57) <CITATION> ., . Their Lordships observed that in a passing off action the issue is, "Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods" while in an infringement action the issue is, "Is the defendant using a mark which is colourable imitation of the plaintiffs registered trade mark?" It was further observed that the action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in sections 30 , 34 and 35 of the Act. On the other hand the gist of the passing off action is that 'A' is not entitled to represent his goods as the goods of 'B' but it is not necessary for 'B' to prove that 'A' did this knowingly or with any intent to deceive. It is enough that the get up of 'B's' goods has become distinctive of them and that there is a probability of confusion between them and the goods of 'A'. No case of actual deception nor any actual damage need be proved.

(58) <CITATION> , , it was held by their Lordships that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him.

(59) Let us examine the Ok washing soap wrapper of the plaintiff and the impugned wrapper of the defendants in the light of the principles enunciated in the above noted cases.

(60) The upper portion of the plaintiff's wrapper shows the words 'A Tata Product', in white colour arranged in a blue coloured diamond device, appearing on either side with the expression Ok arranged in a shield device in red colour, appearing in, the centre of the two blue diamond devices. The side panels consist of two blue-coloured diamond devices containing the expression Ok appearing in vernacular languages- The colour scheme of the plaintiff's wrappers consists of red and blue colours against white background- A perusal of the defendants impugned wrapper shows that it bears close resemblance to the plaintiff's wrapper, being partically of the same side, its colour scheme and design are almost the same as that of the plaintiff's wrapper- The essential features of the impugned wrapper are that the upper portion shows 'A Hansa Product' in white colour, arranged in blue diamond devices, appearing on either side with the numeral 521 in red colour arranged in a shield device- This is exactly the pattern of the plaintiff's design, except that for the words 'A Tata Product' in white colour, arranged in blue diamond devices, appearing on either side, the defendants have words 'A Hansa Product' in white colour- Further for the words 'OK' in red colour arranged in a shield device, the defendants have the numeral 521 in red colour, arranged in a shield device- The side panels, again, in the impugned wrapper comprise numeral 521 in vernacular and device of a swan instead of the word 'OK' arranged in blue diamond devices like that of the plaintiffs- On an overall view of the impugned label, there can be no doubt that it has been so designed in, its get up and in its colours that there is a likelihood of confusion being created in the mind of a purchaser- The wrapper of the defendants is calculated to lead purchasers to believe that the soap of the defendants is the plaintiff's soap- The similarity between the plaintiff's and defendants' wrapper is so close that on a visual comparison of the two, it has to be held that the wrapper of the defendants is an imitation of the plaintiff's wrapper, in that essential features of the trade mark of the plaintiff have been adopted by the defendants- The defendants, however, by indicating on their wrapper that the washing soap sold in' the said wrapper is made by '<ORG> Jaipur' seek to escape their liability in respect of passing off submitting that the added matter is sufficient to distinguish their goods from those of the plaintiff; but is the added matter enough to reject the other grievance of the plaintiff ?

(61) The plaintiff's other grievance is in respect of infringement of its copyright pertaining to the design of its wrapper- The plaintiff claims to be the holder of the registration No- A-1 8305/77 granted to it under the Indian Copyright Act , 1957, besides registration nos 18573/77 an,d A-l 8595/77- The defendants subsequent to their filing the written statement and the reply to the present application by an application (LA- No- 2861 of 1978) dated 8th August, 1978, have apprised this Court that their wrapper in question has also been registered under the Copyright Act , 1957, by the copyright office as No. A 20449/78. From the certified copy of the said registration it is evident that the defendants' wrapper was registered on 1st June, 1968. Does this registration exonerate the defendants of having infringed the copyright of the plaintiff ?

(62) The plaiatiff's copyright was registered on 7th September, 1977. The case of the plaintiff is that the defendants in October 1977 adopted the infringing wrapper of which the plaintiff came to know in November 1977. The defendants on the contrary contend that their washing soap being brand "521 Washing Soap" was for the first time introduced by them in the impugned wrappers in January, 1977 and that the said wrapper went a change in April 1977. Now the plaintiff does not ever categorically as to from which date it is using its wrapper which was registered with the trade mark registry on 7th September, 1977. It would, therefore, be a legitimate inference to draw that the plaintiff started using their wrapper in September, 1977. The plaintiff does not contend that it has been using its mark/design prior to its registration. The defendants on the contrary claim the user of their impugned wrapper from January, 1977, that is, prior in point of time than the plaintiff. There is no material on the record contrary to this assertion. As held by <ORG> of this Court in Century Traders (supra) the trade mark exists independently of the registration which merely affords further protection under the statute, but the registration itself does not create a trade mark. Even a single actual use with intent to continue such use co instanti confers a right to such mark as a trade mark. It being not necessary that the goods should have acquired a reputation for quality under that mark, except that they have become a vendable article, the evidence on the record consisting of the supporting affidavits of the parties is not enough to clinch the issue in favor of one or the other party. In the facts and the circumstances of the case the plaintiff cannot be said to have established a prima fade case or that the balance of convenience is in its favor or that if the interim injunction is refused in terms of the prayer made by the plaintiff it would cause irreparable injury to it. However, with a view to protect the interest of the plaintiff it would be appropriate that the defendants be directed to file the accounts of their sales in the Court with a copy to the plaintiff. The defendants are accordingly directed to file the accounts of their sales from the date of filing of the suit to 31st October, 1978, within six weeks of this order besides filing regularly the monthly accounts. The accounts for the month of November, 1978, shall be filed by the middle of December, 1978, and the accounts for the subsequent months by the middle of the next succeeding month.

