1. The plaintiffs are grandsons of the late Rai Bahadur Bankim Chandra Chatterjee the well-known Bengali author and novelist, being the sons of his daughter Sreemati Nilabja Kumari Debi who died sometime in November 1910. The second defendant is the sole surviving son of another daughter of the late Rai Bahadur, Sreemati Sarat Kumari Debi who died on 17th December 1927. The first defendant is the proprietor of the Basumati and the Basumati Press and carried on business as a book seller and publisher in Calcutta. The plaintiffs claim that they along with the second defendant became the owners of the copyright in certain books of the late Rai Bahadur Bankim Chandra Chatterjee on the death of Sarat Kumari Debi and they complain in this suit of an infringement of their copyright by the first defendant on and from 23rd December 1927. The only allegation made against the second defendant in the plaint upon which it might band suggested some relief could be claimed against the second defendant is to be found in para. 7. That paragraph runs as follows:
The first defendant alleges that he has obtained license from the second defendant to print, publish and sell the said books, The plaintiffs do not admit that the said licence was given but if it was given in fact, they contend that the second defendant had and has no authority to grant the said licence without the consent of the plaintiff.
2. The learned advocate for the second defendant has contended that the plaint is framed discloses no cause of action against his client and the suit should be dismissed as against him. It was submitted by counsel for the plaintiffs that on his present plaint he was entitled to ask for an account from the second defendant of the moneys which the second defendant had obtained from the first defendant by granting the licence mentioned in the plaint to the first defendant. In my view, the plaintiffs cannot obtain any decree in this suit against the second defendant for an account of the moneys realized by him from the first defendant against whom the plaintiffs claim damages for infringement. It is true that in prayer (d) of the plaint the plaintiffs have claimed discovery, accounts and inquiries as to damages against the first and second defendants but I do not think any foundation has been laid in the plaint for any claim for an account of the moneys realized by the second defendant from the first defendant. The suit must therefore be dismissed against the second defendant. The first defendant has challenged the title of the plaintiffs to the copyright in the books and the first issue raised by the learned counsel for the first defendant namely; 'Have the plaintiffs any interest in the copyright of any of the books mentioned in the plaint?' is the really important issue for decision. The plaintiffs claim title to the copyright in the books by inheritance and it is conceded that if by his will dated 23rd May 1890 the late Rai Bahadur Bankim Chandra Chatterjee had made no testamentary disposition of the copyright in his books in favour of his widow Sreemati Rajluckshmi Debi the plaintiffs and the second defendant jointly became the owners of the copyright on the death of Sreemati Sarat Kumari Dabi. There is no dispute about the facts in the case. Rai Bahadur Bankim Chandra Chatterjee died on 8th April 1894 leaving a will dated 23rd May 1890. He left him surviving his widow Sreemati Rajluekshmi Debi and his two daughters Sreemati Sarat Kumari Debi and Sreemati Nilabja Kumari Debi. Letters of administration to the estate of Bamkim Chandra Chatterjee with copy of the will annexed were granted to Sreemati Rajluckshmi Debi on 21st July 1894. In November 1910 Nilabja Kumari Dabi died leaving her three sons, the present plaintiffs. On 19th August 1919 Sreemati Rajluckghmi Debi died. By her will dated 2nd September 1894 and her codicil dated 10th March 1907, probate whereof were granted by this Court on 25th November 1920, Sreemati Rajluokshmi Debi bequeathed the copyright in her husband's books to her daughter Sreemati Sarat Kumari Debi. Rajluokshmi Debi claimed to have got the copyright in the books herself by a bequest under, the will of Bankim Chandra Chatterjee. On 19th September 1926, Sarat Kumari by a registered deed made a gift of the copyright in the books to the second defendant.
3. On 17th December 1927, Sreemati Sarat Kumari died leaving the second defendant Brojendu Sunder Banerjee, her only surviving son and as I have already said the plaintiffs claim that on the death of Sreemati Sarat Kumari Debi they became the owners of the copyright in the books along with Brojendu. On 27th December 1927, Mr. D.N.Gupta, a Solicitor acting under instructions from the plaintiffs wrote and addressed a letter to defendant 1 informing him that the plaintiffs had become entitled jointly with Brojendu to all the properties belonging to the estate of the late Rai Bahadur Bankim Chandra Chatterjee including the copyright in his books and requesting him not to make any payment to the second defendant in respect of the books without notice to the plaintiffs. It appears that the first defendant has been printing and publishing the books of Rai Bahadur Bankim Chandra Chatterjee for some time past pursuant to arrangements made with Sreemati Rajluokshmi Debi and Sreemati Sarat Kumari Debi. After the letter of 22nd December 1927 certain further letters passed between the Solicitors of the plaintiffs and the Solicitors of the second defendant to which no specific reference need be made. On 4th April 1928, there was an agreement between the first defendant and the second defendant whereby the first defendant was given a licence to print and publish the books mentioned in the plaint except the five books specifically referred to in para. 5 of the written statement. On 18th December 1930, the present suit was filed.
