RAMNARAIN TRIVEDI Vs. SHIB KUMAR TEWARY

JUDGEMENT

(1.) In this case the plaintiff claims to be the owner of the copyright in "Sorothi Brijabhar" a book in Hindi published by him in Calcutta in the year 1931.. The alleged author of the book is named" Mahadeo Prosad Singh and a document (Ex. A) has been tendered, whereby Mahadeo on 11 October 1931, purports to sell to the plaintiff "all rights in respect of Sorothi Brijabhar in 16 parts." The document states that the plaintiff "alone will have henceforth the right of printing and selling the same." About the time of the assignment, the plaintiff made a declaration in respect of his ownership of the book under Act 25 of 1867 (Ex. C). The plaintiff and Mahadeo have given evidence on this point, and I may say that in the light of that evidence, corroborated as it is by the documents, I have no doubt as to the genuineness of the assignment. The plaintiff complains that his copyright in "Sorothi Brijabhar" has been infringed by a book called "Sorothi Panwara." This book was ostensibly published by defendant 1, Stub Kumar Tewari, in 1935, and the plaint states that defendant 2, Nehal Chand Varma, "is aiding and directing defendant 1." The plaint contains an alternative claim for relief on the basis that the defendants have passed off Sorothi Panwara (to which I shall hereafter refer as "Sorothi II"), as and for Sorothi Brijabhar (to which I shall hereafter refer as "Sorothi I"). The allegation as to passing off is based on the similarity of title and get up. Defendant 2 has not entered appearance or filed a written statement, though he has been present throughout and has manifested considerable interest in the proceedings. He has also asked a few questions of one of the witnesses called by the plaintiff.

(2.) Defendant 1 by his written statement denies the plaintiff's copyright, and on the assumption that the plaintiff has the copyright he denies that Sorothi II infringes it. Analogous defences are taken with regard to the charge of passing off. In arriving at a conclusion with regard to the existence of copyright in Sorothi I, it is necessary to consider the nature and origin of the publication. Sorothi and Brijabhar are respectively the names of the heroine and hero of a legend or series of legends, well known in various parts of India and specially in Western Behar. The plaintiff and his witnesses say that the legends have never been reduced to writing, or versified, but have been handed down in prose form from generation to generation. It is his case that in the verse form to which they are to be found in Sorothi I, they are the independent composition of Mahadeo. The defendants and their witnesses say that the verses in Sorothi I are not the plaintiff's composition, although it is admitted they have never before been printed. The defendants case is that they are traditional songs, and that what Mahadeo has done is merely to copy them from the dictation of another person.

(3.) Mahadeo has given evidence in support of the plaintiff. He says that he is a poet, although in the course of his life he has followed the diverse callings of a bill collecting sarkar, a sepoy in the Bengali regiment and an omnibus conductor. He says he has written and had published 200 books, of which he admits that a dozen are compilations of other persons works. He was tested in cross-examination and he certainly cannot be described as a man of a high standard of education, although he is by no means illiterate. Nonetheless he has, in my opinion, a considerable talent for rhyming and rough versification. He was called upon by the plaintiff's counsel to produce a verse on a subject named by counsel on the other side. I suppose the Muses have seldom been required to work at such short notice, but although the verse produced was rough and inelegant, it was very far, in my opinion, from being a ludicrous failure. Witnesses have been called on each side varying from University graduates to Behari rikshaw coolies to deny or to affirm that, prior to the publication of Sorothi I, verses setting out the legend of Sorothi and Brijabhar, were current in Behar. The most substantial points made by the defendant depend on suggested admissions in Sorothi I. It is pointed out that Mahadeo is described as "lehkar" and it is said that the meaning of this term is not "author" but "scribe" or "copyist." In my opinion the evidence shows that the word is ambiguous, that is to say, it may mean either "author" or "compiler," though I doubt if it can be properly used of a scribe. Certain passages in the body of the work are more important. At page 206 (Translation No. 1311 B), there is a passage which does not appear to be of any value for the present purpose. A passage on page 4 (Translation No. 1311 A) is however significant. It runs: The Sorothi legend is sung by Ganga Sahu, who is an inhabitant of Chapra. Imiron Sahu joins in chorus with him, and sings Sorothi in Chapra (a pun). They have a shop at Manioktollah and deal in rice and pulse. Mahadeo Singh writes the same having got it sung.