(63) The application (I.A. No. 16 of 1978) stands disposed of accordingly. The parties to bear their respective costs.


<CITATION> .

(1) These are cross appeals under Section 110-D of the Motor Vehicles Act, 1939 as amended by Act 100 of 1956 (hereinafter called 'the Act)' against the award of compensation given under Section 110-B thereof by <ORG>, Delhi, (hereinafter called 'the <ORG>'). Appeal No. 89-D of 1965 is by the claimants for enhancing the compensation awarded by the <ORG>, while Appeal No. 89-D of 1965 is by the respondents for dismissing the claim for compensation altogether or for reduction of the amount of compensation.

(2) On 13-6-1963 a motor truck belonging to <ORG><ORG>s <NAME> in charge of the driver, <NAME>, ran over and killed one <NAME> on old Rohtak Road, Delhi. The truck was insured against third party risks with <ORG><ORG>s <ORG>. <ORG> <NAME> widow of the deceased <NAME>, and their children applied to the <ORG> under Section 110-D of the Act for award of compensation for the death of <NAME> alleging that it was due to the rash and negligent driving of the motor truck. They said that the monthly income of <NAME> at the time of his death was Rs. 1,200.00 per month. The application was resisted by the truck owners and <ORG>, who denied that the death of <NAME> was caused by the negligence of the driver and alleged that the negligence or contributory negligence of <NAME> himself was the cause of his death. The tribunal found that the death of <NAME> was caused by the negligence of the truck driver. In assessing the amount of compensation, the <ORG> held that the net income of <NAME> at the time of his death was Rs. 750.00 per month. Out of this amount, <NAME> spent about Rs. 275.00 per month on himself and for his personal expenses. After the death of <NAME> his legal representatives derived an income of Rs. 300.00 per month from his business, which has been inherited by the legal representatives. Deducting these amounts from the net income of <NAME> the net loss to the dependents by the death of <NAME> came to Rs. 175.00 per month. <NAME> probably would have lived far another 15 years if he had nto been killed. The total amount of the net loss spread over 15 years would, therefore, come to Rs. 31,800.00 This amount, which the claimants would have gto during the period of 15 years, if <NAME> had lived, was reduced by 10% as the compensation was immediately payable to the claimants. The amount so reduced came to Rs. 28,620.00. Out of this amount Rs. 14,000.00 were deducted as the insurance money paid to the widow of the deceased, Rs. 5,000.00 as the value of the membership and part purchase of <ORG> by the deceased and Rs. 1000.00 as the amount received by the widow of the deceased from <ORG> on the death of the deceased. Thus, a net compensation of Rs. 8,620.00 only was awarded to the claimants by the <ORG>.The various points for decision arising out of the argument of the learned counsels for both the sides may be dealt with broadly under two headings:- (1) Was the death of <NAME> caused by the negligence of the truck driver or was it caused by the negligence of <NAME> himself or at any rate by the contributory negligence of <NAME> ? (2) Is the amount of compensation awarded by the <ORG> liable to be enhanced or reduced ? (1) The learned <ORG> carefully considered the whole evidence on record and I am in full agreement with its finding that the accident was caused by the negligence of the truck driver and that there was no contributory negligence on the part of <NAME>. The facts disclosed in the evidence are as follows:

(3) The truck was going initially by the left side of the road as required by the rule of the road. It was found, however, that a bus was parked on the road in front of it. It has, therefore, to over take the bus by going to the right side of the road. While the truck was on the right side of the road, it struck the deceased <NAME> and killed him on the spot. It was argued for the respondents that the truck was compelled to go to the right side of the road to overtake the stationary bus, that it sounded the horn before doing so and that <NAME> was coming on its motor cycle so fast that he could nto stop and, therefore, collided with the truck. This argument is nto supported by evidence as discussed and appreciated by the <ORG>. Even if, however, this argument is assumed to be based on facts, it is nto a sufficient defense in law. According to the elementary rule of driving, the motor truck going by the left side of the road was nto entitled to go to the right side of the road except after ascertaining that it would nto thereby obstruct the on-coming traffic. The driver is nto entitled merely to sound the horn and to go to the right side of the road without caring whether the on-coming traffic would be blocked by his doing so. There is nothing to show that the truck driver took care to see that there was no on-coming traffic, which would be blocked by his going to the right side. On the respondents' own argument, <NAME> was already coming from the opposite side with the result that he collided with the truck when the truck went on the right side. This itself shows that the diversion of the truck to the right immediately blocked the on-coming traffic and that sufficient warning was nto given to the on-coming traffic that the truck was going to he right side, so that the on-coming traffic should slow down. The spto of the accident was clearly on the right side of the road where the truck had no right to be. The right of way on that side of the road was of <NAME> even if he was coming fast from the opposite direction and was nto sitting on stationary motor cycle as deposed by the claimants' witnesses. This right way of <NAME> could be modified if the truck had given him sufficient warning of going to the right side and given him sufficient time to slow down. There is no such evidence on record. The truck diverted to the right side abruptly giving no opportunity or time for <NAME> to slow down and to avoid collision with truck. The accident was thus caused by the unilateral negligence of the motor truck driver. There is no contributory negligence on the part of <NAME>. In fact, this sudden diversion of the truck to the right side of the road was so indefensible that <NAME> did nto have the courage to say that he took care to warn the on-coming traffic before diverting the truck to the right side. He, therefore, tried to escape from facing the situation by saying that he was nto driving the truck at all and that one <NAME> was driving it. Even <NAME> has nto been examined to say that he took care to warn the on-coming traffic before diverting the truck to the right side. When neither <NAME> nor <NAME> has come forward to say that the truck was nto driven rashly and negligently, there is complete absence of evidence on the side of the respondents to show that the truck driver had taken any precaution to warn the on-coming traffic before diverting to the right side of the road. The only reliable evidence was, therefore, on the side of the claimants. The claimants' evidence is supported by the undoubted fact that the accident took place on the right side of the road where the truck was nto entitled to be, except after warning the on-coming traffic. In the absence of any justification for the diversion of the truck to the right side of the road either pleaded by the respondents or proved by their witnesses, the maxim res ipsa lgouitur applies and the negligence of the truck driver is estabhshed beyond doubt. I find so. (2)How is the compensation payable for death caused by negligent motor driving to be determined? There are two possible answers to this question. Firstly, the compensation is to be determined according to the existing principles of law. Secondly, it may be determined by the legislature providing for a different system of compensation such as one based on insurance or on some other policy.

(4) The first answer involves a look at the existing law. Negligence is a well known ground for liability in the law of torts. Whether the damage or death by negligence is caused by the use of a motor vehicle or in some other manner, does nto make any difference to the principle of liability in tort. Prior to the insertion of Section 110 to 110-F in the Motor Vehicle Act 1939 by the amendment of 1956, compensation claims for death caused by negligent use of motor vehicles were pursued by way of suits in Civil <ORG>. The <ORG> determined the liability for compensation as also the quantum of compensation according to the well established principles of the law of torts. It is well known that the English Law of torts has been applied by <ORG> on the ground that in the absence of any other rule of law, the <ORG> are to follow the principles of "justice, equity and good conscience", which have been "generally interpreted to mean the rules of English Law, if found applicable 13 the Indian Society and circumstances," (<NAME> v. <NAME>) The English Law itself has been constantly developing both by judicial decisions and statutory changes. In India also the common law of England as applied to India has been modified by legislation. The English statutes modifying the law of torts do nto of course apply to India in terms. If, however, they embody any principles of justice, equity and good conscience, such principles would apply to India, in preference to the common law repleaded by legislation as being contrary to such principles. For instance, the doctrine of "common employment" applied to India so long as it was a part of the common law. It was, however, regarded as an unjust doctrine and was, therefore, abolished by statutes in England. In Secretary of <ORG> v. <NAME>, it was held, therefore, that the doctrine of common employment was no longer to be followed in India as a rule of justice, equity and good conscience as it had been abolished in England as being contrary to the said principle. <NAME>, while tracing the history of the application of the principle "justice, equity and good conscience" in India has come to the same conclusion ("Changing Law in Developing Countries (1963) edited by <NAME> page 144). In <ORG>. paragraphs (15) to (18) and (21) to (23), <ORG> had occasion to point out that only the basic principles and nto the technical requirements of statutes whether in England or in India could be regarded as the principles of justice, equity and good conscience. The Fatal Accidents Act , 1855 modified the law of torts regarding the payment of compensation for death in India and is, therefore, to be followed by us first m so far as it applies to our case.

