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Janardan Karandikar Vs. Ramchandra Tilak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 31 of 1945 and Suit No. 116 of 1942
Judge
Reported inAIR1947Bom209; (1946)48BOMLR882
AppellantJanardan Karandikar
RespondentRamchandra Tilak
DispositionSuit dismissed
Excerpt:
defamation - libel-qualified privilege-statement made in self-defence or for protecting one's interest-use of violent language-malice, proof of-extrinsic evidence of language of off ending article.;a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege,- but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.;adam v. ward [1617] a. c. 309,.....leonard stone, kt., c.j.1. this is an appeal from the judgment of mr, justice blagden delivered on april 13, 1945, in a suit upon an alleged defamation contained in it newspaper article written by the defendant, who is the appellant in this court. the article, which is in marathi, was published on january 21, 1941, in the newspaper keswri. that it is defamatory of the plaintiff cannot be denied; but though in writing what he did, the defendant went, i think, far beyond the limit of what was permissible, i must remember that a verbal battle was in progress in which the plaintiff was distinctly the aggressor. were this not so, i should feel bound to award really punitive damages. as it is, i think that the figure of rs. 3,000 meets the case and there will be a decree for the plaintiff for.....
Judgment:

Leonard Stone, Kt., C.J.

1. This is an appeal from the judgment of Mr, Justice Blagden delivered on April 13, 1945, in a suit upon an alleged defamation contained in it newspaper article written by the defendant, who is the appellant in this Court. The article, which is in Marathi, was published on January 21, 1941, in the newspaper Keswri. That it is defamatory of the plaintiff cannot be denied; but

Though in writing what he did, the defendant went, I think, far beyond the limit of what was permissible, I must remember that a verbal battle was in progress in which the plaintiff was distinctly the aggressor. Were this not so, I should feel bound to award really punitive damages. As it is, I think that the figure of Rs. 3,000 meets the case and there will be a decree for the plaintiff for that sum with costs. If I had to assess damages in respect only of the Shylock-Karkarmunda passage, I should award the plaintiff Rs. 1,000.

2. It was in defence to a document intituled, 'The Public Declaration', attacking the defendant and his co-trustees and which is dated January 8, 1941, and was issued and published by the plaintiff on that day and distributed on subsequent days, and in answer to or avoidance of responsibility for the plaintiff's fast unto death, which was then in its ninth day, that the article with which we are concerned was published.

3. Without some knowledge of the background against which the battle of words in which the criminatory article was but a phase, it is impossible to approach this appeal. Mr. Tilak, the father of the plaintiff, was one of the founders of the Indian Home Rule movement and he was and his memory still is held in veneration by a very large number of his fellow countrymen. He was the owner of two newspapers the Maratha published in English and the Kesri published in Marathi, and it was partly through the media of his two papers that Mr, Tilak conveyed his doctrines to the public.

4. As a pioneer of the Home Rule movement he came into conflict with the authorities and twice suffered terms of imprisonment for sedition. He also 'embarked upon a libel action in England in which he was the unsuccessful plaintiff and was ordered to pay costs. On occasions of this nature and on the occasion of at least two of his birthdays public subscriptions were got up for him. In 1916 there was what is described as a 'Jubilee Fund', in 1919 there was the 'Purse Fund' which produced Rs. 2,00,000 and was in honour of his birthday. In 1919 there was a 'Birthday Celebrations Fund' of some Rs. 10,000. Although the moneys so raised were undoubtedly Mr. Tilak's absolute property, it is common ground that subject to defraying various expenses, including the costs of the English litigation, Mr. Tilak regarded the money as being held by him in trust for the public. On April 5, 1918, he made his will at Colombo, to which I will presently refer, and on August 24,1918, an award was made in his favour against one Jagannath Maharaj in the sum of Rs. 61,900. This award was the result of a friendly arbitration arising from the circumstance that Mr. Tilak had befriended Jagannath Maharaj, a young man who had been adopted to a friend of Mr. Tilak and whom Mr. Tilak had supported and financed in certain litigation, challenging the adoption. A disputed fact is whether Mr. Tilak between the date of his will and that of his death agreed to forego Rs. 30,000 of the amount of this award. Mr. Tilak died on August 1, 1920. His will conferred substantial benefits on his two sons the plaintiff then aged twenty-six and a younger son named Bapu then aged twenty-four. The amount, which was to become due under the arbitration award already mentioned, was specifically given to them.

