NILADRI NATH MUKHERJEE Vs. SATIS CHANDRA MUKHERJEE

JUDGEMENT

(1.) The plaintiffs are grandsons of the late Rai Bahadur Bankim Chandra Chatterjee the well- known Bengali author and novelist, being the sons of his daughter Sreemati Nilabja Kumari Debi who died sometime in November 1910. The second defendant is the sole surviving son of another daughter of the late Rai Bahadur, Sreemati Sarat Kumari Debi who died on 17th December 1927. The first defendant is the proprietor of the Basumati and the Basumati Press and carried on business as a book seller and publisher in Calcutta. The plaintiffs claim that they along with the second defendant became the owners of the copyright in certain books of the late Rai Bahadur Bankim Chandra Chatterjee on the death of Sarat Kumari Debi and they complain in this suit of an infringement of their copyright by the first defendant on and from 23 December 1927. The only allegation made against the second defendant in the plaint upon which it might band suggested some relief could be claimed against the second defendant is to be found in para. 7. That paragraph runs as follows: The first defendant alleges that he has obtained license from the second defendant to print, publish and sell the said books, The plaintiffs do not admit that the said licence was given but if it was given in fact, they contend that the second defendant had and has no authority to grant the said licence without the consent of the plaintiff.

(2.) The learned advocate for the second defendant has contended that the plaint is framed discloses no cause of action against his client and the suit should be dismissed as against him. It was submitted by counsel for the plaintiffs that on his present plaint he was entitled to ask for an account from the second defendant of the moneys which the second defendant had obtained from the first defendant by granting the licence mentioned in the plaint to the first defendant. In my view, the plaintiffs cannot obtain any decree in this suit against the second defendant for an account of the moneys realized by him from the first defendant against whom the plaintiffs claim damages for infringement. It is true that in prayer (d) of the plaint the plaintiffs have claimed discovery, accounts and inquiries as to damages against the first and second defendants but I do not think any foundation has been laid in the plaint for any claim for an account of the moneys realized by the second defendant from the first defendant. The suit must therefore be dismissed against the second defendant. The first defendant has challenged the title of the plaintiffs to the copyright in the books and the first issue raised by the learned counsel for the first defendant namely; "Have the plaintiffs any interest in the copyright of any of the books mentioned in the plaint?" is the really important issue for decision. The plaintiffs claim title to the copyright in the books by inheritance and it is conceded that if by his will dated 23 May 1890 the late Rai Bahadur Bankim Chandra Chatterjee had made no testamentary disposition of the copyright in his books in favour of his widow Sreemati Rajluckshmi Debi the plaintiffs and the second defendant jointly became the owners of the copyright on the death of Sreemati Sarat Kumari Dabi. There is no dispute about the facts in the case. Rai Bahadur Bankim Chandra Chatterjee died on 8 April 1894 leaving a will dated 23 May 1890. He left him surviving his widow Sreemati Rajluekshmi Debi and his two daughters Sreemati Sarat Kumari Debi and Sreemati Nilabja Kumari Debi. Letters of administration to the estate of Bamkim Chandra Chatterjee with copy of the will annexed were granted to Sreemati Rajluckshmi Debi on 21 July 1894. In November 1910 Nilabja Kumari Dabi died leaving her three sons, the present plaintiffs. On 19 August 1919 Sreemati Rajluckghmi Debi died. By her will dated 2 September, 1894 and her codicil dated 10 March 1907, probate whereof were granted by this Court on 25 November 1920, Sreemati Rajluokshmi Debi bequeathed the copyright in her husband's books to her daughter Sreemati Sarat Kumari Debi. Rajluokshmi Debi claimed to have got the copyright in the books herself by a bequest under, the will of Bankim Chandra Chatterjee. On 19 September 1926, Sarat Kumari by a registered deed made a gift of the copyright in the books to the second defendant.

(3.) On 17 December 1927, Sreemati Sarat Kumari died leaving the second defendant Brojendu Sunder Banerjee, her only surviving son and as I have already said the plaintiffs claim that on the death of Sreemati Sarat Kumari Debi they became the owners of the copyright in the books along with Brojendu. On 27 December 1927, Mr. D.N.Gupta, a Solicitor acting under instructions from the plaintiffs wrote and addressed a letter to defendant 1 informing him that the plaintiffs had become entitled jointly with Brojendu to all the properties belonging to the estate of the late Rai Bahadur Bankim Chandra Chatterjee including the copyright in his books and requesting him not to make any payment to the second defendant in respect of the books without notice to the plaintiffs. It appears that the first defendant has been printing and publishing the books of Rai Bahadur Bankim Chandra Chatterjee for some time past pursuant to arrangements made with Sreemati Rajluokshmi Debi and Sreemati Sarat Kumari Debi. After the letter of 22 December, 1927 certain further letters passed between the Solicitors of the plaintiffs and the Solicitors of the second defendant to which no specific reference need be made. On 4 April 1928, there was an agreement between the first defendant and the second defendant whereby the first defendant was given a licence to print and publish the books mentioned in the plaint except the five books specifically referred to in para. 5 of the written statement. On 18 December 1930, the present suit was filed.