(Appeal under Section.969 of C.P.C. against the Judgment and decree dated 30-4-2004 on the file of the Court of the IX Additional Chief Judge, City Civil Court, (Fast Track Court) Hyderabad.)

Heard both sides.

2. This appeal is directed against the judgment and decree, dated 30-04-2004, in O.S.No.183 of 2003, passed by the IX Additional Chief Judge, City Civil Court, (Fast Track Court) Hyderabad.

3. The appellant is the plaintiff and the respondents are the defendants.

4. For the sake of convenience, in this judgment, the parties will be referred to according to their array in the suit.

5. Plaintiff-M/s Shalimar video Company, Hyderabad, is a registered partnership firm carrying on the business of buying films for processing and making video gram CDs/VCDs and marketing the same. First defendant-M/s Divya Exports, Guntur, and the second defendant-Vijaya Pictures, vijayawada, are also carrying on similar business as that of the plaintiff.

6. Plaintiff entered into an agreement, dated 17-08-2001 with one M. srinivasa Rao for assignment of fifteen (15) Telugu Feature Films, (Viz., 1. Maya Bazaar; 2. Shavukaru; 3. Patala Bhairavi; 4. Pelli Chesi Choodu; 5. Chandraharam; 6. Missamma; 7. Appuchesi Pappukoodu; 8. Rechukka Pagatichukka; 9. Jagadekaveerunikatha; 10. Gundamma Katha; 11. Satya Harischandra; 12. CI.D; 13. Umachendi Gowrisakarulu Katha; 14. Sri Rajeswari vilas Coffee Club; and 15. Desoddharakudu.

7. Third defendant M/s Nagireddy Charities, Madras, is the original owner of the aforesaid fifteen Telugu feature films. Second defendant-Vijaya Picturers, vijayawada, obtained lease of the said fifteen flims, with all rights, for a period of seventy years from the third defendant-M/s Nagireddy Charities.

8. According to the plaintiff, originally the aforesaid fifteen films were produced by one Vijay Production Private Limited, represented by its Managing Director, V. Nagi Reddy, entered into an agreement of lease with one Vijay combines in the year 1983 for an initial period of twenty years. Later on during June 1990 the said lease was further extended for a period of o70 years commencing from 1st June, 2003 in respect of two Telugu pictures by name Ganga Manga and Rajeswari Vilas Coffee Club.

9. The remaining thirteen (13) Telugu films were gifted by Vijay Production Private Limited, represented by its Managing Director, to the third defendant-M/s. Nagirieddy Charities, represented by its Managing Trustee, Sri. B. Nagireddy.

10. The third defendant-M/s Nagireddy Charities, Madras, in turn, entered into a lease agreement on 25th June 1990, in respect of thirteen (13) films with the second defendant-Vijaya Pictures, vijayawada, for a period of seventy years with effect from January, 1995. Prior to this lease agreement, originally, in the year 1975 the lease was granted for a period of twenty years and it was further extended for period of seventy years during the year 1990 with effect from 1995. As per this lease agreement, rights of 35 m.m were given for the areas of Andhra and Nizam, and all other video rights, including VCDs/DVDs and other formats were given for the entire a world in respect of the abovesaid films.

11. According to the plaintiff, as there was demand for broadcasting the suit schedule films through satellites, cassette, V.C.D and other technology, during the year 1995, second defendant-Vijaya Pictures approached the third defendant-M/s Nagireddy charities for assignment of the said rights, including the right of broadcasting through satellite, cassettes, discs, cable, wire and wireless or any other system including transmission through cable system without restriction of geographical area in respect of the abovesaid films by paying the valid consideration.

12. On 30th July 2001, one Mr. M. Srinivasarao (assignor of the plaintiff) entered into a lease agreement with the second defendant-Vijaya Pictures and obtained copyrights rights of the suit schedule films mentioned therein in respect of theatrical and non-theatrical (excluding satellite rights) exhibition and 35 mm exploitation, Video, VCD, DVD, Audio and 16 mm.

13. Mr. Srinivasarao, in turn, entered into an agreement with the plaintiff on 17-8-2001 and assigned to the plaintiff all the rights which he was holding as per the agreement entered into by him (Srinivasarao) with the second defendant-Vijaya Pictures with respect tot eh suit schedule films. On 25-8-2001, plaintiff issued publication in newspaper on 25-8-2001 notifying that it had acquired world VCD and DVD rights in respect of the suit schedule films.

14. Subsequent to the aforesaid paper publication dated 25-8-2001 issued by the plaintiff received a telegram followed by a letter dated 10-6-2002 from the third defendant M/s. Nagireddy charities, represented by its Trustee B. Venugopal Reddy, stating that the second defendant-Vijaya Pictures has limited rights to exploit the pictures in Andhra and Nizam area and that the 2nd defendant had misrepresented M. Srinivasarao, that it has got VCD/DVD rights, though the second defendant had no such rights and hence plaintiff will have no VCD/DVD rights over the suit schedule films. Plaintiff sent a reply to the third defendant stating that it has got valid and enforceable rights including video rights in respect of the suit schedule films.

15. On 28-5-2003, first defendant-M/s Divya Exports, Guntur, got issued a legal notice to the plaintiff calling upon the plaintiff to refrain from selling the DVDs/VCDs in respect of the suit schedule films. On receipt of the said legal notice plaintiff came to know that the first defendant was selling pirated VCDs/DEDs in respect of the suit schedule films.

16. In the above background the plaintiff-M/s Shalimar video company, a partnership Firm, Hyderabad, filed the suit for-

(a) declaration that it is exclusively having world video rights of VCD/DVD and other format of video rights in pursuance to the agreement, dated 17-08-2001 entered with M. Srinivasarao and the same is binding upon defendants 1 to 3;

(b) Consequential perpetual injunction restraining the defendants from producing or selling VCDs/DVDs or any other video format for the suit schedule 15 Telugu feature films in any form of exploitation; and

(c) for a direction to the defendants to return the video cassettes and VCDs of 15 suit schedule mentioned films.

17. First defendant filed written statement admitting that the third defendant-M/s Nagireddy charities is the original owner of the suit schedule films and contending, inter alia, that the 2nd defendant has no right to assign the rights of manufacturing and selling of DVDs and VCDs in respect of the suit schedule films in favour of one M. Srinivasarao (the assignor of the plaintiff) inasmuch as the third defendant-M/s Nagireddy Charities had never assigned the rights in question to the second defendant and consequently Srinivasarao, who did not get any such rights from the second defendant, cannot assign such non-existing rights in him in favour of the plaintiff.

18. The second defendant-Vijaya Pictures filed a separate written statement supporting the case of the suit schedule films. The second defendant stated, inter alia, that the third defendant-M/s. Nagireddy Charities entered into the second agreement with the second defendant on 15-12-1995 to broaden the scope of the earlier agreement dated 25-6-1990 in order to cover the technical developments that took place subsequent to the agreement dated 25-6-1990 entered into by the third defendant with the second defendant. It is the case of the second defendant that by virtue of the second agreement dated 15-12-1995, the third defendant-M/s. Nagireddy Charities had irrevocably assigned to the second defendant the copyright for broadcasting the suit schedule films through satellites, cassette, disc, cable, wire, wireless or any other system, including its transmission through cable system without restriction of geographical areas and for this purpose the assignee/second defendant is authorised to make such copies of recordings on film, tape, disc, or such other media as may be required for a consideration of Rs.8,00,000/-.

19. On behalf of the third defendant-M/s Nagireddy charities, one person by name Bh. Sudhakar Reddy, special Power of Attorney Holder, has filed a memo adopting the written statement filed by the first defendant in the suit.

