Telangana High Court
R Indira Devi vs G Satyaki on 25 January, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE DR.JUSTICE G.RADHA RANI
C.C.C.A.No.255 of 2018
JUDGMENT:
This appeal is filed by the appellant who is the defendant No.2 aggrieved by
the judgment and decree dated 07.02.2018 in O.S.No.419 of 2008 on the file of the
XI Additional Chief Judge, City Civil Court, Hyderabad.
2. The parties are hereinafter referred as arrayed before the trial court.
3. The respondent No.1 is the plaintiff. The plaintiff filed the suit seeking
permanent injunction restraining the defendants from using, publishing, printing
and passing off the copyright works titled as "My country, My people" (modern
epic) "Naa-desham Naa-prajalu" and other related literary works written by late Sri
G.Seshendra Sharma, who was the father of the plaintiff claiming that the plaintiff
was the absolute owner of the copyright works of his father and claimed notional
damages of Rs.50,000/- towards loss of income and loss of reputation along with
costs of the suit.
4. The contention of the plaintiff was that he was the second son and last child
of late Sri G.Seshendra Sharma and Smt.Janaki. Late Sri G.Seshendra Sharma was
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a famous Telugu poet and writer whose works zxwere well identified and were
translated into several languages and received innumerable accolades by other
academicians, his brethren, the public and literary societies alike during his
lifetime. Late Sri G.Seshendra Sharma's works were known for their literary value
and public response. Late Sri G.Seshendra Sharma was famously called as Guntur
Seshendra Sharma. Out of his love and affection, late Sri G.Seshendra Sharma
assigned the copyright works in the literature created by him vide letter dated
02.12.1989 to the plaintiff and transferred all the literary works done by him to the
plaintiff. As such, the plaintiff was the sole proprietor of all the literary works
written by his father late Sri G.Seshendra Sharma. The plaintiff's father did not
retain any rights with him and all rights were transferred to the plaintiff. Pursuant
to the letter dated 02.12.1989, the plaintiff had been publishing the books written
by his father late Sri G.Seshendra Sharma. The first book was published in the
month of April, 1995 titled as "Entakaalam Ee Endamaavulu". The plaintiff had
also published the copy of the letter dated 02.12.1989 in the said book.
Accordingly, the plaintiff published eight other books titled as "Sahitya Darshini",
"Sorabu", "Swarna Hamsa", "Vachindi Votla Rutuvu", "Shodashi, Secrets of
Ramayana", "Shabdam nunchi shatabdam varaku" and "Oohalo" containing the
original works as well as translation of works written by his father. On 30.05.2007,
the plaintiff's father late Sri G.Seshendra Sharma expired. Subsequent to his
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father's death, the plaintiff published his father's books posthumously beginning
with a book titled "Naa Desham - Naa Prajalu", Adhunika Itihasam, "My Country -
My People", modern Indian Epic in the month of October, 2007.
4.1. The plaintiff further submitted that late Sri G.Seshendra Sharma survived by
his wife Smt.Janaki and other children. On 26.11.2007, there was a public notice
issued in the newspaper, "Times of India" and in "Andhra Jyothi" by
Smt.Rajkumari Indira Devi Dhanrajgir claiming as wife of late Sri G.Seshendra
Sharma and as the owner of the copyright works, and that the same were
transferred to her by virtue of letter dated 05.01.2006. The plaintiff issued a reply
to her counsel Dr.P.V.Vijay Kumar, Advocate vide letter dated 27.11.2007. He
clarified that the transfer of copyrights vide letter dated 05.01.2006 was absolutely
false, unsustainable and it was created and fabricated. By virtue of the letter dated
02.12.1989 written by his father in his own hand writing, the copyrights of his
works were conferred to the plaintiff.
4.2. The plaintiff further submitted that he was the sole owner of copy rights of
the literary works of his father and no one else can claim the rights. In most of the
books, he published the letter dated 02.12.1989 written by his father and also the
reply notice to the public notice given by him dated 27.11.2007 in order to caution
the people about any misuse and infringement of the copyrights. The plaintiff in
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the month of May, 2008 published other books under the title 'Ruthu Ghosha',
'Mande Suryudu' and compilation of 'Vivaahala Stories', 'Mabbullo Darbar' Play
and miscellaneous poetry. On 02.06.2008, the plaintiff came across the book titled
as "My country, My people" (modern epic) ("Naa Desham Naa Prajalu") published
by M/s.Neelkamal Publication Private Limited (the defendant No.1). The book
was imitation of the book published by the plaintiff with the same title as 'Naa
Desham, Naa Prajalu', 'My country My people' (modern Indian Epic) which was
published in the month of October, 2007 by the plaintiff, much before the
publication of defendant No.1. The contents, para wise and page wise were
exactly similar to that of the plaintiff's book. It was clear violation and
infringement of copyright of the plaintiff. The plaintiff had not licensed any rights
of what so ever to defendant No.1 or for that matter to any other person. Without
the permission and license from the plaintiff, the defendant No.1 had infringed the
copyrights conferred on the plaintiff. The publication of the plaintiff's work was
much prior to the publication of the book by defendant No.1. On 10.06.2008, the
plaintiff got issued a legal notice to the Manager of Defendant No.1 Company for
violating the statutory rights conferred by virtue of Copy Right Act, 1957. On
30.06.2008, the defendant No.1 got issued a reply to the legal notice through his
counsel by mere denial. In the reply notice, the publication of impugned book was
admitted and it was further submitted that defendant No.1 had entered into
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agreement with defendant No.2 for the publication of the books titled as "Naa
Desham - Naa Prajalu" and "Adhunika Mahabharatam".
4.3. The plaintiff further submitted that defendant No.2 was not the wife of the
plaintiff's father and claiming her rights as wife of the plaintiff's father was nothing
but disturbing the harmony of the family relations, because the plaintiff's mother
Smt.G.Janaki, the wife of late Sri G.Seshendra Sharma was still alive. In all the
publications, the photograph of the family was published. The defendant No.2 was
creating false and fabricated documents. In the book titled as "My country My
people" published by M/s.Neelkamal Publications Private Limited, it was stated
that the book was dedicated to his wife and poetess Rajkumari Indira Devi
Dhanrajgir with profound love. It was a false claim to say that the defendant No.2
was the wife of his late father. The father of the plaintiff had high reputation and
the books written by him were considered as great epics. The defendant No.2 in
collusion with defendant No.1 was encashing the reputation by publishing exactly
similar literature, for which the plaintiff had got all rights by virtue of the letter
dated 02.12.1989 written by the plaintiff's father.
4.4. The defendant had adopted and copied the whole contents of the plaintiff's
book which would amount to infringement of copyrights of the plaintiff in the
book titled as "My country My people". The defendant had falsely attempted to
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pass off the literature with a malafide intention. The activity of the defendants
would amount to passing off and infringement by misrepresenting and creating an
impression to the public that the book was published by the plaintiff herein, who
was the copy right holder of the said book. The conduct of the defendants was
motivated to encash upon such good will and to earn easy profits on the basis of
reputation upheld by the plaintiff. The plaintiff would suffer tremendous loss to
his reputation and to his business if the defendant was allowed to succeed in illegal
manner. The defendant was not entitled to use the good will and reputation by
infringing the copyright of the plaintiff, which was a blatant violation of the rights
conferred on the plaintiff.