5. Under the heading 'Printing Press' the will provided:

1. The newspapers, office, printing press, machine, foundry, and the newspaper library And the moneys (given) by way of security in connection with the newspapers, I have made a Public Trust in respect thereof.

2. As long as the printing press, the newspapers and the office are located in the Wada go Jong Rs, 75 at least shall be paid each month to my tons for not.

3. Chiranjiv Dhondu shall, so long as he is there be kept as manager of the printing press, and office and he shall he paid the same salary as that of the Editor. It shall not be less than that.

4. The policy of the papers (editorial policy) shall he maintained as it is. It shall not be changed in any event.

6. In fact Mr. Tilak had created no public trust during his lifetime. So that the newspapers, the office, printing press, machine and foundry and the newspaper library and the moneys given by way of security in connection with the newspapers, which unquestionably belonged to Mr. Tilak in his own right, passed to his two sons as his heirs. The final clause in Mr. Tilak's will is as follows:-

The authority to carry out the directions contained in the will as above is given to Chiranjiv Dhondu Vasudev Vidwans. In his absence, Chiranjiv Rajeshri Ramchandra Balwant Tilak (i.e. the plaintiff) shall carry out the same.

7. Within a short time of Mr. Tilak's death, two events happened which caused much trouble between the two sons on the one hand and Mr. Vidwans the executor and the trustee of the trust deed hereinafter mentioned, on the other. The first of those events was that on the thirteenth day after the death, the two sons pressed Jagannath Maharaj to pay the balance of the Rs. 61,900 due under the award, a sum of Rs. 1,000 having been paid to Mr. Tilak in his lifetime. After some negotiation, it was agreed that Rs. 40,000 should be paid forthwith and a further Rs. 15,000 at a later date, and that the balance of Rs, 5,000 should be excused as also the outstanding interest amounting to about Rs. 8,000. The other event was that Mr. Vidwans proposed to .the two sons that pursuant to the intention of Mr. Tilak of creating some public trust, they should comply with their father's wishes and intentions, and accordingly on the sixteenth day after Mr. Tilak's death a trust deed was executed to which the plaintiff and his brother were panties as the settlors and by which Mr. N. C. Kelkar and Mr. Vidwans were appointed the trustees. The trust deed, after reciting the death and some portions of the will of Mr. Tilak, provided: 'A trust is created in respect of the newspapers the Kesari and the Maratlia and in respect of all the property and the rights appertaining thereto', the value of which with certain articles described is said to be about Rs. 1,00,000. The deed goes on to direct that the trustees should, as a matter of the policy of the newspapers, 'act in accordance with what is stated in Clause 4 under the heading 'The Printing Press', in the will of the deceased Lokmanya Tilak', By d. 11. it is stated that up till now the festival in honour of the deity Ganpati was being celebrated at the expense of the Kesari office, and the deed continues:

Even hereafter the said festival shall be celebrated in the same way by the trustees spending money out of the trust property as long as the institution remains in existence.

8. This trust, which appears to have been created somewhat precipitously, was soon to lead to disputes between the sons and the trustees and in the year 1021 there was an award by arbitrators with regard to the division of some of Mr. Tilak's property, as the result of which some consequential documents were executed. On June 24, 1923, there was a second award which was immediately preceded by commencement of legal proceedings in this High Court by the sons against Mr. Vidwans and another with regard to the destination of the moneys recovered from Jagannath Maharaj. That suit ultimately came before the Court of Appeal and on April 3, 1933, a consent decree was taken of which it is only material to say that one of the terms was:

And this appellate Court by and with such consent doth declare that each party by his respective advocates hereby withdraws all allegations made by him against the other parties.