20. On the basis of the respective pleadings of the parties, the trial court framed the following issues for trial:

1. Whether this court has territorial jurisdiction to maintain the suit

2. Whether the suit is bad for non-joinder of necessary parties

3. Whether the agreement dated 25.6.1990 will include VCD/DVD rights and whether the plaintiff is entitled to claim the broadcasting rights thereunder coupled with the agreement dated 15.2.2002 and thereby the plaintiff is entitled for the manufacture and sale of the VCDs/DVDs of the suit films

4. Whether the plaintiff is entitled for the relief of declaration and the injunction sought for

5. To what relief

21. On behalf of the plaintiff, the partner of the plaintiff-firm was examined as P.W.1 and Exs. A.1 to A.12 were marked. On behalf of the first defendant, its Managing Partner-Mr. Bh. Sudhakar Reddy was examined as D.W.1 and Exs.B.1 to B.4 were marked.

22. Considering the oral and documentary evidence adduced by both parties, the trial court dismissed the suit of the plaintiff holding that the suit is bad for non-joinder of necessary party and that the plaintiff or its predecessors in title have no right to make and market the DVD and VCD versions of the suit schedule films and consequently plaintiff is not entitled for declaration and injunction.

23. Feeling aggrieved thereby, plaintiff has failed this appeal.

24. Contentions:-

Sri K. Pratap Reddy, learned Senior Counsel appearing for the plaintiff submits that the lease under Ex.A.4 and assignment under Ex.A5 made by 2nd defendant are not in dispute; that the assignment made by the second defendant in favour of one Srinivasarao is also not in dispute; and that the assignment of copyright made by the said srinivasarao in favour of the plaintiff is also not in dispute as could be seen from the written statement filed by the first defendant. Therefore, when these facts are not in dispute the lease agreement of 1990 and assignment agreement of the year 1995 and interpretation thereof alone would fall for consideration. According to the learned Senior counsel, the very basis for the plaintiff to have the copyrights including the rights to manufacture and sale of VCDs/DVDs cannot be challenged by anybody; that for the same reason it should be understood that those two documents should be read together in order to get the real intention of the lessor or assignor, as the case may be, to find out as to whether the copyrights which the 2nd defendant possessed should be understood to have been transferred in full or in part to Srinivasrao (assignor of the plaintiff). According to the learned Senior Counsel, even though in the lease deed of 1990 entered into between the 3rd defendant (lessor) and the 2nd defendant (lessee) only few rights were mentioned, by virtue of the fact that the negatives were already given away to 2nd defendant by the 3rd defendant, it should be understood that the copyrights in full have been leased out to the 2nd defendant by the third defendant. Further, by virtue of Ex.A.5 the copyrights were assigned in favour of 2nd defendant by the 3rd defendant in continuation of the lease under Ex.A.4 wherein and whereby the assignor assigned the copyrights for several purpose including the purpose to make such copies of recording on film, tape, disc or such other media as may be required without restriction as to geographical areas.

25. Therefore, it is contended by Sri. K. Pratap Reddy, learned Senior Counsel appearing for the plaintiff that by virtue of operation of Exs. A.4 and A.5 the original copyright holder, i.e., the 3rd defendant-M/s Nagireddy charities had lost all its copyrights in the suit schedule films and consequently it cannot assign the VCD and DVD rights of the suit schedule films in favour of third parties. It is further contended that since the copyrights had flown from the 2nd defendant to one Srinivasarao and from Srinivasarao in turn to the plaintiff, all the rights which Srinivasarao was having would automatically stand transferred to the plaintiff. In other words, his emphatic submission is that once there was cessation of copyrights of 3rd defendant by virtue of the lease or assignment in the year 1990 and 1995 respectively, the 3rd defendant had not manner of right over the copyrights of the suit schedule films and cannot confer copyrights on anybody in respect of any rights relating to the suit schedule films. Learned Senior Counsel maintains that when once the copyrights along with the negatives have been parted with by 3rd defendant-M/s Nagireddy Charioties in favour of the second defendant and his successors upto the plaintiff, the copyrights to exploit the suit schedule films can be utilized in any manner as the assigneee thinks fit, and in tune with the changed scientific advances.

26. On the other hand, Sri. P. Srinivasa Reddy, learned counsel for the respondents contends that the manufacturing rights of VCDs/DVDs have not been alienated or assigned by 3rd defendant/M/s Nagireddy Charities in favour of the second defendant; only those rights mentioned in Ex.A.4 should be construed as transferred in favour of the second defendant and the remaining rights should be deemed to have been reserved and vested in 3rd defendant-M/s Nagireddy charities and accordingly the third defendant-M/s Nagireddy Charities can exercise its right of assignment of copyrights for other purposes like manufacature of VACDs/DVDs in favour of others. He maintains that 3rd defendant-M/s Nagireddy charities was absolutely justified in transferring the rights of manufacturing and selling VCds/DVDs in favour of the first defendant.

27. Sri Srinivasa Reddy further contended that as per Ex.A.3 agreement dated 30.7.2001 the assignment of copyrights by the 2nd defendant in favour of Sriniviasarao was made only to the extent of broadcasting; that by Ex.A.4/ the third defendant-M/s Nagireddy Charities had assigned only limited rights; and that exploitation shall not mean manufacturing and selling of DVDs/VCDs in respect of suit schedule films and, on the contrary, the said expression shall be confined to the purposes mentioned in clause (1) of Ex.A.4, i.e., for theatrical and non-theatrical distribution, exhibition and exploitation, including the video and T.V. rights thereof.

28. Sri Srinivasa Reddy maintains that through Ex.B.1 rights conveyed by the 3rd defendant-M/s Nagireddy Charities in favour of first defendant-M/s Divya Exports were specific and the lessee under Ex.B.1 will have full rights to produce/make and sell the VCDs and DVDs of the suit schedule films.

29. According to Sri Srinivasa Reddy, learned Counsel for respondents, as per Section 19(2) of the Copyright Act, 1957 (for short the Copyright Act) which deals with mode of assignment, the rights assigned must be specific, and the rights conveyed by Srinivasarao in favour of the plaintiff are in an enlarged form vis--vis Exs. A.4 and A.5 documents. In effect, his submission is that the second defendant itself and consequently M. Srinivasarao did not derive the VCD and DVD rights from the third defendant and hence the plaintiff will not get those rights.

30. In the light of the relative pleadings of the parties in the suit and the contentions of both the learned Counsel appearing in this appeal, the points that arise for consideration and decision in this appeal are:

1. Whether the assignment of copyrights made by the third defendant in favour of first defendant is true and valid

2. Whether the assignment of copyrights made by the third defendant in favour of second defendant confers the right of manufacturing and selling VCDs/DVDs, and whether the rights assigned and conferred under Exs.A.4 and A.5 are only meant for broadcasting the suit films and if so, what is the effect thereof

3. Whether the non-joinder of the person by name Srinivasarao, who was allegedly the assignee from the second defendant and assignor in favour of the plaintiff, would vitiate the suit, or

Whether the plaintiff can be non-suited for non-joinder of one Srinivasarao who was allegedly the assignee from the second defendant and assignor of the plaintiff

31. The first point as formulated by this court in this appeal was not framed by the trial court as an issue in the suit. But in my considered view, the trial court ought to have framed this issue also in the light of the specific averment made by the plaintiff in the plaint that the acquisition of rights by the first defendant-M/s Divya Exports from the 3rd defendant-M/s Nagireddy Charities, represented by its Trustee-Venugopal Reddy was totally false and baseless having regard to the fact that Sri. B. Nagireddy, the original Managing Trustee of the 3rd defendant M/s Nagireddy Charities, had already given away the copyrights during the year 1995 itself in favour of the second defendant. Hence, having regard to the said specific averment made by the plaintiff in the plaint and also in the light of the specific ground taken by the plaintiff in this appeal with regard to the application of Section 73 of the Indian Trusts Act 1882 (for short the Trusts Act), I deem it absolutely necessary to formulate the first point for consideration exercising the jurisdiction of this Court under Order 41, Rule 24 C.P.C. For this reason, this court formulated the first point as stated supra.

