Input:
Appeals No. 522 and 523 of 1962.
Appeals by special leave from the judgment and order dated November 30, 1960 of the Kerala High Court in A. section No. 233 of 1959 and O.P. No. 19 of 1952.
C.B. Agarwala, N. K. Anand and J. B. Dadachanji, for the appellant (in both the appeals).
G.S. Pathak and Sardar Bahadur, for the respondent (in both the appeals).
739 The Judgment of the Court was delivered by Ayyangar J.
These two appeals, by special leave, are con cerned with the validity of the respondent firm 's claim as the registered proprietor of a Trade Mark `Navaratna Pharmaceutical Laboratories ' used by it on its medicinal preparations.
The two appeals arise out of different proceedings but before narrating their history it would be convenient to briefly set out the facts upon which the claim of the respondent to the exclusive use of this Trade Mark is based.
The respondent, as stated already, is a firm and it carries on business at Ernakulam in the same name and style as the Trade Mark now in controversy "Navaratna Pharmaceutical Laboratories".
As its name indicates, the firm manufactures medicinal products.
The business of the firm was founded sometime in 1926 by one Dr. Sarvothama Rao who is now no more.
When started, the business was called 'Navaratna Pharmacy ' but from January, 1945 the name of the business was changed to the present one Navaratna Pharmaceutical Laboratories.
From the very beginning the proprietors used the Trade, Mark "Navaratna" on the products which they manufactured and sold.
In December, 1928 the word 'Navaratna ' and the name 'Navaratna Pharmacy ' as connoting the products of the respondent firm were registered by a declaration of ownership before the Registrar of Assurances, Calcutta.
When a legislation substantially similar to the Indian was enacted in the State of Cochin [Vide the Cochin 19 of 1199 (1944)] the respondent firm registered the word 'Navarama ' as a Trade Mark in respect of its medicinal preparations, on January 31, 1947 and another mark consisting of the words 'Navaratna Pharmaceutical Laboratories ' to denote the same products on February 17, 1948.
There is evidence that the respondent firm has been having an expanding business in the products which it manufactures and has been selling the same under the above and other cognate names, and this has continued ever since.
The Trade Marks (Amendment) Act, 1946 (Act 12 of 1946) inserted section 82 A in the of 1940 and under this provision the Central Government was empowered to enter into reciprocal arrangements with Indian States for mutual recognition of TradeMarks registered in the other territory.
There was a similar provision in section 78 A of the Cochin Act and availing itself of this provision the respondent firm applied for the registration of the words 'Navaratna Pharmaceutical Laboratories ' in the Trade spp./65 4 740 Marks Registry at Bombay.
The application was advertised and no opposition having been entered, the Trade Mark was registered.
Pausing here, certain facts have to be set out in relation to the :appellant, since they are material for understanding the Origin Of the proceedings which have given rise to these appeals.
The appellant has, for some Years Past, been carrying on business in the preparation of Ayurvedic Pharmaceutical Products at Jullundur City in East punjab under the name of the 'Navaratna Kalpa Pharmacy " and had been vending the medicines Prepared by him under the name 'Navaratna Kalpa" while so, in October, 1946, The applied for the registration of the Words "NaVaratna Kalpa" as a Trade Mark for his medicinal preparations.
This application was advertised in April, 1950, and the, respondent firm opposed the application for registration on the ground that the word Navaratna" was descriptive and, having no distinctiveness, could not be registered.
This objection prevailed and the registration was refused.
This led to the proceedings which have culminated in these appeals.
In the first instance, the appellant moved the Registrar Of Trade Marks for removing from the register the trade mark "Navaratna" and the word "Navarama" in the Other mark of the respondent.
By this date, however, the respondent had filed wit No. 233 of 1951 (from which C.A. No. 522 of 1962 arises) before the District Judge, Anjikaimal, for a permanent injunction restraining the appellant from advertising, selling or offering for sale any preparations under a trade mark combining the word 'Navaratne or any similar word etc.
By reason of the pendency of this proceeding in which the validity of the registration of the respondent 's mark was directly involved the Registrar refused his application, and directed the appellant to move the High Court within whose jurisdiction the District Court was situated for the rectification of the register by deleting the respondent 's mark.
The appellant accordingly Mod O.P. No. 19 of 1952 in the High Court of Travancore Cochin praying that the registration of the word " 'Navaratna:" by itself or as part of other marks as a trade mark for goods belonging to the respondent be removed from the register.
Civil Appeal 523 of 1962 arises out of the order of the High Court on this petition.
This original petition No. 19 of 1952 was kept pending in the High Court after it was ready for hearing and was heard along with the appeal against the decree of the District Judge in Original Suit No. 233 of 1951.
741 The original suit was, as stated earlier, for a perpetual injunction against the appellant for using the word "Navaratna" and the cause of action for that suit was stated to be that the plaintiff (respondent before us) being proprietor of the two registered trade marks "Navaratna" and "Navaratna Pharmaceutical Laboratories" had an exclusive right to the use of those marks for his medicinal preparations and that the said right was infringed by the defendant (appellant before us) advertising his goods under the name "Navaratna Kalpa" with the trade origin of the goods being described as "Navaratna Kalpa Pharmacy".
There was also an allegation that by use of these marks the defendant was passing off his goods as those of the plaintiff.
By his written statement the defendant raised principally three points: 1.(a)That the word "Navaratna" in its etymo logical sense meant Ayurvedic preparations of a particular composition and that the word had been generally adopted by several firms and organisations for designating their preparations which they vended with that description.
It was therefore submitted that the plaintiff could claim no exclusive title to the use of that word which was a common word for the description of the product as a trade mark to designate its pharmaceutical preparations.
1.(b) As regards the trade mark "Navaratna Pharmaceutical Laboratories" which was in fact the name in which the plain tiff carried on its business, the defence was that the crucial integer in that mark was the expression "Navaratna" and that if the plaintiff was not entitled to the exclusive use of the word "Navaratna" to designate its products, the combination of the word with the two other words "Pharmaceutical" and Laboratories" which were ordinary English words descriptive of the place where medicines were prepared could not render the trade mark a registerable one.
For them two reasons the defence was that no claim could be made to relief under section 21 of the(2)Next it was submitted that even on the basis that the plaintiff was entitled to the use of the word "Navaratna ' either alone or in the combination "Navaratna Pharmaceutical Laboratories", still the use, of the trade mark by the defendant of the words "Navaratna Kalpa" and "Navaratna Kalpa Pharmacy" were not 742 either identical with nor deceptively similar to the plaintiffs marks and therefore he was not guilty of any infringement.
(3)As regards the claim for relief on the basis of passing off, the defendant laid stress upon the packing, get up and the manner in which the trade origin of the goods was clearly brought out in the packages in which his preparations were marketed and it was submitted that they clearly negatived any possibility of passing off.
Appropriate issues were raised based on the pleadings and the contentions just now indicated and the learned District Judge found: (1) that having regard to the method of packing adopted and theother features of the get up etc., on which the defence had relied,the defendant was not guilty of passing off; (2) that the word "Navaratna" was a common word in Ayurvedic phraseology and consequently the plaintiff could not claim any exclusive title to the use of that word by reason of his having used it for his products even though this had been for a number of years.
To reach this finding the learned District Judge pointed out that it was brought to his notice that there were several concerns manufacturing and vending Ayurvedic preparations which had for a very long time past either used marks which included that word and had described their products by calling them "Navaratna" either alone or in combination with other words.
The right of the plaintiff to relief on the ground of the infringement of the mark 'Navaratna ' was therefore disallowed.
