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2001 DIGILAW 1633 (MAD)

Minor Kalimuthu v. V. K. Arumugham and Others

2001-12-12

P.THANGAVEL, S.JAGADEESAN

body2001
Judgment :- P. Thangavel, J. 1. The Original Side Appeal has been filed by the petitioner as appellant against the order and decretal order dated 24.11.1993 and made in O.A. No. 118 of 1993 in O.P. No. 89 of 1993 on the file of the High Court, Madras. 2. The facts that are necessary for disposal of this Original Side Appeal are as follows:- V.K. Kaliappa Gounder and his sons V.K. Subramani, V.K. Arumugham, V.K. Sivaprakasam and V.K. Shanmugham, the father of the minor appellant represented by guardian were carrying on beedi business jointly under the name and style of "Sun Beedi Traders" under the partnership firm name "V.K. Kaliappa Gounder and Sons". V.K. Subramani retired from the partnership from 31.3.1978. V.K. Kaliappa Gounder in the original owner of all the Trade Marks and he had his sons became joint owners of the above said Trade Marks in view of the application made to the Registrar of Trade Marks and under section 24 of the Trade and Merchandise Marks Act, 1958 "/ his business. There will be confusion among the consuming public in respect of the manufactured products by the above said respondents. A trademark must have only one source and one proprietorship. Respondents 3 to 8 have no right to use the trademarks detrimental to the interest of the joint proprietors. If they are allowed to use the trademarks like that, there will be heavy loss which cannot be compensated in terms of money. It is under the said circumstances, the appellant as petitioner has sought for interim injunction against the respondents 1 to 8 and 12, which is the firm, from using any lable, wrapper, etc., relating to 22 registered trade marks mentioned in the application. 3. The respondents 1, 2 and 12 supported by respondents 3 to 7 resisted the claim made by the appellant as petitioner on the following grounds:-This Original Application has been filed by the 8th respondent by setting up a next friend to the minor appellant only with a view to cause trouble to the respondents 1 to 7. The suits in O.S. Nos. 4 of 1991 and 49 of 1988 on the file of the District Court, Vellore have been filed by the 8th respondent in connection with his right in the trade marks, but in vain. The suits in O.S. Nos. 4 of 1991 and 49 of 1988 on the file of the District Court, Vellore have been filed by the 8th respondent in connection with his right in the trade marks, but in vain. The mother of minor appellant, after the death of V.K. Shanmugham, the father of the appellant, remarried and therefore, the minor appellant is in the custody of his grandmother K. Muthalu Ammal in Harur. The next friend A.K.C. Ponnuswamy is not a proper person to represent the minor appellant. The proceeding has been initiated against the interest of the minor. The trade marks mentioned in the application belonged to the firm, V.K. Kaliappa Gounder and Sons and the heirs of the deceased partner cannot claim any right in any particular asset. The heirs of the deceased partner can claim payment of amount as per section 37 of the Indian Partnership Act and in the absence of settlement of account the heirs have got a right to seek the share in the profits alongwith interest on the amount due on the date of death of the partner. The 12th respondent firm has filed a suit in O.S. No. 245 of 1991 on the file of Sub-court, Tiruppattur offering to pay certain amount to the minor appellant after the death of his father V.K. Shanmugham who was a partner of the 12th respondent at the time of his death. The appellant cannot claim to be a partner in the place of his father. The father of the appellant cannot also confer any right in the partnership by execution of the will relied upon by the appellant, since law does not permit. The name of a person cannot be included in the Register of Trade Marks unless that person is a partner of a partnership firm. The appellant is not a joint proprietor of the trademarks and is also not a partner of the abovesaid business. The trade marks are the property of the partnership firm and therefore, Section 24 of the Act is not applicable to claim joint proprietorship in such trade marks by the appellant. The name of the appellant is also not registered in the Registrar of Firms. The trade marks are the property of the partnership firm and therefore, Section 24 of the Act is not applicable to claim joint proprietorship in such trade marks by the appellant. The name of the appellant is also not registered in the Registrar of Firms. The 8th respondent is also not a partner of the firm and therefore he is not entitled to use the trade marks or to have his name registered in the Register of Trade Marks. The 8th respondent had retired from the partnership in the year 1978. The respondents 3 to 7 are not using the trademarks, but the 12th respondent firm alone is using the trademarks as proprietor of trademarks. Respondents 1 and 2 are the partners of respondent No. 12, the firm. Therefore, there can be no injunction granted against the respondents 1, 2 and 12. If an order of injunction is granted, it will stop the business carried on by the respondents 1, 2 and 12 and the joint owners will be put to great hardship and loss. The balance of convenience is also not in favour of the appellant wl 3 claims to be the joint owner of the trademarks. The appellant is entitled to demand his share in the profits if he is able to succeed in the suits pending. On these grounds, the respondents have sought for dismissal of the petition filed for grant of interim injunction. 