32. From the submissions made at the Bar by the learned Counsel appearing for the parties, it could be seen that the whole controversy revolves around Exs. A.4, and A.5 and Ex.A.3 on one side and Ex.B.1 on the other.

33. It is to be remembered that as per the averments made in the written statement of first defendant, the first defendant is not disputing the sequence of events which resulted in transfer of copyrights from the third defendant-M/s Nagireddy Charities to the second defendant-Vijaya Pictures and from second defendant Vijay Pictures to Srinivasarao and from Srinivasarao to the plaintiff.

34. Point No.1:- In the pleadings, admittedly, the third defendant was described as M/s Nagireddy Charities, represented by its Managing Trustee Sri B. Nagireddy, having its Office at 188, N.S.K. Salai, Vadapalani, Madras-600 026. From the record, it could be seen that in the trial court a memo had been filed by the 3rd defendant- M/s Nagireddy Charities, represented by its special power of attorney holder Bh. Sudhakar Reddy, adopting the written statement filed by the first defendant in the suit. The special power of attorney was furnished to the trial court by filing an application in I.A.No.407 of 2003 under Rule 32 of the civil Rules of Practice and the same had been accepted by the lower court. From the said special power of attorney it could be seen that the Agent, Bh. Sudhakar Reddy was given authorization by one Venugopal Reddy, stated to be a trustee of M/s Nagireddy charities, to represent the third defendant-M/s Nagireddy charities in the suit.

35. The pertinent question that arises for consideration at this juncture is, whether the said Venugopal Reddy, in the capacity of a trustee, can appoint Mr. Bh. Sudhakar Reddy as Agent to represent the 3rd defendant-M/s Nagireddy Charities (represented by its managing trustee-Sri B. Nagireddy).

36. It is to be remembered that it is Mr. B. Nagireddy, in the capacity of the Managing Trustee of M/s Nagireddy Charities, who had entered into the agreements with the second defendant-Vijaya Pictures by way of lease and assignment through Exs.A.4 and A.5 in 1990 and 1995 respectively.

37. Further, a perusal of the cross-examination of D.W.1 (Bh.Sudhakar Reddy) would reveal that he is the managing Partner of Defendant No.1 itself and the power of attorney holder representing the third defendant-M/s Nagireddy Charities.

38. In his cross-examination D.W.1 states that he knew Sri B. Nagireddy who was the Managing Trustee of M/s Nagireddy charities and that Sri B. Nagireddy passed away on 25.2.2004. He further admits that late Sri Nagireddy was the Managing director (perhaps the witness intends to say Managing Trustee) of third defendant till his death, and that the said Managing Trustee, Sri Nagireddy had every right to deal with the property of M/s Nagireddy Charities. D.W.1 states that he did not now whether any other person, other than the Managing Trustee of the third defendant-M/s Nagireddy Charities can deal with the property of the third defendant and that he tried to enquire this aspect and as Sri Nagireddy was on bed for the last three years, almost in a coma stage he could not get the information. D.W.1 states that he cannot give the exact date or year from which Nagireddy was in coma. However, D.W.1 states that he was sure that it was from the year 2000 onwards Sri Nagireddy was in coma.

39. In response to a suggestion made on behalf of the plaintiffs in cross-examination, D.W.1 further states that he did not know whether Sri Nagireddy was in coma since 2002 only. D.W.1 assertively states that he was claiming rights on the basis of Ex.B.1 agreement. D.W.1 clearly admits that Ex.B.1 was not executed by the Managing Trustee of the third defendant.

40. A perusal of Ex. B.1 agreement would reveal that one Mr. Venugopal Reddy in the capacity of a trustee of M/s Nagireddy Charities, alienated the VCD and DVD copy rights in favour of first defendant who is no other than the present witness (D.W.1). D.W.1 states in cross-examination that he obtained VCD and DVD rights for the suit schedule films for a period of sixty years for a consideration of a sum of Rs. 1,50,000/-. He denied the suggestion that Ex.A.1 agreement was brought into existence in collusion with Mr. Venugopal Reddy who is said to be a trustee of M/s Nagireddy Charities.

41. Another significant statement made by D.W.1 during his cross-examination is that he did not file any document to show that Venugopalreddy had any right or authority to represent the third defendant- M/s Nagireddy Charities. The other important statements made by D.W.1 will be referred to while dealing with the other points.

42. From the above evidence on record, it is absolutely clear that the suit was instituted in the year 2003 during the lifetime of Sri B. Nagireddy, the Managing Trustee of M/s Nagireddy Charities. It is also a fact that the said Nagireddy, representing M/s Nagireddy Charities was alive, though incapable of representing the charities by virtue of his illness since the year 2000, Ex.B.1 was executed on 14.8.2001, meaning thereby, that the said agreement was entered into between B. Venugopalreddy in the capacity of a trustee of M/s Nagireddy Charities and the first defendant conveying the copy rights regarding VCDs and DVDs.

43. It is further clear from the above evidence that D.W.1 had no knowledge whether Mr. Venugopalreddy in the capacity of a trustee of M/s Nagireddy Charities was authorized or capable of entering into any agreement with third parties on behalf of the trust with regard to the copyrights of the suit films during the life-time of Sri B. Nagireddy, Managing trustee of M/s Nagireddy Charities.

44. An incidental question that arises for consideration is, during the life-time of Sri B. Nagireddy, Managing Trustee of M/s Nagireddy Charities and when he was seriously ill not capable of representing the Trust in the capacity of Managing Trusteewhat should follow in order to enable any other person or the trust to represent M/s Nagireddy Charities.

45. In this connection it useful to notice the relevant provisions of Section 73 of the Trusts Act, which read thus:

73. Appointment of new trustees on death etc:- Whenever any person appointed as trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from India, or leaves India for the purpose of residing abroad, or is declared an insolvent or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts and inconsistent trust, a new trustee may be appointed in his place by:

(a) the person nominated for that purpose by the instrument or trust (if any), or

(b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee.

Every such appointment shall be by writing under the handoff the person making it.

(Underlining is mine)

46. A bare reading of the above provision makes it clear that whenever any person appointed as a trustee is unable to discharge the duties under the circumstances postulated in the section or if in the opinion of the Principal civil Court of original jurisdiction, such trustee is unfit or personally incapable to Act in that capacity or accepts an inconsistent trust, a new trustee may be appointed in his place by the persons stated in the section.

47. From the above provision it is further clear that a person can be so nominated as trustee only by way of instrument in writing under the hand of the person making it. In the instant case, such an instrument cannot be reduced into writing by Sri B. Nagireddy himself, who was the Managing Trustee of M/s Nagireddy Charities, appointing any other person, particularly B. Venugopalreddy since Sri B. Nagireddy was seriously ill and in a state of invalidation.

48. This contingency has been met with by Section 74 of the Trusts Act. Section 74 of the Trusts Act deals with the power of the Court to appoint a trustee which reads thus:

74. Appointment by Court:- Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under Section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly.

49. From the events that took place, as narrated above, and as deposed to be D.W.1, it is clear that no new trustee had been appointed for M/s Nagireddy Charities during the lifetime of Sri B. Nagireddy, owing to the serious illness of Sri B. Nagireddy.

50. De hors the procedure prescribed either under Section 73 or Section 74 of the Trusts Act, there is nothing on record to show as to whether there were more than one trustee for M/s Nagireddy Charities and whether Sri B. Nagireddy was acting as the Managing Trustee; or whether B. Venugopalreddy was appointed as a trustee in place of B. Nagireddy who was the Managing Trustee, in the manner prescribed under law during the life time of the Managing Trustee in order to represent M/s Nagireddy charities. On the contrary, D.W.1 categorically deposed that Mr. B. Nagireddy had every right to deal with the property of third defendant-M/s Nagireddy Charities.

