Parekh, J. - (1.) THIS appeal arises out of the decree and judgment dated September, 12, 1961, passed by a learned Single Judge of this Court dismissing ap plication under Section 46. Trade Marks Act, 1940.
(2.) THE petitioners -appellants filed application under Section 46 of the Trade Marks Act, 1940, and prayed that the two entries of registration of Trade Mark under Registration Nos. 93543 and 108250 favouring respondents be expunged. En try No. 93543 is a label bearing the picture of Gadadhar Prasad (father of respondents Nos. 1 and 2) and the words "Himkalyan Tail" (in Deonagri script) and the words "Him Kalyan" in English. Kntry No. 108250 is an associated trade mark of the former and relates to regis tration of the word Himkalayan" per se. These entries in the register of Trade Marks will henceforth be referred by us as TM 1 and TM 2. The case of the appellant was that the registration of trade marks of TM 1 and TM 2 was obtained by Gadadhar Prasad by practising fraud on the Regis trar of Trade Marks. It.was the further case of the appellants that the words "Him" and "Kalyan" are words widelv used in Ayurved and for purposes of hair oils and cannot be said to have been invented by Gadadhar Prasad. It is also stated by the appellants that the two trade marks were the joint family pro perty of Gadadhar Prasad. his sons and grand -sons. For these reasons the appel lants' case has been that these two trade marks could not have been registered exclusively in the name of Chakradhar Saran respondent No. 1.
(3.) RESPONDENTS Nos. 1 and 2 inter se have put different claims of ownership of TM 1 and TM 2. Chakradhar Saran, respondent No. 1, claims that the business and trade marks were the self -acquired property of Gadadhar Prasad and not joint family or ancestral pro perty. According to respondent No. 1, he obtained the two trade marks on the application of Gadadhar Prasad. He based his claim on a gift deed executed by Gadadhar Prasad in his favour. Pie further pleaded that no fraud was practised in obtaining registration of the two trade marks and he claimed that 'Himkalyan' is a single word invented by Gadadhar Prasad. Badri Prasad claimed that the business and the trade mark being ancestral properties could not have been gifted by Gadhadhar Prasad to Chakradhar Saran.;