JUDGMENT A.P. Sen, J.- 1. This is an appeal brought by the defendant No.1, M/s Mishrabandhu Karyalaya, Jabalpur and its partners. from the judgment and decree of the 5th Additional District Judge, Jabalpur, dated 31st August 1964, decreeing against them, the plaintiff Sheoratanlal Koshal's claim (A) for recovery of Rs.15,307.04 paise with interest at the rate of 6% per annum thereon from the date of suit, i.e., from 1st January 1963 till realisation, due on account of the arrears of royalty payable to him on the sales effected upto the end of December 1959 of the book entitles 'Saral Middle School Ank Ganit', written by his son-in-law Maniram Vishwakarma, the copy right of which had been assigned to him; (B) for rendition of account of the sales effected by them of the book in question and other allied publications thereof, as per the Hyderabad Syllabus or otherwise, during the years 1960-61-62 and until the date of accounting, so as to ascertain the amount of royalty which had accrued thereon and became payable to him at the rate of 15% of the sale proceeds, (C) for interest at the rate of 6% per annum, on the amount of royalties due each year, payable from 1st January of the following year, (D) for declaring that they do not have any right, title and interest in the book in question, or, in any other publication thereof, as per the Hyderabad Syllabus, and that the plaintiff has the sole right to such publication is; and (E) for perpetually restraining them from printing or publishing the book entitled 'Saral Middle School Ank Ganit', as originally published, or, in any of its revised or amended forms according to the Hyderabad Syllabus or otherwise. 2. The relevant facts giving rise to this appeal, are these. Under Exception 2 to 2 S.R. below Fundamental Rule 47, the Director of Public Instruction, Madhya Pradesh under Memo No. 4257/S dated 9th November 1951 (Ex. P-1), had permitted the aforesaid Maniram Vishwakarma, Assistant Master, Government Multipurpose Higher Secondary School, Jabalpur, (hereinafter referred to be the "author") to undertake the work of writing a textbook on Arithmetic (in four parts) for use in Classes V to VIII, subject to the conditions, namely, that (i) he retained no interest in the sale of copy right, (ii) he disposed of the manuscript in lump sum not exceeding Rs. 1,500, and (iii) his legitimate work did not suffer on that account. In terms of that order the author having written such a book on Arithmetic, effected an outright sale of its copy right in favour of his father-in-law Sheoratanlal Koshal. (hereinafter referred to as the "plaintiff"), in consideration of a payment of Rs. 1,200 for such assignment under the terms of an agreement dated 9th March 1962 (Ex. P-4), executed between them, whereby the plaintiff became the assignee of the copy right having been conveyed all rights therein including rights of its publication, realisation of profits accruing therefrom and the right to royalty on all its sales etc. The defendant No.1 M/s Mishrabandhu Karyalaya, Jabalpur, a firm of printers and publishers, through Basant Kumar Mishra the defendant No.3, a member of that firm who also happened to be in management of it, business alongwith Jagdish Prasad Mishra the defendant No.2, entered into a publishing agreement dated 13th March 1952 (Ex. P-5) with the plaintiff. That agreement granted to the defendants a right to publish the work in question. on the following conditions (i) the right of publication was transferred to them in lieu of their paying to the plaintiff a royalty at the rate of 15% of all there sales, (Clause 1), (ii) an account of royalty had to be made annually, in the month of December each year (Clause 2), and (iii) the plaintiff was entitled to inspect the account of sales of the work in question effected by the defendants, (Clause 3). (iv) the plaintiff had to get the book suitably altered to bring it in conformity with the syllabus in Arithmetic of any other State if prescribed in course of its studies, and for this he was not to be separately remunerated, (Clause 4), (v) if any alteration in the syllabus was effected in the State of Madhya Pradesh, he 'was to have the book suitably altered by the author himself and the defendants, in that event, had to print its amended edition also on he aforesaid terms failing which he would be entitled to have it printed elsewhere (Clause 6). 3. 3. We regret to find that the defendants who claim to be publishers of some repute have throughout betrayed in this case a lack of business integrity by not adhering to their contractual obligations for personal gain, after having acquired the sole and exclusive right of publishing the work which has become a prescribed text-book in different States and, therefore, a source of considerable profit to them, the defendants have ever since displayed a callous indifference to fulfil their part of the contract in several ways, viz. (i) in submission or rendition of yearly accounts of royalties at the rate of 15% of total sales as required to be furnished, in the month of December of each year, and (ii) in payment of such royalty on the sales, annually, as stipulated. After persistent demands, the defendants eventually rendered on 16th April 1960 an account (1) of the royalties which had accrued due up to the end of December 1959, and (ii) of the stock-in-trade in their hands as on 26th January 1960, whereby they unequivocally acknowledged their liability to pay Rs.15,790.40 paise. Toward this, they only paid Rs.2,000 on 18th April 1960, still leaving a balance of Rs. 13,790.40 paise in' arrears Apart from their admitted failure in making payment of Rs. 13,790.40 paise, the defendants have also faded to render an yearly account of the royalties, on sales effected in all the following years, nor have they paid the royalties which have became due thereon, i.e. for the entire period after the year 1969, The plaintiff had by his 1st notice dated 27th February 1961 (Ex. P-27); called upon the defendants to render an account of the royalty which had become due for the year 1960, with a request for its payment, together with the arrears of royalties upto date within a week, failing which he threatened to take legal action for its recovery. Despite that notice, the defendants did not comply with the demand for payment of the amounts that had become due. The plaintiff, by his 2nd notice dated 25th April 1961 (Ex. P-28), pointed out that they had persistently failed to pay the royalties accrued due during the earlier years which were 10 arrears. Despite that notice, the defendants did not comply with the demand for payment of the amounts that had become due. The plaintiff, by his 2nd notice dated 25th April 1961 (Ex. P-28), pointed out that they had persistently failed to pay the royalties accrued due during the earlier years which were 10 arrears. The plaintiff further complained that they had also, in breach of the agreement between the parties, published another text-book on the subject called 'Purva Madhyamik Ank Ganit' (in three parts) for use in the very same classes for which they had already undertaken to publish and sell the 'Saral Middle School Ank Ganna' and being interested in promoting the sales of that book in the market, had been acting in a manner detrimental to his interests. Therefore, by the same notice, the plaintiff revoked and terminated the publishing licence which he had created in their favour. 4. The plaintiff averred that by the agreement dated 13th March 1952 (Ex. P-5), he had not assigned the copy right in the book in favour of the defendants, but had merely created a licence authorising them to print, publish and sell copies thereof which however stands revoked as a result of his notice dated 15th April 1961 (Ex. P-28), and that after the revocation of that licence, the defendants had no right to pirate that work as originally published or in any other manna as they 'liked, nor had they any right to appropriate to themselves the profits accruing from its sales. That profits have been earned by the defendants from such sales is an irrefutable fact which is unmistakely clear from the facts on record which speak for themselves. The book 'Saral Middle School Ank Ganit' was first published in or about 1952 and since then there were later editions of this work. Till about the years 1957-58, that book was in four parts; thereafter, it appeared in the Mahakoshal region in three parts, with the introduction of a unified syllabus; while it still appears in four parts in the old Vidarbha region as before. After publication of the first and subsequent editions, the book has been sold by the defendants even since the year 1952. After publication of the first and subsequent editions, the book has been sold by the defendants even since the year 1952. It appears that they have also, without reference to the plaintiff, had the book revised to bring it in conformity with the Hyderabad syllabus, and it has in that revised form been sold in the State of Andhra Pradesh. Apart from this, they further published a "1962 edition" for use in Madhya Pradesh, after having it adapted to the metric system which has now been introduced in the course of studies under the instruction of the Director of Public Instructions, Madhya Pradesh issued to the Heads of all Educational institutions. That revised edition of the original work was brought out by the defendants without reference to the plaintiff or the author who had a right to revise it. In Schedules 'A' and 'B' annexed to the plaint, the plaintiff had particularised the large number of mistakes which have crept in the “1962 edition" published by the defendants. 5. The defendants in denial of this claim, have raised different pleas in their Written statement. First of all, they allege that the author was the real owner or beneficiary under the agreement dated 13th March 1952, (Ex. P-5); that they had directly entered into that agreement with him; and, that the plaintiff was only a benamidar at whose instance a suit of this nature would not lie; that the name of the plaintiff had been nominally entered in that deed at the instance of the author himself who being in Government service did not want to figure in the transaction. In other words, they alleged that the plaintiff was neither a party to the real agreement which they had with the author nor did he ever come into the picture at the time of settlement of its terms; that the publication of the book was not in pursuance of the alleged agreement as set up by the plaintiff, but was in furtherance of a contract with the author himself; that there was no privity of contract between the parties, and that, therefore, the question of performance of any of the terms of the alleged agreement did not arise. To sum up, the contentions of the defendants were firstly that they never had rendered any account to the plaintiff as regards the royalty of the book in question; that the real fact was that the statements of accounts rendered on 16th April 1960 covering the period upto the end of December 1959 were delivered to the author but to retain a benami character of the transaction, as was mutually agreed upon, the name of the plaintiff had been nominally in served therein; secondly, that there was no concluded contract which could be the foundation of a suit, because the alleged agreement had yet to be finalised which was only of a tentative nature; thirdly, that they did not admit any liability for payment of Rs. 15,790.46 paise, as alleged; fourthly, that there being no privity of contract between the parties, there was no question of any breach of contract nor of rendition of accounts between them; fifthly, that there was no breach of the original contract with the author as he had been asked to bring the book in conformity with the changed syllabus after introduction of the metric system in academic session 1961-62; that he, on the contrary, neglected to carry out the required alterations in the book and, as a result, they were requested to get the book revised by one L.C. Jain, a lecturer of the Mahakoshal Mahavidyalaya, Jabalpur; that the inaccuracies, therein, if any, were not intentional or deliberate and had been rectified in the later editions; sixthly, that the agreement in question resulted in an absolute assignment of the copy right, and was not a mere licence to publish on certain terms; seventhly, that they had requested the author for a revision in the rate of royalties looking to the rise in cost of raw materials, and he agreed to their proposal by reducing the rate of royalty to 12.15%, by his letter dated 16th April 1960 (Ex D-6), and while effecting this revision, he had taken away the original agreement; the benami nature of the transaction, however, was retained by continuing the transaction in the name of the plaintiff; lastly that the alleged agreement was for a consideration forbidden by law and was therefore, legally not enforceable, besides being opposed to public policy and was, therefore, void and unenforceable under section 23 of the Contract Act. Even otherwise, they alone had the right to print and publish the book in question, but in breach of that agreement, the author had given it for publication to M/s Narbada Book Depot, Jabalpur, in the year 1960, and since then that concern was selling the book in the market, to their great detriment and in violation of their copyright in the work. For this, the defendants asserted "that they had reserved their right to sue for damages separately", but apparently no such suit has so far been filed. They had, instead, launched a prosecution against both the author Maniram Vishwakarma and his assignee the plainliff. Sheoratanlal Koshal, for alleged infringement of their copyright, which, however, ended in their acquittal. 