51. To ascertain true facts in this regard, at least steps should have been taken by the first defendant to examine Venugopalreddy who executed Ex.B.1 document alienating the copyrights of VCDs and DVDs in respect of the suit schedule films in favour of the first defendant, in the capacity of trustee.

52. What is more interesting to note is that no trust deed or any other document was pressed into service by the first defendant while getting himself examined as D.W.1 to clarify or explain that Mr. Venugopalreddy had acquired the status of a trustee of M/s. Nagireddy Charities in order to effectively represent the trust and to execute Ex.B.1 document in favour of the first defendant. Interestingly, D.W.1 was the Special Power of Attorney Holder also, representing M/s Nagireddy Charities

53. In other words, totally an alien, not connected with the affairs of M/s Nagireddy charities, but a beneficiary under Ex.B.1, was examined as D.W.1, representing both defendant No.1 and defendant NO.3. No document relating to appointment of Venugopalreddy as a trustee of M/s. Nagireddy Charities, authorizing Venugopalreddy to represent trust has been brought on record and no person directly connected with, and having knowledge of the affairs of M/s Nagireddy Charities had been examined on behalf of the defendants.

54. It is to be remembered that the suit was instituted in the year 2003 and during the pendency of the suit Mr. B. Nagireddy was very-much alive, of course, totally in a state of indisposition. In such circumstances, I am of the considered view that the burden heavily lies on either the first defendant or the third defendant to establish the change in trusteeship of M/s Nagireddy charities, in which case alone Ex.B.1 document can be called as a validly and legally executed document by Venugopalreddy in the capacity of the trustee of M/s Nagireddy charities in favour of the first defendant. Unfortunately, no other witness, except D.W.1, was examined in this behalf.

55. It is well-known principle that a person who has no proper authorization to represent a trust cannot enter into agreements with third parties in order to bind the trust even if such agreements are entered into, such agreements are not valid in the eye of law. In the instant case, the first defendant and the third defendant-M/s Nagireddy Charities, represented by its Power of Attorney Holder have utterly failed to establish the capacity of Venugopalreddy as trustee to execute Ex.B.1 agreement assigning the VCDs and DVDs copyrights in respect of the suit schedule films in favour of the first defendant during the lifetime of Sri Nagireddy, the Managing Trustee of M/s Nagireddy Charities. This is a strong and suspicious circumstance, which compels this Court, to hold that Ex.B.1 was not executed by a proper and authorized person representing the third defendant-trust, conveying the copyrights of VCDs and DVDs in favour of the first defendant. Further, when Mr. Venugopalreddys authority as trustee to execute Ex.B.1 is in serious doubt, first defendant, who is the beneficiary of the said document cannot be placed on a higher and comfortable position that Mr. Venugopalreddy.

56. Furthermore, the specific averment in the plaint is to the effect that the first defendant is indulging in producing and selling the VCDs/DVDs in respect of the suit schedule films, affecting the rights of the plaintiff and the claim of the first defendant, that rights were acquired by it from the third defendant through its alleged trustee Mr. Venugopalreddy, totally false and baseless and there is collusion between first defendant and third defendant. Though the first defendant denied the said averment in its written statement, and eventhough D.W.1 denied suggestion made to him during cross-examination to that effect, I feel that there is something more that what meets the eye in bringing Ex.B.1 into existence.

57. In this regard, yet another added factor that cannot be ignored is that the copyrights of the suit films insofar as the VCD and DVD rights are concerned were assigned for a paltry sum of Rs.1,50,000/- in spite of the admission made by D.W.1 that there was heavy demand to those films in the market even as of today as against the much huge amounts of consideration for which Exs. A.4, A.5 and A.3 were executed by the concerned parties.

58. From the perusal of the impugned judgment it could be seen the court below while discussing issues 3 and 4, without going to the aspect of validity or otherwise of the assignment of copyright in favour of first defendant by third defendant, incidentally recorded a finding basing on the Xerox copy of a document Ex.A-12, that the plaintiff is estopped from raising a plea that B. Venugopala Reddy has no authority to represent third defendant trust. But a perusal of Ex. A-12 discloses that it is only a reiteration of assignment of broadcast rights under Ex.A-5. In this context it is to be noted that Ex.A-12 is only a Xerox copy and the original is not filed. No reasons were recorded by the trial court with regard to the admissibility of the said document. Even assuming that the said document was really executed by B. Venugopal Reddy in favour of second defendant, as already noticed, it is only a reiteration or confirmation of Ex.A-5. Further there is no cross-examination by the defendants 1 and 3 on this aspect and there is also no reference to this document in the written statements filed by them. Therefore, so long as the execution of Ex.A-4 was agreed to have been in subsistence by virtue of its execution by B. Nagi Reddy, Managing Trustee of third defendant assigning rights for a period of seventy years, Ex.A-12 does not gain any significance. If Ex.A-12 is to be accepted, notwithstanding the admissibility or otherwise of it, at best it has to be presumed that B. Venugopal Reddy had become the Managing Trustee of third defendant as on the date of execution of Ex.A-12 dated 15.2.2002. But in the present case, the whole dispute is with regard to the authority of B. Venugopal Reddy to execute Ex.B-1 document in the capacity of trustee of third defendant in favour of first defendant, which is a prior transaction. In other words the genesis of the rights of assignment of broadcast is Exs. A-4 and A-5, but not Ex.A-12. Furthermore, the reasons for bringing into existence of the controversial Ex.A-12 is not explained in the evidence of either of the parties and as its execution is subsequent to the execution of Ex.B-1, on which defendants 1 and 3 are mustering their claim of copyright of VCDs and DVDs, the same is not relevant and inconsequential. Hence, the finding of the trial court that the plaintiff is estopped to question the validity or otherwise of the trusteeship of B. Venugopal Reddy for third defendant is not justifiable.

59. In the light of the above discussion, and having regard to the probabilities and preponderance of evidence on record, I hold that Ex.B.1 is neither true nor valid. Accordingly, point No.1 is answered in favour of the plaintiff and against the defendants.

60. Point No.2:- In this connection, the recitals in Exs.A.4 and A.5 are required to be noticed. At the threshold, it is to be noted that these documents alienating or assigning the copyrights by M/s Nagireddy charities in favour of the second defendant-M/s Vijaya Pictures and from the second defendant in favour of one Mr. Srinivasarao insofar as certain rights are concerned, were not denied by defendants 1 and 3.

61. The crucial and contentious issue on this point is whether there was alienation or assignment of copyrights in favour of second defendant and other successors of assignment, are only limited to the extent of conveying broadcasting rights or the rights relating to making and selling of copies of VCDS and DVDs.

62. In this connection, it is necessary to understand the definition of the expression broadcast and the definition of communication to the public.

63. The main contention of the learned Counsel appearing for the first defendant is that the third defendant had alienated only the broadcasting rights and that does not confer any right on the part of the plaintiff to make copies and sell the films. It is his further contention that by virtue of Ex.B.1, first defendant had got the right of making and selling VCDs and DVDs of the films. In other words, it is his contention that this is an exclusive right reserved by the third defendant to itself and hence such right can be assigned by the third defendant in favour of the first defendant.

64. Section 2(dd) of the Copyright Act defines the expression broadcast. Broadcast means communication to the public

(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images, or

(ii) by wire.

65. From the above definition, it is clear that broadcast means communication to the public by any means of wireless diffusion or by wire, including re-broadcasting.

66. Now, it is necessary to look into the definition of the expression communication to the public as defined under Section 2(ff) of the Copyright Act, which reads thus:

Communication to the public means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

Explanation:- For the purpose of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.