4.5. The plaintiff further submitted that the wrongful act of infringement was
attracted for the reasons that:
i. The defendants 1 and 2 had lavishly copied the contents of the literature work by
adopting the same title to the book as that of the plaintiff.
ii. The adoption of an identical or a substantially similar literature would amount to
infringement of the statutory and common law rights.
iii. The contents of both the books were exactly similar.
iv. The class of purchasers and channel of sale were same.
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v. Since the contents of the books were same and were being sold under the same
title, there would be every likelihood of confusion and deception.
5. As such, filed the suit claiming the above reliefs.
6. The defendant No.1 filed written statement contending that the suit filed by
the plaintiff was not maintainable. The Court was not having jurisdiction to
entertain the suit. The plaintiff had to go before the Letter Patent Board situated at
Madras. He further denied the contents of the plaint and contended that the
assignment letter alleged by the plaintiff was a fabricated document. Even if the
assignment letter was considered as true, as per the Copy Right Act, the validity of
the letter was only for five years and not beyond that. Without admitting the
alleged letter obtained by the plaintiff, he further contended that during the lifetime
of late Sri G.Seshendra Sharma, the plaintiff did not publish his literary works and
only after the death of Sri G.Seshendra Sharma, the plaintiff was claiming right
over the said alleged assignment of copy right. He further submitted that during
the lifetime of Sri G.Seshendra Sharma, he married the 2nd defendant and retained
his rights and also transferred the rights to the 2nd defendant by letter dated
05.01.2006 and the right was given through a letter to the 2nd defendant for a
period of 30 years and after the said letter was issued by late Sri Seshendra Sharma,
the defendant No.1 entered into an agreement with defendant No.2 on 11.04.2008,
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wherein she gave right to print and publish the works of the books titled as "Naa
Desham Naa Prajalu" (Aadunika Itihasam), "My country My people" (Modern
Epic), but no copy right was given to defendant No.1 except for publishing and
selling the books. The copy right was given to the 2nd defendant by her late
husband during his lifetime.
6.1. The defendant No.1 further contended that the relationship of Smt.Janaki
and other children of late Sri G.Seshendra Sharma was not having any bearing on
the subject matter of the suit. He admitted that on 26.11.2007, the 2nd defendant
issued public notice in Times of India and Andhra Jyothi claiming that she was the
wife of late Sri G.Seshendra Sharma and he being the author of the book had
transferred his right i.e. copyright on 05.01.2006 while he was alive that too for a
period of 30 years. The plaintiff also gave a reply with false allegations. He
further contended that the plaintiff's own sister had given a public advertisement in
the newspaper that the 2nd defendant was the wife of late Sri G.Seshendra Sharma.
As such, the allegation made by the plaintiff would not hold any water. He
contended that the letter dated 02.12.1989 was a brought up document and called
for strict proof of the same. No prudent man would issue a letter on a piece of
paper, which would clearly indicate that it was a brought up document. He further
contended that defendant No.1 had not violated any copyright Act and he was only
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a publisher and seller and he was not the author of the book and as per the
agreement dated 11.04.2008, he was publishing the books and was selling in the
market and prayed to dismiss the suit.
7. The second defendant filed a memo adopting the written statement of
defendant No.1, but subsequently filed an I.A to permit her to file written
statement in addition to the memo filed by her. She also filed I.A.No.860 of 2010
seeking permission to file an independent counter in the I.A filed under Order
XXXIX Rule 1 and 2 of CPC. The trial court dismissed both the applications vide
separate orders dated 21.01.2011. Against the said dismissal, the defendant No.2
(the appellant herein) preferred C.R.P.Nos.722 and 738 of 2011. Both the Civil
Revision Petitions were allowed. As such, the defendant No.2 filed an additional
written statement contending that the plaintiff had not approached the Court with
clean hands. He misrepresented before the Court that he was the copyright holder.
The document purporting to grant copyright in favor of the plaintiff and relied by
him was a false and fabricated one. He was well aware that late Sri G.Seshendra
Sharma had granted copyright in favor of defendant No.2 way back in the year
2002 and that many of his books and translations were published by defendant
No.2 during his lifetime. Sri G. Seshendra Sharma had revoked all his earlier copy
rights on 05.01.2006 and granted copyright of all published and un-published
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works of him to defendant No.2. The plaintiff had conveniently kept silent until
his father passed away and filed a false case with a malicious intent to harass a old
lady of high repute. The dispute was only with regard to the assignment of
copyright but not infringement. As such, the Court would not have jurisdiction to
entertain the suit under Section 19(A) of the Copyright Act. In a case of dispute of
assignment of copyright, a complaint had to be filed before the Copyright Board.
The suit was squarely barred by limitation in view of the fact that the plaintiff was
fully aware that the defendant No.2 in 2002 itself was holding copyright given by
her late husband Sri Seshendra Sharma and had given license to Sahitya Academy
for publication of Kannada translation of Aadunika Mahabharatham, but kept silent
till the death of his father. The plaintiff was using the excuse of public notice to
overcome the ground of limitation. The plaintiff challenged the suit with a
malafide intention to harass defendant No.2 and concealed vital information of the
fact that his father revoked all earlier copyrights and granted copyright in favor of
defendant No.2. The plaintiff was blatantly violating the status quo order granted
by the Court on 20.08.2008 and was publishing and selling various books of his
father under the alleged copyright. Further, he was also spreading malicious
defamatory information about defendant No.2 both in electronic media as well as
in the books he had published. Assuming without admitting that defendant No.2
had infringed his copyright, the plaintiff had acquiesced by sitting silent when the
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defendant was presumably invading his rights and spending money on it. The
plaintiff had not taken any positive steps or acts in all these years. His mere
silence or inaction would show latches on his part. The plaintiff knowingly
allowed defendant No.2 to spend money and build up an important chain for
publication, promotion and propagation of his father's work. The plaintiff was
stopped by his acquiescence. The acquiescence to the alleged infringement would
amount to clear consent. The acquiescence was such that it could safely be inferred
as license sufficient to create a new right in defendant No.2. The plaintiff's
inordinate delay in taking steps would indicate that he did not have any interest at
all. Assuming without admitting that late Sri Seshendra Sharma had given
copyright in favor of the plaintiff, the same would be valid for five years. No
publication had come forth in the first 12 months. Even according to the plaintiff,
he did not bother to publish any of his father's works until 1995, when the
copyright would have lapsed. Furthermore, the plaintiff published few books of
late Sri Seshendra Sharma in violation of copyrights assigned by the poet revoking
all previous transfers in favor of defendant No.2. In the books 'Rutu Ghosha' and
'Sahitya Kowmudi' published by the plaintiff in the year 2008, he stated that
copyright was given in his favor by his father on 02.12.1989 by way of Will. A
Will would come into effect only after the lifetime of the testator. As per law, a
testator can always revoke his will and exercise his rights of copyright. During the
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lifetime of the author / poet, Sri G.Seshendra Sharma himself revoked the
copyright. It was a clear proof of revocation of all previous transfers by exercising
his right as a copyright holder and transferred the same in favor of defendant No.2.
The defendant No.2 in turn gave license to Sahitya Academy to publish the book
"Adhunika Mahabharatam" on 14.08.2002.