6. The learned Judge has decreed the plaintiff's claim. His findings are that (i) the plaintiff has purchased the copyright in the book 'Saral Middle School Ank Ganit' from the author Maniram Vishwakarma, for a cash consideration of Rs 1,200, under the agreement dated 9th March 1952 (Ex.P-4); (2) the agreement was neither forbidden by law, nor opposed to public policy under section 23 of the Contract Act, as the assignment of his rights was with the permission of the Director of Public Instruction; (3) there was a concluded contract between the plaintiff Sheoratanlal and M/s Mishrabandhu Karyalaya, through its managing partner Basant Kumar Mishra, on the terms embodied in the agreement dated 13th March 1952 (Ex. P.5); (4) that document was not merely a tentative draft, but represented the terms and conditions on which the defendant firm was granted the sole and exclusive right of publication of the book in question; (5) on a true construction of the agreement in question, there was no assignment of any copyright in favour for the defendant-firm but only a licence which was revocable on the breach of any of its conditions; (6) the defendant firm had rendered an account on 16th April 1960, acknowledging its liability to ray Rs. 15,790.40 paise towards the arrears of royalty upto the end of the year 1959 and of the stocks-in-trade as on 26th January 1960; (7) by virtue of the copyright in his favour, the plaintiff became the owner of the book, and not a mere benamidar of the author, Maniram Vishwakarma and was, therefore, entitled not only to recover the amount of Rs.13,790.40 paise remaining due, but also to a rendition of accounts and to the grant of a perpetual injunction. Accordingly, the learned Judge has decreed the entire claim in suit. 7. Before the Copyright Act, 1957 (Act No. XIV of 1957) was enacted by Parliament, the existing law relating to copyright in India, i.e. its statutory basis, was the British Parliamentary legislation to be found In the Imperial Copyright Act, 1911 (1 and 2 Geo 5, Chapter 46, as modified by the Indian Copyright Act, 1914 (Act No. III of 1914). Apart from the fact that the Imperial Act did not fit in with the changed constitutional status of India. it was necessary to enact an. independent self-contained law on the subject of copyright in the light of growing public consciousness of the rights and obligations of authors and in the light of experience gained in the working of the law as in force during the last forty years. New and advanced means of communications like broadcasting, litho-photography, etc, also called for certain amendments in the existing law, apart from making therein provision for the due fulfilment of international obligations in the field of copyright which India might accept. That was the object with which the Copy right Act, 1957, was enacted, and it attempted a complete revision of the law of copyright which appeared to be inevitable due to the changed circumstances. 8. We are, however, concerned with the State of things prevalent prior to 21st January, 1958, when the Copyright Act, 1957 (Act No. XIV of 1957), was brought into force. The law then in force was the Imperial Copyright Act, 1911 (1 & 11 Geo. V, Chapter 46) which, with slight modification, was made applicable to this Country by the India Copyright Act (Act No. III of 1914). The law then in force was the Imperial Copyright Act, 1911 (1 & 11 Geo. V, Chapter 46) which, with slight modification, was made applicable to this Country by the India Copyright Act (Act No. III of 1914). The Imperial Copyright Act, 1911, either as operating propriovigore or as applied by the Indian Copyright Act, 1914, was "a law in force in the territory of India immediately before the commencement of the Constitution", and it, therefore, continued to be in force as the law of the land by virtue of Article 372(1) of the Constitution. We consider the following passage in Copinger and Skone James on Copyright, 9th Edn., pp. 428 9, as describing the position correctly: "The United Kingdom Copyright Act, 1911, extended to India as part of His Majesty's dominions, but certain modifications were introduced by the Indian Copyright Act, 1914 (No.3 of 1914). The effect of section 18 of the Indian independence Act, 1947 (10 & 11 Geo. 6, C. 30), appeared to be that copyright protection both in India and with respect to works originating there remained unchanged." For a fuller discussion of this subject, see the decision of the Madras High Court in M/s Blackwood and Sons Ltd. V. A. N. Parasuraman AIR 1959 Mad. 410 . 9. Under the Law then prevalent, i.e., according to the provisions of the earlier enactments, the first owner of the copyright is the author and his right of assignment is dealt within section 5 (2) and (3) of the Indian Copyright Act, 1914. We believe the law in that aspect still remains the same with some modifications even under the new Copyright Act, 1957. The only change that is relevant for our purposes is that under the old law the non registration of the copyright had not the effect of entailing the dismissal of an action in respect of infringement of copyright commenced when the Act of 1914 was in force [See Balantrapu Venkata Rao Vs. Valluri Padmanabha Raju ILR 51 Mad. 180. Wallace, J., in that case followed the view expressed in N.V. Savory Ltd. Vs. world Golf Ltd. (1914) 2 Ch. 568, under the allied Fine Arts Copyright Act, that mere failure to register does not deprive an artist of his copyright. That appears to us to be a correct and reasonable view. Valluri Padmanabha Raju ILR 51 Mad. 180. Wallace, J., in that case followed the view expressed in N.V. Savory Ltd. Vs. world Golf Ltd. (1914) 2 Ch. 568, under the allied Fine Arts Copyright Act, that mere failure to register does not deprive an artist of his copyright. That appears to us to be a correct and reasonable view. The Indian Copyright Act, 1914, had nowhere made any provision for the registration of copyright under the copy right Act, 1957, it appears that under sections 13 and 45 the registration of books with the Registrar of Copyrights, is a condition for acquiring a copyright with respect to it. A plain reading of the several provisions of the Act, leaves no doubt in our minds that a copyright in a book now is only secured if it is an original compilation and has been duly registered according to the provisions of the 1957 Act. Once it is so registered, the author is deemed to acquire property right in the book. The right arising from the registration of the book can be the subject matter of civil or criminal remedy, so that, without it the author can have no rights, nor remedies inspite of the fact that his work is an original one. We are, however, concerned with the state of Law prevalent under the Imperial Copyright Act, 1911, enacted by the British Parliament, subject to such modifications as stated in the Indian Copyright Act, 1914. It is necessary for us to deal with this aspect because the learned counsel for the appellants, during the course of his argument, obliquely suggested that the copyright of the book in question "Saral Middle School Ank Ganit" no being registered neither the author nor his assignee had any kind of right or remedy. The whole object of this discussion is to remove that misconception. 10. Under the law relating to copyright then prevalent, to which we have already referred. viz., the Imperial Copyright Act, 1911, as adopted or modified to suit Indian conditions by the Indian Copyright Act, 1914, a person had an inherent copyright in an original composition or compilation without the necessity of its registration. Under the English enactment (Section 1 and 2) copyright may subsist subject to the provisions of the Act "in every original literary dramatic, musical artistic work." 11. Under the English enactment (Section 1 and 2) copyright may subsist subject to the provisions of the Act "in every original literary dramatic, musical artistic work." 11. While we are dealing with this aspect, it is also necessary for us to dispel the doubt expressed by the learned counsel for the appellants that no copyright can be had in respect of a textbook on arithmetic like 'Saral Middle School Ank Ganit', because it would necessarily be, in a different form, a compilation of certain arithmetical problems originated by others. We are clearly of the view that the assumption of the learned counsel is wholly unfounded. Neither original thought nor original research is essential for a literary work to be original under section 1, Schedule 1 of the Indian Copyright Act, 1914. The Judicial Committee of the Privy Council in Macmillan and Co. Vs. K. and J. Cooper AIR 1924 PC 75. While interpreting Section 2 of the Imperial Copyright Act, 1911, had stated: "The word 'original' does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the original of ideas, but with the expression of thought; and in the case of 'literary work' with the expression of thought in print or writing. "he originality which is required relates to the expression of the thought; hut the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work that it should originate from the author." 12. The real test in adjudging the originality of a work is whether it involved any skill, labour and knowledge of the author and that being fulfilled, he would be 'protected by law', and no one else was permitted to steal or appropriate to himself the result of his labour, skill and learning. As their Lordships have most appropriately stated, the provisions of section 2 of the Imperial Copyright Act was based on the moral principle resting on the Eighth Commandment. 'Thou shalt not steal'. A part from this, the originality in writing of a successful text-book in a subject like arithmetic lies upon the skill of the author. Some authors have not the art or the necessary skill to make a compilation nor are all complications of the same nature or quality. 