Dealing next with the question as to whether the mark "Navaratna Pharmaceutical Laboratories" could be validly registered and rights claimed for such a registration, the learned Judge answered it in the affirmative pointing out that no evidence was placed before the Court of the use by any other person, firm or concern of that name and that there was evidence which was uncontradicted that trade name "Navaratna Pharmaceutical Laboratories" or some variant of the same had been used as a trade mark by the plaintiff for a very long time and had come in the market to denote exclusively the goods of the plaintiff.
The learned District Judge further held the mark "Navaratna Pharmaceutical Laboratories" or its permissible variants had been used long before February 25, 1937 and having acquired factual distinctiveness, was registerable under the proviso to section 6(3) of the Act.
The plaintiff was, therefore, granted a decree for an injunction confined to the trade mark "Navaratna Pharmaceutical Laboratories".
743 From this judgment the appellant filed an appeal to the High Court and the learned Judges heard the appeal along with the Original Petition under section 46 of the Act filed by the appellant.
By a common judgment the learned Judges confirmed all the findings and the decree of the learned District Judge and made an order in the, Original Petition conformably to this decision.
These two appeals have been preferred by the appellant after obtaining special leave from this Court in these two matters respectively.
The first submission of Mr. Agarwala, learned Counsel for the appellant was that the judgment of the High Court holding the respondent 's claim to the trade mark "Navaratna Pharmaceutical Laboratories" as a validly registered mark was really inconsistent with their finding that "Navaratna" which was the crucial and important word in that trade mark was a descriptive word in regard to which the respondent could obtain no exclusive right by any amount of user.
His further submission was that if he was right in this, the addition of the words "Pharmaceutical" and "Laboratories" which were common English words of ordinary use to designate the place where pharmaceutical products are manufactured, were, on the terms of section 6 of the and even otherwise, incapable of acquiring distinctness by mere user.
He, therefore submitted that the plaintiff had no exclusive right to the use of the mark as a registered trade mark and that consequently his claim for the relief of perpetual injunction Under section 21 of the was not sustainable.
For this purpose learned Counsel relied on the provisions of section 6 of the which provided the positive qualifications for registrability of trade mark on the relevant date That section runs: "6.(1) A trade mark shall not be registered unless it contains or consists of at least one of the following essential particulars namely: (a) the name of a company, individual or firm, represented in a special or particular manner; (b) the signature of the applicant for registration or some predecessor in his business; (c) one or more invented words; (d) one or more words having no direct reference to the character or quality of the goods, and not being, according to its ordinary significa 744 tion, a geographical name or surname or the name of a sect, caste or tribe in India; (e) any other distinctive mark, provided that a name, signature, or any word, other than such as fall within the description in the above clauses, shall not be registerable except upon evidence of its distinctiveness.
(2)For the purposes of this section, the expression distinctive ' means adapted, in relation to the goods in respect of which a trade mark is proposed to be registered, to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such connection subsists, either generally or, where the trade mark is proposed to be registered subject to limitations, in relation to use within the extent of the registration.
(3)in determining whether a trade mark is adapted to distinguish as aforesaid, the tribunal may have regard to the extent to which (a) the trade mark is inherently so adapted to distinguish, and (b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish : Provided that in the case of a trade mark which has been continuously used (either by the applicant for the registration or by some predecessor in his business, and either in its original form or with additions or alterations not substantially affecting its identity) in relation to which registration is applied for, during a period from a date prior to the 25th day of February, 1937, to the date of application for registration, the Registrar shall not refuse registration by reason only of the fact that the trade mark is not adapted to distinguish as aforesaid, and may accept evidence of acquired distinctiveness as entitling the trade mark to registration.
" The learned Counsel particularly stressed clause (d) of sub section (1) which excluded words "having direct reference to the character or quality of the goods" from being treated as distinctive, and thus qualifying for registrability. 'Me word 'Navaratna ' having been held to be not distinctive and indeed incapable of becoming 745 distinctive by reason of its being merely the Sanskrit word for describing Ayurvedic preparations of a particular composition, he submitted that the words "Pharmaceutical ' and 'Laboratories ' could neither by themselves nor in combination with it confer upon that word the quality of distinctiveness having regard to their ordinary descriptive signification.
If the matter had to be decided in terms of section 6(1) alone without reference to the terms of the proviso to sub section(3) to which we shall advert presently we see great force in the submission of the learned Counsel.
As Pry L. J. said in : Dunn(1) with reference to the cor responding law in U.K. which has been reproduced by section 6 of the Indian Act: "It is said that the words 'Fruit Salt ' have never been used in collocation except by Mr. Eno.
Be it so . .
I cannot help regarding the attempt on Mr. Eno 's part as an instance of that perpetual struggle which it seems to me is going on to enclose and to appropriate as private property certain little strips of the great open common of the English language. 'Mat is a kind of trespass against which I think the courts ought to set their faces.
" There can be no dispute either that the words 'pharmaceutical Laboratories" used in relation to medicinal preparations have "a direct reference to the character of the goods".
Speaking of the mark "Torq set" in respect of screws bolts, rivets and studs and fastening devices, Lloyd Jacob observed :(2) "Direct reference corresponds in effect to aptness for normal description".
Judged by this test it could not be seriously contended that the prohibition in section 6 (1) (d) would be attracted to this mark.
In the present case, the words 'Pharmaceutical ' and 'Laboratories ' would have a direct reference to the character of the goods since the trade marks to which it is claimed to attach them are medicinal or pharmaceutical products.
In this connection reference may also be made to a decision of the House of Lords to which Mr. Agarwala drew our attention.
Yorkshire Copper Works Limited 's Application for a Trade Mark.(8) Yorkshire Copper Works Ltd. vs Registrar of Trade Marks(4) was an appeal from (1) at 386.(2) In the matter of American Screw Co. 's appln.at 346. (3) (4) (1952) 69 R.P.C. 207; 746 the Court of appeal affirming the decision of the Divisional Court which rejected an appeal against an order of the Registrar refusing to register the Trade Mark "Yorkshire" for "solid drawn tubes and capillary fittings all made of copper or non ferrous copper alloys".
The refusal to register was on the ground of the word being geographical and so being disqualified for registration under a provision of the U.K. of 1938 identical in terms with section 6 (1 ) (d) of the Act.
The applicants led evidence to establish and claimed that they had established that everyone concerned in the trade in copper tubes understood "Yorkshire Tubes" as meaning the products of the applicant.
It was therefore contended that the word 'Yorkshire ' had lost its primary geographical significance and had become 100% distinctive of the applicant 's goods.
In dismissing the appeal Lord Simonds, Lord Chancellor observed "I am content to accept the statement reiterated by their learned Counsel that the mark had acquired 100 per cent distinctiveness.
In spite of this fact the Registrar refused registration and has been upheld in his refusal by Lloyd Jacob, J. and the unanimous opinion of the Court of Appeal. .
Here I must express my emphatic dissent from the proposition which was strenuously urged by Counsel for the Appel lants that distinctiveness in fact is conclusive at any rate, if there is what he called 100 per cent distinctiveness.
In my opinion the decisions of this House in the W. & G. case and the Glastonbury case are fatal to this proposition and I am content to accept as accurate the clear exposition of those cases given by the learned Master of the Rolls in the present case.
He took the view which I share that the Court of Appeal had in the Liverpool Cable case rightly interpreted the opinion of Lord Parker in the W. & G. case and that this House, in its turn, in the Glastonbury case endorsed that interpretation.
Accepting that view of the law, which indeed, if the matter were res integral I should not hesitate to commend to your Lordships, I do not see how the Registrar could have come to any other conclusion.