(emphasis added)

67. From a bare perusal of the above definition, it appears that communication to the public which otherwise is called as broadcasting by making any work available for being seen (in the present context the cinematograph film) by the public directly or by any means of display.

68. A conjoint reading of the definitions of broadcast and communication to the public would only suggest that the copyright holder can communicate to the public by way of (a) broadcasting by way of making the cinematograph film (b) making available to the public directly or by any other means of display. It further appears that such broadcasting or communication to the public shall not be by issuing copies of such work.

(emphasis added)

69. In view of the above language employed in the definition of broadcast and communication to the public, the incidental question that arises for consideration is whether a restricted meaning can be assigned to the expression broadcast in the language used in Ex.A.5.

70. In this connection, it is necessary to look into the terms and conditions of Exs. A.4 and A.5.

71. In the preamble of Ex.A.4, it is stated thus: WHEAREAS the LESSORS have already granted to the LESSEES, the exclusive lease rights of exploitation of their several Black and White and Colour pictures for the territory of Andhra & Nizam, by way of agreement of lease dated 10.01.1975 for a period of 20 years from 1st of January 1975. Whereas the Lessors to grant unto them the exclusive lease rights of Theatrical and Non-Theatrical distribution, exhibition and exploitation of the several pictures by way of lease, in respect of the areas of Andhra & Nizam as known in the Film Trade, for a further period of 70 (seventy) years from the date of expiry of the present lease arrangement, i.e., from 1st January 1995 and to transfer complete picture Negatives in favour of the LESSEES herein. (Emphasis added)

72. Clause (1) of Ex.A.4, to the extent relevant reads thus:

The LESSORS hereby granted to the LESSEES all the rights of Theatrical and Non-Theatrical distribution, exhibition and exploitation by way of lease, of the following Black & white Telugu Pictures produced by M/s Vijaya Productions Pvt Ltd., Madras 600 026 including the video and T.V. Rights thereof.

(Names of Pictures not quoted as not relevant).

for the Areas of Andhra & Nizam, and to appropriate to themselves the proceeds earned by them on the said pictures by such exploitation for a period of 70 (Seventy) years from 1st January 1995.

(emphasis added)

73. Clause (3) of the agreement Ex.A.4 dated 25.6.1990, which is relevant reads thus:

3. It is explicitly understood that the consideration mentioned in clause (2) above is exclusively for the said rights of exploitation of the pictures only. All prints and publicity for the exploitation of the pictures shall be made out by the LESSEES exclusively at their own cost as and when they require the same. The LESSORS hereby agree to transfer the Negatives in the name of the LESSEES herein and shall obtain and produce a letter to this effect in favour of the LESSEES from the concerned Laboratory and the LESSEES shall deal with the same at their own discretion without any reference whatsoever to the LESSORS.

(emphasis added)

74. The above clause (3) makes it abundantly clear that the consideration paid was exclusively for the rights of exploitation of the pictures and further that the cost of making prints and publicity for such exploitation shall be borne by the lessee only. It is further clear that the right to take out prints for the purpose of exploitation in addition of the rights of theatrical and non-theatrical distribution, exhibition, including the video and T.V. rights are also conferred on the lessee. In other words, the lessee was permitted to exploit the films by different modes as indicated above.

75. Clause (4) of the aforesaid document Ex.A.4, dated 25.6.1990, reads that the lessees shall have the power to assign this agreement (Ex.A.4) either in part and/or whole to their parties at their discretion, without any manner affecting the rights of the lessors under this agreement (Ex.A.4).

76. Clause (7) of the agreement, dated 25.6.1990 (Ex.A.4) is in the following terms:

7. It is understood between the parties herein that this agreement is without prejudice to the 16 mm rights; T.V. and Video rights committed by the producers Vijay Productions (p) Ltd., for the various periods with the parties concerned and the LESSEES herein are entitled for the said rights after the expiry of the period committed thereunder.

77. From a reading of the afore-quoted clause (7) of the agreement dated 25.6.1990, it could be seen that the terms and conditions of Ex.A.4 agreement are subject to certain rights committed by the original producers Vijaya Productions Private Limited to certain other parties for various periods which would expire by 1994 as could be seen from Ex.A.5. So, this is one of the rights that was reserved by the lessor under Ex.A.4 agreement dated 25.6.1990.

78. The expression exploitation is employed in Clause (1) and Clause (5) of Ex.A.4 agreement. Therefore, it is necessary to understand what the parties to the agreement meant by the expression rights of exploitation. The expression exploitation is not defined under any statute.

79. The New Oxford Dictionary of English (1998 Edition, edited by Judy Pearsall), gives the meaning of the word exploit as make full use of and derive benefit from (a resource).

80. Now, it is essential to read clause (5) of Ex.A.4 agreement dated 25.6.1990, which reads thus:

5. It is agreed that the LESSORS shall not lease out, sell or exhibit the pictures in the territories for which the rights of exploitation are hereunto granted, till the expiry of the agreement. The LESSEES also shall not exhibit the pictures in any station outside the territory leased herein.

(emphasis added)

81. The expression rights of exploitation employed in the preamble of Clauses (1) and (5) of Ex A.4 are relevant. From the meaning of the word exploit, as given in the New Oxford Dictionary of English, as noticed above, is to make full use of and derive benefit from (a resource). From the said meaning, it is clear that the assignee is permitted to make profit or benefit out of those films by different means.

82. It is clear from the above, that clause (5A) OF Ex.A.4 agreement date 25.6.1990 imposes an obligation on the lessor, i.e., the third defendant to the effect that the films shall not be leased out, sold or exhibited in the territories for which rights of exhibition of the suit films were granted will expiry of the agreement.

83. Ex.A.4 agreement also says that the lessees thereunder shall not exhibit the pictures in question in any station outside the territory mentioned in the agreement. Except these two limited rights, all other copyrights along with the negatives were given away to the second defendant. There are other rights which are not specifically mentioned in this agreement and such rights so reserved by the third defendant were mentioned in Ex.A.5.

84. From the above, it is clear that all rights i.e., with regard to theatrical and non-theatrical distribution, exhibition and exploitation, including video and T.V. rights in favour of second defendant were given by way of lease for a period of seventy years with an undertaking that the rights so given shall not be sold or exhibited by third defendant till the expiry of the agreement.

85. Now, it is necessary to look into Ex.A.5. In fact, Ex.A.5 is continuation of Ex.A.4 itself it was mentioned that the rights accrued under Ex.A.4 were to commence with effect from 1.1.1995. Ex. A.5 is dated 15.12.1995. This agreement was entered into obviously even before the expiry of Ex.A.4 agreement. Perhaps, by 1995 there was some technological advancements and therefore the second defendant sought for the broadcasting rights also.

86. A careful reading of Ex.A.5 would further goes to show that there was no deviation from the rights created under Ex.A.4 or the rights created under Ex.A.4 were not either annulled or modified in explicit terms. Therefore, in my view, the rights created under Ex.A.4 and A.5 are different rights without any deviation or change in the understanding. In other words, the rights with regard to exploitation, theatrical and non-theatrical exhibition, distribution for a period of seventy years were not disturbed in any manner. Added to that, through Clause (1) of Ex.A.5, the rights created in favour of the second defendant are as under:

1. The Assignors irrevocably assign to the Assignees the copyright for broadcasting the said Films through Satellite, Cassette, Disc, Cable, Wire, Wireless or any other system including its transmission through Cable system without restriction of geographical areas and for this purpose the Assignees are authorized to make such copies of recordings on film, tape, disc or such other media as may be required.