8. The defendant No.2 was married to Sri G.Seshendra Sharma on 16.06.1971
at Hallibeed in Karnataka. She had been promoting Telugu literature even before
her marriage to Sri Seshendra Sharma and had taken very keen interest in all his
work. Her in-depth understanding of the poet and his works could be understood
from the tribute paid by her in "Seshendra: The Poet, My Husband" published in
Indian Literature - Sahitya Academy's bi monthly journal (May - June, 2008). The
poet / author had given a copyright to defendant No.2 on 14.08.2002 and
confirmed the same revoking all earlier copyrights on 05.01.2006. The defendant
No.2 had all legal rights under the copyright given to her by her husband
Sri G.Seshendra Sharma vide letter dated 05.01.2006. The defendant No.2 entered
into a valid and legal agreement with defendant No.1 for publication of the book
"My country My people". It was actually the plaintiff who had infringed the
defendant's copyrights. The defendant No.2 and Sri G.Seshendra Sharma were
married on 16.06.1971 and they lived together at the defendant No.2's residence for
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more than 36 years. The defendant No.2 in her own right was a well-known
poetess, writer and a socially reputed person. She would not need to encash on the
reputation of anybody else. It was the defendant No.2's love for Telugu Literature
that made her promote and propagate her late husband's works. It was the plaintiff
who had no standing in the society, who was now seeking to encash on the glory of
his father after his death. The defendant No.2 was within her right to get the books
of her husband published by defendant No.1. A reading of the agreement with
defendant No.1 would show that the defendant No.2 had agreed to buy back books
to a tune of Rs.55,000/- which had already been paid. The defendant No.2 unlike
the plaintiff was not in dire requirement to earn easy profits or otherwise. The
defendant's sole interest was in keeping the works of her beloved husband alive
and spreading the same for the generations to come and prayed to dismiss the suit.
9. The plaintiff filed a rejoinder to the additional written statement filed by
defendant No.2. He contended that the plaintiff had not bonafidely come forward
to the Court by raising any counter claim and had not shown any proper
explanation to show the circumstances which prevented her from the claiming the
alleged copyrights by way of either counter claim or by way of filing separate suit
for her rights. The rights conferred by his father were unlimited without there
being any time frame and the publication of the books was completely within his
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own domain and it was his prerogative right whether to publish or not to publish
the books and when to publish. There was no specific stipulation indicating him to
publish the books in the first twelve months from the date of transferring the
copyrights by his father in his favor and prayed to decree the suit.
10. Basing on the above pleadings, the trial court framed the issues as follows:
i. Whether the plaintiff is entitled for the relief of permanent injunction as prayed
for?
ii. Whether the plaintiff is entitled to direct the defendants to pay a sum of
Rs.55,000/- towards notional damages, which was claimed for the damages and
loss of income and loss of reputation owing to the unethical acts of defendants?
iii. To what relief?
11. The plaintiff examined himself as PW.1 and got marked Exs.A1 to A12.
The Assistant Director of Telangana State Forensic Science Laboratory (for short
"TSFSL") was examined CW.1 and Ex.X1 was marked through him. The
defendant No.1 examined himself as DW.1. The defendant No.2 was examined as
DW.2 and Exs.B1 to B12 were marked on behalf of the defendants.
12. On considering the oral and documentary evidence on record, the learned XI
Additional Chief Judge, City Civil Court, Hyderabad observed that Ex.A2, the
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authorization letter, under which the plaintiff was claiming copyrights dated
02.12.1989 was admitted by defendant No.2 during her cross-examination, as the
said letter was in the hand writing of Sri G.Seshendra Sharma.
13. As the plaintiff contended that Ex.B3 letter dated 05.01.2006 (which was
shown as Ex.B6 in the appendix) was a forged and fabricated document, the same
was referred to TSFSL to compare with Ex.A2 and the laboratory issued a report
Ex.X1 stating that the signature on Ex.X1 was printed through a printing process
and it was not executed with any writing instrument and the same was proved by
the plaintiff by examining the Assistant Director of TSFSL as CW.1.
14. Thus, the evidence of CW.1 and the report marked under Ex.X1 would show
that Ex.B3 (Ex.B6) was not signed by late Sri G.Seshendra Sharma and his
signature was printed through a printing process. The hand writing in Ex.A2 was
admitted by defendant No.2 herself in her cross-examination. As such, Ex.B3
(Ex.B6) was not executed by late Sri G.Seshendra Sharma. The defendant No.2
could not claim any copyrights on the literary works of late Sri G.Seshendra
Sharma. The plaintiff being the son of late Sri G.Seshendra Sharma and who
acquired the copyright from his father through Ex.A2 was entitled to protect his
copyrights over the literary works of his father and was entitled for perpetual
injunction as prayed for.
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15. The trial court also further observed that the plaintiff by publishing the
books written by his father during his lifetime in the month of April, 1995 itself
exercised his rights. The trial court further observed that the contention that the
plaintiff had acquiesced his right in favor of defendant No.2 as he failed to exercise
his right within five years was not valid. As per Section 19(7) of the Copy Right
Act, 1957, the sub-sections 2 to 6 of Section 19 were not applicable to the
assignments made before coming into force of the Copy Right Act (Amendment)
Act, 1994, which came into force with effect from 10.05.1995 and since the
assignment under Ex.A2 was made on 02.12.1989 prior to the Amendment Act,
1994, the provisions under sub-sections 4 and 5 of Section 19 of Copyright Act
were not applicable to Ex.A2.
16. The trial court denied the relief of damages to the plaintiff as no evidence
was adduced to establish the same and decreed the suit in part.
17. Aggrieved by the said decreetal of the suit in part granting injunction against
her, the defendant No.2 preferred this appeal contending that the trial court failed
to appreciate the fact that the appellant - defendant No.2 was publishing the books
of late Sri G.Seshendra Sharma ever since the time of their marriage on 16.06.1971
and her late husband granted copyright in her favor way back in 2002 by
addressing a letter dated 14.08.2002 to Sahitya Academy regarding publishing of
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book "Adhunika Mahabharatam" and the appellant granted license to the Sahitya
Academy under Ex.B12.
18. The trial court failed to appreciate that late Sri G.Seshendra Sharma revoked
all his previous assignments and granted copyright of all his literary works to the
appellant herein on 05.01.2006 and failed to appreciate the paper publication dated
04.12.2007 issued by the daughter of late Sri G.Seshendra Sharma by name Smt.
G.Revathi on her behalf and also on behalf of all other family members, referred to
as Ex.B8 in the judgment (marked as Ex.B5 in the appendix of evidence). The trial
court ought not to have believed the authenticity of Ex.A2 dated 02.12.1989. The
fact that the appendix of evidence was not in consonance with the evidence marked
through the witnesses would amply show non-application of mind. The trial court
failed to critically analyze the cross-examination of CW.1 and the admissions
made by PW.1 in his cross-examination and failed to note his in-consistent
statements. The trial court did not appreciate the cross-examination of DW.2 in a
proper perspective. The trial court had not assigned any reasons for disbelieving
Ex.B8 (letter addressed by late Sri G.Seshendra Sharma to Sahitya Academy dated
14.08.2002) and Ex.B12 (the license granted in favor of the appellant by Sahitya
Academy, dated 14.08.2002) and ignored such important documents.