9. In the meantime on August 27, 1927, proceedings had been commenced by Mr. Vidwans and his co-trustee against the plaintiff and his brother in the Court of the Joint First Class Subordinate Judge at Poona, hi which six injunctions were claimed by Mr. Vidwans in respect of alleged trespasses by Mr. Tilak's sons. In these proceedings fraud and undue influence were -alleged by the sons against Mr. Vidwans in reference to the creation of the trust. On May 28, 1928, the plaintiff's younger brother committed suicide. In August of that year there was a violent dispute between the plaintiff and Mr. Vidwaus with regard to the celebration of the Ganpati festival, which led to an, interim injunction being passed by the Subordinate Judge which came on appeal to this Court and which appeal was dismissed. On March 7, 1929, judgment in the Poona suit was given by the First Class Subordinate Judge and certain injunctions were granted against the plaintiff. Against that judgment there was also an appeal in which the injunctions were upheld in d modified form.

10. On August 1, 1930, Mr. Vidwans and his co-trustee Mr. N, C Kelkar executed what has been described as 'the Second Trust Deed', by which they set apart from what is called 'the Kesari Maratha Institution' a sum of Rs. 3,00,000

as brings sum equal to the amount of the 'Purse Fund' and adding thereto Rs. 13,643-8-10 from the pocket of the Institution, that is a total sum of Rs. 3,00,000 suitable for being conveniently referred to and create a trust in respect of the said sum and keep the said sum separate. That is to say we by this trust deed effect an 'appointment of property' with respect to some property out of Original Trust property.

What the legal justification for this second trust deed was does not appear very clear. But as might be supposed, it did not improve the relationship between the plaintiff and the trustees. On June 1, 1937, Mr. Vidwans and Mr. N, C. Kelkar retired from the trust deeds and appointed the defendant and two other gentlemen in their stead.

11. Apart from the disputes as to the division of properties and what was and what was not comprised in the original trust deed, the quarrels between the plaintiff and the trustees were concerned with questions of the policy of the two newspapers Kesari and the Maratha. In the early days of the Independence and Home Rule movement the policy of its pioneers and that strongly supported by Mr. Tilak was 'responsive co-operation', which in effect means that you take everything which Government offers with the object of getting more, whereas the policy later to be developed by the Indian National Congress was non-co-operation. These two policies postulate entirely different means for attaining the same end. Mr. Tilak was also a great admirer of the Maratta Ruler Shivaji and of his preceptor Ramdas Swami, and it seems that in the early days of the independence movement, politics were not divorced, either from the festivals in honour of Shivaji and Samarth, or from those attendant upon the worship of the Hindu deity Ganpati. Mr. Tilak was in his lifetime not only a strong supporter of these festivals, but he made political speeches at them. The following historical summary is taken from the evidence of the defendant:

Kesari was a supporter of Congress from the latter's start till Tilak's death, except for a few years, Lokmanya Tilak's policy was responsive co-operation, which was the policy of the Congress too.

From 1921 to 1928 we, Tilak's followers, did not agree with Congress. After 1923 when Congress permitted Council entry we again worked with the Congress and formed the Congress Swarajya party.

In 1029 the resolution of complete independence was passed and again Councils were boycotted, yet we did not give up Congress completely but from 1985 when the new reforms were introduced and the communal award against Hindu interest was not opposed by Congress we again split.

In 1941 our policy was distinct from that of Congress. We supported the Hindu Mahasabha.

Kesari is a national paper, and not wedded to any political institution. When I say it is a national paper, I mean it is an Indian National paper, not a Mahratta National paper. The nation I refer to is India-not Maharashtra.

I could not consistently with my view of Lokmanya Tilak's wishes hand over the paper to the Congress.

12. When analysed, it will be found that the whole of the long and bitter disputes between the sons and the executor and trustees owe their foundation and most of their structure to the fact that the executor and trustees have considered it their duty to pursue a policy in accordance with the literal interpretation of Mr. Tilak's instructions, whereas the sons and since 1928, the plaintiff, as the survivor of them, are determined that the newspapers and trusts of Mr. Tilak should advance with the times and embrace the policy of Congress, I cannot find anywhere in the somewhat voluminous record of this case anything which shows that the executor and trustees on the one hand or the plaintiff and formerly his brother on the other, did not and do not honestly, disinterestedly and sincerely advance and maintain their respective convictions on these questions of policy. The tragedy which underlies their relationship is due to the fact that neither side has ever been capable of appreciating that the convictions of the other are in any way permissible.