4. The publication of the books by the first defendant from and after 23rd December 1927 has been complained of as an infringement of the plaintiffs' rights. It is not disputed that if by the will of Rai Bahadur Bankim Chandra Chatterjee the copyright in the books had not been bequeathed to Rajluckshmi Debi, the plaintiffs are rightly the owners of the copyright along with the second defendant. The question for determination therefore is whether or not on a proper construction of the will of Rai Bahadur Bankim Chandra Chatterjee there was a testamentary disposition of the copyright in the books mentioned in the plaint in favour of his widow Rajluckshmi Debi. Learned counsel for the plaintiffs has submitted that there are no words in the will indicating that the testator intended to make a gift of his moveable properties or the copyright in his books by his will and that on the contrary the terms of Clause 3 of the will made it clear that the testator did not consider it necessary to make any testamentary disposition in respect of those properties. The testator in Clause 3, states that there was no necessity to make any will in respect of the moveable properties as on his demise his widow would become full owner of the moveable properties under the law. The widow undoubtedly under the law would be the owner of the moveable properties left by her husband though her powers of disposal might be limited. Counsel for the first defendant has argued that the testator intended that his widow should have an absolute estate with full power of disposal in her lifetime and not simply a widow's estate in the moveable properties, and as under the ordinary law she would have only a Hindu widow's . estate the Court should hold that the testator by implication made an absolute gift or bequest of the moveable properties including the copyright to his widow by his will. Counsel submitted that? the testator must have been under the impression that under the ordinary law his widow would get an absolute estate in the moveables with full power of disposal. I am by no means certain that the testator was under any such impression. It is true that in Clause 3 of the will the testator says that on his demise his wife would become full owner of his moveable properties according to the law, but it is hardly possible to argue from those words by themselves that the testator must have thought that a Hindu widow has an absolute estate in moveable properties with unlimited power of disposal. Be that as it may, what I have to ascertain is whether the testator by his will made a gift of the copyright in his books in favour of his wife either by express words or by implication. Learned Counsel on behalf of the plaintiff has cited various reported cases in which the question as to whether in the particular wills concerned there was a gift or bequest by implication or not had been considered and discussed. He has also drawn my attention to certain passages in Jarman on wills (7th Ed. at pp. 597, 600). I need however only refer to the case of Adams v, Adams (1842) 1 Hare 537 in which Vice-Chancellor Wigram laid down the principle of construction in these words:
The question in all these cases is whether the testator has actually made any gift ; and the gift, if there be any, must be found either in express words or by implication. Where a testator, in one part of his will has recited that he had given a legacy to a certain person, but it has not appeared that any legacy was given,. the Court has taken the recital as conclusive evidence of an intention to give by the will and fastening upon it, has given to the erroneous recital the effect of an actual gift. Where however the testator says that only which amounts to a declaration that he supposes that a party who is referred to has an interest independent of the will, such a recital is no evidence of an intention to give by the will, and cannot be treated as a gift by implication. The distinction between the two cases is marked and obvious. In the former, the erroneous recital is evidence of an intention to give by the will, inadvertently not expressed.
5. In the latter, as it is expressed by Mr. Jarman:
Such recitals do not in general amount to a devise; for, as the testator evidently conceived that the person referred to possessed a title independently of his own, he does not intend to make an actual disposition in favour of such person.
The other cases cited were Wright v. Wyvell (1689) 3 Leving 259, Wilson v. Morley (1877) 5 Ch D 776, Hall v. Lietch (1870) 9 Eq 376, In re: Rowe Pike v. Hamlyn (1898) 1 Ch 153 and Haverty v. Curtis (1895) 1 Ir R 23. The principle laid down in the case of Adams v. Adams (1842) 1 Hare 537 has not been disputed in any of the cases cited. After carefully considering the matter I have come to the conclusion that the testator did not expressly or by implication make a gift by his will of the copyrights in the books to his widow Rajluckshmi Debi. That being my view, it follows that the copyright in the books formed part of the undisposed residue and that the plaintiffs on the death of Srimati Sarat Kumari Debi on 17th December 1927 became entitled to the copyright in the books along with the second defendant Brojandu Sunder Banerjee. That disposes of the first two issues raised by counsel for the first defendant Satis Chandra Mukherjee. An issue was raised by counsel for the first defendant as to the maintainability of the suit and it was argued that having regard to the fact that the plaintiffs did not claim in their plaint any declaration of title to property, the present suit was not maintainable. I do not think there is any force in this argument and I decide the issue in favour of the plaintiffs. There was a further issue as to limitation, but as counsel for the plaintiffs did not make any claim in respect of any infringement prior to three years before suit, the plea of limitation was not pressed; and I do not think there was any substance in the point. As regards the second defendant, I have already held that the plaintiffs are not entitled to any decree against him on the plaint as framed. That disposes of all the issues except the issue as to the exact reliefs that the plaintiffs are entitled to. It was not disputed that if the title of the plaintiffs to the copyright in the books were established there had been an infringement of copyright except with reference to the five books mentioned in para. 5 of the written statement. Counsel for the plaintiffs has given up the claim in respect of those five books. Counsel for the first defendant has conceded that there should be a reference as to damages and that an enquiry should be directed to ascertain the profits made by the first defendant by the publication and sale of the books mentioned in the plaint except the five books mentioned in para. 5 of the written statement and that the plaintiffs should get 3/4ths share of the profits. There will therefore be a reference to such officer as the Registrar may appoint. Counsel for the plaintiffs has in addition asked for an injunction in terms of prayer (c) of the plaint and for an order in terms of prayer (b) of the plaint and for discovery in terms of prayer (d) of the plaint against the first defendant. I think the plaintiffs are entitled to these orders and I make a decree accordingly. The plaintiffs will have the cost of the suit against the first defendant. As regards the second defendant, the suit as I have already said will be dismissed but I do not think in the circumstances of this case and particularly having regard to the written statement filed by him in the suit, I should make an order for costs in favour of the second defendant against the plaintiffs.