'Thou shalt not steal'. A part from this, the originality in writing of a successful text-book in a subject like arithmetic lies upon the skill of the author. Some authors have not the art or the necessary skill to make a compilation nor are all complications of the same nature or quality. That is the reason why one dictionary, gazetteer, grammar, map, almanac, encyclopedia, guidebook, etc. would sell and not the others. There lies the skill of the author of the work which brings to him commercial success. The contention that no originality can be claimed in such works can, therefore, hardly be accepted. For instance, a reference to the Shorter Oxford Dictionary or the Webster's New International Dictionary would plainly show the difference in treatment of the same words in contrasting ways. In Copinger and James on the Law of Copyright, 9th edn., pp. 148-9, the law has been summarised as follow- "In the case of compilations such as dictionaries, gazetteers, maps, arithmetics, alamanacs, encyclopedias and guide books, new publications dealing with similar subject matter must of necessity resemble existing publications, and the defence of 'common source' is frequently made where the new publication is alleged to constitute an infringement of an earlier one." Thus, it is clearly recognised that all such books are capable of having a copyright in them. In text-books on arithmetic or books of the above description, the amount of originally of the author may be small, but the extent of his thought, skill and labour may be tremendous, and it is that which is protected by law. We are, therefore, of the vie that the book Saral Middle School Ank Ganit will certainly be an "original work", within the meaning of the English Copyright Act as applied to British, India, and, therefore, the author and, or his assignee not only had or has a copyright therein but also had the right to enter into a publishing contract of any kind in respect there of 13. In this case we are concerned with the simplest type of literary copyright namely, the right to print, publish and sell copies of the particular book in question, and in the case of a simple text book on arithmetic, no complications as regards any gramatic or film rights can possibly arise. In this case we are concerned with the simplest type of literary copyright namely, the right to print, publish and sell copies of the particular book in question, and in the case of a simple text book on arithmetic, no complications as regards any gramatic or film rights can possibly arise. In determining the question whether a particular agreement relating to this was an absolute assignment or a mere licence, the effect of the opinion of Viscount Summer delivered in the House of Lords in Messanger Vs. British Broadcasting Co. Ltd. LR 1929 AC 15 ML, seems to be that one has to look on the real meaning of an agreement rather than the particular, in that case unfortunate, choice of words of the parties. In other words, the real meaning of an agreement rather than the mere choice of words has to be looked into in deciding whether there was a complete or partial assignment of the copyright or a mere licence to print, publish and sell copies of the work in question. We would now refer to the contentions raised at the Bar. 14. The learned counsel for the appellants has assailed the degree under appeal on the following grounds: (1) The plaintiff being merely a benamidar was not entitled to sue for any of the reliefs asked for, since there was no privity of contract between the parties; (2) The document dated 13th March 1952 (Ex. P-5) was simply a "tentative draft" and not a "concluded contract" between the parties. P-5) was simply a "tentative draft" and not a "concluded contract" between the parties. At any rate, it was a "unilateral" document, executed by the plaintiff, and the mere addition of the word 'approved' by Basant Kumar Mishra a partner of the defendant-firm, could not mean its acceptance, and, therefore, the matter was still at the stage of negotiation between parties which had not matured into an enforceable contract; (3) Alternatively, on a plain reading of the said agreement, the copyright of the book had itself been transferred in favour of the defendant-firm and not merely a licence to publish on conditions; and, at any rate, it was an irrevocable licence which would not be terminated by notice; (4) The failure of the author to revise the book in question was itself a breach of covenant which disentitled him or his assignee from claiming any equitable relief, for renditions, of account or for grant of an injunction ; (5) Having himself terminated the contract by his notice dated 25th April 1961 (Ex. P 28), the plaintiff could not fall back on its terms, for claiming any royalty for the period subsequent thereto and his claim, if any, was to sue for damages; and (6) The claim for recovery of Rs.13,790.46 Paise, the alleged amount due, as per the statements of account dated 16th April 1960 (Exs. P-6 to P-8), was barred by limitation; None of these contentions are really well founded and they must all be rejected for reasons we shall presently state. 15. As to the first, the contention that the plaintiff Sheoratanlal Koshal was a benamidar of the author Maniram Vishwakarma and not the real owner of the copyright can hardy be accepted. P-6 to P-8), was barred by limitation; None of these contentions are really well founded and they must all be rejected for reasons we shall presently state. 15. As to the first, the contention that the plaintiff Sheoratanlal Koshal was a benamidar of the author Maniram Vishwakarma and not the real owner of the copyright can hardy be accepted. The allegation in the written statement that the author, being a Government servant, could not openly engage himself in any kind of a business which yielded profit to him without permission of the Director of Public Instruction, or, that securing of such permission, besides entailing endless enquiries by Government, was also by no means easy, or, that the author being a Government servant, was precluded under the Government Servants Conduct Rules from effecting any assignment of his rights and had, therefore, nominally utilised the name of his father-in-law namely the plaintiff Sheoratanlal Koshal, stands falsified by the plea inserted by way of amendment showing that such permission to the author was duly accorded by the Director of Public Instruction to under take the work of writing in four parts a text book on arithmetic for use in Classes V to VIII by his Memorandum No. 4257/F dated 9th November 1951 (Ex. P-1). Now, when a plea of this nature in raised, the onus probandi to substantiate the transaction to be benami must necessarily be on the person making the allegation, and it has to be established by strictest evidence. The defendants had, therefore, the burden of proving by cogent and convincing evidence that the alleged assignment of copyright in favour of the plaintiff was a colourable or fictitious transaction intended to defeat any provision of law. We, however find no justification for this assumption. Indeed, there was no occasion for the author Maniram Vishwakarma to have adopted any device of this kind because he had been permitted by the Director of Public Instruction himself not only to undertake the work of writing a text book on arithmetic but also to make an outright a sale of his copyright for a lump sum payment under Exception 2 to S. R. 2 below Fundamental Rule 47. In pursuance thereof the duly assigned his rights therein. 16. In pursuance thereof the duly assigned his rights therein. 16. The Court's duty is to give effect to the actual bargain of the parties according to their intention, and when the transaction is in writing, the intention of the parties has to be gathered from the actual words used in the instrument unless they are such as not to convey their intention correctly. In Copinger and Skone James on Copyright, 9th edition, Page 376, the different forms in which such agreements in common use partake are set out thus: "Agreements between authors and publishers fall roughly into four classes, namely : (1) outright sales of copyright in consideration of a single payment; (2) licences for a period on royalty terms; (3) profit-sharing agreements; and (4) publication on commission, no rights in the work being vested in the publisher. Under the terms of the agreement dated 9th March 1952 (Ex. P•4) between the parties, the author Maniram Vishwakarma had parted with 'all his rights' in lieu of the payment of a price. For a correct interpretation of that contract, we must primarily look to document itself. It reads: "This agreement is made this day 9th of March 1952 between Shri Maniram Vishwakarma son of Shri Nanhebhai Vishwakarma resident of Jabalpur (hereinafter for the sake of brevity referred to as the 'Author’) of the one part and Shri Sheoratanlal Koshal son of Shri B.L. Koshal resident of Mandla (hereinafter for the sake of brevity referred to as the 'publisher') of the other part. Whereas the author has written a book on Arithmetic for the Middle Classes in four parts, the manuscript of which is ready and fit for publication. And whereas the publisher is desirous of starting publications and the author is willing to entrust the publication thereof to the said publisher. That the publisher shall pay Rs. 1,200 (one thousand and two hundred only) in all to the author for the said four parts of the books. That the publisher shall print or cause the said books to be printed in four volumes to be used for middle classes. The books may be named by the publisher according to his choice. The books may be published by the publisher himself or he may in his discretion transfer his publishing rights to some one else. For the publication for the said books for the said sum of Rs. The books may be named by the publisher according to his choice. The books may be published by the publisher himself or he may in his discretion transfer his publishing rights to some one else. For the publication for the said books for the said sum of Rs. 1,200 (one thousand and two hundred only), the author conveys all rights to Sheoratanlal. The author has received Rs. 500 (Five hundred only) today and has handed over the manuscript to the publisher. The balance of the sum amounting to Rs. 700 (Seven hundred only) shall be paid to the author within a period of three months by the said publisher. The publisher will have a right to get the work revised translated or rewritten by the author if and when necessary arises on account of change of syllabus or any other like reason and, in the event, will be liable to reimburse the author suitably. In the event of the author refusing to rewrite or revise the work, the publisher will be at liberty to get it suitably rewritten or revised by some on else. However, when the work is rewritten or revised by some one else, the publisher will be liable to safeguard and maintain the high standard and prestige of the work done by the author. The publisher shall not act in anyway which may be detrimental to the interest of the books or their reputation and the rights of the publisher will be liable to be forfeited in case the publisher acts in a manner detrimental to the interest or reputation of the books. That the author hereby declares and assures the publisher that the book written by him is his sole work and would not infringe the copyright of another. M.R. Vishwakarma, Author. Sheoratanlal, Publisher Apart from the words 'the author conveys all his' rights' the other terms are clearly indicative that the agreement between the parties was of the first category, i.e., it was an agreement for an outright sale of the copyright without reservation of any kind by the author in respect of any right whatever in himself. The plaintiff had, therefore. full legal title to the copyright and as a logical consequence thereof, he also had acquired the right to enter into a publishing contract like the agreement dated 13th March 1952 (Ex. The plaintiff had, therefore. full legal title to the copyright and as a logical consequence thereof, he also had acquired the right to enter into a publishing contract like the agreement dated 13th March 1952 (Ex. P-5) with the defendants, A fortiori the plaintiff had a right to sue them in is own name for his royalties thereunder and for the other consequential reliefs flowing from his legal ownership in the work, i.e., the right to an account of profits, which is only an equitable remedy incidental to the right of injunction, if there was any infringement of his copyright and, upon that event, also of recovering the infringing copies, if any, which were pirated from the work in question. 