(5) The enactment of Sections 110 to 110-F of the Motor Vehicles Act, in 1956 by the legislature authorised the State Governments to establish Motor Accidents Claims <ORG>s for such areas as may be specified in the notifications for the purposes of adjudicating upon the claims for compensation in respect of accidents in- volving the death or bodily injury to persons arising out of the use of Motor Vehicles. Under Section 110-B such a <ORG> has to determine the amount of compensation "which appears to it to bejust." Is this a second answer to the question posed by me above as to how compensation for death caused by motor vehicle is to be determined ? I do nto think so. The reasons are obvious. Firstly, Sections 110 to IIO-F do nto lay down any new principle either for determining the liability for compensation or for assessing the amount of compensation. They do nto say that compensation is to be paid for every personal injury or death caused by a motor vehicle. The provisions of Chapter Viii of the Act makes the insurance of motor vehicles against third party risks compulsory, but do nto say that compensation is payable for every accident. It is clear, therefore, that the above mentioned provisions do not, in any way, override the pre-existing principles of the law of torts governing the determination of the liability to pay compensation and also the fixation of the amount thereof. This was recognised by <NAME>, as he then was, in <NAME> v. <NAME> (6) The same conclusion follows if we consider the object of the introduction of sections 110 to IIO-F in the Act in 1956 and the nature and functions of the <ORG>. Enormous increase in the number of use of motor vehicles in India led to an abnormal increase in the number of accidents and deaths caused by the Motor Vehicles. Suits for compensation involving expenses, particularly in the shape of Court fees and delay due to multiple appeals were found to be inadequate as a remedy to the large number of persons aggrieved by Motor Accidents. The amendment of 1956, therefore, enable such aggrieved persons to claim compensation merely by making an application to the <ORG> without payment of ad valorem Court fees. Appeal against the decision of the <ORG> was provided directly to <ORG>. The legislative intention apparently was to substitute a cheaper and more expeditious forum in place of the ordinary <ORG>. Beyond this, no change was necessary or was intended. <CITATION> , by Full Bench of this Court I had occasion, in speaking for the Court, to point out that the nature of the jurisdiction of the <ORG> is precisely the same as that of <ORG>, inasmuch as it entertains the same claim for compensation based on negligence, as was done by <ORG>. Even now, in those areas in which <ORG>s are nto established by the State Governments, these claims would be still entertained by the ordinary <ORG>. As the claims before the <ORG> and the <ORG>s are the same and as they are tried by the same law, the decisions of the <ORG> are like the decisions of the <ORG>, though they may be called an "award". Such a claim for compensation is based on a cause of action arising prior to the making of the claim before the <ORG>. The <ORG> determines the legal rights of the parties on the pre-existing legal principles and nto on any consideration of policy. It is nto concerned with recommending or enforcing what ought to be the right and liability of the parties in future. These are the criteria which were applied both by the majority and the minority of the judicial committee of <ORG> in <CITATION> , (being incidentally the first case in which the right of dissent was exercised by the members of <ORG>), to determine if a <ORG> is a judicial one or an arbitral one. On applying these tests there can be no doubt that the Motor Accidents <ORG> is a judicial one. The <ORG> has nto been empowered by Section 110-B of the Act to depart from the established principles of law. In determining the amount of compensation "which appears to be just" the <ORG> is nto to invent either a new policy or new law. Nto being an arbitral <ORG> or an administrative Officer, the <ORG> is nto an instrument of carrying out any policy of the legislature or of the Government. Being a judicial <ORG> doing the same work as <ORG> does, the <ORG> cannto but follow the same principles of law as are followed by <ORG>. For the above reasons, the correct answer to the question as to how the compensation is to be determined in this case would be that it is to be done according to the existing principles of law of torts applicable to India as modified by Indian Legislation.

(7) <CITATION> , a Division Bench of this Court observed in paragraph 39 that Section 110 to 110-F of the Act being a special law enacted in 1956 were self-contained and the provisions of the Fatal Accidents Act , 1855 were nto applicable in terms to an application made under Section 110-A of the Act. The Division Bench, however, did nto say that Sections 110-A to 110-F , of the Act enacted any new principle for the determination either of the liability or of the quantum of compensation and that they were self-contained in these respects. On the contrary, they held on agreement of the learned counsels for both the sides in paragraph 41 that the principles underlying Section 1 of the Fatal Accidents Act, 1855 were applicable to the determination of the compensation for death caused by a motor vehicle. The conclusion of <ORG> is not, thus, really different from the one reached by me above.

(8) The Rule for fixation of the compensation for death according to the law of torts as pithily expressed in Section A-1 of the Fatal Accidents Act, is that "in every such action the <ORG> may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought". The Supreme <ORG> further explained the rule in <CITATION> , by holding that in calculating the loss caused by the death "any benefit accruing to a dependent by reason of the relevant death must be taken into consideration .............................. the balance of loss of gain. of a dependent by the death must be ascertained" as was observed by <ORG> in <NAME> v. <ORG> (9). In the light of these principles we have to find out the loss caused to the claimants by the death of <NAME> and the benefits which accrued to them by the said death, so that compensation to be granted to them should be equivalent to the loss minus the benefit.

