K M OOSMAN AND CO ALIAS K M KHADIR BROTHERS Vs. K ABDUL MALICK SAHIB

JUDGEMENT

(1.) These two appeals arise out of two cross suits, O. S. Nos. 13 of 1944 and 14 of 1944, filed by the respective parties for declaration of their title in the trade marks and for an injunction restraining the other parties from interfering with their rights. One K. A. Kadir Sahib, father of defendants 2 to 6 and husband of the 7th defendant carried on business in partnership with another, S. A. Sattar Sahib, under the name and style of "S. A. Sattar and K. A. Kadir and Co". Sattar Sahib died in June 1938. Kadir Sahib, the other partner filed O. S. No. 363 of 1938 on the file of the District Munsif's Court, Vellore for a declaration that the firm of "S. A. Sattar and K. A. Kadir and Co" was dissolved on 10-61938 and for accounts. The suit was settled by arbitration. The arbitrators, on 25-3-1940, decided to sell the properties of the firm and the trade marks separately in auction and also to sell the amount of decree dues and the arrears of shop rent in another lot. Pursuant to that resolution the assets of the business were sold and divided between the parties. The trade marks "Rising Sun", "Tiger Shooting" and "Asal Jadi" were sold to one Zuleika Bibi. After the sale and the allotment, an award was passed confirming the various sales which was unanimously agreed to by all the parties. On 20-4-1940 a decree was passed, Ex. P. 1, in terms of the aforesaid award. On 7-7-1940 Zuleika-Bibi sold the three trade marks to her brother, Abdul Waheb Sahib. The plaintiff in O. S. No. 14 of 1944 purchased the three trade marks from Abdul Waheb Sahib, under Ex. P. 1 (b) dated 10-2-1941. The effect of the arbitration, the sales and the decree passed in terms of the award was that the proceeds of the assets and the trade marks of the firm were divided between erstwhile partners. The title in the goodwill, not having been sold, must be deemed to have continued in all the partners. The plaintiff in O. S. No. 14 of 1944, having purchased the aforesaid three trade marks, filed the suit for a declaration of his title and for an injunction restraining the defendants from interfering with his rights. "K. A. Khadir and sons" by proprietor, K. A. Khadir Sahib, filed the other suit, O. S. No. 13 of 1944 regarding the "original lion 7" trade mark. Plaintiffs 2 to 8 are the children of Khadir Sahib, and the 9th plaintiff, his widow. Plaintiffs 2 and 4 to 9 are defendants in O. S. No. 14 of 1944. The first defendant in O. S. No. 13 of 1944 is the company styled as "K. M. Oosman and Co" alias "K. M. Khadir and Brothers". The second defendant is K. M. Oosman Sahib who is the plaintiff in O. S. No. 14 of 1944. After the dissolution of the aforesaid partnership, the case of the plaintiffs is that they started another 'beedi' business at Gudiyattam in the year 1938. For the purpose of that trade they have designed the trade mark, the subject-matter of the suit, and the prominent feature of the same was number "7". They alleged that the defendants, who had no right to the said trade mark, were using the said mark, and that, therefore they were entitled to an injunction restraining them from doing so.

(2.) The learned District Judge held, in O. S. No. 14 of 1944, that the plaintiffs therein did not acquire any right to the three trade marks as the sale in favour of Zuleika Bibi of the trade marks 'simpliciter' was invalid in law. In the other suit, the learned District Judge held that the plaintiffs acquired a right to the trade mark, and that, therefore, the defendants had no right to either use that trade mark or any colourable imitation thereof. In the result, he dismissed O. S. No. 14 of 1944 and decreed O. S. No. 13 of 1944, except as regards the damages claimed and the accounting, since there was no proof of damages, and no question of accounting arose. The plaintiffs in O. S. No. 14 of 1944 and the defendants 1 and 2 in O. S. No. 13 of 1944 preferred the above two appeals.

(3.) At this stage we may notice the law on the subject.