4. The appellant is entitled to demand his share in the profits if he is able to succeed in the suits pending. On these grounds, the respondents have sought for dismissal of the petition filed for grant of interim injunction. 4. After considering the submission made on both sides, the learned single Judge has come to a conclusion that there are suits pending in connection with the rights of parties with regard to the trade marks on the file of the learned District Judge, Vellore and on the file of the learned District Munsif, Tiruppattur, that the right of the appellant in trade marks in question will have to be worked out depending upon the answer to be given to the question as to whether the trade marks used by the partner- ship belonged to the members of the family of V.K. Kaliappa Gounder as joint owners or it was the property of the partnership firm V.K. Kaliappa Gounder and Sons, 12th respondent in the Original Petition, that the minor appellant is admittedly living with his grand mother at Harur but the next friend, who is not a family member of the minor appellant, has filed this petition while the minor appellant is in the custody of his material grand mother in Harur and that the balance of convenience is not in favour of the minor appellant since the minor appellant has got every right to ask for accounting from respondents 1 to 7 and 9 and has right to claim his share of profit. If an order of injunction is granted, according to the learned single Judge. It will be detrimental to the interest of the minor appellant and therefore, held that this is not a fit case to grant interim injunction pending disposal of the Original Petition. Accordingly the petition filed for interim injunction was dismissed. Aggrieved at the order and decretal order dated 24.11.1993, the minor appellant has come forward with this appeal. 5. Admittedly, V.K. Kaliappa Gounder and his wife Muthalu Ammal had four Sons, viz., V.K. Subramani, V.K. Arumugam, V.K. Sivaprakasam and V.K. Shan- mugham and three daughters, viz., Gowri Ammal, Chinnappillai and Vajjiram Ammal. V.K. Kaliappa Gounder was carrying on beedi business as family business by having the trade marks in question registered in his name. The daughters were given in marriage by V.K. Kaliappa Gounder and the daughters are living with their respective husband. V.K. Kaliappa Gounder was carrying on beedi business as family business by having the trade marks in question registered in his name. The daughters were given in marriage by V.K. Kaliappa Gounder and the daughters are living with their respective husband. There was a partition in the family between V.K. Kaliappa Gounder and his four Sons on 6.2.1956 by means of a registered partition deed with regard to the family properties and separate properties were allotted to each sharer and they are in possession and enjoyment of the respective share. A perusal of the deed of partnership entered into on 1.2.1956 between V.K. Kaliappa Gounder and his four Sons referred to above would disclose that there was a partition between the above said partners of the partnership firm even on 31.1.1956 and the partners are entitled to the family business run under the name and style of "Sun Beedi Factory"." Jain Hind Press"and Railway Contract Stall under the name and style of" V.K.K. and Sons, "at Jolarpet., North Arcot District equally among themselves. The deed of partnership further would disclose that the above said V.K. Kaliappa Gounder and his four Sons are the partners of the partnership business to be carried on under the name and style of V.K. Kaliappa Gounder and Sons and the above said three business which were carried on as family business will be continued as partnership business under the name and style of "V.K. Kaliappa Gounder and Sons". Inter alia the duration of the partnership shall be "at will" of the partners. It is equally not in dispute that V.K. Kaliappa Gounder and his four sons referred to above have given a requisition to the Registrar of Trade Marks. The Trade Marks Registry, Madras-4 on 26.12.1959 to register the name of all the five partners of V.K. Kaliappa Gounder and Sons. Jolarpet as proprietors of 17 trade marks mentioned in the schedule standing in the name of V.K. Kaliappa Gounder with effect from 1.2.1956 in the Register of Trade Marks. It is also mentioned in the requisition sent alongwith the deed of partnership and deed of Addendum D/1-2-56 and 2.11.59 that the assignment of trade marks were made with the goodwill of the business in which the trade marks were used. 6. It is also mentioned in the requisition sent