Ramaswami, J.This is a original petition filed u/s 46 of the Indian Trade Marks Act, 1940 read with S. 24 of the aforesaid Act for directing that the entry in Trade Marks Register at Bombay registering the trade mark referred to in paragraph 4 of the petition in the name of the first respondent under No. 126612 be expunged from the registry and that the registration granted to the first respondent under the said entry be cancelled.

2. The parties in this case are businessmen and living at Mangalore, and, therefore, by consent of parties the oral and documentary evidence in this case has been recorded and filed before the Commissioner Mr. M. G. Kamath, Advocate, High Court, who has done his work Well, and that evidence, by consent of parties is treated as evidence before me.

3. The facts are : The father of the petitioner and the respondent, Bolar Ramappa, who has been examined as P. W. 6 and who is now aged about 75, was a Mangalore tile merchant. He started a tile factory named Jayaram Tile Works somewhere about 1923 at Hoige (meaning sand) Bazaar in Mangalore. Some time later he started another tile factory in Kudroli in Mangalore. Both are suburbs of Mangalore town.

This father Ramappa gave the name "Jayaram Tile Works" to the Kudroli factory and renamed the Hoige Bazaar factory as "the Indian National Tile & Lime Works". For some time he also ran another factory called the "B. Ramappa Tile Works". This father Ramappa was manufacturing tiles in all these places under a distinct trade mark which will be found reproduced in the second annexure to the statement of the second respondent, the Registrar of Trade Marks, Bombay, marked by him as Ex. B. This trade mark can be compendiously described as Taj Double Bavta trade mark.

In or about 1936 Ramappa registered the trade mark with the Chamber of Commerce at Madras, and, he was in the habit of mentioning this in his letter head showing the registration No. 1965. It was the common practice of this State before the Indian Trade Marks Act came into existence to register trade marks with the Chamber of Commerce in Madras, and, though this did not confer the same rights as the Indian Trade Marks Act, it was no doubt sufficient for proving the existence of that mark. See - Subbiah Nadar v. Kumaraval Nadar, AIR 1946 PC 109 at p. 113 (A). These facts are undisputed and therefore the evidence establishing the same need not be recapitulated.

4. In 1946 the respondent Ramappa applied to the Registrar of Trade Marks in Bombay for registration of the Taj Double Bavta trade mark which was till then being used by the father as his distinctive trade mark registered with the Chamber of Commerce in the State of Madras in the name of B. S. Ramappa, son of Bolar Ramappa, Billava by caste, trading as "National Tiles" whose trade or business address is Manager, Jayaram Tile Works, Kudroli, Mangalore by whom the said mark is being used and who claims to be proprietor thereof, in use since 1936.

Further, in a letter dated 23-7-1948 by him to the Registrar in answer to a query of the latter the respondent assured the Registrar, "I am the sole proprietor of National Tilea. I have been printing the said mark since 1936,". Thereupon, as stated by the Registrar of Trade Marks the second respondent, in paragraph 8 of his written statement, the Trade Marks Registry was proceeded with on the footing that B. S. Ramappa, the respondent, was the proprietor of the concern "National Tiles" at Kudroli, and, that he was the proprietor of the Mark in Question.

Therefore this respondents name was entered in the Trade Marks Register on 18-12-1948 for the Taj Double Bavta trade mark and given the distinctive number 126612 in the register Though the application for the registration of the trade mark is dated 18-12-1946 and the trade mark was ultimately entered in the register on 12-5-1950, the date of registration relates back to the date of application viz., 18-12-1946 under the provisions of S. 16(1) of the Trade Marks Act of 1940.

5. In 1950 under Ex. B-7 the father Ramappa settled one of the factories, viz., the Indian National Tile and Lime Works in Hoige Bazar on the petitioner. The date of the document is 17-1-1950. In 1951 trouble has started between the two brothers who were manufacturing tiles in the two former factories of their father situated in different suburbs of Mangalore.