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19. The trial court ought to have given a finding that Ex.B3 (Ex.B6) dated
05.01.2006 was a genuine assignment in favor of the appellant. It was laminated
only for the purpose of preservation. The report under Ex.X1 dated 22.09.2017
was erroneous and false and the same ought not to have given any credence. The
trial court failed to appreciate that the tests conducted by the Assistant Director,
TSFSL were vague and inconclusive and failed to appreciate that the opinion of an
expert was not final and the Court ought to have independently examined the
exhibits to come to a logical, legal and correct conclusion and prayed to set aside
the judgment and decree rendered in O.S.No.419 of 2008 dated 07.02.2018 by the
XI Additional Chief Judge, City Civil Court, Hyderabad.
20. Heard Smt.Dr.Y.Padmavathi, learned Senior Counsel for the appellant -
defendant and Sri Dr.Venkat Reddy Donti Reddy, learned Senior Counsel for the
respondent No.1 - plaintiff.
21. The learned Senior Counsel for the appellant contended that Ex.A2 was not
a valid document. It was not executed by late Sri G.Seshendra Sharma. As per the
plaintiff's deposition, it was not executed at the Palace, whereas the Ex.A2 was
showing the address as Gyanbagh Palace. The evidence of PW.1 that he did not
enquire with Miss Revathi regarding her paper publication was not at all
convincing. All other legal heirs including their mother categorically stated that
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the appellant (defendant No.2) was the legally wedded wife and referred
Smt.G.Janaki as ex-wife. The family member certificate was issued by the MRO
at the request of the plaintiff only for the purpose of settlement of pension benefits
and the same was not valid for property claims or any other purpose.
Sri G.Seshendra Sharma during his lifetime executed Ex.B12 dated 14.08.2002
exercising his rights as copyright owner of "Adhunika Mahabharatham" and
nominated his wife Rajkumari Indira Devi (appellant) as copyright holder. Even if
at all, there was any assignment dated 02.12.1989, the author revoked the
assignment in favor of the appellant and nominated her as his copyright holder. In
view of revocation coupled with newspaper notification of other legal heirs of Sri
Seshendra Sharma by way of Ex.B8 dated 04.12.2007, it was abundantly clear that
the plaintiff was the copyright holder. The appellant published "Adhunika
Mahabharatham" even before the alleged execution of Ex.A2 way back in 1985
and reprinted it in 1992 and 1993. She also published 'Janavamsam' in the year
1993 through 'Forum for Indian Languages' from Gosha Mohal, Hyderabad. The
copies of the said book were available at Vishalandhra Publishing House,
Hyderabad and its seven branches. The plaintiff had not challenged the said
publications within a period of three years, in which Sri Seshendra Sharma was
shown as copyright holder. Any cause of action, if at all, for infringement would
arise in 1991, 1992, 1993 when "Adhunika Mahabharatam" was reprinted and
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'Janavamsam' was published through Forum for Indian Languages under auspices
of Gyan Bagh Palace, the copies made available at Vishalandhra Publication at
several places were to the public knowledge. As such, the suit was barred by
limitation. The cause of action would not arise from 2008, but, from the dates of
the above publications. The judgment of the trial court was erroneous. The trial
court failed to appreciate that Ex.A2 dated 02.12.1989 was not acted upon for
several years by the plaintiff and Exs.B5 and B6 had to be considered for
inconsistent pleadings of the plaintiff. Ex.B12 dated 14.08.2002 would clinchingly
prove that the late author revoked the execution of Ex.A2. The trial court did not
frame proper issues and did not give proper findings on questions of limitation,
acquiescence and estoppel. The trial court forwarding Ex.A2 as the standard
signature was not proper, as the appellant denied the existence of Ex.A2 in her
deposition and written statement. The expert had not opened the laminated
document. The expert could not identify the printer. He was not well-versed with
printing processes. No chemical tests were conducted by him. His findings based
on optical examination and observation were insufficient and relied upon the
judgments of the Hon'ble Apex Court in Jai Narain Parasrampuria (Dead) and
Others v. Pushpa Devi Saraf and Others 1, The State of Gujarat v. Vinaya
(2006) 7 SCC 756
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Chandra Chhota Lal Pathi 2 , Tomaso Bruno and Another v. State of
Uttarpradesh 3 , Prem Prakash @ Lillu and Another v. State of Haryana 4 ,
State of Uttar Pradesh v. Krishna Master and Others 5.
22. The learned Senior Counsel for the respondent No.1 - plaintiff on the other
hand contended that several material admissions were made by the appellant in her
cross-examination. She admitted that no document was filed by her to show that
she was married to late Sri G.Seshendra Sharma on 06.06.1971. She admitted that
she was aware of the marriage between late Sri G.Seshendra Sharma and
G.Janakamma. She confirmed the authenticity of Ex.A2 dated 02.12.1989 by
confirming the hand writing of late Sri G.Seshendra Sharma and admitted that
Ex.A2 was written by Sri G.Seshendra Sharma in favor of the respondent No.1 -
plaintiff with regard to his right towards the copyrighted works and admitted that
Ex.A2 was not a fabricated document and about the passing off of the copyrighted
works in favor of the respondent No.1 - plaintiff. She also admitted that the letter /
license of Sahitya Academy (Ex.B12) was not in original form.
23. He further contended that the signing of Ex.A2 at Gyan Bagh Palace was
irrelevant. Mere statement of any individual / person could not give the appellant
AIR 1967 SC 778
(2015) 7 SCC 178
(2011) 11 SCC 687
(2010) 12 SCC 324
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herein the legal status as the wife of late Sri G.Seshendra Sharma. He further
contended that the intellectual property rights were also inheritable as any other
property, Sahitya Academy was not the competent authority to issue any copyright.
It was not a relevant document to certify the copyright owner. The said document
was not signed by any authorized signatory of Sahitya Academy. The newspaper
publication would not confer ownership of copyrights. The publication of books
was a continuous cause of action. As such, the suit was not barred by limitation.
The cause of action arose on the dates given in the plaint and it was continuous.
The improper framing of the issues by the trial court could not be raised at the
stage of appeal. Having participated in the suit proceedings and having contested,
raising the contention about non-framing of issues was irrelevant. The allegations
with regard to expert opinion could not be agitated at this stage, as the expert was
cross-examined by the counsel for the appellant - defendant No.2. The allegations
raised on the grounds of limitation, latches, acquiescence and estoppel were
completely irrelevant. The citations referred were not relevant as none of the
citations were in line with the subject matter of copyright. The trial court
considered all the contentions raised by the appellant and gave a well-reasoned
judgment and prayed to dismiss the appeal.
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24. During the course of arguments, the appellant filed I.A.No.1 of 2023 under
Order XLI Rule 27 seeking permission of the Court to adduce additional evidence
and to take on record, the letter addressed by Sri G.Seshendra Sharma to the
Secretary, Health and Municipal Administration, Government of Andhra Pradesh
dated 17.10.1971 as Ex.B13, and the cover page and relevant pages of the book
'Janavamsam' printed in the year 1993 by Indian Languages Forum, Gyan Bagh
Place as Exs.B14 and the cover page and relevant pages of the book 'Adhunika
Mahabharatam' printed & re-printed by the petitioner - appellant in the years 1985,
1992 and 1993 by Indian Languages Forum, Gyan Bagh Palace as Ex.B15. The
appellant filed an affidavit in support of the application stating that inspite of
exercise of due diligence, the above said documents could not be traced during the
course of trial, as such, the same could not be filed before the trial court. But, they
were required to come on record as additional evidence in view of challenge to the
validity of the marriage of the appellant and in proof of her contention on the
aspects of limitation, acquiescence and estoppel and prayed to permit her to bring
them on record as Exs.B13 to B15.