13. The present eruption in the hostile relationship between the plaintiff and the trustees was brought about by the death of Mr. Vidwans which occurred on December 26, 1940. This event caused the plaintiff to assert that pursuant to the will of Mr. Tilak which appointed him an executor 'in the absence of' Mr. Vidwans, he now had some power over the trust funds. Two important factors present themselves in any approach to the present controversy. The first is that it is the plaintiff who is the aggressor, secondly, that in making his attack by the Public Declaration, to which I have already made reference, the plaintiff chose to recapitulate from his own point of view the history of the relationship between Mr. Tilak's sons and the trustees right back to the date of the death of Mr. Tilak: so that when the defendant launched his counter attack by the article complained of, it cannot be said that any fact arising from the relationship is outside the occasion in respect of which privilege is claimed.

14. It will be convenient at this stage to refer to two leading cases on the question of privilege and which show how the occasion may be exceeded or its protection destroyed by proof of express malice. The first case is Laughton v. The Bishop of Sodor and Man (1872) L.R. 4 P. C. 495 In that case the Bishop in a charge to his Clergy in Convocation commented in criminatory language upon a speech made by a barrister in his character as an advocate and who had been instructed to oppose a bill before the House of Keys, promoted by Government, and which vested additional Ecclesiastical patronage in the Bishop and in which the conduct of the Bishop was attacked and unworthy motives attributed to him. The Bishop subsequently sent a copy of what he had said in Convocation to a newspaper for publication. Sir Robert Collier delivering the judgment in the Judicial Committee said (p. 504):-

It was to this speech, that the Bishop in the next assembling of his Clergy in Convocation thought it proper to reply, and their Lordships are clearly of opinion, that his charge was a privileged communication, in the ordinary sense of the term, on the wellknown principle that a communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has, or honestly believes he has, a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter which, without that privilege, would be defamatory and actionable : Whiteley v. Adams (1863) 15 C. B. 892. Dealing with the publication in the press his Lordship after pointing out that the attack on the Bishop had been made to both Clergy and Laity, continued (p. 504) :... their Lordships are of opinion, that the Bishop was privileged in addressing his defence to both through the same channel which had conveyed the attack, provided that he did this bona fide for the purpose of vindicating himself, or of informing the public upon matters which they were concerned to know, and not of defaming or injuring the appellant.

15. With regard to the question whether in spite of the occasion being privileged, there was express malice, that is to say the defendant was actuated by motives of personal spite or ill-will independent of the occasion on which the communication was made, their Lordships were of opinion (p, 508) :

Some expressions here used undoubtedly go beyond what was necessary for self-defence but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communication to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications.

The other case is that of Adam v. Ward [1917] A. C. 309.

16. In that case the plaintiff, who was formerly an officer in a cavalry regiment and was subsequently elected a member of Parliament, in a speech in the House of Commons, falsely charged the General commanding the brigade of which his late regiment formed part with sending confidential reports to Headquarters on officers under his command, containing wilful and deliberate misstatements. The General having referred the matter to the Army Council, the defendant, as secretary to the Council and by their direction, wrote a letter to the General, vindicating him against the charge made by the plaintiff and containing defamatory statements about the plaintiff, and sent it to the press for publication. The letter was widely published in the British and Colonial Press. Earl Loreburn said this (p. 321):

Language has been used in some cases which seems somewhat to confuse the two separate points, namely, whether the defendant has gone beyond the privilege which the occasion creates, and whether the defendant has forfeited the privilege by malice. Excess of privilege in part of a defamatory publication may of course be evidence of malice as to the whole of it, but the two things are different. The one is a matter for the Judge, the other is a matter for the jury, And observations made by Judges in directing juries as to what is evidence of malice are not necessarily applicable when they have to rule as to excess of privilege. But I agree that in ruling upon that subject a Judge may well think that a man is justified in inculpating his accuser in order more effectively to exculpate himself, and also may well think that the defendant has not exceeded the privilege when he has expressed himself with some warmth under real provocation, though no one can be justified in using such an occasion beyond the reasonable limits of self-defence.' And Lord Dunedin said (p. 327) : If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex-hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice. But when the defamatory statement is, so to speak, part and parcel of the privileged statement and relevant to the discussion, then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expressions used in the privileged document itself. In short, I adopt the law as laid down by Lord Esher M. R. in the case of Nevill v. Fine Arts and General Insurance Company [1895] 2 Q. B. J. 56. The learned Judge there says : ' ... in this case there was no evidence of such malice. That being so, the defendants have proved that the occasion was privileged, and there was no evidence of malice in the mind of anybody to rebut that privilege, and the defence stands good. But then the jury were asked to find, and have found, that the privilege was exceeded. There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it'.