alongwith the deed of partnership and deed of Addendum D/1-2-56 and 2.11.59 that the assignment of trade marks were made with the goodwill of the business in which the trade marks were used. 6. A perusal of the deed of partnership dated 1.4.1978 entered into between V.K. Kaliappa Gounder and his Sons V.K. Arumugam, V.K. Sivaprakasam and V.K. Shanmugham, the father of the appellant would disclose that V.K. Subramani, the eldest son of V.K. Kaliappa Gounder had retired from the partnership firm V.K. Kaliappa Gounder and Sons on 31.3.1978 and the deed of partnership referred to above was entered into between V.K. Kaliappa Gounder and his three Sons excluding V.K. Subramani. The firm name continued as V.K. Kaliappa Gounder and Sons and the duration of the partnership shall be" at will of the partners as per the terms and conditions of the partnership firm. The partnership business was continued under the firm name V.K. Kaliappa Gounder and Sons by V.K. Kaliappa Gounder and his three Sons excluding V.K. Subramani from the date of reconstitution of the partner- ship. The fact also remains that V.K. Subramani disputes the alleged retirement from the partnership firm. Admittedly, V.K. Kaliappa Gounder executed first will dated 4.11.1980 with regard to his properties in favour of his sons, daughters and one grandson, but by executing the second will dated 30.3.1986 V.K. Kaliappa Gounder had cancelled the first will dated 4.11.1980 and bequeathed his properties in favour of V.K. Subramani who has allegedly retired from the partnership on 31.3.1978. A perusal of the copy of the will produced before the Court would disclose that he had bequeathed his properties including his right in trademarks in favour of V.K. Subramani. The fact remains the V.K. Kaliappa Gounder died on 28.5.1986 after execution of the second will dated 30.3.1986. 7. The fact also remains that the business carried on under the name and style of "Sun Beedi Factory" was changed as "Sun Beedi Traders" during the life time of V.K. Kaliappa Gounder and after constitution of "V.K. Kaliappa Gounder and Sons". The fact remains the V.K. Kaliappa Gounder died on 28.5.1986 after execution of the second will dated 30.3.1986. 7. The fact also remains that the business carried on under the name and style of "Sun Beedi Factory" was changed as "Sun Beedi Traders" during the life time of V.K. Kaliappa Gounder and after constitution of "V.K. Kaliappa Gounder and Sons". After the death of V.K. Kaliappa Gounder, one of the partners of V.K. Kaliappa Gounder and his Sons, the remaining partners V.K. Arumugham, V.K. Sivaprakasam and V.K. Shanmugham who reconstituted the partnership firm V.K. Kaliappa Gounder and Sons, had submitted a requisition under the Act for entering the names of the above said 3 partners of V.K. Kaliappa Gounder and Sons in the Register of Trade Marks as proprietors of the trade marks 1 to 22 to which there are conflicting claims between the sons and grand-sons of V.K. Kaliappa Gounder. The above said three partners, viz., V.K. Arumugham, V.K. Sivaprakasam and V.K. Shanmugham had sworn affidavits and annexed to the above said requisition. In the affidavits filed by them, it is specifically stated that a fresh partnership was constituted on 29.5.1986 as per the deed of partnership dated 11.6.1986 comprising the remaining partners V.K. Arumugham, V.K. Sivaprakasam and V.K. Shanmugham, after the death of their father V.K. Kaliappa Gounder on 28.5.1986 and are continuing the business without any interference and the above registered trade marks and they are alone entitled to the exclusive right to use the trade marks in question as subsequent proprietors. It is also stated in the above said affidavits that V.K. Subramani voluntarily retired at will and has started a cigarette factory. 8. A perusal of the copy of the will dated 18.6.1989 executed by V.K. Shanmugham in favour of his minor son, Kalimuthu, the appellant herein by guardian V.K. Subramani alias V.K.S Mani would disclose that he has bequeathed all his properties in favour of his son, the appellant herein. It is also claimed that V.K. Shanmugham and executed another will in connection with the trade marks now under question. The fact also remains that V.K. Shanmugham died on 23.6.1989. It is also claimed that V.K. Shanmugham and executed another will in connection with the trade marks now under question. The fact also remains that V.K. Shanmugham died on 23.6.1989. After the death of V.K. Shanmugham, V.K. Sivaprakasam has sent a requisition dated 28.3.1990 to enter his name and name of V.K. Arumugharn as reconstituted partners of V.K. Kaliappa Gounder and Sons in the Register of Trade Marks as proprietors of the trade marks, since they are continuing very same business under the name and style of "V.K. Kaliappa Gounder and Sons". It is. also stated in the above said requisition that respondents 3 to 3 were taken as working partners of the above said partnership firm. The partnership deeds referred 10 above and the requisitions sent by the partners of reconstituted firms after the alleged retirement of V.K. Subramani and death of V.K. Kaliappa