87. From the above, the rights created through Exs. A.4 and A.5 together, by way of lese and assignment respectively by the third defendant in favour of the second defendant are:-

(1) All rights of theatrical and non-theatrical distribution, exhibition and exploitation, including video and cable rights;

(2) Assignment of copyright for broadcasting;

(3) Such broadcasting can be through Satellite, Cassette, Disc, Cable, Wire, Wireless or any other system;

such broadcasting includes the transmission through Cable system without restriction of geographical areas.

(4) and for the above said purpose the Assignee was permitted to make copies of recordings on film,, tape, disc or such other media as may be required.

88. From the above, it can be understood that the assignee was assigned with the copyright of broadcasting which is also understood as transmission by making copies of the films by any medium like film, tape, disc or in any other media as may be required by the assignee for the purpose of exploitation. The dominant purpose of Exs.A.4 and A.5, in other words, in my considered opinion, is to make exploitation of the suit films.

89. To put it in a different way, the assignee (2nd defendant) was permitted to exploit the films by way of different modes including video and Television through Ex.A.4 and broadcasting through different means and through different mediums. Hence, it is to be understood that the expression exploitation was permitted by way of broadcasting also. In this context, it is noteworthy that till about the year 1994, transmission, exhibition or display of the films could be made only through limited sources like Television and video. Again video undisputedly means by way of a tape which, in normal parlance, is called as video tape for which a particular kind of device was being used. By about 1995, the system of display or diffusion of the visual image of the film was slowly fading out and the new system/mediums like the V.C.D. and further D.V.D, which are broadly called as disc by way of addition in Ex.A.5, itself is a manifestation that the rights assigned to 2nd defendant were regarding assignment of copyright of broadcasting through disc form also in addition to the other mediums like film and tape etc. In fact, from clause (1) of Ex.A.5 it is absolutely clear that the assignee was given the right of broadcasting through any other medium in addition to tape and through various means like Satellite, Cassette, disc, cable wire, wireless or any other system. Therefore, it can be safely concluded that V.C.D. and D.V.D which are in the form of Disc were also assigned to the second defendant. In my view, disc is the comprehensive term of a medium which is in a disc form which includes V.C.D and D.V.D. Further, no other new disc forms were available undisputedly, around the year 1995.

90. The most conspicuous factor in this case and in these two transactions covered by Exs. A.4 and A.5 is surrendering of the negatives of the work.

91. The expression work is defined under Section 2(y) of the Copyright Act.

2. (y) work means any of the following works, namely:-

(i) ..

(ii) a cinematograph film

(iii) ...

92. This implies that work means the original film in the form of negative only, from which alone the required number of copies can be made. After making such copies from the original work i.e., the negative broadcasting through different medias like tape, disc etc., were permitted to be made under Ex.A.5 agreement of assignment. Therefore, broadcasting not only through the original work but also through the copies made therefrom was permitted by the assignee.

93. The expression cinematograph film is defined under Section 2(f) of the copyright Act. It reads thus:

Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films.

94. From the above, cinematograph film means any work, in the present context, of visual image on any medium any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and such visual recording shall be construed as cinematograph by any process analogous to cinematography including video films.

95. It is common knowledge that visual image cannot be displayed to the public directly. The same can be made possible only through a medium like tape, disc or a projector etc., though a separate device or apparatus by converting the cinematograph film into an actual image form.

96. From Clause (1) of Ex.A.5 it can be understood that the assignee was permitted to broadcast all the said films through a Satellite, Cassette, disc etc., and also transmit the films through Satellite, Cassette, disc etc.

97. From the above, the expression broadcasting was broadly understood by the parties as transmission of the visual image of the film through different mediums.

98. Now, what are the means is a neither question. To illustrate, when a copy of a film is made through a medium on tape or disc the means are many to display. The owner of the film can display the image of the film through a cassette or disc form by using different kinds of apparatus. If we have a glance at the explanation appended to the definition of the expression communication to the public as contained under Section 2(ff) of the Copyright Act it is clear that communication to more than one household or place of residence including residential room like hotel or hostel can be understood as communication to the public. That means, communication of the visual image to the public may be to a single individual or a group of persons, but that is permissible only by the owner of the film or authorized person or an assignee. In other words, such communication to the public can be made only by other persons with the knowledge and permission of the copyright holder of the broadcasting rights. It further means that such a communication to the public, for the purpose of exploitation, must be only through the owner of copyright or authorized person and he alone should be the beneficiary of such communication to the public.

99. The primary object is that display or diffusion of the film should be with the knowledge of the copyright holder or the assignee, as the case may be. Any benefit thereof or right of exploitation cannot be interfered with, meddled or exploited, discreetly or indirectly by any person.

100. In my considered view, precisely that is the purpose for creating an embargo in the definition of communication to the public by permitting availability of the work being seen by the public directly or by any means of display other than by issuing copies of such work.

101. As already noticed, from a combined reading of Exs. A.4 and A.5, second defendant was leased out and assigned with respectively by the third defendant the rights of distribution, exhibition, exploitation and the right of broadcasting through various means and mediums, including making copies of such work.

102. Even if only rights of broadcast were understood to be assigned, the display/diffusion of the films is not possible by simply making copies. Such diffusion or communication to public can only be made by any means of wireless or wire, including rebroadcast. Therefore, it is to be understood that it is the right of broadcast that was assigned to the assignee through any means of diffusion, both wireless or wire through different media, including copies of such media. Further from the explanation to the definition of communication to the public under Section 2(ff) of the Copyright Act, it is clear that communication through satellite or cable or any other means to more than one household or place of residence or residential rooms of any hotel or hostel, also mounts to communication to public. In my view the above said communication to public through different means is not possible without making copies and issuing the same to others. As already noticed making of copies was permitted under Exs.A.4 and A-5. Therefore, a conjoint reading of the definitions of broadcast under Section 2 (dd) and communication to public under Section 2(ff) of the Copyright Act and the terms and conditions of Exs.A-4 and A-5 would necessarily implies that issuance of such copies through mediums including in disc forms is also permitted for the purpose of diffusion of the image of visual film.

103. Making of copies is explicitly permitted in the agreements under Exs.A.4 and A.5. In this context, the word broadcast which otherwise is communication to the public by any means shall mean that the assignee can make copies and diffuse the visual image of the film to the public by making copies of the film. But, such person, who is in possession of copy made by the copyright owner or the assignee, as the case may be, shall not make such work available for being seen by public by issuing copies of such work. It further means that the prohibition contained/created in the definition of communication to the public; is applicable only to the person who secures the copy made by the owner with consent.

104. I could perceive this because there will be a direct link by way of knowledge between the copyright owner and the person who possesses or receives the copy from such owner and thereby exclusive right of the owner is not disturbed or interfered with. If such copy of the work is made use of by other person unknown to the copyright owner the same would amount to violation of the copyright of the owner. Further, by virtue of such practice, the right of exploitation specifically created by the third defendant in favour of the second defendant through Ex.A.4 or the successive successors of the copyright would also get affected or exploited or interfered with.

105. The basic Scheme of the Copyright Act can be understood from the provisions like Section 51 of the said Act which deals with the infringement of copyright. Section 51 of the Copyright Act reads thus:

51. When copyright infringed:- Copyright in a work shall be deemed to be infringed-

(a) when any person, without a licence granted by the owner of the copyright or the registrar of copyrights under this Act or in contravention of the conditions of a licence so granted or of any conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or

(ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes and infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) when any person-

(i) makes for sale or hirer, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or

(ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

(iii) by way of trade exhibits in public.

(iv) ..

106. From the above, it is clear that no person can be permitted to be profited by communicating the work to the public without the licence given by the owner or by the competent authority, as the case may be.