(9) Let us first consider what loss was caused to the dependents by the death of <NAME>. There is little direct evidence of the income of <NAME> after June, 1959 till his death in 1963. The claimants relied upon the evidence of Public Witness 11, <NAME>, a Chartered Accountant, who deposed that he had prepared the statements PW11/1 to Public Witness 11-4 from the books of account handed over to him by the deceased. These statements are said to have been based on the original account books. The original account books were neither produced nor proved by the partners of the deceased <NAME> though they are said to have written them. The statements were not, therefore, admissible in evidence. The learned counsel for the claimants urged that the <ORG> was nto bound by the provisions of the Evidence Act , and therefore, it could and should have relied upon these statements. I am unable to agree with this contention. The <ORG> being bound by the pre-existing rules of law in dealing with an ordinary common law claim is more like <ORG> and than for instance, <ORG> and Industrial <ORG> functioning under the Industrial Disputes Act , 1947. But even the latter cannto admit documents such as profits and loss account statements or balance sheets, etc. into evidence unless they are proved like any other document ( <CITATION> , . For the Rule that a document should be properly proved before it can be relied upon is nto always a technical rule of the Evidence Act , but is often a fundamental rule of justice, which cannto be ignored by any judicial <ORG>. We have, therefore, to rely only upon the uncorroborated evidence of <NAME>. She said that the deceased <NAME> used to give her Rs. 800.00 or 900.00 per month for the family expenses. Making allowance for her tendency to exaggerate this amount the <ORG> held that the income of <NAME> was Rs. 750.00 per month. The learned counsel for the claimants urged that this estimate by the <ORG> was on the lower side. I do nto think so. The deceased, <NAME> did nto pay income tax. This is a serious handicap in the way of the claimants in urging that his income was much above the taxable minimum. From the mere fact, however, that the deceased <NAME>, did nto pay income tax, it would nto be possible to hold that his income was nto above the taxable minimum. For, he sent his children to a good School and had to spend Rs. 100.00 or more for their fees and conveyance charges alone. He also had a motor cycle. The <ORG> was, therefore, on the whole correct in assessing his income at Rs. 750.00 per month. The loss to the dependents would, however, be that part of the income, which was spent on the dependents by <NAME>. Smt. <NAME> has admitted that <NAME> spends Rs. 150.00 to 200.00 per month on his personal expenses. The <ORG> was, therefore, justified in accepting the larger figure of Rs. 200.00 given by her as the personal expenses of <NAME>. An amount of Rs. 75.00 per month was taken by the <ORG> as the monthly eating expenses of <NAME> which also was reasonable. Deducting these Rs. 275.00 per month from the income of Rs. 750.00 per month, the remainder was Rs. 475.00 per month.

(10) On the death of <NAME>, <ORG>, which was run by him, is now run by <NAME> and <NAME>. The business of <ORG> consists on the one hand of the premises and the equipment and on the other hand, the labour put in by the mechanics. The premises for a workshop need nto be substantial. We see <ORG> mostly housed in flimsy structures or even working in the open. The tools for working are also nto a big investment. Once bought they serve for a long time. On the other hand, the labour of the mechanics is costly to obtain. Out of the income earned by a workshop. therefore, a larger portion would go to the mechanics and only a comparatively small portion will be paid as rent for the use of the premises and equipment. Further, it is nto at all certain that <NAME> and <NAME> will continue to work in <NAME> workshop with his equipment for the next 15 years. On the other hand, they are more likely to work independently for themselves. In the nature of things, it is highly improbable that a widow like <NAME> or any of her young children can take any part in the management of this workshop. It may be that <NAME> and <NAME> continue to work in the said workshop for some time immediately after the death of <NAME>. There is no certainty at all that they will continue to do so for long and <NAME> will be able to obtain this monthly income from them or from others for 15 years. This source of income, is therefore, undependable and insubstantial. The <ORG> was not, therefore, justified in arbitrarily estimating this income to be Rs. 300.00 per month and that too for the next 15 years. <NAME> has admitted that the income was Rs. 150.00 to 200.00 per month. In view of the above reasons we cannto go beyond the admission made by her. I, therefore, estimate the income to her from this source at Rs. 175.00 per month, which is the mean of the two figures stated by her. So, deducting this amount of Rs. 175.00 per month from Rs. 475.00 per month, the actual amount spent by <NAME> on his dependents would come to Rs. 300.00 per month and nto Rs. 175.00 per month as held by the <ORG>.

(11) The learned counsel for the claimants urged that <NAME> was a forward looking ambitious person. His income was, likely to rise in future. It is true that <NAME> had plans to start manufacture of motor parts and he had invested Rs. 5,000.00 for getting an industrial plto for the purpose. He had also invited the late Prime Minister, <NAME>, to visit his workshop. The manufacture of motor parts, however, required several other steps to be taken. As pointed out by a learned author (Munkman's Damages for Personal Injuries and Death, 3rd Edition, page 37) : "ANestimate of prospective loss must be based, in the first instance on a foundation of solid facts; otherwise it is nto an estimate, but a guess. It is, therefore, important that evidence should be given to the Court as many solid facts as possible. When it is shown that the plaintiff was earning money at a special rate at the time of the injury, an ordinary presumption of the law is that he would have continued to earn at the same rate. If the plaintiff claims that he would have earned more, he must prove relevant facts, for example by showing that he was on a regular ladder of promotion, or in a trade where rates of pay are increased from time to time, or that he had special merits or qualifications or opportunities, which would have led to an improvement."

INthe absence of reliable evidence of future improved income, therefore, the only workable basis of <NAME> future income is the income he was making at the time of his death.