Unless, having found distinctiveness in fact, he needed to pay no regard to the other factor of inherent adaptability, he was faced by the fact that there could not well be a geographical name less "inherently adapted" than Yorkshire to distinguish the 747 goods of the Appellants.
I do not propose to try to define this expression.
But I would say that, paradoxically perhaps, the more apt a word is to describe the goods of a manufacturer, the less apt it is to dis tinguish them: for a word that is apt to describe the goods of A, is likely to be apt to describe the similar goods of B.
It is, I think, for this very reason that a geographical name in prima facie denied registrability.
For, just as a manufacturer is not entitled to a monopoly of a laudatory or descriptive epithet, so he is not to claim for his own a territory, whether country, county or town, which may be in the future, if it is not now, the seat of manufacture of goods similar to his to own.
Of course, where the geographical area is very small there is a possibility of the inherent incapability,to attain distinctiveness becoming attenuated, but we do not go into these details as they are unnecessary for our present purpose.
The learned Counsel is therefore right in his submission that if the right of the respondent to the registration of his mark had to be considered solely on the terms of section 6(1), the appellants submissions as regards the non registrability of the respondent 's mark would have great force.
That, however, is not the position here.
The learned District Judge has, on the basis of evidence recorded a finding that the mark or trade name 'Navaratna Pharmaceutical Laboratories ' had by user acquired distinctiveness in the sense of indicating the respondent and the respondent alone as the manufacturer of goods bearing that mark and that finding has been affirmed by the learned Judges of the High Court.
The learned District Judge has further held that the respondent has been using that mark or a permissible variant of that mark from long before the 25th February 1937, and that in consequence, notwithstanding that the mark might not satisfy the requirements of section 6(1) as explained by sub sections(2) & (3) of that section, still it was registrable as a Trade Mark by virtue of the proviso to section 6(3) of the Act.
We do not find any error in the approach of the learned District Judge to this question.
In the first place, there was the intention on the part of the proprietor of the mark to indicate by its use the origin of the goods on which it was used.
There was also indubitable evidence regarding the recognition of that mark as indicating origin on the part of that section of the public who buy these goods in the course of trade or for 748 consumption.
Thus the finding was that by reputation the mark had come to denote the goods of the.
Besides the words were not a merely laudatory expression in relation to the goods, but descriptive though as such they would prima facie not be distinctive.
Length of user would, of course, be a material factor for the mark to become distinctive and the learned District Judge found that by such a long user the mark had become exclusively associated with the goods of the respondent in the market.
Though the learned Judges of the High Court have not dis cussed this question in their judgment, they have affirmed in general terms the conclusions recorded by the District Judge on this point.
There being concurrent findings on the question as to whether the respondent 's mark has acquired distinctiveness as a matter of fact, and there being no error of law in the criteria applied for reaching them, it would not be open to the appellant to challenge the correctness of that finding and, indeed, learned Counsel for the appellant did not attempt to do so.
What he, however, submitted was that on a proper construction of the proviso to section 6(3) of the Act marks which from their very nature were inherently incapable of acquiring distinctiveness could not qualify for registration and the Courts below therefore erred in holding the marks which because of their being descriptive of the goods were inherently incapable of registration, to be registrable.
This takes us to the consideration of the proper construction of the proviso.
Closely examined, the arguments of the learned Counsel on this matter boils down to this that the proviso really did not introduce any standard of distinctiveness different from that which had been provided by the terms of section 6(1) as explained by sub section(2) and the main part of sub section(3); in other words, the submission was that in cases where the mark fell within the prohibition of cl.(d) of sub section(1) it could not qualify for registration on the basis of acquired distinctiveness by long user as an "old mark" i.e., from before February 25, 1937.
In support of this submission the learned Counsel relied on the view expressed by Mr. section Venkateswaran in his comments on section 6(3) at pages 152 154 of his Treatise on Trade Mark Act 1940 which view he submitted had found judicial acceptance in a decision ,of the Calcutta High Court reported as In the matter of India Electric Works Ltd.(1) (1) 749 Before proceeding further we should, add what there is a decision of the Allahabad High Court in Ram Rekhpal vs Amrit Dhara Pharmacy(1) in which the question of the construction of the proviso came up for consideration.
The learned Judges, however, without any discussion of the points involved, expressed their opinion that even if the mark came within the prohibition in cl.(d) of sub section(1) of section 6, an old mark i.e., marks in use from before February 25, 1937 would qualify for registration if there was evidence of factual a distinctiveness.
This decision has been referred to and relied on by the learned District Judge in the case before us; but as it does not contain any reasons for the decision, it may be omitted from consideration.
The main part of the learned Counsel 's submission as regards, the construction of the proviso was based on the comment in Mr. section Venkateswaraies treatise which learned Counsel adopted ' as part of his argument.
no primary requisite for attracting the proviso is that the trade mark must have been continuously used in relation to the same goods as those in relation to which registration is applied for from a period prior to February 25, 1937.
It is true that in the present case the relevant mark as used before February 25, 1937 was "Navaratna Pharmacy" and ' the mark now on the register the validity of whose registration under the is in question is "Navaratna Pharmaceutical Laboratories".
But it would be noticed that by the words within the brackets in the proviso marks "either in their original form or with additions or alterations not substantially affecting its identity" qualify for the special privileges accorded ' to old marks.
It was not contended before the Courts below or before us that the mark now in question did not satisfy this test when compared with that which the respondent was using prior to February 25, 1937.
This being conceded, the only question for consideration is whether the last part of the proviso that the Registrar may accept evidence of acquired distinctive ness as entitling a mark for registration notwithstanding the fact that "the trade mark is not adapted to distinguish as aforesaid", could apply to cases where the trade mark has a direct reference to the character or quality of the goods or is otherwise not qualified for registration under cl.(d) of sub section.
The entire argument on this part of the case is merely based on the use of the expressions 'adapted to distinguish as aforesaid ' and 'distinctiveness ' in the concluding portion of the proviso.
It was not disputed that on the words of the proviso when the Registrar recorded a finding that the mark submitted for registration was "not adapted to distinguish as aforesaid", that is, that the mark did not fulfill the requirements of the tests suggested by the main part of sub section(3), he was authorised to permit evidence being led as to "acquired distinctiveness" and to register the mark, if the evidence satisfied him on this point.
It was, however, urged that the word 'distinctiveness ' in the expression "acquired dis tinctiveness" had to be understood in the sense in which it is defined in sub section(2) where it is stated to mean practically " adapted to distinguish", the content and the significance of which is elaborated in sub section.
The submission was that at that stage, when accepting evidence of acquired distinctiveness one is again thrown back on sub sections (2) and (3), with the result that unless the tests of distinctiveness and of "adaptation to distinguish" which are explained in sub sections(2) and (3) are satisfied, no amount of evidence led before the Registrar of factual acquired distinctiveness would suffice to permit registration.
In other words, the argument was that if a mark was one which was prohibited from being registered under section 6 (1 ) (d), that ban which is not lifted by proof of acquired distinctiveness in the case of new marks not falling within the proviso is not lifted either in the case of old marks which had been in use continuously as a trade mark from before February 25, 1937.
It would be seen that if this argument were accepted, the proviso adds nothing to the section and makes no variation in the law as regards old marks which had been in use continuously from before the specified date.
It would also make meaningless the words 'shall not refuse registration ' by reason only of the fact that the trade mark is not 'adapted to distinguish ' occurring in the proviso.
It was said that this construction which would render the proviso otiose and a futility was necessitated by the opening words of sub section(2) where the definition of the expression "distinctive" was said to be "for the purposes of this section and that the proviso to the sub section being part of the section, the words there had to be understood in the sense defined.