17. Lord Atkinson having reviewed the authorities including the case of Laugh-ton v. Bishop of Sodor and Man said (p. 339):

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose Of his vindication, though in fact it was not so.

18. Bearing in mind the principles enunciated in these passages, I will proceed to deal with the circumstances which have given rise to this appeal.

[After dealing with the facts his Lordship concluded:]

19. In my judgment the plaintiff's action ought to have been dismissed with costs, his own conduct does not entitle him to complain or to seek damages from the defendant when the defendant in somewhat extravagant language endeavours to protect himself against such a desperate situation as the plaintiff had deliberately brought about by the publication of the Public Declaration, his persistence in its distribution and his fast unto death within a few yards of the editorial office of the Kesari newspaper, The situation deliberately created by the plaintiff was calculated to produce the maximum pressure upon the trustees and editors by holding them up to public reprehension and contempt. In my opinion in the Court below the learned Judge was persuaded into making a too meticulous examination of the actual sentences and parts of the article complained of. I do not think that in such a ease as this that can be done. In my opinion the only approach to such circumstances as here prevailed is to look at the situation as a whole and to ask oneself .the question whether what the defendant did was reasonably necessary having regard to all those circumstances, 'Was there, to use the language of Lord Dunedin (p. 327) 'too great severity or redundancy in the expression used''? I do not think there was, and as the plaintiff has independently of the article wholly failed to establish that the defendant was actuated, by malice, the plea of privilege is a complete defence. With respect to the learned trial Judge it is my opinion that it cannot be said that the defendant went too far, and arriving at that conclusion it follows -that in my judgment this appeal must be allowed and the judgment of the Court below set aside and the plaintiff ordered to pay the costs throughout,

Kania, J.

20. This action for damages for an alleged libel was filed under peculiar circumstances. The relevant facts, showing the background for the public declaration of the plaintiff and for the offending article of the defendant with full extracts from both those documents, have been mentioned in the judgment of the learned Chief Justice and of the trial Court. I shall summarise briefly only the prominent features.

21. The plaintiff's father was a political leader of great repute in India and commanded very great respect particularly in the Maharashtra. He had started two newspapers, viz. 'The Kesari and the Mahratta.' The papers and press were used not only for publishing his political views but also for spreading good Marathi literature. During his lifetime Mr. Tilak was a sponsor of the Congress policy and by his will expressly directed as follows:... 'The policy of the papers should be maintained as it is, It shall not be changed in any event'. In order to foster patriotism and love of the Mahrattas for their leader Shivaji he had started festivities in connection with the; birth of Shivaji and his preceptor Ramdas Swami. Mr. Tilak personally took part in the festivities even at personal inconvenience on some occasions. He also founded the Ganpati festival. These were made occasions to stimulate patriotism, and not to perform religious ceremonies only, as erroneously thought and stated by the plaintiff. After his death, the executor of his will, Mr. Vidwans and the two sons of Mr. Tilak made a trust deed on August 36, 1920. The wishes of the deceased as expressed in his will to make a trust of the two papers and the press were thus carried out, The plaintiff at that time was about twenty-six years old. Thereafter, documents were passed by the plaintiff and his brother confirming the trust deed. They acted on the same for some years. In 1923 the plaintiff and his brother showed the first signs of discontent by filing suit No. 2490 of 1923 in the High Court. Vidwans was made a party to that suit in his position as executor. Thereafter, in May 1928, the plaintiff's brother committed suicide. He left a note suggesting that the trustees of Mr. Tilak had not treated his sons properly and, therefore, he had ended his life. In August-September 1928 the plaintiff obstructed the celebration of the Ganpati festival and the trustees had to file a suit against the plaintiff in. the Poona Court to restrain him from doing so. In that suit the plaintiff alleged that the trust deed was obtained from him by fraud and undue influence. In that suit the plaintiff failed and it was held that the allegations of undue influence and fraud were not proved. In the Bombay suit a consent decree was taken in 1933 in which it was expressly provided that the allegations were withdrawn. 'In the meantime in 1930 the trustees had made a second trust deed purporting to carry out the wishes of Mr. Tilak in respect of various funds. After the resignation of the first trustees in 1937 Vidwans died in 1940. The plaintiff then took up the stand that under the will of his father he automatically became the executor and as the estate had not been fully administered (although it was held in the Bombay suit that it had been administered) he desired to make a public trust in accordance with what he thought was the right thing to do in respect of the estate of his father. On that footing he served notices on the trustees and on January 8, 1941, made the public declaration.