This trouble has risen because it is common ground that these tiles manufactured in both, the factories of the father are of good quality and command a wide and ready market in the Bombay Presidency. In fact, it is common ground before me that the demand for the files manufactured in both these factories far exceeds the supply that could be met by these brothers. Therefore a first class row started between the brothers.

6. In July, 1951 the respondent issued a notice to the petitioner dated 27-7-1951 through Desai Desai & Co., Solicitors of Bombay. In teat notice the respondent claimed that the aforesaid trade mark belonged to him and that he was the registered proprietor of the said trade mark having registered it under the provisions of the Indian Trade Marks Act under No. 126612 on 18-12-1946 and that he had recently come to know that the petitioner was manufacturing and selling tiles under the identical trade mark and called upon him to refrain from infringing his mark under threat of legal action. To this notice the petitioner sent a reply on 6-8-1951 through his lawyer setting out his version and charging the respondent with having surreptitiously copied the trade mark originally used by Ramappa and later by this petitioner, and, having obtained registration thereof on the sly with sinister motives.

The petitioner further stated that the respondent was only working as an employee under father Ramappa and had no right whatsoever to style himself as the proprietor of the mark. The respondent has given no reply to this reply notice and did not take legal proceedings.

7. There was a lull and two years later the respondent issued to the petitioner another lawyers notice dated 27-8-1953. In this notice he admitted that the trade mark in question was being used by father Ramappa since about 14737 and that the respondent as the manager of the Jayaram Tile Works applied for the registration of the trade mark on 18-12-1946; and that it has been used by him as the manager of the aforesaid Jayaram Tile Works and that under a document dated 8-2-1953 the said father Ramappa, the original proprietor of the Jayaram Tile Works at Kudroli, had conveyed the said tile works to the respondent with the good will and that consequently the respondent had become the proprietor of the said tile works as also the owner of the said registered trade mark going by the name of "Taj Double Bavta".

The respondent once again charged the petitioner with the infringement of the trade mark claiming proprietorship of the same and threatened legal action. To this the petitioner sent a reply through his lawyer on 1-9-1953 setting out his version and denying the respondents claim. The petitioner further stated that the registration obtained by the respondent without disclosing the true facts was fraudulent.

8. Thereafter the respondent filed before the District Court of South Kanara, O. S. No. 14 of 1953 against the petitioner for infringement of trade mark and claiming an injunction and other reliefs against the petitioner.

In the plaint the plaintiff claimed that he was the registered proprietor of the mark, that the same was being used by the father Bolar Ramappa, that the plaintiff while acting as the manager of the Jayaram Tile Works applied for and obtained a registration of the mark, that the plaintiffs father has by a deed dated 8-2-1953 settled the aforesaid Jayaram Tile Works at Kudroli on the plaintiff together with the good will and ether rights pertaining thereto.

9. As the plaint did not clearly specify whether the plaintiff claimed rights as proprietor of the mark or as an assignee from the original proprietor, the petitioner took out an application calling upon the plaintiff to clarify his statement of claim. The plaintiff, after taking time, made the following endorsement on the plaint:

The plaintiff does not claim on the basis of an assignment of any registered trade mark, but on the basis of the trade mark registered in his name as also on the basis of the assignment of any rights in the unregistered trade mark that B. Ramappa may have had in the same.

10. The petitioner thereafter, after search of the Trade Marks Registry at Bombay, has filed this petition for the reliefs mentioned above.

11. On behalf of the petitioner P. Ws. 1 to 7 were examined and Exhibits A-l to A-64 have been marked. On behalf of the contesting respondent Remappa R. Ws. 1 to 3 have bean examined and Exhibits B-l to B-16 have been marked.

12. The short points for determination in this petition are whether the petitioner is a person aggrieved by the entry relating to Trade Mark No. 126612 on the ground that it was made without sufficient cause, and entitling him to ask the Registrar to expunge the same from the Register and cancel the entry.

13. The relevant provisions of the Trade Marks Act of 1940 are sections 46 (2), 76 and 24. Section 46 (2) lays down :

Any person aggrieved by the absence of omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register may apply in the prescribed manner to a High Court or to the Registrar, and the tribunal may make such order for making, expunging or varying the entry as it may think fit.