We feel unable toaccept this construction, nor do we read the opening words ofsub section(2) as necessarily leading to this result.
Briefly stated,"distinctive" is defined in sub section(2) as "adapted to distinguish" and the latter phrase explained in language which might exclude what is negatived by section 6 (1 ) (d).
But that, however, does not solve the problem created by the words of the proviso "Shall not refuse registration by reason only of the fact that the trade mark is not adapted to distinguish as aforesaid".
The use of the words "as aforesaid" takes one back first to sub section 751 (3) and then on to sub sectionand necessarily also to the provision in section 6(1) (d) where marks which are incapable of acquiring distinctiveness are dealt with.
Hence even on the terms of the proviso, however construed, it is not possible to escape the conclusion that a mark which is not "adapted to distinguish" by the application of the tests laid down in section 6(1) could still qualify for registration by proof of acquired distinctiveness.
For the present purpose it is unnecessary to enter into an examination of the general nature of a proviso and of its function in statutes.
It is sufficient to point out that it would not be a reasonable construction of any statute to say that a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing merely because of the word 'distinctiveness ' used in it which has been defined elsewhere.
A construction which would lead to old marks and new marks being placed on the same footing and being subjected to the same tests for registrability cannot, in our opinion, be accepted.
In this connection, some support was sought for the cons truction pressed upon us by the learned Counsel for the appellants by reference to section 20 of the Act which reads : "(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark unless such trade mark has been continuously in use since before the 25th day of February, 1937, by such person or by a predecessor in title of his and unless an application for its registration, made within five years from the commencement of this Act, has been refused; and the Registrar shall, on application in the prescribed manner, grant a certificate that such application has been refused.
(2)Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.
" It was urged that if every mark which had been in use prior, to February 25, 1937 qualified for registration under the proviso to section 6(3), there could really be no cases where the Registrar could refuse registration, with the result that the contingency contemplated by section 20 of the Act could never arise.
This was 752 stated to support the construction of the proviso which learned Counsel commended for our acceptance.
Here again, we do not see any substance in this argument.
A mark might have been used even prior to February 25, 1937; but it might not quality for registration under the proviso to section 6(3) by not having acquired that degree of factual distinctiveness which the Registrar considers is sufficient to enable it to qualify for registration.
It is therefore possible to conceive of cases where even if the proviso to section 6(3) were construed in the manner in which we 'have indicated, there would still be scope for the rejection by the Registrar of a trade mark in use prior to the specified date.
That in our opinion, is the true ratio of the decision of McNair, J. in India Electric Works Ltd.(1) on which Mr. Agarwala relied in this connection.
The Court was there concerned with an appeal from an order of the Registrar refusing registration in respect of an old mark.
The mark in question was the word 'India ' as applied to electric 'fans.
The learned Judge dismissed the appeal on the ground that the word 'India ' was a geographical word and therefore would not qualify for registration being prohibited by section 6 (1) (d).
The learned Judge also considered whether the mark could 'qualify for registration under the proviso.
The conclusion reached on this part of the case was that the applicant had not established factual acquired distinctiveness to qualify for registration, and that the Registrar was therefore right in the finding that he recorded on this matter.
Proof of user, the learned Judge hold, was not ipso jure proof of acquired distinctiveness 'and this is obviously right and does not advance the appellant 's submission in regard to this question.
Though there are some observations which might be wider, it substantially proceeded on ,accepting the finding of the Registrar regarding the applicant 'having failed to establish factual acquired distinctiveness for his mark.
That case therefore does not assist the learned Counsel for the construction that he seeks to put on the proviso to section 6(3).
As we have pointed out earlier, there are concurrent findings of fact on this point that through long user from 1926 onwards, the mark had become associated exclusively in the market with the pharmaceutical products manufactured by the respondent.
The finding is not capable of being challenged before us and was not, in fact, attempted to be challenged.
From this it would follow that the respondents mark was rightly registered and that ,(1) 753 he was entitled to protect an invasion of his right by seeking a perpetual injunction from persons who invaded those rights.
The next part of the learned Counsel 's argument related to the question whether the Trade Mark used by the appellant viz., `Navaratna Pharmacy ' "so nearly resembled the trade mark of the respondent as to be likely to deceive or cause confusion in the course of trade" within section 21 of the Act.
The mark is not identical and so the question is whether the appellant 's mark is deceptively similar to the respondent 'section On this matter also, there are concurrent findings of the Courts below regarding the deceptive similarity of the two marks.
That the words 'Navaratna Pharmacy ' and 'Navaratna Pharmaceutical Laboratories ' are similar in the sense spoken of by section 21 does not appear to us to be of much doubt.
But the learned Counsel 's submissions were two fold: (1) that the Courts below had found that the word 'Navaratna ' was a word in common use in the trade in Ayurvedic preparations and the courts rightly held the respondent could not claim exclusive rights to the use of that word in the mark.
In these circumstances, Mr. Agarwala submitted that the Courts below should have insisted on either the respondent disclaiming exclusive rights to the word 'Navaratna ' in the trade mark 'Navaratna Pharmaceutical Laboratories ' or that the disclaimer should have been ordered as a condition of the trade mark remaining on the register under section 13 of the Act.
, (2) The finding by the Courts below that the marks were deceptively similar was directly contrary to and inconsistent with their finding that the packing, label, get up etc., in which the appellant 's goods were marketed was not likely to cause any confusion in the market or deceive any purchasers, wary or otherwise on the basis of which the claim for passing off was rejected.
As regards the first contention regarding disclaimer and the reference to section 13, the matter stands thus.
Under the terms of section 13 of the Act, an order directing disclaimer could have been passed only by the High Court when dealing with the appellant 's application under section 46 (2) of the Act.
The application that he filed contained no prayer to direct a disclaimer, and no submission appears to have been made to the High Court when dealing with the petition or even with the appeal that the respondent should be directed to disclaim.
In these circumstances, we do not consider it proper to permit the appellant to urge this argument before us.
754 The other ground of objection that the findings are inconsistent really proceeds on an error in appreciating the basic differences between the causes of action and right to relief in suits for passing off and for infringement of a registered trade mark and in equating the essentials of a passing off action with those in respect of an action complaining of an infringement of a registered trade mark.
We have already pointed out that the suit by the respondent complained both of an invasion of a statutory right under section 21 in respect of a registered trade mark and also of a passing off by the use of the same mark.
The finding in favour of the appellant to which the learned Counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in their colour and other features and their general get up together with the circumstance that the name and address of the manufacture of the appellant was prominently displayed on his packets and these features were all set out for negativing the respondent 's claim that the appellant had passed off his goods as those of the respondent.
These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy in the event of the use by another of that mark or a colourable imitation thereof.
While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement.
The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (Vide section 21 of the Act).
The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement.
No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered.
trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark.
But there the correspondence between the two ceases.
In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant 's mark is likely to deceive, but where the similarity 755 between the plaintiff 's and the defendants mark is so close either visually, phonetically or otherwise and the court reaches the .conclusion that there is an imitation, no further evidence is required to establish that the plaintiff 's rights are violated.
Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff.
When once the use by the defendant of the mark which is claimed to infringe the plaintiffs mark is shown to be "in the course of trade,, the question whether there has been an infringement is to be decided by comparison of the two marks.
Where the two marks are identical no further questions arise; for then the infringement is made out.
When the two marks are not identical, the, plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiffs registered trade mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered (Vide section 21).