22. The relevant clauses of the public declaration have been noticed in the judgment of the learned Chief Justice. It is sufficient to point out that in that declaration the plaintiff had made most violent charges against the original trustees of the settlement in respect of the creation of the trust and the management thereof. He also referred to the Bombay and the Poona suits and mentioned that in the Bombay suit he had urged that the trust deed was wrongfully obtained from him. He also charged one of the trustees with misappropriation in taking money as an arbitrator. He alleged that he had tried to get redress from the Courts of law but had failed to do so. He charged the trustees with having obtained from him documents by cheating and fraud and with having got decrees from law Courts against the plaintiff to obtain public confidence. He charged them as a 'gang' of thieves and with suppressing from him and his brother true facts in respect of the cash left by his father. He declared that the trust previously made by him was revoked, that he had removed the trustees as the true executor of the will of the deceased and charged them with breaches of trust. That necessarily meant that the existing trustees were guilty of breaches of trust and were carrying on an unlawful trust. He suggested that while in the beginning religion may have been Useful as a part of the policy, it had no place in politics in 1941. He stated that the trustees were wrongfully spending money on the Ganpati Utsav and processions and were wrongfully trying to win public esteem by means of religious and philanthropic deeds instead of political work. He described them as short-sighted and narrow-minded leaders tomtoming their own unpopular policy of the times of Shivaji and Ramdas, and thus wasting the trust money. As the true representative of the owner he directed that the Kesari be printed in the national language of Hindi as settled by the Congress. He recommended, subject to the approval of the All India Congress Committee, the following gentlemen at the head of the editorial staff of the papers as the 'Board of Controllers' to see that the policy of the Congress was strictly adhered to. The names were, Maulana Abul Kalam Azad, Mr. B. G. Kher and one Parsi gentleman. At two places he directly criticised the policy of the papers in these terms:

But the trustees and editors of his newspapers are unfortunately doing exactly the opposite and thereby lowering the prestige, name and fame of the testator and his two newspapers, Kesari and Mahratta... It is a pity and a matter of shame, that the papers and party of such an astute statesman should go in the bands of such childish and poor politicians.

At another place he stated as follows:-.The trustees and editors of his two newspapers 'Kesari and Mahratta' have altogether changed it from its very basic principles as already primarily pointed out above... .The testator started his public career as a local and provincial leader with activities like Ganpati and Shivaji Utsaw, etc. but finished it as an all-India leader... By the editorial policy of his papers he does not mean where he started but he means where he finished i.e. in short at the principle 'Home Rule for birth-place.' His party even twenty years after his death is still groping at where he started....

He stated that the trust deed of August 16, 1920, was not only fraudulent but also antagonised the objects of the testator. The public declaration purported to dedicate property worth ten lacs of rupees, particularly comprising the printing press and the newspapers, in favour of the Indian National Congress. The plaintiff stated that he had no money to enforce the dedication but invited the Congress and the Advocate General, as representing public charities, to enforce the declaration, so made by him.