Section 76 lays down:

Save as otherwise expressly provided in this Act, an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar under this Act or the rules made thereunder to the High Court having jurisdiction :

Provided that if any suit or other proceeding concerning the trade mark in question is pending before a High Court or a District Court, the appeal shall be made to that High Court, or as the case may be, to the High Court within whose jurisdiction that District Court is situated.

Section 24 lays down :

In all legal proceedings relating to a registered trade mark; the original registration of the trade mark shall after the expiration of seven years from the date of such original registration be taken to be valid in all respects unless such registration was obtained by fraud.

14. The term "person aggrieved" under the Trade Marks Act has been given by courts of law, in the United Kingdom a very liberal interpretation. In - Powells Trade Mark, (1894) 11 RPC 4 (All), Lord Herschell stated as follows:

Wherever it can be shewn, as here, that the applicant is in the same trade as the person who has registered the Trade Mark and wherever the Trade Mark, if remaining on the Register, would, or might, limit the legal rights of the Applicant, so that by reason of the existence of the entry on the Register he could not lawfully do that which, but for the existence of the mark upon the Register, he could lawfully do, it appears to me he has a locus standi to be heard as a person aggrieved.

In the same case Lord Watson stated as follows:

In my opinion, any trader is, in the sense of the statute, "aggrieved" whenever the registration of a particular trade mark operates in restraint of what would otherwise have been his legal rights. Whatever benefit is gained by registration must entail a corresponding disadvantage upon a trader who might possibly have had occasion to use the mark in the course of his business.

In The Law and Practice under the Trade Marks Act, 1940" by Dr. S. Venkateswaran, 1945 Edition, at page 624, it is stated as follows:

The expression "person aggrieved.

Has been held to include the following persons:

(1) A person who is engaged in the same trade as the registered proprietor and who is likely to be injured in his trade by the wrongful registration: Re: Apollinasies Co.s Trade Marks, (1891) 2 Ch 186 (B).

(2) Any person whose legal rights are limited by the existence of the entry on the Register so that he could not lawfully do that which, but for the existence of the mark upon the Register, he could lawfully do: Re: Talbots Trademark (1894) 11 RPC 77 (C): In re, Bovrils Trademark, (1896) 13 RPC 382 (D).

(4) The defendant in an action for infringement or in an action for passing off in which the statement of claim is based on the registered trade mark.

Baker v. Rawson", (1891) 8 RPC 89 (E); Re: Edgington Trade mark, (1889) 6 RPC 513 (F); In re, Leonard & Elliss Trade Mark, (1884) 28 Ch D 288 (G); In re, Wraggs Trade mark, (1885) 29 Ch D 551 (H); - Edwards v. Dennis, (1885) 30 Ch D 454 (I); In re, Ralphs Trade mark. (1884) 25 Ch D 194 (J); In re, Ainslie & Co.s Trade mark, (1887) 4 RPC 212 (K); - Woods v. Lambert & Butler, (1886) 3 RPC 81 (L); - Thompson v. Montgomery, (1889) 6 RPC 404 (M); New Atlas Rubber Co. Ltd.s Trade Mark, (1318) 35 RPC 269 (N); Bowden Wire Ltd.s Trade mark (1913) 30 RPC 580 (O); In re, Addley Bournes Trade mark, (1903) 20 RPC 105 (P); In re, Roskllls Trade mark, (1915) 32 RPC 577 (Q); - Thompson v. Miller, (1895) 13 RPC 35 (R); In re, Giamaclis Trade mark, (1889) 6 RPC 467 (S); S. M. T. Gramaphone, (1929) 48 RPC 309 (S1).

Therefore obviously a person against whom the respondents have filed a suit for declaration of rights to the trade mark in question, and, the proprietors of a trade mark applying for rectification of the register by cancelling the entry as to registered user, will be "persons aggrieved". Vyas v. British Schering Ltd., Mis. No. 15 of 1950 D/- 8-10-1951 by Shah -J. (T) and Re, Actomin Products Ltd. (1952) 69 RPC 166 (U).