(12) Though <NAME> evaded to pay income tax in his life time, in estimating his future income provision has to be made for the deduction of the income tax from it, as was held by the majority of <ORG> in <ORG> v. <NAME>,. For, as observed by Lord <NAME>, the compensation for death is granted nto by way of restitution but only to compensate by monetary payment the loss caused to the dependents as far as this can be done. The amount of tax, which would have been payable by the late <NAME> would have to be calculated on his net income and a proportionately reduced part of it would have been deductible from the amount spent by <NAME> on his dependents out of his net income. This is somewhat difficult to calculate. On the other hand, it is provable that the deceased might have made savings out of his income if he had lived. In <NAME> v. <ORG> (12) <ORG> per Lord <NAME> observed that no reduction should be made on account of acceleration of the estate to the legal representatives of the deceased "having regard to the anticipated savings which might reasonably have been expected to be made by the deceased if he had lived, as these two figures very largely cancel out". I, therefore, think it just in this case that the amount of probable savings, which would have been made by <NAME> if he had lived should be set off against the income tax which he would have been liable to pay. On this account, therefore, no tax deduction is to be made from the amount payable to the dependents by way of compensation.

(13) The average life expectancy in India is about 50 years. This does nto mean that <NAME> life span is to be taken to be 50 years only. The average is low due to infant mortality. But <NAME> having survived the infancy period, he might have lived at any rate up to the age of 60 or 65 years. The future earnings of <NAME> are to be calculated, however, nto for the average life but for the working life, that is to say for the period for which he would have been active enough to work, (See Quantum of Damages by Kamp & Kamp Vol. 2, 2nd Edn. page 20). <NAME> was about 40 years old when he was killed. It is well known that the business of running <ORG> damands hard work. <NAME> from his photographs appears to have been a somewhat thinly built man. He was subject to the risks of accidents, etc. in the life that he lived. On the whole the <ORG> has, therefore, been right in taking the remaining life expectancy of <NAME> to be 15 years. It could nto be longer. In the <ORG> decision cited above, the age of the deceased was only 34 years and the compensation awarded to him worked out a life expectancy of only eight years more. In <NAME> v. <NAME> and <NAME>, (13) the life expectancy of the deceased was taken to be for 15 years, though the deceased was only 35 years of age when he died and was very active worker in good health. Relying on this decision the conclusion reached in the latest edition of the well known book "Winfield on torts" 8th edition, page 620, foto note, 5, is as follows:- "INthe case of the death of a normal healthy man, the maximum number of years assuming full dependency is likely to be between 12 and 15 years."

(14) I agree, therefore that on a true estimate the remaining life expectancy of <NAME> would have been 15 years as calculated by the <ORG>.

(15) The dependents of <NAME> were his wife and five children aged 17, 12, 9 and 7, the age of the youngest one nto being given in the application. The dependency of the eldest child, who is a daughter, would have been five years more as she would be married off at the age of 22 years or so. The dependency of the second child, who is a son aged 12 years would be 12 years or so. The dependency of the remaining ones would be full 15 years. The widow being burdened with at least three young children, who would nto become independent for the next 15 years after the death of <NAME> is nto likely to remarry during the said period. Multiplying the monthly income of Rs. 300.00 per month for 15 years, we get an amount of Rs. 54,000.00. Out of this, we have to deduct l/6th of Rs. 300.00 per month for 10 years as the 1st daughter, <NAME> would be married off by the end of five years and l/5th of Rs. 300.00 out of the remaining income for a period of three years as the second child would cease to be dependent in 12 years. Making these deductions, the total amount works out at Rs. 45,840.00. This amount would have come to the dependents from month to month if <NAME> had survived. Since it is being paid to them immediately in a lump sum, same scaling down has to be made for such acceleration. Even at the rate of 3"% per annum paid by <ORG>, an amount of money is likely to be increased by about 50 per cent, if interest is added to it for 15 years. A deduction of about 33/1/8 per cent is, therefore, to be made from the above amount of the capitalised income. The net loss caused to the dependents by the death of <NAME> comes to Rs. 30,560.00.

(16) In paragraphs 45 of the judgment of the <ORG> it has been stated that because of the death of <NAME>, <NAME> received Rs. 14,000.00 from <ORG> and the parlies have no objection to this amount being deducted from the amount of compensation. The learned counsel for the claimants before me, however argued that this admission made on behalf of the claimants before the <ORG> can be withdrawn by him if it is proved that it was wrong in law. The established rule enunciated by <ORG> in <NAME> v. <ORG>, (9) per lord <NAME> at page 611, is as follows :- "in assessing the damages, all circumstances which may be legitimately pleaded diminution of the damages must be considered...................... The Act ual pecuniary loss of each individual entitled to sue can only be ascertained by balancing on the one hand, the loss to him of the future pecuniary advantage which from whatever source comes to him by reason of the death."