17. From a perusal of the terms appearing in the agreement taken as a whole and particularly the operative portion thereof, we find that the executant had unequivocally and in categoric language "assigned" his copyright. The recitals of the document are plain enough and the terms are susceptible of no other construction than this that the author Maniram Vishwakarma had made an outright sale of his copyright in favour of the plaintiff Sheoratanlal Koshal in consideration of payment of Rs. 1,200 for the making of such assignment. The contention is not that the arrangement so arrived at was either forbidden by law or was against public policy and, therefore, void and unenforceable under section 23 of the Contract Act. The submission is that the plaintiff had no right to sue, being a mere benamidar. As already stated, we find that the author having been permitted under Exception 2 to S. R. 2 below Fundamental Rule 47 to undertake the work in question provided he assigns all his rights; there was no occasion for him to enter into a colourable transaction to defeat any provision of law. We may incidentally mention that although the defendants had pleaded that the agreement in question was for a consideration which was forbidden by law and opposed to public policy and, therefore, was not enforceable under section 23 of the Contract Act and had raised this issue in the Court below, the learned counsel appearing on their behalf has abandoned that stand, and no provision either in the General Book Circulars or in the Government Servants Conduct Rules were brought to our notice to suggest that such contract would be legally invalid. On the contrary, Exception 2 to S. R. 2 below Fundamental Rule 47 not only permits a Government servant to be the author of a book but also enables him to assign his rights under certain conditions. 18. Even otherwise, the onus of establishing a transaction to be benami is on the person who asserts it. This cannot be a matter of presumption and has not only to be averted in the pleadings but also must be proved by legal evidence. In absence of evidence, the apparent title prevails. (See, Smt. Surasaibalini Debt Vs. Phanindra Mohan Majumdar AIR 1965 SC 1364 . Normally, the proof of a transaction being benami rests not only on direct evidence but also on the relevant circumstances. In absence of any direct proof, the circumstantial evidence may sometimes clinch the issue. The real criterion in cases of benami transactions is to consider the source of funds for the acquisition, motives, possession of property, custody of title• deeds, etc. (See Sreemanchunder Dey Vs. Gopaul Chander Chuckerburty and others) and Gangadhara Avyer and others Vs. Subramania Sastrigal and others AIR 1949 FC 88). In Gangadhara Ayyer's case (supra), their Lordships of the Federal Court have stated that source of money for the acquisition of property is an important test, but unfortunately is a case like the present, that is of no avail. Even if it were, we have the testimony of P.W. 2 Sheoratanlal Koshal and P.W. 6 Maniram Vishwakarma that the transaction was real and the assignment of copyright was effected on payment of Rs.1,200. If in the nature of things, there is no scope for applying these tests, the burden of proving the transaction to be benami would be very much greater. In matters of this description the decision of the Court must rest not on mere suspicion but only on legal evidence, including testimony of witnesses. On the reasonable probabilities and legal inferences arising from the proved or admitted facts in the case, we are satisfied that the alleged benami nature of the transaction is not established, and, therefore, the apparent title must prevail. Having dealt with the plaintiff as the owner of copyright and having derived benefits of a contract with him, the defendants are really precluded from contending that the real title resides elsewhere. Such an estoppel necessarily arises by reason of their privity of contract. 19. Having dealt with the plaintiff as the owner of copyright and having derived benefits of a contract with him, the defendants are really precluded from contending that the real title resides elsewhere. Such an estoppel necessarily arises by reason of their privity of contract. 19. Next, the question is whether the parties were still at the stage of negotiations and, therefore, the agreement dated 13th March 1952 (Ex. P-5) had not natured into an enforceable contract. The argument is that the document Ex. P-5, on which the suit is based, is merely a 'tentative draft' of an agreement and did not represent a 'concluded contract' between the parties. Alternatively, it is suggested that it was a 'unilateral document' executed by the plaintiff alone, and the mere addition of the word 'approved' by Basant Kumar Mishra, defendant No.3, would not mean its acceptance by defendant No. 1 M/s Mishrabandhu Karyalaya. The plaint allegations were that as a result of negotiations, the draft of an agreement was prepared by the author Maniram Vishwakarma which was duly corrected, approved and initialed by the defendant No.3 Basant Kumar Mishra acting for and on behalf of the defendant firm; that a formal deed incorporating the terms embodied therein was drawn up and signed by the plaintiff of the one part and the defendant No.3 for and on behalf of the defendant firm of the other; and that the final deed was retained in possession of the defendant firm. With a view to substantiate these allegations, the plaintiff served a notice dated 9th March 1964 upon the defendants to produce that original document dated 13th March 1952 executed by the parties. But in answer to the aforesaid notice, the defendants alleged that only a copy of the agreement in question was retained by them for their record and its original was handed over to the author Maniram Vishwakarma. This assertion of theirs stands falsified by the admission of D.W. 3 Basant Kumar Mishra which appears in his previous statement before the Criminal Court (Ex. P-43), that an agreement of the kind as per the draft (Ex. P-5) had been handed over to him by the plaintiff Sheoratanlal Koshal and he has also admitted that the portion marked 'A' to 'A' therein containing the word 'approved' was in his hand. P-43), that an agreement of the kind as per the draft (Ex. P-5) had been handed over to him by the plaintiff Sheoratanlal Koshal and he has also admitted that the portion marked 'A' to 'A' therein containing the word 'approved' was in his hand. The learned Judge has rightly drawn an adverse inference against the defendants for the non production of the original deed, and has further taken this admission of D.W. 3 Basant Kumar Mishra as completely clinching the whole matter. 20. Nevertheless, there is on record the original draft of the agreement dated 13th March 1952 (Ex. P-5) which had been filed in Criminal Case No. 2066 of 1961, and its terms speak for themselves showing that there was a concluded contract between the parties. We are supported in this conclusion by the testimony of P.W. 2 Sheoratanlal Koshal and P.W. 6 Maniram Vishwakarama; who have steadfastly maintained that a final deed embodying the terms of the agreement was actually typed out at Mishrabandhu Karyalaya and duly signed by the plaintiff Sheoratanlal Koshal of the one part and the defendant No.3 Basant Kumar Mishra for and on behalf of the defendant firm of the other. Although P. W. 3 Basant Kumar Mishra and his employees D.W. 1 Thakur Prasad and D.W. 2 Kaluram Bajpai have asserted that the final deed was executed by Maniram Vishwakarma and not the plaintiff, no credence can be attached to their version because, firstly, after the author Maniram Vishwakarma had already assigned his rights in favour of the plaintiff Sheoratanlal, it would be wholly improbable for him to have executed the final deed if. it were to be a colourable transaction; and, secondly, it would not be in conformity with the draft of the agreement (Ex.P-5). While D.W. 1 Thakur Prasad admits that the original was retained at the defendants' office and merely a carbon copy was handed over to the author Maniram Vishwakarma, the defendant have for ulterior reasons kept back that document because it would have falsified their plea. Be that as it may, both the parties admit that a formal deed was duly executed by the parties, embodying the terms of the agreement. The draft of the agreement (Ex. P-5) bears the endorsement 'approved' by the defendant No.3 Basant Kumar Mishra for and on behalf of M/s Mishrabandhu Karyalaya. Be that as it may, both the parties admit that a formal deed was duly executed by the parties, embodying the terms of the agreement. The draft of the agreement (Ex. P-5) bears the endorsement 'approved' by the defendant No.3 Basant Kumar Mishra for and on behalf of M/s Mishrabandhu Karyalaya. That Basant Kumar Mishra as a partner of the firm, Mishrabandhu Karyalaya, would be clothed with the necessary authority to enter into a transaction of this nature on behalf of the partnership is not disputed. In the circumstances, the finding that the agreement dated 13th March 1952 (Ex. P-5) truly represents a concluded contract between the parties must be accepted. 21. Coming to the third contention raised by the learned counsel, we are satisfied that it is wholly devoid of substance. In dealing with arrangements between authors and publishers, particularly as regards publishing agreements, Copinger and Skone James indicate that no formalities are required, stating: "Contracts between authors and publishers are not, as in some countries, regulated by any special law, but their validity, construction and enforcement depend upon the ordinary rules of law governing contracts relating to dealings with personal property, In practice, such arrangements very through many gradations of formality, from an oral or implied licence to publish a single article to a full-length publishing agreement. It is the informal agreement leaving many essential terms to implication that most often renders difficult the determination of the respective rights of the parties" (p. 375) According to the learned authors, writing is essential when there is an assignment of copyright or an exclusive licence to publish. As already stated, such agreements form into four distinct categories. We are, however, not left to any implications to ascertain the nature of the right that came into existence, because the terms of the agreement between the parties are embodied in a writing dated 13th March 1952 (Ex. P-5) In the case of much formal agreements the most important point to determine is whether any copyright is to be vested in the publisher or whether a licence only is intended. In the former case, the publisher will enjoy the full legal title to the copyright and will alone be entitled to enforce the right against third parties. P-5) In the case of much formal agreements the most important point to determine is whether any copyright is to be vested in the publisher or whether a licence only is intended. In the former case, the publisher will enjoy the full legal title to the copyright and will alone be entitled to enforce the right against third parties. In the case of a licence which in a publishing agreement will normally be an exclusive licence, the grant is subject to certain conditions and on their non-fulfilment, the licence is capable of being revoked. We have no manner of doubt that the real arrangement between the parties was that the copyright in the work belonged to the plaintiff Sheoratanlal and the defendants' firm M/s Mishrabandhu Karyalaya was given an exclusive licence to publish it on certain conditions. The position would have been entirely different if the plaintiff had assigned his copyright and stipulated for payment on royalty terms. In that event, the rights of the parties would have been worked out in the light of the decision in Barkar Vs. Stickney (1919) I KB 121. In that' context, Copinger and Skone James state at P. 379. "It seems fairly clear that as the law now stands an author, who has entered into a publishing agreement in which the copyright is assigned to the publisher on royalty terms, has no right of action for the royalties against an assign of the publisher. Authors, therefore, should keep the copyright themselves and assign no more than a right to publish conditional upon royalties being paid and only assignable if they are provided for." JUDGMENT A.P. Sen, J.- 1. This is an appeal brought by the defendant No.1, M/s Mishrabandhu Karyalaya, Jabalpur and its partners. Authors, therefore, should keep the copyright themselves and assign no more than a right to publish conditional upon royalties being paid and only assignable if they are provided for." JUDGMENT A.P. Sen, J.