15. In determining the locus standi of an applicant the allegations as to facts made by him should, prima facie, be assumed to be true although they may be challenged. (1952) 69 RPC 166 (U).

16. Section 46 of the Trade Marks Act of 1940 corresponds to section 32 of the English Trade Marks Act, 1938. It is settled English Law, as pointed out by Kerly on Trade Marks, 7th Edition, page 290, that if the registration is procured by a material mis-statement it is a good reason for removing a mark u/s 32. The case law on this subject is (1891) 45 Ch D 519 (E). Gordon and Dllworths Trade mark, (1896) 13 RPC 629 (V); - Eastman etc. Co. v. John Griffiths Cycle Corporation Ltd., (1898) 15 RPC 105 (W) and Re: Roskills Trade mark, (1915) 32 RPC 577 (Q).

17. There is an elaborate discussion of the case law in regard to "any entry made in the register without sufficient cause," at page 634 of S. Venkateswaran on the Trade Marks Act, 1940 (1945 edition) which can be legitimately described as the Indian Kerly.

18. The Indian case law on the subject can now be briefly set out. In Abinash Chandra; Chowdhury v. Madhusudan Majumdar, (unreported, Calcutta High Court, May 12, 1949) disposed of by Sinha J. and known as the Sakti case (X), and, in which the appeal was dismissed, it was held that those who register a mark to which they are not entitled, do so at their own risk and peril.

In - Watkins Mayor & Co. v. Jessa Singh Uttam Singh, Civil Misc. No. 376 of 1951 (Punjab) (Y), decided by Kapoor J it was hold that where registration is obtained by suppression of a material fact from the notice of the Registrar, or by false statement of facts the entry in the register may be deemed to be an entry made without sufficient cause.

19. In the supplement to the Law and Practice under the Trade Marks Act, 1940, 1953 edition, by Dr. S. Venkateswaran, at pages 151 and 152 it is stated as follows:

In the Sakti case (X) the applicant for registration did not disclose to the Registrar that his title to the mark had been negatived finally and conclusively by a Civil Court on the basis of the same facts in a suit between the same parties. He had also not disclosed that opposition had been entered by the respondent In the application for registration of the associated mark though he had agreed to the conditions imposed by the Registrar that the two applications should be considered as for registration of associated marks.

An application to rectify the register by the removal of the mark was allowed by Sinha J., on the ground that the mark was registered without sufficient cause, and an appeal was dismissed. Das J. in the Division Bench said: It is clear that the Registrar would not have directed registration If the Registrar was apprised of the relevant facts.

In my opinion the respondent applicant for rectification has succeeded in proving the existence of sufficient cause as laid down by S. 46 of the Act."

In considering the question whether an entry was made without sufficient cause or not, the matter should be looked at as on the date of the application for registration, which is the crucial date.

See also Boots Pure Drug Co., Ltd.s Trade Mark, (1937) 54 RPC 327 (Z) and George Angus & Co. Ltd., (1943) 60 RPC 29 (Z1).

20. u/s 24 of the Trade Marks Act, 1940, the Original registration of the trade mark shall after the expiration of seven years, from the date of such original registration be taken to be valid unless such registration was obtained by fraud, or unless the trade mark offends against the provisions of section 8. That original registration of the trade mark can be impugned after seven years only in the Circumstances mentioned under which fraud is one.

This section corresponds to section section of the English Trade Marks Act, 1938. K. S. Shavaksha in his Trade Marks Act, 1940 at page 74 points out:

If the original registration has been obtained by fraud, as for instance, by wrong statements deliberately made in affidavits submitted to the Registrar, the mark can be removed from the register. It has to be noted that the fraud referred to in this section is fraud committed before registration. Fraudulent user of a registered mark after registration is subject to a different principle of law.