(17) The Insurance amount which becomes payable to the widow and the children of the deceased by reason of the death is, therefore, a pecuniary advantage which has to be deducted from the amount of compensation. <NAME> v. <ORG>, page 615, (14) it was pointed out that the benefit which the widow of the deceased gto by reason of latter's death is really the acceleration of her interest in his estate. Both these decisions were cited with approval by <ORG> in the decision, referred to above. In considering insurance, however, a distinction has to be borne in mind. Accident insurance by which the insured will stand to receive a certain amount if he is injured in accident stands in one cate- gory. The principle underlying such accident insurance is that the insurer who pays the premiums for the purpose of insuring himself does so on the foto ing that his right to be compensated when the accident insured against happens is an equivalent for the premiums he has paid. It is a quid pro quo, larger if he gets it on the chance that he will never get it at all". Money received under such an accident insurance policy is not, therefore, deductible or taken into account in any way in assessing damages for personal injuries as was held in <NAME> v. <ORG>, . On the other hand, there is the ordinary life insurance life amount of which accrues specifically by reason of death. The real pecuniary benefit which accrues to the heirs of the deceased by reason of the death consists in the accelerated receipt of the amount of the insurance and it is this benefit of acceleration which is deductible from the amount of compensation, as was held in <ORG> v. <NAME>. There is something in the evidence of <NAME> to suggest that out of this insurance amount of Rs. 14,000.00 a part was due on the ordinary life policy while the rest was due to the accident benefit clause in the said policy. The claimants have nto cared to produce the policies, which are in their possession. The terms of the policy could be proved only by the production of the original documents by <NAME>. As she has nto done so, we cannto speculate what the precise terms of the accident benefit clause were, viz. Whether the clause was a pure accident policy, the amount payable on which would nto be deductible from compensation or whether the clause only provided for an enhanced compensation if death was caused by accident in which case the amount would be deductible as it is payable on death. The question whether the accident benefit clause was of the one kind or the other is purely one of fact, which could have been decided only after the production of the original policy. The learned counsel for both the sides before the <ORG> agreed that the whole of the amount of the insurance was deductible. This agreement cannto be said to be merely on a question of law, viz. whether the amount is deductible or not. It is also on a question of fact, viz. that the amount under the terms of the policy was payable by reason of death of <NAME> and was, therefore, deductible. What is a question of pure law is that instead of the whole amount being deductible, only the benefit of acceleration of the payment of it to the widow is alone deductible. To this extent only the admission made by the counsel for the claimants before the <ORG> can be withdrawn. The best way to estimate the benefit of acceleration is to calculate the "interest on the money during the period of acceleration" as observed by Lord <NAME> at page 805 of <ORG> case cited above. Such interest at 3"% for a period of 15 years would be about l/3rd of the amount Rs. 4,666.00 only are, therefore, to be deducted from the compensation amount.

(18) In England at common law, insurance monies like all other benefits resulting from the death of the deceased to his dependents had to be deducted from compensation awarded for death under the law of torts (as modified by the Fatal Accidents Act ) as would be clear from the <ORG> decision in <ORG> case cited above. Statutory inroads on this principle were, however, made by the Fatal Accident (Damages) Act, 1908 and Fatal Accidents Act . 1959 with the result that in England the insurance monies are now nto taken into account in determining the compensation payable for fatal accidents. These statutes have thus made an exception to the rule enunciated by <ORG> in 1942. Appeal Cases 601 and by the <ORG> in 1951 Appeal Cases 601 which was adopted by <ORG> in . that all benefits accruing to the dependents of the deceased by reason of his death from whatever source are to be deducted in assessing the compensation for death. The problem before me is to decide whether the common law rule should be followed in this respect or whether the English law as amended by statutes should be followed in preference to the common law. As stated above in India we are to follow the common law or the English law as amended by the statutes only in so far as it embodies the principles of "justice, equity and good conscience". The long established rule is that the dependents of the deceased are awarded only the balance of the loss and the benefit suffered by them by reason of the death of the deceased. This rule was apparently based on "justice, equity and good conscience" and has been followed in India. In , <ORG> has affirmed it. On the date of the decision of <ORG>, statutory changes in England had already engrafted an exception to this rule by excluding the insurance money from the benefits which are to be deducted from the loss caused by the death of the deceased. <ORG>, however, did nto indicate in any way that the English law as amended by the statute would be followed in India or that the rule affirmed by them was subject to this statutory exception obtaining in England. The trend of legislation in England is apparently to enhance the compensation payable on death. The legislature is leaning in favor of the dependents of the deceased and against the tortfeasors and the insurance company. In India, however, there is no such legislation. It cannto be said that the statutory changes made in England embody a fundamental rule of justice, equity and good conscience or that the unamended common law was, therefore, contrary to to "justice, equity and good conscience". Unless and until, therefore, <ORG> decides in favor of following English law as amended by the statutes in this respect, I feel bound to follow the unamended common law, which in my view was endorsed by <ORG> in . The benefit of acceleration of the receipt of the insurance monies has, therefore, to be deducted as stated above.

(19) The next item which has come to the heirs by reason of the death of <NAME> is the interest worth Rs. 5,000.00 in the purchase of the industrial plot. In this case also it is only the benefit of the acceleration of the interest which has to be deducted. The acceleration by deducting the interest for 15 years out of this would be about l/3rd of the amount. Rs.1,666.00 are, therefore, to be deducted on this account. It is also admitted by <NAME> that Rs.1,000.00 were paid to her out of <ORG> on the death of the deceased. The benefit of acceleration thereon worked out by the same method would be Rs. 333.00 which is the amount to be deducted from the amount of compensation.