25. The learned counsel for the respondent No.1 - plaintiff vehemently opposed
the application stating that no plausible explanation was given by the appellant to
receive the documents as additional evidence at the stage of appeal. When the
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evidence on record was sufficient to adjudicate the matter, Order XLI Rule 27 of
CPC could not be invoked and additional evidence could not be received as a
matter of right. The alleged documents sought to be filed as additional evidence
were neither relevant nor germane to decide the issues on record. The said
documents were completely irrelevant and un-concerned to the present appeal
proceedings. Ex.B13 was a created and fabricated document. There was no
authenticity to such letter since there was no endorsement by any of the statutory
authorities in receipt of the same. No law permits consent to the second marriage
either by the first wife or by any of the statutory authorities. Admittedly, the first
wife Smt.Janaki was still alive. The said document would not give any legal
sanctity to the appellant as second wife of late Sri G.Seshendra Sharma. The
alleged publication of the two books under the name 'Janavamsam' and 'Adhunika
Mahabharatam' were totally irrelevant, immaterial and unrelated to the facts or the
issues involved in the present appeal. The point of limitation, acquiescence and
estoppel could not be proved by producing the alleged documents as additional
evidence. The appellant was prolonging the matter by burdening the Court with
irrelevant documents and prayed to dismiss the same.
26. Under the scheme of the Code of Civil Procedure, 1908, it is the trial court
before whom parties are required to adduce their evidence. But in three exceptional
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circumstances additional evidence can be adduced before the appellate court, as
provided under Section 107(1)(d) read with Rule 27 of Order XLI of the Code.
Rule 27 of Order XLI reads as under: -
27. Production of additional evidence in
Appellate Court. -
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court. But if -
(a). The Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at the
time when the decree appealed against was passed,
or The Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause, The Appellate Court may allow such
evidence or document to be produced, or witness to
be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission."
27. The learned counsel for the respondent - plaintiff relied upon the judgment
of the Hon'ble Apex Court in A.Andisamy Chettiar v. A.Subburaj Chettiar 6,
wherein it was held that:
(2015) 17 SCC 713
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"12. From the opening words of sub-rule (1) of Rule
27, quoted above, it is clear that the parties are not
entitled to produce additional evidence whether oral
or documentary in the appellate court, but for the
three situations mentioned above. The parties are
not allowed to fill the lacunae at the appellate stage.
It is against the spirit of the Code to allow a party to
adduce additional evidence without fulfillment of
either of the three conditions mentioned in Rule
27."
14. In North Eastern Railway Admn. v. Bhagwan
Das [(2008) 8 SCC 511], this Court observed thus:-
"13. Though the general rule is that
ordinarily the appellate court should
not travel outside the record of the
lower court and additional evidence,
whether oral or documentary is not
admitted but Section 107 CPC,
which carves out an exception to the
general rule, enables an appellate
court to take additional evidence or
to require such evidence to be taken
subject to such conditions and
limitations as may be prescribed.
These conditions are prescribed
under Order 41 Rule 27 CPC.
Nevertheless, the additional evidence
can be admitted only when the
circumstances as stipulated in the
said Rule are found to exist..."
15. In N. Kamalam (dead) and another v.
Ayyasamy and another [(2001) 7 SCC 503], this
Court, interpreting Rule 27 of Order XLI of the
Code, has observed in para 19 as under: -
"19. ..... the provisions of Order 41
Rule 27 have not been engrafted in
the Code so as to patch up the weak
points in the case and to fill up the
omission in the court of appeal - it
does not authorize any lacunae or
gaps in the evidence to be filled up.
The authority and jurisdiction as
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conferred on to the appellate court to
let in fresh evidence is restricted to
the purpose of pronouncement of
judgment in a particular way."
16. In Union of India v. Ibrahim Uddin and
another [(2012) 8 SCC 148], this Court has held as
under: -
"49. An application under Order 41
Rule 27 CPC is to be considered at
the time of hearing of appeal on
merits so as to find out whether the
documents and/or the evidence
sought to be adduced have any
relevance/bearing on the issues
involved. The admissibility of
additional evidence does not depend
upon the relevancy to the issue on
hand, or on the fact, whether the
applicant had an opportunity for
adducing such evidence at an earlier
stage or not, but it depends upon
whether or not the appellate court
requires the evidence sought to be
adduced to enable it to pronounce
judgment or for any other substantial
cause. The true test, therefore is,
whether the appellate court is able to
pronounce judgment on the materials
before it without taking into
consideration the additional evidence
sought to be adduced."
28. He further relied upon the judgment of the Hon'ble Apex Court in Union of
India v. Ibrahim Uddin and Another 7, wherein it was held that:
"37. The Appellate Court should not, ordinarily
allow new evidence to be adduced in order to
enable a party to raise a new point in appeal.
Similarly, where a party on whom the onus of
(2012) 8 SCC 148
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proving a certain point lies fails to discharge the
onus, he is not entitled to a fresh opportunity to
produce evidence, as the Court can, in such a case,
pronounce judgment against him and does not
require any additional evidence to enable it to
pronounce judgment. (Vide: Haji Mohammed
Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed
Iqbal and Mohamed Ali and Co., AIR 1978 SC
798).
38. Under Order XLI , Rule 27 CPC, the appellate
Court has the power to allow a document to be
produced and a witness to be examined. But the
requirement of the said Court must be limited to
those cases where it found it necessary to obtain
such evidence for enabling it to pronounce
judgment. This provision does not entitle the
appellate Court to let in fresh evidence at the
appellate stage where even without such evidence it
can pronounce judgment in a case. It does not
entitle the appellate Court to let in fresh evidence
only for the purpose of pronouncing judgment in a
particular way. In other words, it is only for
removing a lacuna in the evidence that the appellate
Court is empowered to admit additional evidence.
[Vide Municipal Corporation of Greater
Bombay v. Lala Pancham [AIR 1965 SC 1008]".
39. It is not the business of the Appellate Court to
supplement the evidence adduced by one party or
the other in the lower Court. Hence, in the absence
of satisfactory reasons for the non- production of
the evidence in the trial court, additional evidence
should not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the
indulgence of being allowed to give further
evidence under this rule. So a party who had ample
opportunity to produce certain evidence in the lower
court but failed to do so or elected not to do so,
cannot have it admitted in appeal. (Vide: State of
U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC
912; and S. Rajagopal v. C.M. Armugam & Ors.,
AIR 1969 SC 101).
40. The inadvertence of the party or his inability to
understand the legal issues involved or the wrong
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advice of a pleader or the negligence of a pleader or
that the party did not realize the importance of a
document does not constitute a "substantial cause"
within the meaning of this rule. The mere fact that
certain evidence is important, is not in itself a
sufficient ground for admitting that evidence in
appeal.
41. The words "for any other substantial cause"
must be read with the word "requires" in the
beginning of sentence, so that it is only where, for
any other substantial cause, the Appellate Court
requires additional evidence, that this rule will
apply, e.g., when evidence has been taken by the
lower Court so imperfectly that the Appellate Court
cannot pass a satisfactory judgment."
