P R VISWANATHA IYER Vs. AMUTHUKUMARASWAMI PILLAI

JUDGEMENT

(1.) These two appeals arise out of an alleged breach of copyright in connection with the publication known as the Tinnevelly Vakya Panchangam, which is a Tamil almanac giving information necessary for casting horoscopes, fixing fasts, festivals and ceremonies with reference to the phases of the Moon and other relevant astronomical materials. It is distinguishable from an ordinary almanac in that it is prepared on the basis of calculations based on some 248 Vakyams or aphorisms embodying rules of astrological science. It is common ground that this particular Panchangam has been published for over 60 years from manuscripts furnished by defendant 1 and his father. The publisher was up to 1940 plaintiff 2 in the suit out of which Appeal No. 301 of 1945 arises.

(2.) Defendant 1 then quarrelled with plaintiff 2 and as a result of that quarrel, he entered into an agreement, Ex. p-1, dated 20-2-1941 with plaintiff 1. Under this agreement defendant 1 was to east the almanac known as the Tinnevelly Vakya Panchangam which he has been composing for about 60 years and deliver the manuscript to plaintiff 1 for printing and publication for a period of five years from the year Chitrabhanu 1942 to the end of the year Vyaya 1946. Plaintiff l was to pay defendant 1 Rs. 350 per annum for his work. The agreement fixes the date within which the manuscript should be delivered in each year and prohibits defendant 1 from writing or delivering a copy of the almanac to any one else. It is also stipulated that defendant 1 should have the right to insert in the almanac eight pages of matter in Tamil and eight pages of matter in Grantham in addition to the almanao proper and should himself be given 100 copies of the published work. Then follow the provisions regarding the manner of payment of the fee and the adjustment of advances.

(3.) On the basis of this agreement the Pan. Changams for 1942 and 1943 were published; but in May 1943, defendant 1 sent a notice, Ex. P-8, to plaintiff l alleging that the latter had broken the agreement by printing on the Panchangam the name of plaintiff 2 as publisher, knowing that defendant l had broken off relations with plaintiff 2 and wished to have no more to do with him. Defendant 1 called upon plaintiff 1 to withdraw from circulation all copies of the calendar bearing plaintiff 2's name and to undertake not to use plaintiff 2's name thereafter. If he was unwilling to give this undertaking, defendant 1 proposed to rescind the contract. At the time when this notice was sent, defendant 1 had already received two small advances in respect of the almanac for the year Darana, 1944. Plaintiff l replied to this notice denying that there was any understanding that no other person's name should appear on the almanac and claiming the right to assign to plaintiff 2. On 27-8-1943, plaintiff 1 sent a money order for Rs. 80 due to defendant 1 under the contract. This money order was refused whereupon plaintiff 1 filed a suit against defendant 1, O.S. No. 403 of 1943 out of which Second appeal No. 750 of 1945 arises. In that suit the individual whom we have referred to as plaintiff 2 was not a party, and the suit as originally framed sought, relief only against defendant 1, the prayer being for specific performance of the contract to supply manuscripts of the panchangam for the three years for which the agreement still had to run or alternatively to pay Rs. 900 as damages for breach of the contract. Plaintiff 1 also filed an application in which he prayed for an injunction restraining defendant 1 from getting his manuscript published by anyone else. In opposition to .that injunction application, defendant l filed a counter affidavit in which he asserted his physical inability to continue the production of the panchangam and stated that his grandson, defendant 2, was now casting a panchangam which was to be published by defendant 3 under an agreement dated 20-8-1943. As a consequence of this statement the plaintiff amended his plaint by adding a paragraph referring to defendant 1's counter affidavit and alleging that defendant 2 was incapable of casting a panchangam and that defendant l was seeking to circumvent the agreement and interim injunction by publishing his panchangam in the name of defendant 2 through the agency of defendant 3 who is alleged to have purchased the right to publish it when fully aware of the suit agreement. A prayer was also added that the defendants be restrained from publishing the Tamil Vakya Pan-changam for the years covered by the agreement either in their own names or in the names of other persons and damages were sought from all of the defendants.