23. With this declaration he commenced his fast unto death and although the trustees published their explanation on January 17, 1941, which presumably must have come to the knowledge of the plaintiff, he persisted in the fast by sitting just below Mr. Tilak's bust, which was almost opposite the editor's office of the Kesari paper. The plaintiff admitted that after he started his fast hundreds of people used to come there and inquire what had happened and why he was doing so. To each of them he gave a copy of his public declaration which is described by the learned trial Judge in the following terms: -'A more blatant instance of blackmail of its peculiar type it would be difficult to imagine.' The defendant stated that people used to come and ask him what the trustees wanted to do. The result was that the plaintiff was trading on the great regard the Mahrattas and Indians generally had for his father as a patriotic leader. He was trading on the fact that his brother had committed suicide. He made a show as if he was giving away ten lacs of rupees, while on his own admission according to the decisions of the Courts he had no title to any of the properties. He further pleaded that he was helpless in the matter because the last executor had left no money with which to enforce the rights and made a public appeal for funds. In addition to these facts he sat near the bust, of his father and threatened to die unless the trustees yielded to his demands. It is under those circumstances that the offending article was published.

24. In my opinion, the question whether this article is defamatory or not is not important. It is common ground that under the circumstances the publication was on a privileged occasion. The learned Judge has found that and I agree with that conclusion. Two questions then arise: (1) whether any portion of the offending article was outside the privileged occasion and was therefore not protected; and (2) if the privileged occasion covered the whole article, was there evidence of express malice. On the first question the learned Judge held that the whole article was protected except for the comparison of the plaintiff to Shylock or a Khar Tearmunda. That is his answer to issue No. 5. According to him the defendant was not justified in dragging in a twenty years old episode in respect of the recovery of money from Jagannath Maharaj and the reference to the method of recovery was uncalled for and not germane to the occasion. In my opinion, this conclusion of the learned Judge is incorrect. The plaintiff was posing as a large-hearted donor of Rs. 10,00,000 to the National Congress. To meet that attitude it was perfectly within bounds for the defendant to show that when the plaintiff was in possession of funds he did not remember the Congress. Not only that but in my opinion the character of the plaintiff in the matter of money was also germane to the discussion. An incident contesting the suggestion of his being a generous-hearted and benevolent man is directly relevant. The character of the plaintiff in respect of: money under the circumstances, in the words of Lord Dunedin in Adam v. Ward [1917] A. C. 309 was not quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged. The learned trial Judge has noticed the decision in Adam v. Ward. That decision supports this view of the situation. The criticism of the trial Judge that a reference to the method of recovering the money was irrelevant, in my opinion, is not justified. In addition to what was published in the Kesari in 1920 the record shows that in publishing the biography of Mr. Tilak in 1928 the episode in connection with the recovery of money from Jagannath Maharaj by the plaintiff and his brother was discussed. We are not concerned with the truth or otherwise of the version as to how the money was recovered. It is sufficient if the incident was openly discussed and remained uncontradicted, thus giving a reasonable ground to the defendant to believe that it may be true. In his evidence the defendant has explained why he described the plaintiff as a Shylock in that connection. In my opinion, to compare the method adopted by the plaintiff to a Shylock is not per se defamatory. The reference to a Kharkarmunda stands on a different footing-It is not connected with that episode and it is admitted by the learned counsel for the appellant to be out of place-. The defendant has given his explanation in respect of the use of that word in connection with the recovery of money from Jagannath Maharaj. That may or may not be accepted, but in my opinion the use of the words 'Shylock' and Kharkarmunda' by the defendant did not affect the privilege.

25. The next question is whether the plaintiff had proved malice. In Adam v,. Ward Lord Dunedin closely considered the question of a communication published on a privileged occasion. At pp. 326, 327, he observed as follows:

What now is the situation You have a communication issued on a privileged occasion r and in gremio of that communication are used words which are in themselves defamatory. What test is to be applied On the one hand it is said that, the occasion being privileged, the whole document is privileged, but that if in the document you find parts which are not really necessary to the fulfilment of the particular duty or right which is the foundation of the privilege on the occasion, then these parts may be used as evidence of express malice. In other words, it stands thus : Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved. It may be proved either extrinsically or intrinsically of the document, and such words in the document are apt as evidence....

