MT SAVITRI DEVI Vs. DWARKA PRASAD BHATYA

JUDGEMENT

(1.) The dispute in the present litigation is about the copyright of a Hindi book named Abhinava Nighantu, a book on the Indian Materia Mediea. The book wan written in the nineties of the last contrary by a resident of Muttra District, named Chaubey Datt Ram, the predecessor-in-title of Savitri Devi, plaintiff-appellant. The first edition of the book was printed and published by Datt Ram in the year 1893 and a second and enlarged edition of the book was printed and published by him in the year 1899. Datt Ram died in the year 1907 leaving Narain Dutt, his son, as his sole legal representative. The suit giving rise to the present appeal was filed by Narain Datt and he prayed for a perpetual injunction restraining the defendants from printing and publishing the book, for accounts and for damages, etc. on the allegation that the defendants had infringed his copyright in the book. Narain Datt died during the pendency of the suit in the Court below leaving a will by which he bequeathed all his properties, moveable and immovable, to Savitri Devi and Savitri Devi was accordingly substituted as plain, tiff in place of Narain Datt.

(2.) There were two defendants in the suit. Defendant 1 was one B. Kishan Lal who was the proprietor of a press in Muttra called Bombay Bhushan Press, and defendant 2 was "Shridhar Shiv Lai, Gyan Sagar Press," a firm of printers and publishers in Bombay. This firm was sued through one Pt. Janak Prasad Bajpai on the allegation that Janak Prasad had been, appointed receiver of the firm by a Court of law. Kishan Lal died during the trial in the Court below, and his son Dwarka Prasad was substituted in his place. It is a matter of admission that in the year 1929-1930 a fresh edition of the book was printed by Kishan Lal in his press and was published either by him or by defendant 2. The plaintiff's case was that the printing and the publication of this edition constituted an infringement of the copyright that he had in the book. The suit was con-tested by both the defendants mainly on the allegation that Datt Ram had assigned the copyright in the book in favour of Shridhar Shiv Lal, defendant 2, by means of an unregistered sale deed dated 4 September 1905. The defendants therefore maintained that the plaintiff had no copyright left in the book and was not entitled to sue. Both the defendants alleged that Kishan Lal had printed the book in pursuance of an order given by defendant 2 and that the book was published by defendant 2, the assignee of the copyright.

(3.) The plaintiff denied the alleged assignment of the copyright by Datt Ram and maintained that the sale deed relied upon by the defendants was "fraudulent and fictitious" and "without any consideration." Further, the plaintiff contended that the assignment of the copyright could in law be effected only by means of a registered instrument and as the sale deed relied upon by the defendants was unregistered, it was inoperative and ineffectual to convey the copyright. The Court below found that the sale deed relied upon by the defendants was executed by Datt Ram and that Its registration was not compulsory. It accordingly held that the copyright in the book was validly assigned by Datt Ram to defendant 2 and on that ground dismissed the plaintiff's suit. On the question as to whether defendant 1 or defendant 2 was the publisher of the 1929.30 edition, the finding of the Court below was that defendant 1 had published that edition. In our judgment t his finding cannot be supported. Janak Prasad was called as a witness in the case and he deposed that the edition in dispute was printed by defendant 1 in pursuance of an order given by him (Janak Prasad) and that defendant 2 was the publisher of the book. The relevant portion of his evidence is as follows: ...I had given order for the printing of 2000 copies of Abhinav Nighantu. He (Kishan Lal) had printed these books. I got 1500 books and 500 of the books were given in lieu of the printing charges. B. Kishan Lal also carried on the business of a book-seller.... Kishan Lal was only the printer of the book and not publisher of it. Firm Shridhar Shiv Lal are the publishers of the book.