A point has sometimes been raised as to whether the words "or cause confusion" introduce any element which is not already covered by the words "likely to deceive" and it has sometimes been answered by saying that it is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive".
But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar.
This has necessarily to be ascertained by a comparison of the two marks the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards.
The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration.
The resemblance may be phonetic, visual or in the basic idea represented by the plaintiffs mark.
The purpose of the comparison is for determining whether the essential features of the plaintiff 's trade mark are to be found in that used by the defendant.
The identification of the essential features of the mark is in essence p./65 5 756 a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade.
It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff.
The mark of the respondent which he claims has been in fringed by the appellant is the mark 'Navaratna Pharmaceutical Laboratories ', and the mark of the appellant which the respondent claimed was a colourable imitation of that mark is 'Navaratna Pharmacy.
Mr. Agarwala here again stressed the fact that the 'Navaratna ' which constituted an essential part or feature of the Registered Trade Mark was a descriptive word in common use and that if the use of this word in the appellant 's mark were disregarded, there would not be enough material left for holding that the appellant had used a trade mark which was deceptively similar to that of the respondent.
But this proceeds, in our opinion, on ignoring that the appellant is not, as we have explained earlier, entitled to insist on a disclaimer, in regard to that word by the respondent.
In these circumstances, the trade mark to be compared with that used by the appellant is the entire registered mark including the word 'Navaratna '.
Even otherwise, as stated in a slightly different context:(1) "Where common marks are included in the trade marks to be compared or in one of them, the proper course is to look at the marks as wholes and not to disregard the parts which are common".
It appears to us that the conclusion reached by the Courts below that the appellants mark is deceptively similar to that of the respondents cannot be stated to be erroneous.
Besides, this question of deceptive similarity is a question of fact, unless the test employed for determining it suffers from error.
In the present case, it was not suggested that the Courts below had committed any error in laying down the principles on which the comparison has to be made and deceptive similarity ascertained.
(See per Lord Watson in Attorney General for the Dominion of Canada vs Attorney General for Ontario etc.) (2) .
As there are concurrent findings of fact on this matter, we do not propose to enter into a discussion of this question de novo, since we are satisfied that the conclusion reached is not unreasonable.
Lastly it was submitted that this was a case of honest con current user within section 10(2) of the Act.
This point was, however, not raised in any of the Courts below and we do not propose to entertain it for the first time in this Court.
The result is, the appeals are dismissed with costs one set of hearing fee.
Appeals dismissed.

Output:
The respondent, a firm manufacturing medicinal products, was the proprietor of two registered trade marks "Navaratna" and "Navaratna pharmaceutical Laboratories " from a, period prior to 25th February 1937.
When the appellant, who was also a manufacturer of medicinal preparations, sought the registration of the words "Navaratna Pharmacy" as his trade mark the respondent objected successfully.
The appellant then moved the Registrar of Trade Marks for removing from the register, the trade mark "Navaratna" and for deleting the word "Navaratna" from the other trade mark of the respondent.
The Registrar directed him to move the High Court for the rectification, as the respondent had by that time filed a suit in the District Court for a permanent injunction restraining the appellant from selling any preparation under a mark containing the word "Navaratna". 'Me appellant accordingly filed an original petition in the High Court.
The suit in the District Court was decreed in favour of the respondent with respect to the trade mark "Navaratna Pharmaceutical Laboratories.
" An appeal against the decree filed by the appellant, and his Original Petition were heard together by the High Court and the decree of the District Court in favour of the respondent was confirmed.
It was held that : (i) having regard to the method of packing adopted by the appellant, he was not guilty of passing off, (ii) the respondent was not entitled to any relief on the ground of the infringement of the mark "Navaratna" as it was a common word in Ayurvedik phraseology and used in connection with several medicinal preparations and (iii) the trade name "Navaratna Pharmaceutical Laboratories" had been use as a trade mark, by the respon dent, for a very long time and had come to denote exclusively his goods; and that the trade mark having been in use from before the specified date February 25, 1937 and having acquired factual distinctiveness, was registerable under the proviso to section 6(3) of the .
In appeal to the Supreme Court it was contended that : (i) the decision of the High Court that the trade mark "Navaratna Pharmaceutical Labradortories ' was validly registerable was inconsistent with the finding that "Navaratna" which was the crucial word in the trade mark was only a descriptive word in regard to which the respondent could obtain no exclusive right, and (ii) the finding that the marks of the appellant and respondent were deceptively similar was inconsistent with the finding that the packing in which the appellant 's goods were marketed was not likely to cause confusion or deceive purchasers.
HELD : (i) A mark which is not "adapted to distinguish" by the application of the tests laid down in section 6(1) of the Act, could still qualify for registration by virtue of the proviso to section 6(3), by proof of acquired distinctiveness.
Under the proviso, with respect to marks in use from a date prior to 25th February 1937, "the Registrar shall not refuse registra 738 tion by reason only of the fact that the trade mark is not adapted to distinguish as aforesaid, and may accept evidence of acquired distinctiveness as entitling the trade mark to registration".
The word "distinctiveness" cannot mean "adapted to distinguish" for then, the proviso would add nothing to the section and would make no variation in the law as between new marks and old marks which had been in use continuously from before the specified date.
A construction which would lead to old marks and new marks being placed on the same footing and being subjected to the same tests for registration cannot be accepted.
However, a mark might have been used prior to the specified date, but it might not qualify for registration under the proviso by not having acquired that degree of factual distinctiveness which the Registrar considers sufficient to enable it to qualify for registration.
Therefore, when the Registrar records a finding that the mark submitted for registration was "not adapted to distinguish as aforesaid", he was authorised to permit evidence being led as to "acquired distinctiveness".
Since both the trial court and the High Court found that through long user from 1926 onwards, the mark of the respondent had become associated exclusively in the market with the pharmaceutical products manufactured by him, it would follow that his mark was rightly registered and that he was entitled to protect an invasion of his rights, by seeking a perpetual injunction against those who invaded them.
[744 G; 750 A C, E F; 751 B, D; 752 A B G H; 753 A] (ii)In an action for infringement of a trade mark the onus would be on the plaintiff to establish that the trade mark used by the defendant is deceptively similar.
This has necessarily to be done by a comparison of the two marks the degree of resemblance necessary being incapable of defi nition by objective standards.
Where the similarity between the plaintiff 's and defendant 's marks is so close either visually, phonetically or otherwise, and the Court reaches the conclusion that there is an invitation, no further evidence is required to establish that the plaintiff 's rights are violated.
The fact that the get us, packing etc., showed marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial.
A finding regarding the packing is relevant with respect to the relief on the ground of passing off, but plays a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and a statutory remedy, under section 21, for vindication of his exclusive right to use it.
The question of deceptive similarity is one of fact, unless the test employed suffers from error this court would not interfere.
In the instant case there being no such error, the conclusion reached by both the lower courts that the appellant 's mark was deceptively similar to that of the respondent, cannot be interfered with.
[754 D F; 755 A C, F G; 756 F H]


Input:
ON: Criminal Appeal No. 147 of 1955.
Appeal by special leave from the Judgment and Order dated the 10th May 1955 of the Pepsu High Court at Patiala in Criminal Appeal No. 93 of 1954 arising out of the Judgment and Order dated the 21st June, 1954 of the Court of Sessions Judge at Barnala in Sessions Case No. 18 of 1954.
J.N. Kaushal and Naunit Lal, for the appellant.
Porus A. Mehta and P. G. Gokhale, for the respondent.
April 17.
The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J.
The appellant Basdev of the village of Harigarh is a retired military Jamadar.
He is charged with the murder of a young boy named Maghar Singh, aged about 15 or 16.