29. In its recent judgment in Sanjay Kumar Singh v. State of Jharkhand 8, the
Hon'ble Apex Court held that:
"7. It is true that the general principle is that the
appellate court should not travel outside the record
of the lower court and cannot take any evidence in
appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional
evidence in exceptional circumstances. It may also
be true that the appellate court may permit
additional evidence if the conditions laid down in
this Rule are found to exist and the parties are not
entitled, as of right, to the admission of such
evidence. However, at the same time, where the
additional evidence sought to be adduced removes
the cloud of doubt over the case and the evidence
has a direct and important bearing on the main issue
in the suit and interest of justice clearly renders it
imperative that it may be allowed to be permitted on
record, such application may be allowed. Even, one
of the circumstances in which the production of
additional evidence under Order 41 Rule 27 CPC
by the appellate court is to be considered is, whether
(2022) 7 SCC 247
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or not the appellate court requires the additional
evidence so as to enable it to pronouncement
judgment or for any other substantial cause of like
nature."
30. In the light of the above principles, when the documents sought to be
introduced as additional evidence are considered, the alleged documents were
within the knowledge and approach of the appellant and the appellant had not
exercised due diligence and not gave satisfactory reasons for not producing the
said documents during trial. Whether the appellant is the second wife of late Sri
G.Seshendra Sharma or not is not relevant for deciding the appeal. The documents
sought to be marked as Exs.B14 and B15 are also not necessary to prove the
aspects of limitation, acquiescence and estoppel at the stage of hearing the first
appeal, as without these documents also, the said aspects can be considered. As
such, it is considered fit to dismiss this application as the above documents are not
necessary and helpful to the Court in deciding the appeal.
31. On hearing the contentions of the learned counsel for the appellant and the
learned counsel for the respondent No.1 - plaintiff, the points that arise for
determination in this appeal are:
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1. Whether the plaintiff is the owner of the copyright works of late Sri
G.Seshendra Sharma by virtue of Ex.A2?
2. Whether late Sri G.Seshendra Sharma had revoked the copyrights assigned
to the plaintiff and re-assigned to defendant No.2 under Ex.B6?
3. Whether the suit was barred by limitation, acquiescence and estoppel?
4. Whether the judgment of the trial court is in accordance with law and facts
on record or whether the same needs any interference by this Court?
5. To what result?
32. Before proceeding to answer the above issues, it is also considered necessary
to have an overview about the Copyright Law in India.
33. Copyright is an intellectual property right given by law to the creators of
literary, dramatic, musical and artistic works and producers of cinematograph films
and sound recordings. It can be understood as a bundle of rights that include the
right of reproduction, communication, adaptation and translation of the work. The
copyright ensures protection to the rights of authors over their creations and aims
at rewarding creativity.
34. The Copyright Act, 1957 along with Copyright Rules governs the laws
relating to Copyright protection in India. Copyright can be claimed by either the
creator or the person who has inherited the rights of ownership from the original
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creator or an agent, who is allowed to act on behalf of the creator. The Copyright
Act provides an economic right to the author to reproduce the work, to issue copies,
to perform or communicate it to the public, to make any cinematograph film or
sound recording or to make any adaptation or translation of the work. The Act also
provides a paternity right - right to claim authorship of the work; an integrity right
- right to protect ones honor and reputation and a general right - right to not have a
work falsely attributed to oneself. These are called moral rights and they remain
with the author even after assignment of the copyright. India being a signatory to
the Berne Convention for the protection of literary and artistic works, 1886 (Berne
Convention) is obligated to protect the copyrights. As per Berne Convention, the
registration of copyright is not mandatory. In India too, it is not mandatory for one
to register a copyright for availing the protection of law. As such, the Copyright
Act, 1957 also does not mandate registration. In case of original literary, dramatic,
musical and artistic works, the time period of copyright in India is 60 years in
addition to the author's life span.
35. As per Section 18 of the Copyright Act, 1957, the creators hold the power to
assign their rights to any other individual. The assignee gains all the rights
associated with the copyrighted work. Once the assignee receives certain rights
encompassed within the copyright, they are considered as rightful owners of those
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specific rights. The assigner can retain ownership of any unassigned rights.
Section 18 also makes it clear that the assignee has to exercise his rights provided
under any one of the sub-sections of the Sections within a period of one year.
36. As per Section 19 of the Copyright Act, 1957, an assignment of copyright
must fulfill certain requirements to be considered legally binding:
1. It must be in writing and bear the signature of the assigner or his authorized representative.
2. The assignment document should identify the specific work being assigned and specify the
nature of the rights being transferred.
3. It should define the duration and territorial scope of the assignment.
4. Additionally, the document must address the issue of royalty payments, if applicable, detailing
the amount payable to the author or their legal heirs throughout the duration of the assignment.
5. The terms of the assignment can be revised, extended or terminated by mutual agreement.
6. In the absence of a stipulated assignment period, the standard duration will commence from
the date of the assignment and last for 5 years.
7. The ownership can be assigned either fully or partially.
8. In the absence of specific information regarding the territorial scope of the assignment, it will
be presumed to cover the entire area of India.
37. Once, the assignment is made; the assignee is legally recognized as the
owner of the copyright under the above provisions.
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38. As per Section 19(4), if the assignee fails to do so, his rights will be lapsed
unless otherwise mentioned in the assignment.
39. Section 20 addresses the transfer of copyright ownership through operation
of law when the owner passes away, particularly in cases where no Will has been
executed. In such instances, the copyright becomes part of the deceased owner's
estate and is inherited by their personal representative. Furthermore, Section 20
clarifies that if an individual is entitled to receive copyright through a request, and
the work in question had not been published before the testator's death, there are
specific considerations. Unless the testator's Will or any codicil thereto states
otherwise, the intended beneficiary is deemed to have copyright in the work to the
extent that the testator held copyright immediately prior to their demise. This
provision ensures that the rights to the copyright are appropriately passed on to the
rightful recipient, as per the intention of the deceased copyright owner.
40. Section 30 of the Act addresses the voluntary licensing of copyright. The
copyright holder has the authority to issue licenses for any exclusive rights
pertaining to their work.
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41. The learned counsel for the respondent No.1 - plaintiff relied upon the
judgment of the High Court of Calcutta in Jogendra Nath Sen v. State 9, wherein
it was held that:
"3. Under Section 14 of the Act, Copyright in a
literary work, includes, among others, the exclusive
right to publish the work. But the author, as owner
of the right to publish, may assign the said right to
another under Section 18(1) and Section 18(2)
provides that when such a right, say, to publish the
work, is assigned to another, the assignee, as
respects the right so assigned, is to be treated "as the
owner of the Copyright and the provisions of the
Act shall have effect accordingly". And, in such a
case, the author or the assignor shall, only as
respects the other rights specified in Section 14,
which are not so assigned, continue to be treated as
the owner of the Copyright. In other words, if an
author assigns the right to publish his work to
another, it is the latter who thenceforward is to be
treated for all purposes as the owner of the
Copyright as respects the right to publish, even
though the author may still continue to be the
'owner of Copyright' as respects all the other rights,
except the right to publish. And as respects the
'right to publish' so assigned, even the author,
though still owning all the other rights may be held
guilty for infringement for publication without the
latter's consent."
42. Thus, assignment involves transfer of ownership and a bundle of rights
associated with the copyrighted work. It grants the assignee the sole authority and
exclusive right allowing them to control and enforce the economic rights of the
work. On the other hand, licensing allows the copyright owner to grant permission
1991 - AIR (Cal)-0-308
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to another person by license while retaining ownership. The license agreement
specifies the terms including the quantum of royalty and the mode of license.