If the registration was obtained by fraud, as in this case the Registrar himself may apply to. rectify the register at all events if the fraud was directed against possible objections by the Registrar or otherwise, with a view to deceive the office. But the exception is a general one and the person defrauded is not prevented by section 13 from applying for rectification. What is meant by fraud in the contents of section 13 has not been precisely defined. See Bentleys case.

21. It is not permissible for a person under this section to contend that registration was obtained by fraud unless he had alleged actual dishonesty or fraud.

The term fraud has not been defined in the Act and this is not surprising because Sir James Stephen in his History of the Criminal Law of England, Volume.-2, page 121 points out, there has always been great reluctance amongst lawyers to attempt to define "fraud", and, this is not unnatural when we consider the different kinds of conduct to which the word is applied in connection with different branches of law, and, especially in connection with the equitable branch of it.

Though it seems impossible to construct a definition which would meet every case which might be brought under the Indian Trade Marks Act there is little danger in saying that whenever fraud is alleged there is two elements are at least essential, viz., first deceit or intention to deceive or, in some cases a mere secrecy; and, secondly, either actual injury or possible injury or an intention to expose some person either to actual injury or to a risk of possible injury by means of deceit or secrecy.

This intent it may be added, is very seldom, the only or the principal intention entertained by the fraudulent person whose principal object in nearly every case is his own advantage. The injurious deception is intended only as a means to an end.

Therefore, a practically conclusive test as to the fraud practised in trade marks cases would be, did the author of the deceit derive any advantage from it which he could not have had if the truth had been known If so, it is hardly possible that the advantage should not have had an equivalent in loss or risk, loss to someone else; and if so, there was fraud. In practice people hardly ever intentionally deceive each other in matters of business for a purpose which is not fraudulent.

22. Bearing these principles in mind, let us examine the facts.

23. There can be no doubt that the registration of the trade mark in the name of the respondent was brought about on the strength of the statements made by the respondent to the Registrar of Trade Marks which were false and false to the knowledge of the respondent.

In his application for registration the respondent asks for registration on the foot of the following representations viz., that the registration was to be in the name of B. S. Ramappa. eon of B. Ramappa, Billava by caste trading as "National Tiles" whose trade or business address is Manager, Jayaram Tile Works, Kudroli, Mangalore and by whom the said mark was being used and who claims to be the proprietor thereof and in use since 1936.

Thereupon there was correspondence about the status of this respondent and in the reply to the Registrar he wrote on 23-7-1948 that he was the sole proprietor of National Tile Works and that he had been printing the said mark since 1936. These representations were successful with the Registrar who states in his written statement, paragraph 6 that the Trade Marks Registrar has all along proceeded on the footing that B. S. Ramappa was the proprietor of the Concern National Tiles and that he was the proprietor of the mark in question."

Otherwise, if the Registrar were not assured by this respondent that he was the proprietor he would not have registered him as section 14 of the Trade Marks Act requires that only a proprietor of a trade mark can apply for registration, the only exception being the case provided for in section 36 of the Act which does not apply to the facts of this case. It is now found that the claim of the respondent that he was the proprietor of the mark at the time of the application was false. (His Lordship then discussed evidence and proceeded):

24. To sum up, the respondents case amounts to nothing more than that from 1945 awards he was actively assisting his father in the management of the Kudroli factory and that although he was not the proprietor in 1946 there was some sort of understanding between himself and his father that he was the de facto proprietor if not de jure proprietor.

The petitioner has shown that this contention is untrue in fact and that in law it would not enable the respondent to describe himself as he has done to the Registrar of Trade Marks in his application and subsequent correspondence because under S. 14 of the Trade Marks Act only a proprietor can apply for registration and that u/s 4 there shall not Be entered in the register any notice of any trust express, implied or constructive and if the applicant himself is not the proprietor the consent of the real owner would not entitle him to register the mark in his own name: vide (1891) 8 RPC 137 at p. 161 (B).