Both of them and others of the same village went to attend a wedding in another village.
All of them went to the house of the bride to take the midday meal on the 12th March, 1954.
Some had settled down in their seats and some bad not.
The appellant asked Maghar Singh, the young boy to step aside a little so that he 365 may occupy a convenient seat.
But Maghar Singh did not move.
The appellant whipped out a pistol and shot the boy in the abdomen.
The injury proved fatal.
The party that had assembled for the marriage at the bride 's house seems to have made itself very merry and much drinking was indulged in.
The appellant Jamadar boozed quite a lot and he became very drunk and intoxicated.
The learned Sessions Judge says "he was excessively drunk '? and that "according to the evidence of one witness Wazir Singh Lambardar he was almost in an unconscious condition".
This circumstance and the total absence of any motive or premeditation to kill were taken by the Sessions Judge into account and the appellant was awarded the lesser penalty of transportation for life.
An appeal to the PEPSU High Court at Patiala proved unsuccessful.
Special leave was granted by this Court limited to the question whether the offence committed by the petitioner fell under section 302 of the Indian Penal Code or section 304 of the Indian Penal Code having regard to the provisions of section 86 of the Indian Penal Code.
Section 86 which was elaborately considered by the High Court runs in these terms: "In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who doe& the act in a state of intoxication shall be liable to be dealt with as if he bad the same knowledge as he would have had if he bad not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will".
It is no doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission.
If in voluntary drunkenness knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required.
Are we at liberty to place in 48 366 tent on the same footing, and if so, why has the section omitted intent in its latter part? This is not the first time that the question comes up for consideration.
It has been discussed at length in many decisions and the result may be briefly summarised as follows: So far as knowledge is Concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober.
But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication.
Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention.
But if he had not gone so deep in drinking, and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts.
Of course, we have to distinguish between motive, intention and knowledge.
Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act.
In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge.
The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things.
Even in some English decisions, the three ideas are used interchangeably and this has led to a certain amount of confusion.
In the old English case, Rex vs Meakin(1) Baron Alderson referred to the nature of the instrument as an element to be taken in presuming the intention in these words: "However, with regard to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used.
If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if be bad used a different kind (1) ; ; 7 Car.
& P. 295.
367 of weapon; but where a dangerous instrument is used, which, if used, must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party.
" In a charge of murdering a child levelled against a husband and wife who were both drunk at the time, Patteson J., observed in Regina vs Cruse and Mary his wife (1) "It appears that both these persons were drunk, and although drunkenness is no excuse for any crime whatever, yet it is often of very great importance in cases where it is a question of intention.
A person may be so drunk as to be utterly unable to form any intention at all, and yet he may be guilty of very great violence.
" Slightly different words but somewhat more illuminating were used by Coleridge J., in Reg.
vs Monkhouse(2) "The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man 's mind to see what was passing there at any given time.
What he intends can only be judged of by what he does or says, and if he says nothing, then his act alone must guide you to your decision.
It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural con sequence of his act.
The consequence is sometimes so apparent as to leave no doubt of the intention.
A man could not put a pistol which he knew to be loaded to another 's bead, and fire it off, without intending to kill him; but even there the state of mind of the party is most material to be considered.
For instance, if such an act were done by a born idiot, the intent to kill could not be inferred from the act.
Sol if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged?" (1) ; ; (2) 368 "Drunkenness is ordinarily neither a defence nor excuse for crime, and where it is available as a partial answer to a charge, it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable, unless the intoxication was such as to prevent his restraining himself from committing the act in question, or to take away from him the power of forming any specific intention.
Such a state of drunkenness may no doubt exist".
A great authority on criminal law Stephen J., postulated the proposition in this manner in Beg.
vs Doherty(1) ". although you cannot take drunkenness as any excuse for crime, yet when the crime is such that the intention of the party committing it is one of its constituent elements, you may look at the fact that a man was in drink in considering whether he formed the intention necessary to constitute the crime".
We may next notice Rex vs Meade(2) where the question was whether there was any misdirection in his summing, up by Lord Coleridge, J.
The summing up was in these words: "In the first place, every one is presumed to know the consequences of his acts.
If he be insane, that knowledge is not presumed.
Insanity is not pleaded here, but where it is part of the essence of a crime that a motive, a particular motive, shall exist in the mind of the man who does the act, the law declares this that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to man slaughter".
Darling, J., delivering the judgment of the Court of Criminal Appeal affirmed the correctness of the summing up but stated the rule in his own words as follows: "A man is taken to intend the natural consequences of his acts.
This presumption may be rebutted (1) in the case of a sober man, in many ways: (1) (2) , 369 (2)it may also be rebutted in the case of a man who is drunk, by shewing his mind to have been so affected by the drink he had taken that he was incapable of knowing that what he was doing was dangerous, i.e., likely to inflict serious injury.
If this be proved, the presumption that he intended to do grievous bodily harm is rebutted".
Finally, we have to notice the House of Lord 's decision in Director of Public Prosecutions vs Beard(1).
In this case a prisoner ravished a girl of 13 years of age, and in aid of the act of rape he placed his hand upon her mouth to stop her from screaming, at the same time pressing his thumb upon her throat with the result that she died of suffocation.
Drunkenness was pleaded as a defence.
Bailhache J. directed the jury that the defence of drunkenness could only prevail if the accused by reason of it did not know what he was doing or did not know that he was doing wrong.
The jury brought in a verdict of murder and the man was sentenced to death.
The Court of Criminal Appeal (Earl of Reading C.J., Lord Coleridge J., and Sankey, J.) quashed this conviction on the ground of misdirection following Rex vs Meade(2) which established that the presumption that a man intended the natural consequences of his acts might be rebutted in the case of drunkenness by showing that his mind was so affected by the drink that he bad taken that he was incapable of knowing that what he was doing was dangerous.
The conviction was, therefore, reduced to manslaughter.
The Crown preferred the appeal to the House of Lords and it was heard by a strong Bench consisting of Lord Chancellor, Lord Birkenhead, Earl of Reading, C.J., Viscount Haldane, Lord Denedin, Lord Atkinson, Lord Sumner, Lord Buckmaster, and Lord Phillimore.
The Lord Chancellor delivered the judgment of the court.
He examined the earlier authorities in a lengthy judgment and reached the conclusion that Rex vs Meade(2) stated the law rather too broadly, though on the facts there proved the decision was right.
The position "that a person charged with a crime of violence (1) [1920] A.C. 479.
(2) 370 may show, in order to rebut the presumption that he intended the natural consequences of his acts, that he was so drunk that he was incapable of knowing what he was doing was dangerous. . . . . . which is what is said in Meade 's case, was not correct as a general proposition of law and their Lordships laid down three rules: (1)That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged; (2) That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; (3)That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
The result of the authorities is summarised neatly and compendiously at page 63 of Russel on Crime, tenth edition, in the following words: "There is a distinction, however, between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken man 's mind becomes incapable of forming a specific intention.
If actual insanity in fact supervenes as the result of alcoholic excess it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.
But in cases falling short of insanity evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent, but evidence of drunkenness which falls short of proving such incapacity and merely establishes that the mind of the accused was so affected by drink that he more readily gave way to some violent passion does not 371 rebut the presumption that a man intends the natural consequences of his act".
In the present case the learned Judges have found that although the accused was under the influence of drink, he was not so much under its influence that his mind was so obscured by the drink that there was incapacity in him to form the required intention as stated.
They go on to observe: "All that the evidence shows at the most is that at times he staggered and was incoherent in his talk, but the same evidence shows that he was also capable of moving himself independently and talking coherently as well.