On the other hand, it is said that it is not necessarily a question of malice at all; that privilege applies to what is written and published in response to a duty or right; and that if anything is found in the thing published which is not reasonably appropriate to that duty or right, then privilege cannot extend to that. My Lords, I think it will be found that in most cases these are merely two ways of expressing the same point....

If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice. But when the defamatory statements, so to speak, part and parcel of the privileged statement and relevant to the discussion, then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expressions used in the privileged document itself. In short, I adopt the law as laid down by Lord Esher M. R. in the case of Nevill v. fine Arts and General Insurance Company [1896] 2 Q. B. 156. The learned Judge there says : '. .in this ease there was no evidence of such malice. That being so, the defendants have proved that the occasion was privileged, and there was no evidence of malice in the mind of anybody to-rebut that privilege, and the defence stands good. But then the jury were asked, to find, and have found, that the privilege was exceeded. There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it. Instances have been put during the argument of cases where a defendant on an occasion which is privileged as between himself and some other person makes some defamatory statement affecting a third person which has nothing to do with the privileged occasion....But when there is only an excessive statement having, reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice.'

Lord Atkinson in the same ease summarised his views as fellows (p. 339) :

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necesssary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, even though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was not so.

In Laughton v. The Bishop of Sodor and Man (1872) L.R. 4 P.C. 495, the manner of considering the expressions used on such occasions was discussed. At p. 508 Sir Robert Collier observed as follows:

Some expressions here used undoubtedly go beyond what was necessary for self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications.

In Halsbury's Laws of England, Vol. XX, the law on this point is summarised in Article 616, p, 504-, as follows:-

Excessive language in relation to a matter within the privileged occasion may be evidence of malice, but the words must be too strong to a substantial extent.. ..The real question is whether having regard to the circumstances the statement is so violent as to afford evidence that it could not have been fairly and honestly made. There must be something so extreme in the words used as to rebut the presumption of innocence and to afford evidence that there was a wrong and indirect motive prompting the publication. A man may use excessive language and yet have no malice in his mind.

In Gatley's Law of Libel (3rd edition) at p. 469 the question of newspaper comment on public men is noticed. It is observed that there is a far greater 1 attitude given to the critic in such cases. (It is also stated that when a person indulges in an attack in a most violent manner in uncontrolled language and untruths, he cannot ask the Court to weigh the offending article in nice scales and contend that he was injured because the rejoinder contained an expression here or there which may not be absolutely necessary or in accordance with truth.

Malice can be proved by extrinsic evidence or by the language of the article itself. It is conceded that in this case there is no extrinsic evidence of malice. As has been held by all authorities it is for the plaintiff to prove malice, and unless he does so he must fail. It is therefore essential to consider whether the plaintiff has established malice in the present case. As the authorities have laid down, malice in such cases means an indirect motive. Motive to defend is no evidence of malice. Falsity of facts is not necessarily evidence of malice; so also negligence in publishing is no evidence of malice. Honest belief is protected. Mere want of sound judgment is also no evidence of malice.

[His Lordship then discussed the evidence on the point of malice and continued:]

26. I think the expressions used by the defendant are fully protected by the occasion. They were reasonably and honestly intended as a defence and do not transgress the limits permitted by law, under the circumstances, The learned Judge summarised the mental attitude of the defendant in the following words:

Rambhau has-practically said he wants to turn Maharashtra into Pakistan : at any rate it makes a good copy to say that he has done so.

Rambhau Tilak has laid down some very dogmatic and highly controversial opinions : What I am saying may not be exactly accurate, but any stigma is good enough to bear a dogma. Anyhow I do something very drastic, and it makes excellent copy. I will shove it in and (vulgarly speaking) be damned to Rambhai Tilak.

In my opinion, the documents and the circumstances of the case do not warrant these inferences. The article must be read as a wholes and not in separate paragraphs. I think, therefore, that the learned Judge was in error in thinking that the plaintiff had established a case of malice. While the occasion was privileged and the limits of the privilege were not transgressed, the plaintiff had failed to prove malice, as required by law, to entitle him to any decree. The result is that the plaintiff's suit fails. I agree that the appeal be allowed with costs and the plaintiff's suit dismissed. The plaintiff to pay three-fourths of the costs of the suit.


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