- 1. This is an appeal brought by the defendant No.1, M/s Mishrabandhu Karyalaya, Jabalpur and its partners. from the judgment and decree of the 5th Additional District Judge, Jabalpur, dated 31st August 1964, decreeing against them, the plaintiff Sheoratanlal Koshal's claim (A) for recovery of Rs.15,307.04 paise with interest at the rate of 6% per annum thereon from the date of suit, i.e., from 1st January 1963 till realisation, due on account of the arrears of royalty payable to him on the sales effected upto the end of December 1959 of the book entitles 'Saral Middle School Ank Ganit', written by his son-in-law Maniram Vishwakarma, the copy right of which had been assigned to him; (B) for rendition of account of the sales effected by them of the book in question and other allied publications thereof, as per the Hyderabad Syllabus or otherwise, during the years 1960-61-62 and until the date of accounting, so as to ascertain the amount of royalty which had accrued thereon and became payable to him at the rate of 15% of the sale proceeds, (C) for interest at the rate of 6% per annum, on the amount of royalties due each year, payable from 1st January of the following year, (D) for declaring that they do not have any right, title and interest in the book in question, or, in any other publication thereof, as per the Hyderabad Syllabus, and that the plaintiff has the sole right to such publication is; and (E) for perpetually restraining them from printing or publishing the book entitled 'Saral Middle School Ank Ganit', as originally published, or, in any of its revised or amended forms according to the Hyderabad Syllabus or otherwise. 2. The relevant facts giving rise to this appeal, are these. Under Exception 2 to 2 S.R. below Fundamental Rule 47, the Director of Public Instruction, Madhya Pradesh under Memo No. 4257/S dated 9th November 1951 (Ex. 2. The relevant facts giving rise to this appeal, are these. Under Exception 2 to 2 S.R. below Fundamental Rule 47, the Director of Public Instruction, Madhya Pradesh under Memo No. 4257/S dated 9th November 1951 (Ex. P-1), had permitted the aforesaid Maniram Vishwakarma, Assistant Master, Government Multipurpose Higher Secondary School, Jabalpur, (hereinafter referred to be the "author") to undertake the work of writing a textbook on Arithmetic (in four parts) for use in Classes V to VIII, subject to the conditions, namely, that (i) he retained no interest in the sale of copy right, (ii) he disposed of the manuscript in lump sum not exceeding Rs. 1,500, and (iii) his legitimate work did not suffer on that account. In terms of that order the author having written such a book on Arithmetic, effected an outright sale of its copy right in favour of his father-in-law Sheoratanlal Koshal. (hereinafter referred to as the "plaintiff"), in consideration of a payment of Rs. 1,200 for such assignment under the terms of an agreement dated 9th March 1962 (Ex. P-4), executed between them, whereby the plaintiff became the assignee of the copy right having been conveyed all rights therein including rights of its publication, realisation of profits accruing therefrom and the right to royalty on all its sales etc. The defendant No.1 M/s Mishrabandhu Karyalaya, Jabalpur, a firm of printers and publishers, through Basant Kumar Mishra the defendant No.3, a member of that firm who also happened to be in management of it, business alongwith Jagdish Prasad Mishra the defendant No.2, entered into a publishing agreement dated 13th March 1952 (Ex. P-5) with the plaintiff. That agreement granted to the defendants a right to publish the work in question. on the following conditions (i) the right of publication was transferred to them in lieu of their paying to the plaintiff a royalty at the rate of 15% of all there sales, (Clause 1), (ii) an account of royalty had to be made annually, in the month of December each year (Clause 2), and (iii) the plaintiff was entitled to inspect the account of sales of the work in question effected by the defendants, (Clause 3). (iv) the plaintiff had to get the book suitably altered to bring it in conformity with the syllabus in Arithmetic of any other State if prescribed in course of its studies, and for this he was not to be separately remunerated, (Clause 4), (v) if any alteration in the syllabus was effected in the State of Madhya Pradesh, he 'was to have the book suitably altered by the author himself and the defendants, in that event, had to print its amended edition also on he aforesaid terms failing which he would be entitled to have it printed elsewhere (Clause 6). 3. We regret to find that the defendants who claim to be publishers of some repute have throughout betrayed in this case a lack of business integrity by not adhering to their contractual obligations for personal gain, after having acquired the sole and exclusive right of publishing the work which has become a prescribed text-book in different States and, therefore, a source of considerable profit to them, the defendants have ever since displayed a callous indifference to fulfil their part of the contract in several ways, viz. (i) in submission or rendition of yearly accounts of royalties at the rate of 15% of total sales as required to be furnished, in the month of December of each year, and (ii) in payment of such royalty on the sales, annually, as stipulated. After persistent demands, the defendants eventually rendered on 16th April 1960 an account (1) of the royalties which had accrued due up to the end of December 1959, and (ii) of the stock-in-trade in their hands as on 26th January 1960, whereby they unequivocally acknowledged their liability to pay Rs.15,790.40 paise. Toward this, they only paid Rs.2,000 on 18th April 1960, still leaving a balance of Rs. 13,790.40 paise in' arrears Apart from their admitted failure in making payment of Rs. 13,790.40 paise, the defendants have also faded to render an yearly account of the royalties, on sales effected in all the following years, nor have they paid the royalties which have became due thereon, i.e. for the entire period after the year 1969, The plaintiff had by his 1st notice dated 27th February 1961 (Ex. 13,790.40 paise, the defendants have also faded to render an yearly account of the royalties, on sales effected in all the following years, nor have they paid the royalties which have became due thereon, i.e. for the entire period after the year 1969, The plaintiff had by his 1st notice dated 27th February 1961 (Ex. P-27); called upon the defendants to render an account of the royalty which had become due for the year 1960, with a request for its payment, together with the arrears of royalties upto date within a week, failing which he threatened to take legal action for its recovery. Despite that notice, the defendants did not comply with the demand for payment of the amounts that had become due. The plaintiff, by his 2nd notice dated 25th April 1961 (Ex. P-28), pointed out that they had persistently failed to pay the royalties accrued due during the earlier years which were 10 arrears. The plaintiff further complained that they had also, in breach of the agreement between the parties, published another text-book on the subject called 'Purva Madhyamik Ank Ganit' (in three parts) for use in the very same classes for which they had already undertaken to publish and sell the 'Saral Middle School Ank Ganna' and being interested in promoting the sales of that book in the market, had been acting in a manner detrimental to his interests. Therefore, by the same notice, the plaintiff revoked and terminated the publishing licence which he had created in their favour. 4. The plaintiff averred that by the agreement dated 13th March 1952 (Ex. P-5), he had not assigned the copy right in the book in favour of the defendants, but had merely created a licence authorising them to print, publish and sell copies thereof which however stands revoked as a result of his notice dated 15th April 1961 (Ex. P-28), and that after the revocation of that licence, the defendants had no right to pirate that work as originally published or in any other manna as they 'liked, nor had they any right to appropriate to themselves the profits accruing from its sales. That profits have been earned by the defendants from such sales is an irrefutable fact which is unmistakely clear from the facts on record which speak for themselves. That profits have been earned by the defendants from such sales is an irrefutable fact which is unmistakely clear from the facts on record which speak for themselves. The book 'Saral Middle School Ank Ganit' was first published in or about 1952 and since then there were later editions of this work. Till about the years 1957-58, that book was in four parts; thereafter, it appeared in the Mahakoshal region in three parts, with the introduction of a unified syllabus; while it still appears in four parts in the old Vidarbha region as before. After publication of the first and subsequent editions, the book has been sold by the defendants even since the year 1952. It appears that they have also, without reference to the plaintiff, had the book revised to bring it in conformity with the Hyderabad syllabus, and it has in that revised form been sold in the State of Andhra Pradesh. Apart from this, they further published a "1962 edition" for use in Madhya Pradesh, after having it adapted to the metric system which has now been introduced in the course of studies under the instruction of the Director of Public Instructions, Madhya Pradesh issued to the Heads of all Educational institutions. That revised edition of the original work was brought out by the defendants without reference to the plaintiff or the author who had a right to revise it. In Schedules 'A' and 'B' annexed to the plaint, the plaintiff had particularised the large number of mistakes which have crept in the “1962 edition" published by the defendants. 5. The defendants in denial of this claim, have raised different pleas in their Written statement. First of all, they allege that the author was the real owner or beneficiary under the agreement dated 13th March 1952, (Ex. P-5); that they had directly entered into that agreement with him; and, that the plaintiff was only a benamidar at whose instance a suit of this nature would not lie; that the name of the plaintiff had been nominally entered in that deed at the instance of the author himself who being in Government service did not want to figure in the transaction. In other words, they alleged that the plaintiff was neither a party to the real agreement which they had with the author nor did he ever come into the picture at the time of settlement of its terms; that the publication of the book was not in pursuance of the alleged agreement as set up by the plaintiff, but was in furtherance of a contract with the author himself; that there was no privity of contract between the parties, and that, therefore, the question of performance of any of the terms of the alleged agreement did not arise. To sum up, the contentions of the defendants were firstly that they never had rendered any account to the plaintiff as regards the royalty of the book in question; that the real fact was that the statements of accounts rendered on 16th April 1960 covering the period upto the end of December 1959 were delivered to the author but to retain a benami character of the transaction, as was mutually agreed upon, the name of the plaintiff had been nominally in served therein; secondly, that there was no concluded contract which could be the foundation of a suit, because the alleged agreement had yet to be finalised which was only of a tentative nature; thirdly, that they did not admit any liability for payment of Rs. 15,790.46 paise, as alleged; fourthly, that there being no privity of contract between the parties, there was no question of any breach of contract nor of rendition of accounts between them; fifthly, that there was no breach of the original contract with the author as he had been asked to bring the book in conformity with the changed syllabus after introduction of the metric system in academic session 1961-62; that he, on the contrary, neglected to carry out the required alterations in the book and, as a result, they were requested to get the book revised by one L.C. Jain, a lecturer of the Mahakoshal Mahavidyalaya, Jabalpur; that the inaccuracies, therein, if any, were not intentional or deliberate and had been rectified in the later editions; sixthly, that the agreement in question resulted in an absolute assignment of the copy right, and was not a mere licence to publish on certain terms; seventhly, that they had requested the author for a revision in the rate of royalties looking to the rise in cost of raw materials, and he agreed to their proposal by reducing the rate of royalty to 12.15%, by his letter dated 16th April 1960 (Ex D-6), and while effecting this revision, he had taken away the original agreement; the benami nature of the transaction, however, was retained by continuing the transaction in the name of the plaintiff; lastly that the alleged agreement was for a consideration forbidden by law and was therefore, legally not enforceable, besides being opposed to public policy and was, therefore, void and unenforceable under section 23 of the Contract Act. Even otherwise, they alone had the right to print and publish the book in question, but in breach of that agreement, the author had given it for publication to M/s Narbada Book Depot, Jabalpur, in the year 1960, and since then that concern was selling the book in the market, to their great detriment and in violation of their copyright in the work. For this, the defendants asserted "that they had reserved their right to sue for damages separately", but apparently no such suit has so far been filed. They had, instead, launched a prosecution against both the author Maniram Vishwakarma and his assignee the plainliff. Sheoratanlal Koshal, for alleged infringement of their copyright, which, however, ended in their acquittal. 