At the same time it is proved that be came to the darwaza of Natha Singh P.W. 12 by himself, that he made a choice for his own seat and that is why he asked the deceased to move away from his place, that after shooting at the deceased be did attempt to get away and was secured at some short distance from the darwaza, and that when secured be realised what he had done and thus requested the witnesses to be forgiven saying that it bad happened from him.
There is no evidence that when taken to the police station Barnala, he did not talk or go there just as the witnesses and had to be specially supported.
All these facts, in my opinion, go to prove that there was not proved incapacity in the accused to form the intention to cause bodily injury sufficient in the ordinary course of nature to cause death.
The accused had, therefore, failed to prove such incapacity as would have been available to him as a defence, and so the law presumes that he intended the natural and probable consequences of his act, in other words, that he intended to inflict bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death".
On this finding the offence is not reduced from murder to culpable homicide not amounting to murder under the second part of section 304 of the Indian Penal Code.
The conviction and sentence are right and the appeal is dismissed.

Output:
So far as knowledge is concerned the court must attribute to the intoxicated man the same knowledge as if he was quite sober but so far as intent or intention is concerned, the court must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication.
If the man was beside his mind altogether for the time being, it would not be possible to fix him with the requisite intention.
But if he had not gone so deep in drinking and from the facts it could be found that he knew what he was about the court will apply the rule that a man is presumed to intend the natural consequences of his act or acts, That rule of law is well settled: 1.That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged; 364 2.The evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent; 3.That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.
Director of Public Prosecutions vs Board, ([1920] A.C. 479), referred to.
On the finding in the present case that although the accused was under the influence of drink, he was not so much under its influence that his mind was obscured to such an extent that there was incapacity in him to form the required intention the offence was not reduced from murder to culpable homicide not amounting to murder under the second part of section 304 of the Indian Penal Code.


Input:
Appeal No. 705 of 1965.
Appeal from the judgment and decree dated November 28, 1958 of the Madras High Court in Appeal No. 756 of 1964.
M.S.K. Sastri and R. Thiagarajan, for the appellants.
T.R. Srinivasan and R. Kopalakrishnan, for respondent No. 2.
The Judgment of the Court was delivered by Bachawat, J.
Subramanian Chettiar was the owner of 5 original shares subsequently represented by 1250, shares in the Chop Leong Watt Thin Rubber Estate in Malacca.
On December 9, 1912 Subramanian died leaving behind him his widow and his son the plaintiff Shanmugham.
In August 1913 the attorney of Subramanian 's widow took out letters of administration to his estate.
Subramarnian, the defendant and certain others were partners in the P.M.S. Firm at Malacca.
On July 16, 1915 while both Shanmugham and the defendant were at Malacca they entered into a compromise agreement which is evidenced by Exhibits A 177 and A 178.
Under this compromise they agreed that out of the aforesaid original 5 shares in the Shop Leong Watt Hin Rubber Estate 21/2 shares would belong to the P.M.S. Firm then represented by the defendant as the managing partner and the remaining 21/2 shares would belong to Shanmugham.
Under this compromise the defendant agreed and undertook to recover the 5 shares and to account to Shanmugham for the 2 1/2 shares belonging to him and the income and the dividends arising therefrom.
On January 7, 1924 while Shanmugham and the defendant were at Mallacca they entered into an agreement which is recorded in Exhibit B 2.
Under this agreement Shanmugham transferred his remaining 21/2 shares in the Rubber Estate to the defendant on receipt of 18000 dollars as consideration.
On September 14, 1927 Shanmugham instituted a suit against the defendant in the court of the Subordinate Judge, Devakottai, asking for a declaration that he was entitled to the original 5 shares in the Rubber Estate, that Exhibitis A 177, A 178 and B 2 were void, and for accounts and consequential reliefs.
Shanmugham alleged that the transactions of July 16, 1915 and January 7, 1924 were vitiated by fraud, and fraudulent concealment.
During the pendency of the suit Shanmugham was adjudicated an insolvent and thereupon the Official Receiver of Ramanathapuram L12Sup.
C.I/68 14 446 was added as the 2nd plaintiff.
After protracted proceedings which is not necessary to mention now, the Subordinate Judge granted the declarations claimed by Shanmugham and passed a preliminary decree for accounts.
The Subordinate Judge accepted the plaintiff 's contentions and held that both the transactions of July 16, 1915 and January 7, 1924 were vitiated by fraud and were liable to be set aside.
The defendant 'filed an appeal in the High Court of Madras.
During the pendency of the appeal the defendant died and his legal representatives were brought on record.
The High Court held that the arrangement dated July 16, 1915 was valid and was not vitiated by fraud.
With regard to the arrangement dated January 7, 1924 the High Court agreed with the Trial Court and held that the transaction was vitiated by fraud and that the defendant was liable to account for 21/2 shares in the Rubber Estate and dividends amounting to 35535 dollars and 50 cents with interest thereon.
The High Court also held that the suit was not barred by limitation.
The High Court assessed the value of 21/2 shares at 31250 dollars and in modification of the decree passed by the Trial Court passed a final against the defendant for Rs. 2,35,555 and further interest.
The present appeal has been preferred by the defendants after obtaining a certificate from the High Court.
Mr. M.S.K. Sastri attacked the finding that the arrangement dated January 7, 1924 was vitiated by fraud.
He argued that the High Court failed to take into account the exception to sec.
19 of the Indian Contract Act and that assuming that Shanmugham 's consent was procured by fraud, nevertheless the agreement was not voidable as he had the means of discovering the truth with ordinary diligence.
There is no substance in this contention.
The two courts have concurrently found that the agreement was vitiated by fraud.
The defendant concealed from Shanmugham that he had collected 35535 dollars and 50 cents on account of dividend in respect of the shares.
Had Shanmugham known that this huge amount had been realised by way of dividend he would not have parted with the shares with all their accrued benefits for the sum of 18000 dollars.
The defendant was under a fiduciary obligation to Shanmugham to inform him of the true state of affairs.
In the High Court it was not suggested that Shanmugham had the means of discovering the truth with ordinary diligence and it is now too late to raise this contention.
Mr. Sastri next contended that the suit was barred by limitation.
The suit is for obtaining relief on the ground of fraud and is governed by article 95 of the Indian Limitation Act, 1908.
The starting point of limitation is the date when the fraud is known to the party wronged.
The fraud was committed on January 7, 1924.
The Subordinate Judge found that the fraud was discovered on or about April 16, 1924.
We accept this finding.
447 It may be noted that this finding was not challenged in the High Court.
The defendant was outside India for several months in 1924 and 1926.
The suit was instituted on September 14, 1927.
It is common case before us that if the period of the defendant 's absence from India is excluded under sec.
13 of the Indian Limitation Act, 1908, the suit is not barred by limitation.
Section 13 reads : "In computing the period of limitation prescribed for any suit, the time during which the defendant has been absent from India and from the territories beyond India under the administration of the Central Government shall be excluded.
" It is to be noticed that the agreement dated January 7, 1924 was entered into between Shanmugham and the defendant at Malacca.
The cause of action for the suit arose at Malacca and at the time of the accrual of the cause of action the defendant was at Malacca.
Mr. Sastri argued that in these circumstances sec. 13 has no application.
We are unable to accept this contention.
On the date of the filing of the suit the defandant was residing at Kothamangalam within the jurisdiction of the court of the Subordinate Judge, Devakottai.
That Court had jurisdiction to entertain and try the suit and the Indian Limitation Act was applicable to the suit though the cause of action may have arisen outside India.