43. Keeping in view the law and the principles stated under it, the case needs to
be decided.
P O I N T Nos.1 & 2:
1. Whether the plaintiff is the owner of the copyright works of late Sri
G.Seshendra Sharma by virtue of Ex.A2? And
2. Whether late Sri G.Seshendra Sharma had revoked the copyrights assigned
to the plaintiff and re-assigned to defendant No.2 under Ex.B6?
44. The contention of the plaintiff was that he was the second son and last child
of late Sri G.Seshendra Sharma and his father out of his love and affection had
assigned the copyright works in the literature created by him to the plaintiff under
a letter dated 02.12.1989 in his own hand writing. The same was marked by the
plaintiff as Ex.A2. Ex.A2 reads as follows:
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"I. G.Seshendra Sharma do hereby transfer all the
copyrights of all the books written by me as poet
and author in Telugu together with their translations
to my son, G.Satyaki (plaintiff). This comes into
effect forthwith this date i.e. 02.12.1989, his
birthday."
With Love and Affection
Sd/-
Dated: 02.12.1989
(GUNTURU SESHENDRA SHARMA).
The above letter was addressed by Sri G.Seshendra Sharma on his letter
head with his address mentioned as Gyan Bagh Palace, Gosha Mahal, Hyderabad
dated 02.12.1989.
45. The above document is in writing signed by the creator, author or owner of
the literary works and through this letter he transferred all the copyrights of all the
books written by him in Telugu together with their translations to the plaintiff. It
does not speak of any duration or the territorial extent of the assignment or the
amount of royalty payable to the author. It shows that out of love and affection
towards his son, the author transferred all the rights over the works written by him
till that date to the plaintiff. It does not speak of any future works or speaks of any
rights retained by the author in those works. PW.1 in his cross-examination stated
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that he was claiming copyright basing on the letter written by his father as son of
late Sri G.Seshendra Sharma.
46. The contention of defendant No.2 was that the poet / author had given
copyright to defendant No.2 on 14.08.2002 and confirmed the same revoking all
earlier copyrights on 05.01.2006 and got marked Ex.B6 in support of her
contention. Ex.B6 reads as follows:
Whom so ever it may concern
Transfer of Copyright
"I, Guntur Seshendra Sharma, on this the 5th day of
January, 2006 at Mumbai, do hereby transfer the
copyrights of all my literary works, both published
and unpublished including their translation to my
wife Rajkumari Indiradevi Dhanrajgir for over a
period of 30 years. This transfers cancels all the
previous transfers."
Date: 05.01.2006
Mumbai.
Sd/-
(Guntur Seshendra Sharma)
47. The defendant No.2 denied the existence of letter dated 02.12.1989. As per
her contention, Sri G.Seshendra Sharma married her in the year 1971 and resided
with her till his death on 30.05.2007 at Gyan Bagh Palace and no document was
executed by him at that time. She contended that the letter dated 02.12.1989 was a
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false and fabricated document. As per the plaintiff, the letter dated 05.01.2006
marked under Ex.B6 (Ex.B3) was a fabricated document.
48. The defendant No.2 was examined as DW.2. In her cross-examination, she
stated that late Sri G.Seshendra Sharma was her husband for 23 years. She was
married with Sri G.Seshendra Sharma on 06.06.1971. She admitted that she had
not filed any document before the Court to show that she was married with him on
06.06.1971. She admitted that prior to her marriage with Sri G.Seshendra Sharma,
he was already married with another lady. His first wife was Smt.Janakamma and
his first wife gave consent before the Police for her marriage with Sri G.Seshendra
Sharma. She admitted that Ex.A2 dated 02.12.1989 was in the hand writing of Sri
G.Seshendra Sharma and that she could identify the writing and signature of Sri
G.Seshendra Sharma on Ex.A2 and further stated that she did not say Ex.A2 was a
fabricated one.
49. Thus, though, she denied in her written statement that Ex.A2 was a
fabricated document, admitted in her cross-examination that it was a genuine
document signed by Sri G.Seshendra Sharma and also identified the writing of Sri
G.Seshendra Sharma on it. Though, she contended that Sri G.Seshendra Sharma
had transferred all the copyrights on his literary works to her by cancelling all the
previous transfers for a period of 30 years under Ex.B3 dated 05.01.2006, admitted
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in her cross-examination that the signatures on Exs.A2 and B3 were different from
each other. She reported no objection for sending Ex.B3 to forensic expert.
50. The said document was sent by the plaintiff through the Court to forensic
expert to compare it with the signature of Sri G.Seshendra Sharma on Ex.A2,
which was admitted by DW.2. She also admitted that the plaintiff was the younger
son of Sri G.Seshendra Sharma and Sri G. Seshendra Sharma had love and
affection towards his children.
51. She stated that on 14.08.2002, Sri G.Seshendra Sharma gave her the
copyrights on all his literary works by cancelling all previous transfers. There was
a written letter from Sri G.Seshendra Sharma dated 14.08.2002. She got marked
the said letter as Ex.B12. On a perusal of Ex.B12, it was the license given by Sri
G.Seshendra Sharma for publication of his book "Adhunika Mahabharatam" (Epic)
in Telugu to Sahitya Academy granting license to publish his work in all the Indian
Languages enumerated in the Constitution of India. At column No.6, the name of
the copyright owner is mentioned as Guntur Seshendra Sharma and at column No.7
pertaining to relation of copyright owner with the author, it was mentioned that the
author was the copyright owner, but in brackets, it was mentioned as (now
copyright owner should be his wife Rajkumari Indira Devi Dhanrajgir).
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52. In her cross-examination with regard to Ex.B12, DW.2 (defendant No.2)
stated that the original of Ex.B12 was with Sahitya Academy. The witness
admitted that Ex.B12 was only a photo copy. The said document was marked
subject to objection raised by the counsel for the plaintiff. The validity of the said
document was not decided by the trial court while deciding the matter. Ex.B12,
being a photocopy and not signed by any of the authorized signatory of Sahitya
Academy is not a valid document. As such, no relevance can be placed upon
Ex.B12.
53. The handwriting expert who examined the said documents was examined as
a Court Witness as CW.1. CW.1 was the Assistant Director in TSFSL. He stated
that he received the standard signature of Sri G.Seshendra Sharma on Ex.A2
marked as "S" to compare it with the questioned signature marked as "Q" on
Ex.B3 and on thoroughly examining the said documents, he gave his opinion as
"the red enclosed signature marked as "Q" was through a printing process and not
executed with any writing instrument". His opinion was marked as Ex.X1.
54. In his cross-examination by defendant No.2, he stated that Ex.A2 was
written with a writing instrument (pen). He examined it in enlarged form under the
instrument and found it to be written with a writing instrument (pen). He had not
given any opinion with regard to the signature on Ex.A2. Ex.A2 was the standard
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signature received from the Court. The process for examination was by method of
comparison in enlarged format under the instruments. Optimal examination was
one of the examinations conducted by him in the instrument. He stated that Ex.B3
was a laminated document. The lamination of Ex.B3 was not an obstruction for
his examination. He examined by way of physical examination. No chemical tests
were carried out over the document. He stated that it was not possible to determine
which printer was used to print the signature on Ex.B3. He could not say the type
of printer used in Ex.B3, whether it was a laser printer, impact printer or a dot
matrix printer. He could not say the nature of ink used to print the signature on
Ex.B3. It was not possible to mention the nature of printing, the nature of ink that
was used for printing the signature on Ex.B3. Whatever the nature of paper, it was
possible to ascertain whether it was printed signature or hand written signature.