107. In the instant case, the right to exploit was created through Ex.A.4, and through Ex.A.5 right to broadcast by various means and various mediums was also permitted. Therefore, when such broadcasting by way of communication to the public and exploitation thereby is assigned by the third defendant in favour of the second defendant, by necessary implication, the assignee was also permitted to make profit by broadcasting. Though, under the Copyright Act, broadcasting was meant as communication to the public by any means by diffusion, if understood comprehensively, the expressions diffusion or dissemination are almost synonyms to the expression broadcasting. Further, if it is intended otherwise, the same must have been made explicit in the terms and conditions of the agreement by way of categorical reservation of a particular right, which can be exercised in a particular manner by the lessee or assignee.

108. It is necessary to notice what is all about copyright. Section 14 of the Copyright Act deals the meaning of copyright in respect of different works. Clause (d) of Section, which is relevant reads:

14. For the purpose of this Act copyright means the exclusive right subject to the provisions of this Act to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-

(a)

(b)

(c)

(not quoted as they are not necessary for the purpose of this case)

(d) in the case of cinematograph film-

(i) to make a copy of the film, including a photograph of any image forming part thereof;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public.

(emphasis added)

109. Therefore, from the above discussion it is abundantly clear that the third defendant had assigned the copyright under Section 14(d) (i) of the Copyright Act i.e., to make copies of the film (through Ex.A.4) and to broadcast the same under Section 14(d) (iii) of the said Act.

110. In Dineshkumar vs. State of Maharastra (AIR 1984 Bombay-34), a learned Judge of the Nagpur Bench of the Bombay High court, dealing with Section 2(c) and 2(dd) of the cinematograph Act and the Bombay cinemas (Regulations) Act 1953, explaining what is meant by cinematograph, held: (at paragraph 6 at P.36) thus:

.. We cannot forget that we are living in the age of science and technology. It is true that the fundamental rule of construction is what is the intention of the Legislature. But in a fast-developing society it would not be correct to confine the intention of Legislature to the meaning attributable to the word used at the time of enactment. In a scientific age the Legislature must be presumed to be aware of an enlarged meaning of the word which it may attract with the advance of science and technology. There is no reason as to why the word apparatus used in the definition of cinematograph be given restricted meaning so as to mean only a sheet or ribbon of celluloid or the like prepared with the coating for ordinary photographs. On the other hand, any apparatus as long as it is capable of being used for representation of moving pictures or series of pictures notwithstanding whether it is used with the aid of magnetic tapes, would be an apparatus within the meaning of the word cinematograph is wisely couched in widest possible terms and as long as any apparatus which answers the description given in the definition of cinematograph must be held as cinematograph and any place wherein exhibition is given by means of cinematograph, must fall within the mischief of cinema.

111. For arriving the conclusion as extracted above, the learned Judge of the Bombay High Court in Diheshkumars case (supra) took the cue from following pertinent observations made by the Supreme Court in senior Electric Inspector v. Laxminarayan Chopra (AIR 1962 SC 159 at p. 163):

But in a modern progressive society it would be unreasonable to confine the intention of Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast-moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity.

112. A learned Judge of this Court in M/s Sunder Pictures Circuit vs. Moti Mahal theatres, (1966) 1 An.W.R.-473), considering the provisions of Sections 14 and 51 of the Copyright Acts observed:



A reference to Section of the also shows that copyright in the case of a movie mean an exclusive right to make or authorize the making a copy of the movies and to cause the movie to be seen in public.



(emphasis added)

113. In P. Thulasidas vs. K. Vasanthakumari (1991 1 law Weekly 220), the Madras High Court was dealing with a case where the negative rights were handed-over to the plaintiff-therein by the Official Assignee of the High Court of Madras, in an insolvency proceedings. In that case, it was held that the plaintiff-therein was having absolute negative rights, which are in the nature of absolute, blanket, comprehensive, exhaustive, unbounded, unconstrained since there was no reservation of any rights made. In the said case, though the negatives were handed-over through court in the insolvency proceedings, it was held that it should be understood that the transfer of negative rights would create upon such transferee the absolute rights, including the copyrights.

114. In the context of the observations made in the above decisions it is necessary to verify as to whether any rights were specifically reserved/excluded by the assignor/lessor, as the case may be in this case. Further more, there must be right or rights, which are specifically excluded, existing as on the date of assignment. In the present case, through Ex.A.4, only certain rights were alienated by way of lease by which time only video tapes were in vogue, but not the V.C.Ds and D.V.Ds. The other two modes of copyright and publication thereof took off somewhere in the year 1994. Virtually, in the present days, diffusing cinematograph films through a video tape has become an extinct mode. Obviously, the period of assignment from 1995 was for seventy years. Over a period spanning 70 years it can be on nobodys imagination or contemplation how the science and technology would take turns and the same cinematograph film would diffused to the public. It is highly unimaginable that the same or the latest mode of diffusion of the visual image would continue for decades or centuries together. If one chooses to drift into the past cinema was being exhibited only on screen in a theatre in India, or by broadcasting of sounds and signals through radio or other related media. But mostly, visual image was displayed only on screen. Few years after, video tapes had come into being and demonstration of the film took a new turn. Gradually, such demonstration of the visual image could be made possible through the computer or television through a cassette form. Years thereafter, VCDs emerged, succeeded by D.V.Ds. It is no wonder, if by this time, the apparatus of V.C.R could become a junk. This scientific background and the advancement of the same the author or the original owner or the person who holds the copyrights in different modes or the assignee or assignors, as the case may be, with absolute rights on the negatives cannot be expected to part those rights in the same manner as they understood some decades ago.

115. At this juncture, it is relevant to notice clause (6) of Ex.A.5, which reads thus:

6. The Assignor hereby declare that:

(a) They have not earlier assigned, alienated or in any manner encumbered their full and absolute right to assign the copyright to broad cast the said FILMS as aforesaid to the ASSIGNEES and agree to indemnify and keep indemnified the ASSIGNEES against any losses, claims or damages that may arise in this regard.

(b) They have not assigned or granted licence or parted with their interest in the said FILMS to any Lessee, right holder, financier, artist, technician, vide right holder, or any other person whomsoever in such a manner as to affect their copyright to broadcast the said FILMS as aforesaid and undertake not to do so at any time in the future.

(c) They have not given any right or licence with respect to the said FILMS for exhibition through any T.V. or Satellite transmission system.

(d) They fully understand and recognize that the copy right to broadcast that has been assigned as aforesaid to the ASSIGNEES is not limited or restricted in any manner whatsoever and includes without being limited to the right to telecast. Through any Indian or foreign satellite agency the reception and the transmission/distribution of the same by Cable Operators resulting thereby in its communication to the public.

(e)

116. From the above, it could be seen that the assignor had declared definite knowledge that there was no earlier assignment or alienation made in any manner with regard to the copyright to broadcast the suit films; that there was no assignment or licence or parting with of their interest in the films to anybody so as to affect the copyrights to broadcast granted in favour of the second defendant; that there was no right or licence granted to anybody for exhibition of the films through T.V. or Satellite transmission system; and further that the right of broadcasting of the films by the assignee is not limited or restricted in any manner whatsoever without being limited to the right to telecast.

117. In my considered view, sub-clause (d) of Clause(6) of Ex.A.5 is very clear to the effect that the broadcasting right is not restricted, nor limited to the right to telecast and the reception, transmission or distribution of the films through Cable Operators which amounts to communication to the public. In other words, the assignee was licensed to communicate these films to the public through Cable Operators also, in addition to the unlimited right of broadcast.

118. Therefore, from the above, I am of the considered view that the expression right of broadcast shall not be understood in a narrow or restricted manner, nor was it the understanding of the parties in the instant case, as could be seen from Exs.A.4 and A.5.

119. At the cost of repetition, and as already pointed out, making of copies of the films was already permitted both through Ex.A.4 and Ex.A.5 In view of the above position and from the language used in Exs.A.4 and A.5 it is absolutely clear that the obligations of the assignor were categorically identified and further suggests that no further rights were reserved by the assignor. I am, therefore, of the considered view that the expression broadcast shall not be given a restricted meaning. In other words, making of copies of the films and to sell them or to diffuse the films through Cable Operators for the purpose of exploitation was the basic right, which was originally created in favour of the 2nd defendant-assignee.