(20) The following is the tabulated summary of the amounts of loss and benefit to the heirs of <NAME> by his death :- Loss Benefit 1. Rs. 300.00 p.m. for 15 1. Accelertion of years. 54,000-00 the receipt of insurance money minus periods of reduced Rs. 14,000 .00 being dependency of two 33/1/3% children - Rs.8,160.00 4,666 -00 -45,840-00 2. Acceleration of receipt of investment minus 33/1/3 % for accleration in industrial leration - 15,280 .00 30,560 .00 plot-Rs. 5000.00 being 33/1/3% 1,666 .00 minus benefit Rs-6,665 -00 3. Acceleration of 23,895-00 receipt of Chit Fund-Rs. 1000- 00 being 33/1/3% - 333.00 Total 6,665 .00 Net compensation amount : Rs.23,895.00 (21) Accordingly the award of the <ORG> is modified and a net compensation of Rs.23,895.00 is ordered to be paid by the respondents to the claimants. The liability of the insurance company is limited to Rs.20,000.00 only, which was the maximum for which third party risk was insured against. The claimants' appeal is allowed to this extent, while the respondents' appeal is dismissed. No order as to costs.


JUDGMENT

1. The only question raised in this second appeal is, whether a female heir is disqualified from succeeding to the office of archaka and receiving the emoluments attached to the office in cases where such office is hereditary in her family. The District Munsif passed a decree in plaintiff's favour but the Subordinate Judge, who agreed with the District Munsif in all his findings of fact, dismissed the plaintiff's suit on the ground that the decision in <CITATION> 23 Ind. Cas. 72; 26 M.L.J. 315; (1914) M.W.N. 286: 1 L.W. 276; 38 M. 850 was authority for holding that females were disqualified from succeeding to the office.

2. The right of females to succeed to religious offices and perform the duties by proxy where such offices are hereditary has been recognized in numerous cases. As observed by Justices <NAME> and <NAME> in <NAME> v. <NAME> 27 Ind. Cas. 440; 16 M.L.T. 423; 1 L.W. 900; (1914) M.W.N. 919 (where all the important cases are collected), the rule enunciated by <NAME>, in <CITATION> 23 Ind. Cas. 72; 26 M.L.J. 315; (1914) M.W.N. 286: 1 L.W. 276; 38 M. 850 runs counter to ideas which have been commonly accepted by parties concerned and given effect to by <ORG> for many years, and we think that the present case is one where <ORG> should apply the doctrine of stare decisis and not declare to be illegal a practice which has been followed for many years with, so far as we are aware, no serious evil consequences and which has been the foundation of many titles.

3. The hereditary right to succeed to a religious office is itself the creature of custom and the fact that females have been allowed without question to enjoy the emoluments of the office and to get the duties performed by proxy and that <ORG> have for a series of years given effect to such right, justifies us in holding that female succession is not excluded. The right of females to perform religious duties by proxy is not unknown to <ORG> usage, the commonest examples being the performance of sradhas and funeral obsequies by female heirs by proxy and cases where a widow makes an adoption.

4. <CITATION> 25 Ind. Cas. 283; 27 M.L.J. 179, Justices <NAME> and <NAME> held that there was no basis for the assumption that females are as such disqualified from succeeding to a religious office attached to a temple and that the onus would be on the dhamakartas to prove any such disqualification services in temples are often performed by proxies. They were dealing with a case where the service to be performed was the reciting of Vedas in a temple and we can see little difference between such a service and the service performed by archakas.

5. The Subordinate Judge was wrong in thinking that any special custom has to be pleaded to enable a female heir to succeed. The onus is on those who deny that right to prove a custom excluding females.

6. <CITATION> 27 Ind. Cas. 400; 42 C. 455; 20 C.L.J. 183; 19 C.W.N. 208, which was a case relating to an office in the Kalighat temple similar to that of archakas in this Presidency, Justice <NAME>, after an elaborate review of several authorities, was of opinion that the custom whereby females not only succeeded to the office but also alienated the same was not invalid as opposed to public policy. An alienation was also upheld in <CITATION> 7 Ind. Cas. 715; 8 M.L.T. 325; (1910) M.W.N. 445. It is unnecessary for us in the present case to decide how far the right of alienation extends, though there is authority for holding that a female heir can alienate the office to one next in succession. So far as the authorities go, we do not think that there is any ground for refusing to recognise the custom of female succession to hereditary religious offices on the ground of such a custom being opposed either to the express text of Hindu Law or to public policy.

7. Following <NAME> v. <NAME> 27 Ind. Cas. 440; 16 M.L.T. 423; 1 L.W. 900; (1914) M.W.N. 919 and <CITATION> 25 Ind. Cas. 283; 27 M.L.J. 179, we are of opinion that a female is not, under Hindu Law or custom, disqualified from succeeding to a hereditary religious office and getting such duties, as she may be disqualified by reason of her sex from performing, performed by proxy.

8. We reverse the decision of the Subordinate Judge and remand the case to him for disposal of the second question raised by him. The respondents will pay appellants costs in this Court and the costs will abide and follow the result.