6. The learned Judge has decreed the plaintiff's claim. They had, instead, launched a prosecution against both the author Maniram Vishwakarma and his assignee the plainliff. Sheoratanlal Koshal, for alleged infringement of their copyright, which, however, ended in their acquittal. 6. The learned Judge has decreed the plaintiff's claim. His findings are that (i) the plaintiff has purchased the copyright in the book 'Saral Middle School Ank Ganit' from the author Maniram Vishwakarma, for a cash consideration of Rs 1,200, under the agreement dated 9th March 1952 (Ex.P-4); (2) the agreement was neither forbidden by law, nor opposed to public policy under section 23 of the Contract Act, as the assignment of his rights was with the permission of the Director of Public Instruction; (3) there was a concluded contract between the plaintiff Sheoratanlal and M/s Mishrabandhu Karyalaya, through its managing partner Basant Kumar Mishra, on the terms embodied in the agreement dated 13th March 1952 (Ex. P.5); (4) that document was not merely a tentative draft, but represented the terms and conditions on which the defendant firm was granted the sole and exclusive right of publication of the book in question; (5) on a true construction of the agreement in question, there was no assignment of any copyright in favour for the defendant-firm but only a licence which was revocable on the breach of any of its conditions; (6) the defendant firm had rendered an account on 16th April 1960, acknowledging its liability to ray Rs. 15,790.40 paise towards the arrears of royalty upto the end of the year 1959 and of the stocks-in-trade as on 26th January 1960; (7) by virtue of the copyright in his favour, the plaintiff became the owner of the book, and not a mere benamidar of the author, Maniram Vishwakarma and was, therefore, entitled not only to recover the amount of Rs.13,790.40 paise remaining due, but also to a rendition of accounts and to the grant of a perpetual injunction. Accordingly, the learned Judge has decreed the entire claim in suit. 7. Before the Copyright Act, 1957 (Act No. XIV of 1957) was enacted by Parliament, the existing law relating to copyright in India, i.e. its statutory basis, was the British Parliamentary legislation to be found In the Imperial Copyright Act, 1911 (1 and 2 Geo 5, Chapter 46, as modified by the Indian Copyright Act, 1914 (Act No. III of 1914). Before the Copyright Act, 1957 (Act No. XIV of 1957) was enacted by Parliament, the existing law relating to copyright in India, i.e. its statutory basis, was the British Parliamentary legislation to be found In the Imperial Copyright Act, 1911 (1 and 2 Geo 5, Chapter 46, as modified by the Indian Copyright Act, 1914 (Act No. III of 1914). Apart from the fact that the Imperial Act did not fit in with the changed constitutional status of India. it was necessary to enact an. independent self-contained law on the subject of copyright in the light of growing public consciousness of the rights and obligations of authors and in the light of experience gained in the working of the law as in force during the last forty years. New and advanced means of communications like broadcasting, litho-photography, etc, also called for certain amendments in the existing law, apart from making therein provision for the due fulfilment of international obligations in the field of copyright which India might accept. That was the object with which the Copy right Act, 1957, was enacted, and it attempted a complete revision of the law of copyright which appeared to be inevitable due to the changed circumstances. 8. We are, however, concerned with the State of things prevalent prior to 21st January, 1958, when the Copyright Act, 1957 (Act No. XIV of 1957), was brought into force. The law then in force was the Imperial Copyright Act, 1911 (1 & 11 Geo. V, Chapter 46) which, with slight modification, was made applicable to this Country by the India Copyright Act (Act No. III of 1914). The Imperial Copyright Act, 1911, either as operating propriovigore or as applied by the Indian Copyright Act, 1914, was "a law in force in the territory of India immediately before the commencement of the Constitution", and it, therefore, continued to be in force as the law of the land by virtue of Article 372(1) of the Constitution. We consider the following passage in Copinger and Skone James on Copyright, 9th Edn., pp. 428 9, as describing the position correctly: "The United Kingdom Copyright Act, 1911, extended to India as part of His Majesty's dominions, but certain modifications were introduced by the Indian Copyright Act, 1914 (No.3 of 1914). The effect of section 18 of the Indian independence Act, 1947 (10 & 11 Geo. 428 9, as describing the position correctly: "The United Kingdom Copyright Act, 1911, extended to India as part of His Majesty's dominions, but certain modifications were introduced by the Indian Copyright Act, 1914 (No.3 of 1914). The effect of section 18 of the Indian independence Act, 1947 (10 & 11 Geo. 6, C. 30), appeared to be that copyright protection both in India and with respect to works originating there remained unchanged." For a fuller discussion of this subject, see the decision of the Madras High Court in M/s Blackwood and Sons Ltd. V. A. N. Parasuraman AIR 1959 Mad. 410 . 9. Under the Law then prevalent, i.e., according to the provisions of the earlier enactments, the first owner of the copyright is the author and his right of assignment is dealt within section 5 (2) and (3) of the Indian Copyright Act, 1914. We believe the law in that aspect still remains the same with some modifications even under the new Copyright Act, 1957. The only change that is relevant for our purposes is that under the old law the non registration of the copyright had not the effect of entailing the dismissal of an action in respect of infringement of copyright commenced when the Act of 1914 was in force [See Balantrapu Venkata Rao Vs. Valluri Padmanabha Raju ILR 51 Mad. 180. Wallace, J., in that case followed the view expressed in N.V. Savory Ltd. Vs. world Golf Ltd. (1914) 2 Ch. 568, under the allied Fine Arts Copyright Act, that mere failure to register does not deprive an artist of his copyright. That appears to us to be a correct and reasonable view. The Indian Copyright Act, 1914, had nowhere made any provision for the registration of copyright under the copy right Act, 1957, it appears that under sections 13 and 45 the registration of books with the Registrar of Copyrights, is a condition for acquiring a copyright with respect to it. A plain reading of the several provisions of the Act, leaves no doubt in our minds that a copyright in a book now is only secured if it is an original compilation and has been duly registered according to the provisions of the 1957 Act. Once it is so registered, the author is deemed to acquire property right in the book. Once it is so registered, the author is deemed to acquire property right in the book. The right arising from the registration of the book can be the subject matter of civil or criminal remedy, so that, without it the author can have no rights, nor remedies inspite of the fact that his work is an original one. We are, however, concerned with the state of Law prevalent under the Imperial Copyright Act, 1911, enacted by the British Parliament, subject to such modifications as stated in the Indian Copyright Act, 1914. It is necessary for us to deal with this aspect because the learned counsel for the appellants, during the course of his argument, obliquely suggested that the copyright of the book in question "Saral Middle School Ank Ganit" no being registered neither the author nor his assignee had any kind of right or remedy. The whole object of this discussion is to remove that misconception. 10. Under the law relating to copyright then prevalent, to which we have already referred. viz., the Imperial Copyright Act, 1911, as adopted or modified to suit Indian conditions by the Indian Copyright Act, 1914, a person had an inherent copyright in an original composition or compilation without the necessity of its registration. Under the English enactment (Section 1 and 2) copyright may subsist subject to the provisions of the Act "in every original literary dramatic, musical artistic work." 11. While we are dealing with this aspect, it is also necessary for us to dispel the doubt expressed by the learned counsel for the appellants that no copyright can be had in respect of a textbook on arithmetic like 'Saral Middle School Ank Ganit', because it would necessarily be, in a different form, a compilation of certain arithmetical problems originated by others. We are clearly of the view that the assumption of the learned counsel is wholly unfounded. Neither original thought nor original research is essential for a literary work to be original under section 1, Schedule 1 of the Indian Copyright Act, 1914. The Judicial Committee of the Privy Council in Macmillan and Co. Vs. K. and J. Cooper AIR 1924 PC 75. While interpreting Section 2 of the Imperial Copyright Act, 1911, had stated: "The word 'original' does not mean that the work must be the expression of original or inventive thought. The Judicial Committee of the Privy Council in Macmillan and Co. Vs. K. and J. Cooper AIR 1924 PC 75. While interpreting Section 2 of the Imperial Copyright Act, 1911, had stated: "The word 'original' does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the original of ideas, but with the expression of thought; and in the case of 'literary work' with the expression of thought in print or writing. "he originality which is required relates to the expression of the thought; hut the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work that it should originate from the author." 12. The real test in adjudging the originality of a work is whether it involved any skill, labour and knowledge of the author and that being fulfilled, he would be 'protected by law', and no one else was permitted to steal or appropriate to himself the result of his labour, skill and learning. As their Lordships have most appropriately stated, the provisions of section 2 of the Imperial Copyright Act was based on the moral principle resting on the Eighth Commandment. 