120. Reservation of any rights shall be specifically mentioned in the covenant. In the absence of any such explicit reservation, the rights alienated shall be construed and understood with reference to the totality of the terms and conditions and the circumstances under which such alienation was made, the intention and conduct thereof of the parties particularly the assignor. But, no inference or presumption in favour of assignor is safe to be drawn from the terms and conditions of the assignment with regard to the reservation of certain rights, particularly when negatives of the original work (cinematograph films) were surrendered to the assignee.

121. It is indiscernible as to how the first defendant could procure the copies of the suit films in order to make copies of the same through the mode of VCDs and DVDs, when all the negative of the suit films were admittedly handed over to the 2nd defendant and thereafter to his successors. The nature of such copies, which are being circulated by the first defendant is a matter of debate and perhaps may amount to infringing copyright.

122. In the instant case, a perusal of Exs. A.4 and A.5 would disclose no such reservation, let alone specific. On the contrary, Clauses (4) to (6) of Ex.A.5 would only prescribe obligations on the part of assignor.

123. From the above discussion and in the light of conjoint reading of Exs. A.4 and A.5 it is clear that the 3rd defendant assigned rights to 2nd defendant with no reservations whatsoever. As already noticed, when the assignee had been alienated with several rights, particularly transmission through various media, it is rather incomprehensible to scuttle the rights of assignee with regard to right to sell or to give on hire, for the purpose of diffusion of the visual image to the public. In my considered view if this right is understood to have not been assigned, the assignment of other rights under Sections 14(d) (i) and (iii) of thewould render otiose, in view of the technological advancement in dissemination of the visual image to the public through various new media and means.

124. Further in the plaint averments, the plaintiff had specifically stated that it is a registered partnership firm carrying on the business of buying films for procession and making video-gram CDs/VCDs and marketing the same. In the plaint it is further averred the defendants 1 and 2 are also engaged in the same business. The defendants 1 and 3 also did not dispute with regard to this position. So when the main business of the plaintiff is buying films and making copies through VCDs/DVDs and marketing them, it cannot be understood that he entered in to agreement with Srinivasa Rao for some other purpose.

125. Further when making of copies was permitted through agreements of the year 1990 and 1995 for the purpose of diffusing the visual images of original works through different media, it cannot be construed that the assignment of the rights of broad cast which in normal parlance called transmission is totally restricted and such an assignee would have to adopt the method of yester years which had become obsolete.

126. Another significant factor to be noted is that the first defendant avers in the written statement that second defendant had no right to transfer the rights of VCD and DVD to others. In this regard it is further to be noticed that third defendant i.e., M/s Nagi Reddy Charity represented by the Managing Trustee Sri B. Nagi Reddy during his life time assigned the rights through Exs. A.4 and A.5 in the years 1990 and 1995 respectively, and again the same M/s Nagireddy Charity represented by Venugopal Reddy with no proper authority (as was already held in point No.1) alienated the rights of manufacturer and sale of VCDs and DVDs in favour of the first defendant on 14.8.2001.

127. If really third defendant represented either by Sri Nagireddy or Venugopal Reddy had any grievance about the assignment of rights by second defendant in favour of Srinivasa Rao, the same should have been challenged. But that was not done. It is further brought on record that from the date of execution of Ex.A-5 dated 15.12.1995 till the year 2001 Vijaya Picturers i.e., the 2nd defendant had been exercising the rights of broadcast by way of making copies of the suit films through the media of VCDs and DVDs and diffusing the visual image of these films through different means, including by way of sale. In all these years, the third defendant i.e., the assignor never questioned the said action on the part of the second defendant. This shows that though the third defendant had full knowledge that 2nd defendant was making and selling suit films through the medium of VCDs and DVDs, i.e., in disc forms, the same was never objected to. As already noticed while answering pointNo.1, third defendant represented by Mr. B. Nagireddy was active and healthy till about 2000. Even the said Nagireddy who was the signatory to Exs.A-4 and A-5 never questioned the action of the second defendant in broadcasting/diffusing of the films through the medium of VCDs and DVDs.

128. This silence on the part of the original assignor i.e., M/s Nagireddy Charity represented by Mr. Nagireddy in the capacity of Managing Trustee or the alleged trustee Mr. B. Venugopal Reddy, till the said Srinivasa Rao, the successor assignee of Vijaya Pictures, assigned copy rights in favour of the plaintiff, shows that they are conscious of the fact that the agreements entered under Exs.A-4 and A-5 were for the purpose of making of the copies for broadcasting through different media including that of sale. The said conduct of silence on the part of the third defendant represented by the Sri Nagireddy and the act of the alleged trustee by name Venugopal Reddy in alienating the copy rights of VCDs and DVDs particularly after so many years after execution of Exs.A-4 and A-5 and more particularly while Mr. B. Nagireddy the Managing Trustee of third defendant was in a state of serious indisposition, is highly doubtful.

129. For the foregoing reasons, this point is also answered in favour of the plaintiff and against the defendant 1 and 3.

130. Point No.3:- The trial court gave a finding regarding non-joinder of the party (Sriniviasarao) in the suit. No doubt Mr. Srinivasarao who got the assignment of copyrights from the second defendant had assigned the rights in favour of the plaintiff through Ex.A.3.

131. Learned Counsel for the respondents/defendants submits that as per Section 61 of the Copyright Act, Srinivasarao is a necessary party and the plaintiff should be non-suited for not making Srinivasaro as a necessary party to the suit.

132. This contention is repelled by the learned Senior Counsel appearing for the appellant/plaintiff since no relief is sought for against Srinivasaroa and hence Sriniviasarao need not be added as a party to the suit.

133. In this connection, it is to be seen that the entire transaction from the third defendant to the second defendant in 1990 and 1995 from the second defendant to Srinivasarao and from Srinivasarao to the plaintiff was not disputed by the first defendant. In fact, these transactions were admitted both in the pleadings in the written statement and also in the evidence of D.W.1. When once the transaction in favour of Srinivasarao and in turn from him to the plaintiff is not in dispute and when the prime contention of the first defendant is to the effect that the second defendant itself has no right to assign the copyrights in favour of Srinivasarao in view of his admission of the said transactions by third defendant, the trial court in my considered view is absolutely not correct in recording a finding that the suit is bad for non-joinder of Srinivasarao. However, since all the transactions are admitted, it is only the interpretation of Exs. A.4 and A.5 which is under challenge and in view of the findings recorded on points 1 and 2, this point in fact need not be attached with much significance.

134. Another interesting fact borne on record is that the first defendant while admitting the transactions between the third and second defendants by way of execution of agreements under Exs.A-4 and A-5, dated 25-06-1990 and 15-12-1995 respectively pleaded in the written statement that the second defendant i.e., M./s. Vijaya Pictures had no right whatsoever to alienate the rights of VCD and DVD through EX.A-5, dated 15-12-1995. Surprisingly, the first defendant did not challenge the said transactions between the third and second defendants with full knowledge, with effect from the date of execution of Ex.A.5, i.e., 15.12.1995. On the contrary, without putting the second defendant on notice, third defendant represented by Mr. B. Venugopal Reddy deliberately alienated the copyrights of VCD and DVD on 14-08-2001 in favour of first defendant. Further, this alienation was made by one Mr. B. Venugopal Reddy in the capacity of trustee. The validity or otherwise of the said transactions had already been discussed in Point No-1. In view of the above reasoning, this point is also answered in favour of the plaintiff and against the defendants.

135. In the result, this appeal is allowed and the suit is decreed with costs as prayed. However, there shall be no order as to costs in this appeal.