Gounder and V.K. Shanmugham, would show that they are claiming proprietory right over the trade marks in question. It is such claim that is in dispute between the parties who are the heirs of V.K. Kaliappa Gounder inclusive of the ap- pellant herein as a party in the main Original Petition pending from 1993. The parties to these proceedings have already gone to Civil Courts, viz., District Court, Vellore and District Munsif Court, Tiruppattur by filing suits apart from coming to this Court by filing an Original Petition to rectify the defect of not including the name of the petitioner/appellant as joint proprietor alongwith V.K. Arumugam and V.K. Sivaprakasam in whose name all the 22 trade marks are entered in the Register of Trade Marks by order dated 3.4.1990 in Form TM. 24 dated 19.7.1989 by the Registrar of Trade Marks. Letter Patent Appeals in L.P.A. Nos. 27 and 28 of 1999 are admittedly pending against the common judgment and decrees passed by the learned single Judge of this Court in A.S. Nos. 1000 and 1001 of 1996 against the common judgement and decrees in O.S. Nos. 49 of 1988 and 4 of 1991 on the file of this Court. 9. Letter Patent Appeals in L.P.A. Nos. 27 and 28 of 1999 are admittedly pending against the common judgment and decrees passed by the learned single Judge of this Court in A.S. Nos. 1000 and 1001 of 1996 against the common judgement and decrees in O.S. Nos. 49 of 1988 and 4 of 1991 on the file of this Court. 9. As rightly considered by the learned single Judge, the question to be decided in this proceeding is whether the trade marks used by the partnership belonged to the members of the family of V.K. Kaliappa Gounder as joint owners or it was the property of the partnership firm V.K. Kaliappa Gounder and Sons and the same has to be decided in the main Original Petition. The said question can be decided only after taking into consideration of all material evidence to be produced before the Court where the Original Petition is pending on the file of this Court. Any decision taken without considering the above said material evidence to be produced on both sides, will certainly affect the rights of parties. The next question to be considered is whether the balance of convenience is in favour of the appellant herein on the respondents to grant the relief sought for in the Original Application. The business under the name and style of "V.K. Kaliappa Gounder and Sons" is run by the respondents 1 to 7 and 9 by using the trade marks. If an order of injunction is granted against them preventing from carrying on the above said business, the business now in existence will be ruined thereby causing considerable hardship and loss not only to the respondents 1 to 7 and 9 but also to the appellant. The reason is, if the appellant is able to establish his right of joint proprietorship in the trade marks, the appellant will have the right to ask for accounting from the respondents who are carrying on the said business and also can claim his share in the profit. Then there can be no loss to anybody including the appellant in any manner. If the appellant is not able to establish his right as mentioned above, then also he is not without any remedy under law, and the appellant can be compensated by money value to which extent he establishes his right. 10. Then there can be no loss to anybody including the appellant in any manner. If the appellant is not able to establish his right as mentioned above, then also he is not without any remedy under law, and the appellant can be compensated by money value to which extent he establishes his right. 10. If the circumstances referred to above are taken into consideration, this Court is of opinion that the learned single Judge has come to a right conclusion that the balance of convenience is not in favour of the appellant to grant an order of interim injunction pending disposal of the Original Petition wherein the rights of the parties have to be worked out. Accordingly we concur with the finding of the learned single Judge that this is not a fit case to grant interim injunction pending disposal of the Original Petition. The Original Petition is pending from 1993, in view of the filing of this appeal by the appellant in the year 1994. The rights of the parties will be affected if it is kept pending further more. Hence, we are constrained to express our opinion that this Original Petition has to be disposed of as early as possible. The Registry is hereby directed to post the Original Petition before concerned Court for disposal as early as possible after obtaining the orders of the Hon'ble the Chief Justice; if necessary. Both parties are also hereby directed to co-operate with the Court in disposal of the main Original Petition. 11. In fine, the order and decretal order of the learned single Judge are con- firmed and the Original Side Appeal is dismissed subject to the direction given above. Taking into consideration of the relationship between both the parties, the parties are directed to bear their own costs. In view of the disposal of the Original Side Appeal, the petition in C.M.P. Nos. 3863 of 1994 is closed.