'Thou shalt not steal'. A part from this, the originality in writing of a successful text-book in a subject like arithmetic lies upon the skill of the author. Some authors have not the art or the necessary skill to make a compilation nor are all complications of the same nature or quality. That is the reason why one dictionary, gazetteer, grammar, map, almanac, encyclopedia, guidebook, etc. would sell and not the others. There lies the skill of the author of the work which brings to him commercial success. The contention that no originality can be claimed in such works can, therefore, hardly be accepted. For instance, a reference to the Shorter Oxford Dictionary or the Webster's New International Dictionary would plainly show the difference in treatment of the same words in contrasting ways. In Copinger and James on the Law of Copyright, 9th edn., pp. The contention that no originality can be claimed in such works can, therefore, hardly be accepted. For instance, a reference to the Shorter Oxford Dictionary or the Webster's New International Dictionary would plainly show the difference in treatment of the same words in contrasting ways. In Copinger and James on the Law of Copyright, 9th edn., pp. 148-9, the law has been summarised as follow- "In the case of compilations such as dictionaries, gazetteers, maps, arithmetics, alamanacs, encyclopedias and guide books, new publications dealing with similar subject matter must of necessity resemble existing publications, and the defence of 'common source' is frequently made where the new publication is alleged to constitute an infringement of an earlier one." Thus, it is clearly recognised that all such books are capable of having a copyright in them. In text-books on arithmetic or books of the above description, the amount of originally of the author may be small, but the extent of his thought, skill and labour may be tremendous, and it is that which is protected by law. We are, therefore, of the vie that the book Saral Middle School Ank Ganit will certainly be an "original work", within the meaning of the English Copyright Act as applied to British, India, and, therefore, the author and, or his assignee not only had or has a copyright therein but also had the right to enter into a publishing contract of any kind in respect there of 13. In this case we are concerned with the simplest type of literary copyright namely, the right to print, publish and sell copies of the particular book in question, and in the case of a simple text book on arithmetic, no complications as regards any gramatic or film rights can possibly arise. In determining the question whether a particular agreement relating to this was an absolute assignment or a mere licence, the effect of the opinion of Viscount Summer delivered in the House of Lords in Messanger Vs. British Broadcasting Co. Ltd. LR 1929 AC 15 ML, seems to be that one has to look on the real meaning of an agreement rather than the particular, in that case unfortunate, choice of words of the parties. British Broadcasting Co. Ltd. LR 1929 AC 15 ML, seems to be that one has to look on the real meaning of an agreement rather than the particular, in that case unfortunate, choice of words of the parties. In other words, the real meaning of an agreement rather than the mere choice of words has to be looked into in deciding whether there was a complete or partial assignment of the copyright or a mere licence to print, publish and sell copies of the work in question. We would now refer to the contentions raised at the Bar. 14. The learned counsel for the appellants has assailed the degree under appeal on the following grounds: (1) The plaintiff being merely a benamidar was not entitled to sue for any of the reliefs asked for, since there was no privity of contract between the parties; (2) The document dated 13th March 1952 (Ex. P-5) was simply a "tentative draft" and not a "concluded contract" between the parties. At any rate, it was a "unilateral" document, executed by the plaintiff, and the mere addition of the word 'approved' by Basant Kumar Mishra a partner of the defendant-firm, could not mean its acceptance, and, therefore, the matter was still at the stage of negotiation between parties which had not matured into an enforceable contract; (3) Alternatively, on a plain reading of the said agreement, the copyright of the book had itself been transferred in favour of the defendant-firm and not merely a licence to publish on conditions; and, at any rate, it was an irrevocable licence which would not be terminated by notice; (4) The failure of the author to revise the book in question was itself a breach of covenant which disentitled him or his assignee from claiming any equitable relief, for renditions, of account or for grant of an injunction ; (5) Having himself terminated the contract by his notice dated 25th April 1961 (Ex. P 28), the plaintiff could not fall back on its terms, for claiming any royalty for the period subsequent thereto and his claim, if any, was to sue for damages; and (6) The claim for recovery of Rs.13,790.46 Paise, the alleged amount due, as per the statements of account dated 16th April 1960 (Exs. P 28), the plaintiff could not fall back on its terms, for claiming any royalty for the period subsequent thereto and his claim, if any, was to sue for damages; and (6) The claim for recovery of Rs.13,790.46 Paise, the alleged amount due, as per the statements of account dated 16th April 1960 (Exs. P-6 to P-8), was barred by limitation; None of these contentions are really well founded and they must all be rejected for reasons we shall presently state. 15. As to the first, the contention that the plaintiff Sheoratanlal Koshal was a benamidar of the author Maniram Vishwakarma and not the real owner of the copyright can hardy be accepted. The allegation in the written statement that the author, being a Government servant, could not openly engage himself in any kind of a business which yielded profit to him without permission of the Director of Public Instruction, or, that securing of such permission, besides entailing endless enquiries by Government, was also by no means easy, or, that the author being a Government servant, was precluded under the Government Servants Conduct Rules from effecting any assignment of his rights and had, therefore, nominally utilised the name of his father-in-law namely the plaintiff Sheoratanlal Koshal, stands falsified by the plea inserted by way of amendment showing that such permission to the author was duly accorded by the Director of Public Instruction to under take the work of writing in four parts a text book on arithmetic for use in Classes V to VIII by his Memorandum No. 4257/F dated 9th November 1951 (Ex. P-1). Now, when a plea of this nature in raised, the onus probandi to substantiate the transaction to be benami must necessarily be on the person making the allegation, and it has to be established by strictest evidence. The defendants had, therefore, the burden of proving by cogent and convincing evidence that the alleged assignment of copyright in favour of the plaintiff was a colourable or fictitious transaction intended to defeat any provision of law. We, however find no justification for this assumption. The defendants had, therefore, the burden of proving by cogent and convincing evidence that the alleged assignment of copyright in favour of the plaintiff was a colourable or fictitious transaction intended to defeat any provision of law. We, however find no justification for this assumption. Indeed, there was no occasion for the author Maniram Vishwakarma to have adopted any device of this kind because he had been permitted by the Director of Public Instruction himself not only to undertake the work of writing a text book on arithmetic but also to make an outright a sale of his copyright for a lump sum payment under Exception 2 to S. R. 2 below Fundamental Rule 47. In pursuance thereof the duly assigned his rights therein. 16. The Court's duty is to give effect to the actual bargain of the parties according to their intention, and when the transaction is in writing, the intention of the parties has to be gathered from the actual words used in the instrument unless they are such as not to convey their intention correctly. In Copinger and Skone James on Copyright, 9th edition, Page 376, the different forms in which such agreements in common use partake are set out thus: "Agreements between authors and publishers fall roughly into four classes, namely : (1) outright sales of copyright in consideration of a single payment; (2) licences for a period on royalty terms; (3) profit-sharing agreements; and (4) publication on commission, no rights in the work being vested in the publisher. Under the terms of the agreement dated 9th March 1952 (Ex. P•4) between the parties, the author Maniram Vishwakarma had parted with 'all his rights' in lieu of the payment of a price. For a correct interpretation of that contract, we must primarily look to document itself. It reads: "This agreement is made this day 9th of March 1952 between Shri Maniram Vishwakarma son of Shri Nanhebhai Vishwakarma resident of Jabalpur (hereinafter for the sake of brevity referred to as the 'Author’) of the one part and Shri Sheoratanlal Koshal son of Shri B.L. Koshal resident of Mandla (hereinafter for the sake of brevity referred to as the 'publisher') of the other part. Whereas the author has written a book on Arithmetic for the Middle Classes in four parts, the manuscript of which is ready and fit for publication. Whereas the author has written a book on Arithmetic for the Middle Classes in four parts, the manuscript of which is ready and fit for publication. And whereas the publisher is desirous of starting publications and the author is willing to entrust the publication thereof to the said publisher. That the publisher shall pay Rs. 1,200 (one thousand and two hundred only) in all to the author for the said four parts of the books. That the publisher shall print or cause the said books to be printed in four volumes to be used for middle classes. The books may be named by the publisher according to his choice. The books may be published by the publisher himself or he may in his discretion transfer his publishing rights to some one else. For the publication for the said books for the said sum of Rs. 1,200 (one thousand and two hundred only), the author conveys all rights to Sheoratanlal. The author has received Rs. 500 (Five hundred only) today and has handed over the manuscript to the publisher. The balance of the sum amounting to Rs. 700 (Seven hundred only) shall be paid to the author within a period of three months by the said publisher. The publisher will have a right to get the work revised translated or rewritten by the author if and when necessary arises on account of change of syllabus or any other like reason and, in the event, will be liable to reimburse the author suitably. In the event of the author refusing to rewrite or revise the work, the publisher will be at liberty to get it suitably rewritten or revised by some on else. However, when the work is rewritten or revised by some one else, the publisher will be liable to safeguard and maintain the high standard and prestige of the work done by the author. The publisher shall not act in anyway which may be detrimental to the interest of the books or their reputation and the rights of the publisher will be liable to be forfeited in case the publisher acts in a manner detrimental to the interest or reputation of the books. That the author hereby declares and assures the publisher that the book written by him is his sole work and would not infringe the copyright of another. M.R. Vishwakarma, Author. That the author hereby declares and assures the publisher that the book written by him is his sole work and would not infringe the copyright of another. M.R. Vishwakarma, Author. Sheoratanlal, Publisher Apart from the words 'the author conveys all his' rights' the other terms are clearly indicative that the agreement between the parties was of the first category, i.e., it was an agreement for an outright sale of the copyright without reservation of any kind by the author in respect of any right whatever in himself. The plaintiff had, therefore. full legal title to the copyright and as a logical consequence thereof, he also had acquired the right to enter into a publishing contract like the agreement dated 13th March 1952 (Ex. P-5) with the defendants, A fortiori the plaintiff had a right to sue them in is own name for his royalties thereunder and for the other consequential reliefs flowing from his legal ownership in the work, i.e., the right to an account of profits, which is only an equitable remedy incidental to the right of injunction, if there was any infringement of his copyright and, upon that event, also of recovering the infringing copies, if any, which were pirated from the work in question. 