In computing the period of limitation prescribed for the suit.
"the time during which the defendant has been absent from India" has to be excluded under sec. 13.
The words of the section are; clear and full effect must be given to its language.
The section makes no exception for cases in which the cause of action arose in a foreign country or for cases in which the defendant was in a foreign country at the time of the accrual of the cause of action.
In all such cases the time during which the defendant has been absent from India must be excluded in computing the period of limitation.
In Atul Kristo Bose vs Lyon & Co.(1) the defendants were foreigners and they never came to India on or after the date of the accrual of the cause of action.
The Calcutta High Court held that sec.
13 applied and that the suit was not barred by limitation.
The Court was not impressed with the argument that according to this construction a defendant who was in England when a cause of action against him accrued, and has remained there ever since might be liable after an indefinite time to be sued in a Calcutta court.
In Mathukanni vs Andappa(2) the plaintiff and the defendant who were residents of Mannargudi in India had gone to : (1) [1887] I.L.R. XIV Cal.
(2) A.I.R. 1955 Madras 96.
448 Kaula Lampur to earn their livelihood, and while there the defendant executed a promissory note to the plaintiff on November 16, 1921.
In 1925 the plaintiff brought a suit on the promissory note in the District Munsif 's Court of Mannargudi.
The cause of action in the suit arose outside India.
A Full Bench of the Madras High Court held that 'the plaintiff was entitled to the benefit of sec.
13 and in computing the period of limitation he was entitled to exclude like time during which the defendant was absent in Kaula Lainput.
We agree with this decision.
The Full Bench rightly overruled the earlier decisions in Rathinu vs Packiriswami(1) and Subramania Chettiar vs Maruthamuthu(2).
We hold that the suit is not barred by limitation.
Mr. Sastri argued that the .suit is bad for non joinder of the other partners of the P.M.S. Firm.
The point was not taken in the courts below.
It is not open to the appellant to take this point 'at this late stage.
The High Court valued 625 shares representing the original shares in the Rubber Estate at 31250 dollars on 'the footing that the value of each share on January 7, 1924 was 50 dollars.
There is force in Counsel 's criticism that this valuation ,is erroneous.
The Trial Court did not record any finding as to the value.
The High Court said that in 1930 the value of the shares was 31250 dollars, and as there was a boom in the post war period and a slump had set in since 1921, the value on January 7, 1924 would be 31250 dollars.
The parties relied on the 'testimony of Tan Siew Giab.
He proved Exhibit A 74, a list of transfers of shares in the Rubber Estate between June 29, 1920 and September 14, 1931.
From the list it appears that the price per share on June 29, 1920 was between 23 and 20 dollars; on March 29, 1923,20 dollars; on September 5, 1923, 10 dollars; on April 11, 1924, 20 dollars; on August 10, 1925, 10 dollars and on January 22, 1930 and February 28, 1930, 50 dollars.
The price of the shares went up in 1930.
But it is common case that the shares should be ,valued as on January 7, 1924.
On the material on the record we assess the value of a share on that date to be 20 dollars.
The value of 625 shares would therefore be 12500 dollars.
Having regard to this finding the decree passed by the High Court requires modification.
The High Court held that the defendants were liable to pay (1) 35535 dollars and 50 cents on account of dividend, (2) interest thereon at 6% per annum from the date of their receipt till November 28, 1958, (3) 10250 dollars after deducting from the value of the shares amounting to 31250 dollars the sum of 18000 dollars received by the plaintiff on January 7, 1924 and another sum of 3000 dollars given up by the plaintiff.
Having regard to our finding the defendants are liable to be debited under (1) A.I.R. 1928 Mad. 1058.
(2) A.I.R. 1944 Mad.
449 the last head with 12500 dollars and are entitled to be credited with 18000 dollars and 3000 dollars.
Thus under the last head the defandants are entitled to a net credit of 8500 dollars.
The result is that the defendants are liable to pay 35535 dollars 50 cents minus 8500 dollars, that is to say, 27035 dollars 50 cents and interest thereon at 6% per annum.
From the material on the record it is not possible to find out the precise dates of receipt of the dividends.
Counsel on both sides are agreed that we should allow interest on 27035 dollars and 50 cents at 6% per annum from January 7, 1924 upto November 28, 1958 and further interest at 6% per annum from November 28, 1958 until payment.
The agreed rate of exchange is Rs. 156 per 100 dollars.
Counsel on both sides have worked out the figures and on that basis the defendants are liable to pay Rs. 42174 and 60 paises for principal and Rs. 88292 and 49 paises for interest upto November 28, 1958 aggregating to Rs. 130467 and interest on Rs. 42174 and 60 paises at 6% per annum from November 28, 1958 until payment.
The appeal is allowed in part.
The decree passed by the High Court is reduced to Rs. 130467 with interest at 6% per annum on Rs. 42174 and 60 paises from November 28, 1958 until payment.
Directions II, III, IV, V and VI incorporated in the High Court decree are affirmed.
The parties will pay and bear their own costs in this Court.
The second respondent will be at liberty to retain his costs out of the estate of the first respondent in his hand.
R.K.P.S. Appeal allowed in part.

Output:
C was the owner of five original shares in a Rubber Estate in Malacca After his death in December, 1912 his son the first respondent entered into a compromise agreement in July, 1915 with the appellant, who was in partnership with C during his lifetime, whereby it was agreed that out of five sharas, 21/2 would belong to the partnership and the remaining shares to the first respondent, furthermore, the appellant undertook recover the 5 shares and account to the first respondent for 21/2 shares and for the income and dividends arising from them.
In January, 1924, while the appellant and the first respondent were both at Malacca, they entered into another agreement whereby the first respondent transferred his remaining 21/2 shares to the defendant on receipt of 18,000 dollars as consideration.
In September, 1927 the first respondent instituted a suit against the appellant in India for a declaration that he was entitled to all the original five shares and for accounts and consequential relief, as both his agreements with the appellant were vitiated by fraud and fraudulent concealment.
The Trial Court granted the declaration, but the High Court, in appeal held that while the arrangement of July, 1915 was valid, that of January, 1924 was vitiated by fraud and that the appellant was therefore liable to account for 21/2 shares and dividends amounting to 35,535 dollars with interest.
The High Court also rejected a contention raised by the appellant that the period of his absence from the country could not be taken into account for determining the period of limitation and that the suit was therefore barred by limitation.
On appeal to this Court, HELD: (i) The defendant had concealed the fact that he had collected 35,535 dollars 'as dividend on the shares and had the respondent known this, he would not have parted with the shares with all their accrued benefits for 18,000 dollars.
The defendant was under a fiduciary obligation to disclose the true state of affairs.
The two courts had therefore rightly found that the agreement was vitiated by fraud.
[446 F G] (ii) In computing the period of limitation prescribed for the suit, "the time during which the defendant has been absent from India" has to be excluded under sec.
The words of the section are clear and full effect must be given to its language.
The section makes no exception for cases in which the cause of action arose in a foreign country or for cases in which the defendant was in a foreign country at the time of the accrual of the cause of action.
[447 E F] Atul Kristo Bose vs Lyon & Co., (1887) I.L.R. XIV Cal. 457; and Mathukanni vs Andappa, A.I.R. 1955, Mad. 96; referred to and applied.
445 Ruthinu vs Packiriswami, A.I.R. 1928 Mad. 1058; and Subramania Chettiar vs Maruthamuthu, A.I.R. 1944 Mad. 437 disapproved and overruled.
(iii) On the material on record it was necessary to revise the basis of valuation of the shares and to modify the decree passed by the High Court.