Thus, two things have been proved, viz., first, of all the statements that he was the proprietor of the trade mark and that he was not the proprietor of the concern called National Tiles were both false. Another statement he has made in the application "in use since 1936" which has been amplified in his letter dated 23-7-1948 "I have been printing the said mark since 1936" is equally false. Secondly, the Registrar of Trade Marks has ordered registry on the foot of these statements that B. C. Ramappa was the proprietor of the concern National Tiles and that he was the proprietor of the mark in question. Therefore within the meaning of the term "fraud" analysed above the respondent has obtained the registry by fraud and therefore even though seven years have expired after the original registration of the trade mark it cannot be taken to be valid as contemplated by section 24 of the Act.

25. On this conclusion that this registration had been procured by fraud in that it was obtained on material mis-statements in the application for registration of the trade mark, this becomes a case where the entry has been made in the register without sufficient cause, and become liable to be cancelled or varied as the tribunal thinks fit u/s 46(2) of the Trade Marks Act.

26. This is not a fit case, however, for cancellation but only for variation of the entry in the register. The facts of this case clearly establish that the father Ramappa was owning both the factories and was using the same trade mark for the tiles manufactured in both the factories. The parties are governed by the Aliyasanthana Law and on the death of B. Ramappa his assets would devolve upon his nephew. Therefore in 1950 he has settled the Hoigee Bazaar factory, viz., the Indian National Tile and Lime Works on his son, the petitioner.

In 1953 he has settled upon his other son. the respondent, who was naturally pressing him to show a similar favour to him the Jayaram Tile Works at Kudroli. Father Ramappas intention was that both sons should have the right to use his mark and neither of them should exclude the other in the matter of using it. Both these sons have been continuing to manufacture tiles in lakhs bearing the same trade mark of Taj Double Bavta. These tiles impressed with this mark have been commanding and are commanding a large market in the Bombay State and elsewhere and it is common ground that the demand far exceeds the supply of both these factories and that no question of allocation of territory or ceilings for manufacture would arise in this case.

Therefore this is a case which would fall under S. 10(2) of the Trade Marks Act in that; in special circumstances which in the opinion of the Registrar make it proper so to do he may permit the registration by more than one proprietor of trade marks which are identical in respect of the same goods or description of goods, subject of course to such conditions and limitations as the Registrar may think fit to impose. In the special1 circumstances set out above in this case it is unnecessary to cancel the entry made in the Trade Marks Registrar and the proper thing to do is to vary it by registering both the petitioner, and the respondent as joint proprietors of the trade mark and that the proprietary rights in the trade mark will naturally date from the dates of their respective settlement deeds. This joint registration, will also be in conformity with the spirit if not the letter of S. 17(2) as the petitioner and the respondent do not, being governed by the Aliyasanthana Law, constitute members of a joint family coparcenary and these two factories do not constitute joint family assets.

27. There is no substance in the plea of delay put forward by the respondent. In the first place there is no legal obligation on persons interested to see an advertisement in the Trade marks journal and if they do not see an advertisement they cannot be in a worse position than they "Would have been before. See Jessel M. R. in In re, Hyde & Co.s Trade mark, 1878 7 Ch D 724 at p. 726 (Z2). Secondly, as laid down in (1889) 6 RPC 165 at p. 173 (Z3), a defendant moving to rectify only when the plaintiff taking advantage of his registration used it against the defendant in a suit cannot be held to be guilty of delay. Delay assumes importance only if it puts the opposite party to serious unfair disadvantage by the loss of evidence or the like which is not the case here. In matters concerning rectification of the register the public interest is of paramount importance and the merits and demerits of the applicant for rectification are of little importance. See Venkateswaran P. 630; Noblitt-Sparks industries mcs appl. (1951) 68 RPC 168 (Z4); Abinash v. Madhusudhan (ibid).

28. This petition is allowed to this extent and in the circumstances the parties will bear their own costs except that the 1st respondent will pay over the petitioner one half of the expense of the commission borne by the petitioner in the first instance.

29. A copy of this order will be communicated to the Registrar of Trade Marks for carrying out the directions of this Court under S. 46(5) of the Trade Marks Act.