17. From a perusal of the terms appearing in the agreement taken as a whole and particularly the operative portion thereof, we find that the executant had unequivocally and in categoric language "assigned" his copyright. The recitals of the document are plain enough and the terms are susceptible of no other construction than this that the author Maniram Vishwakarma had made an outright sale of his copyright in favour of the plaintiff Sheoratanlal Koshal in consideration of payment of Rs. 1,200 for the making of such assignment. The contention is not that the arrangement so arrived at was either forbidden by law or was against public policy and, therefore, void and unenforceable under section 23 of the Contract Act. The submission is that the plaintiff had no right to sue, being a mere benamidar. As already stated, we find that the author having been permitted under Exception 2 to S. R. 2 below Fundamental Rule 47 to undertake the work in question provided he assigns all his rights; there was no occasion for him to enter into a colourable transaction to defeat any provision of law. As already stated, we find that the author having been permitted under Exception 2 to S. R. 2 below Fundamental Rule 47 to undertake the work in question provided he assigns all his rights; there was no occasion for him to enter into a colourable transaction to defeat any provision of law. We may incidentally mention that although the defendants had pleaded that the agreement in question was for a consideration which was forbidden by law and opposed to public policy and, therefore, was not enforceable under section 23 of the Contract Act and had raised this issue in the Court below, the learned counsel appearing on their behalf has abandoned that stand, and no provision either in the General Book Circulars or in the Government Servants Conduct Rules were brought to our notice to suggest that such contract would be legally invalid. On the contrary, Exception 2 to S. R. 2 below Fundamental Rule 47 not only permits a Government servant to be the author of a book but also enables him to assign his rights under certain conditions. 18. Even otherwise, the onus of establishing a transaction to be benami is on the person who asserts it. This cannot be a matter of presumption and has not only to be averted in the pleadings but also must be proved by legal evidence. In absence of evidence, the apparent title prevails. (See, Smt. Surasaibalini Debt Vs. Phanindra Mohan Majumdar AIR 1965 SC 1364 . Normally, the proof of a transaction being benami rests not only on direct evidence but also on the relevant circumstances. In absence of any direct proof, the circumstantial evidence may sometimes clinch the issue. The real criterion in cases of benami transactions is to consider the source of funds for the acquisition, motives, possession of property, custody of title• deeds, etc. (See Sreemanchunder Dey Vs. Gopaul Chander Chuckerburty and others) and Gangadhara Avyer and others Vs. Subramania Sastrigal and others AIR 1949 FC 88). In Gangadhara Ayyer's case (supra), their Lordships of the Federal Court have stated that source of money for the acquisition of property is an important test, but unfortunately is a case like the present, that is of no avail. Gopaul Chander Chuckerburty and others) and Gangadhara Avyer and others Vs. Subramania Sastrigal and others AIR 1949 FC 88). In Gangadhara Ayyer's case (supra), their Lordships of the Federal Court have stated that source of money for the acquisition of property is an important test, but unfortunately is a case like the present, that is of no avail. Even if it were, we have the testimony of P.W. 2 Sheoratanlal Koshal and P.W. 6 Maniram Vishwakarma that the transaction was real and the assignment of copyright was effected on payment of Rs.1,200. If in the nature of things, there is no scope for applying these tests, the burden of proving the transaction to be benami would be very much greater. In matters of this description the decision of the Court must rest not on mere suspicion but only on legal evidence, including testimony of witnesses. On the reasonable probabilities and legal inferences arising from the proved or admitted facts in the case, we are satisfied that the alleged benami nature of the transaction is not established, and, therefore, the apparent title must prevail. Having dealt with the plaintiff as the owner of copyright and having derived benefits of a contract with him, the defendants are really precluded from contending that the real title resides elsewhere. Such an estoppel necessarily arises by reason of their privity of contract. 19. Next, the question is whether the parties were still at the stage of negotiations and, therefore, the agreement dated 13th March 1952 (Ex. P-5) had not natured into an enforceable contract. The argument is that the document Ex. P-5, on which the suit is based, is merely a 'tentative draft' of an agreement and did not represent a 'concluded contract' between the parties. Alternatively, it is suggested that it was a 'unilateral document' executed by the plaintiff alone, and the mere addition of the word 'approved' by Basant Kumar Mishra, defendant No.3, would not mean its acceptance by defendant No. 1 M/s Mishrabandhu Karyalaya. Alternatively, it is suggested that it was a 'unilateral document' executed by the plaintiff alone, and the mere addition of the word 'approved' by Basant Kumar Mishra, defendant No.3, would not mean its acceptance by defendant No. 1 M/s Mishrabandhu Karyalaya. The plaint allegations were that as a result of negotiations, the draft of an agreement was prepared by the author Maniram Vishwakarma which was duly corrected, approved and initialed by the defendant No.3 Basant Kumar Mishra acting for and on behalf of the defendant firm; that a formal deed incorporating the terms embodied therein was drawn up and signed by the plaintiff of the one part and the defendant No.3 for and on behalf of the defendant firm of the other; and that the final deed was retained in possession of the defendant firm. With a view to substantiate these allegations, the plaintiff served a notice dated 9th March 1964 upon the defendants to produce that original document dated 13th March 1952 executed by the parties. But in answer to the aforesaid notice, the defendants alleged that only a copy of the agreement in question was retained by them for their record and its original was handed over to the author Maniram Vishwakarma. This assertion of theirs stands falsified by the admission of D.W. 3 Basant Kumar Mishra which appears in his previous statement before the Criminal Court (Ex. P-43), that an agreement of the kind as per the draft (Ex. P-5) had been handed over to him by the plaintiff Sheoratanlal Koshal and he has also admitted that the portion marked 'A' to 'A' therein containing the word 'approved' was in his hand. The learned Judge has rightly drawn an adverse inference against the defendants for the non production of the original deed, and has further taken this admission of D.W. 3 Basant Kumar Mishra as completely clinching the whole matter. 20. Nevertheless, there is on record the original draft of the agreement dated 13th March 1952 (Ex. P-5) which had been filed in Criminal Case No. 2066 of 1961, and its terms speak for themselves showing that there was a concluded contract between the parties. 20. Nevertheless, there is on record the original draft of the agreement dated 13th March 1952 (Ex. P-5) which had been filed in Criminal Case No. 2066 of 1961, and its terms speak for themselves showing that there was a concluded contract between the parties. We are supported in this conclusion by the testimony of P.W. 2 Sheoratanlal Koshal and P.W. 6 Maniram Vishwakarama; who have steadfastly maintained that a final deed embodying the terms of the agreement was actually typed out at Mishrabandhu Karyalaya and duly signed by the plaintiff Sheoratanlal Koshal of the one part and the defendant No.3 Basant Kumar Mishra for and on behalf of the defendant firm of the other. Although P. W. 3 Basant Kumar Mishra and his employees D.W. 1 Thakur Prasad and D.W. 2 Kaluram Bajpai have asserted that the final deed was executed by Maniram Vishwakarma and not the plaintiff, no credence can be attached to their version because, firstly, after the author Maniram Vishwakarma had already assigned his rights in favour of the plaintiff Sheoratanlal, it would be wholly improbable for him to have executed the final deed if. it were to be a colourable transaction; and, secondly, it would not be in conformity with the draft of the agreement (Ex.P-5). While D.W. 1 Thakur Prasad admits that the original was retained at the defendants' office and merely a carbon copy was handed over to the author Maniram Vishwakarma, the defendant have for ulterior reasons kept back that document because it would have falsified their plea. Be that as it may, both the parties admit that a formal deed was duly executed by the parties, embodying the terms of the agreement. The draft of the agreement (Ex. P-5) bears the endorsement 'approved' by the defendant No.3 Basant Kumar Mishra for and on behalf of M/s Mishrabandhu Karyalaya. That Basant Kumar Mishra as a partner of the firm, Mishrabandhu Karyalaya, would be clothed with the necessary authority to enter into a transaction of this nature on behalf of the partnership is not disputed. In the circumstances, the finding that the agreement dated 13th March 1952 (Ex. P-5) truly represents a concluded contract between the parties must be accepted. 21. Coming to the third contention raised by the learned counsel, we are satisfied that it is wholly devoid of substance. In the circumstances, the finding that the agreement dated 13th March 1952 (Ex. P-5) truly represents a concluded contract between the parties must be accepted. 21. Coming to the third contention raised by the learned counsel, we are satisfied that it is wholly devoid of substance. In dealing with arrangements between authors and publishers, particularly as regards publishing agreements, Copinger and Skone James indicate that no formalities are required, stating: "Contracts between authors and publishers are not, as in some countries, regulated by any special law, but their validity, construction and enforcement depend upon the ordinary rules of law governing contracts relating to dealings with personal property, In practice, such arrangements very through many gradations of formality, from an oral or implied licence to publish a single article to a full-length publishing agreement. It is the informal agreement leaving many essential terms to implication that most often renders difficult the determination of the respective rights of the parties" (p. 375) According to the learned authors, writing is essential when there is an assignment of copyright or an exclusive licence to publish. As already stated, such agreements form into four distinct categories. We are, however, not left to any implications to ascertain the nature of the right that came into existence, because the terms of the agreement between the parties are embodied in a writing dated 13th March 1952 (Ex. P-5) In the case of much formal agreements the most important point to determine is whether any copyright is to be vested in the publisher or whether a licence only is intended. In the former case, the publisher will enjoy the full legal title to the copyright and will alone be entitled to enforce the right against third parties. In the case of a licence which in a publishing agreement will normally be an exclusive licence, the grant is subject to certain conditions and on their non-fulfilment, the licence is capable of being revoked. We have no manner of doubt that the real arrangement between the parties was that the copyright in the work belonged to the plaintiff Sheoratanlal and the defendants' firm M/s Mishrabandhu Karyalaya was given an exclusive licence to publish it on certain conditions. The position would have been entirely different if the plaintiff had assigned his copyright and stipulated for payment on royalty terms. The position would have been entirely different if the plaintiff had assigned his copyright and stipulated for payment on royalty terms. In that event, the rights of the parties would have been worked out in the light of the decision in Barkar Vs. Stickney (1919) I KB 121. In that' context, Copinger and Skone James state at P. 379. "It seems fairly clear that as the law now stands an author, who has entered into a publishing agreement in which the copyright is assigned to the publisher on royalty terms, has no right of action for the royalties against an assign of the publisher. Authors, therefore, should keep the copyright themselves and assign no more than a right to publish conditional upon royalties being paid and only assignable if they are provided for."