With the support of instruments he could examine and mention his observations in
Para 2 of Ex.X1.
55. The contention of the learned counsel for the appellant was that when the
appellant - defendant No.2 denied the existence of Ex.A2 in her written statement
as well as in her deposition, the Court ought not to have forwarded Ex.A2 as a
standard signature. But the defendant No.2 examined as DW.2 admitted the
genuinity of Ex.A2, identified the writing and signature of Sri Guntur Seshendra
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Sharma on it and that the plaintiff was the son of Guntur Seshendra Sharma and
that he had love and affection towards his children. The said objection was also
not taken by the learned counsel for the appellant - defendant No.2 while referring
the matter to the expert. Hence, the objection taken at this stage has no validity.
56. The learned counsel for the appellant relied upon the judgment of the
Hon'ble Apex Court in Prem Prakash @ Lillu and Another v. State of Haryana
(cited supra), on the aspect that:
"19. The evidence, essentially, must be viewed
collectively. The statement of a witness must be
read as a whole. Reliance on a mere line in the
statement of the witness, out of context, would not
serve the ends of justice and the conclusion of the
court based on such appreciation of evidence could
be faulted."
57. But, the admission of DW.2 about Ex.A2 in her cross-examination was not
something which could be ignored. It was not out of context. When the entire
case of the plaintiff was based upon Ex.A2 and when defendant No.2 specifically
approached this Court by filing C.R.Ps. and got filed an additional written
statement contending that Ex.B2 was a false and fabricated document, her
admission in cross-examination that the signature and writings on Ex.B2 pertains
to her husband Sri G.Seshendra Sharma is very much relevant and material. The
witness is not an illiterate woman. She was a highly qualified woman studied at
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Cambridge University. As per her evidence, she was a re-knowned poet and writer
who received several accolades from various institutions and who was acquainted
with the hand writing of Sri G.Seshendra Sharma by her interaction with him for
the past 23 years alleging to be his wife.
58. As per her cross-examination, Sri G.Seshendra Sharma used to write books
in his own hand writings and in English. He used to dictate and she used to type
the same. As such, her evidence on this crucial aspect is significant and the trial
court rightly placed reliance on it. The defendant No.2 or her lawyer had not
raised any objections while sending Ex.A2 as a standard signature to TSFSL for
comparison along with Ex.B3 (Ex.B6). Thus, the objection raised by the learned
counsel for the appellant at this stage holds no ground.
59. The learned counsel for the appellant placed reliance upon the judgment of
the Hon'ble Apex Court in Tomaso Bruno and Another v. State of Uttar
Pradesh (cited supra), on the aspect that:
"40. The Courts normally would look at expert
evidence with a greater sense of acceptability, but it
is equally true that the courts are not absolutely
guided by the report of the experts, especially if
such reports are perfunctory and unsustainable. We
agree that the purpose of an expert opinion is
primarily to assist the court in arriving at a final
conclusion but such report is not a conclusive one.
This Court is expected to analyze the report, read it
in conjunction with the other evidence on record
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and then form its final opinion as to whether such
report is worthy of reliance or not."
60. The learned counsel for the appellant relied upon the judgment of the
Hon'ble Apex Court in The State of Gujarat v. Vinaya Chandra Chhota Lal
Pathi (cited supra) on the aspect that:
"The opinion of a hand writing expert is also
relevant in view of Section 45 of the Evidence Act,
but that too is not conclusive. It has also been held
that the sole evidence of a handwriting expert is not
normally sufficient for recording a definite finding
about the writing being of a certain person or not."
61. The evidence of hand writing expert is not conclusive in nature and there is
no doubt that it has to be read with other evidence on record and the Court shall
form its independent opinion as to whether such report is worthy of reliance or not.
The evidence of the expert would only disclose that the standard signature was
written with a writing instrument (pen) and the questioned signature was printed
through a printing process and not executed with any writing instrument. The
cross-examination of this witness with regard to the type of printer used, the nature
of ink that was used in printing the signature on Ex.B3 was completely irrelevant.
Even with a naked eye, it could be stated that Ex.B3 (Ex.B6) was not in the hand
writing of the author Sri G.Seshendra Sharma and it was printed through a printing
process. When the said document, which was in a typed format was not signed by
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the author in his hand writing and when his signature was attested on the said
document by a printing process, the authenticity of the Ex.B3 (Ex.B6) cannot be
believed.
62. Thus, Ex.A2 being in the handwriting of Sri G.Seshendra Sharma and signed
by him is a valid document to consider that the author had assigned all his
copyrights of his works to the plaintiff, who is none other than his son and Ex..B3
(Ex.B6) is not an authentic document to consider that Sri G.Seshendra Sharma had
revoked the copyrights assigned to the plaintiff and reassigned to defendant No.2.
63. Thus, points 1 and 2 can be answered holding that the plaintiff was assigned
copyrights under Ex.A2 by Sri G.Seshendra Sharma and the same was not
cancelled and not re-assigned to defendant No.2 under Ex.B3 (Ex.B6).
P O I N T No.3:
Whether the suit was barred by limitation, acquiescence and estoppel?
64. The defendant No.2 in her written statement contended that the suit was
barred by limitation; the plaintiff was fully aware that defendant No.2 in 2002
itself under the copyright given by her late husband Sri Seshendra Sharma given
license to Sahitya Academy for publication of Kannada translation of "Adhunika
Mahabharatam", but kept silent till the death of his father and was using the excuse
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of public notice by defendant No.2 to overcome the ground of limitation. The
plaintiff acknowledged the fact of his knowledge that his father granted copyright
in favor of defendant No.2 as early as 2002 in his plaint. She had also taken the
defence that the plaintiff had acquiesced by sitting by, when defendant No.2 was
invading his rights and spending money on it. His conduct was inconsistent with
the claim for exclusive rights in the copyright. The plaintiff had not taken any
positive steps for all these years and his mere silence or inaction would show
latches on his part. The acquiescence on the part of the plaintiff can be inferred as
license sufficient to create a new right in defendant No.2.
65. The defendant No.2 also contended that no publication had come forth in the
first 12 months after assignment of copyright to the plaintiff and assuming without
admitting that late Sri Seshendra Sharma had assigned copyrights in favor of the
plaintiff, the same would be valid only for five years. He did not bother to publish
any of his father's works until 1995 when the copyright would have lapsed.
66. The learned counsel for the appellant had relied upon the judgment of the
Hon'ble Apex Court in Assistant Commissioner (CT) LTU, Kakinada and
Others v. Glaxo Smith Kline Consumer Health Care Limited 10, wherein it was
held that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for
(2020) 19 SCC 681
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maintaining an appeal beyond the maximum prescribed period under Section 125
of the Electricity Act.
67. She also relied upon the judgment of the Hon'ble Apex Court in Bharat
Sanchar Nigam Limited and Another v. Nortel Networks India Private
Limited 11, wherein it was held that:
"Section 11 does not prescribe any time period for
filing an application under sub-section (6) for
appointment of an arbitrator. Since there is no
provision in the 1996 Act specifying the period of
limitation for filing an application under Section 11,
one would have to take recourse to the Limitation
Act, 1963, as per Section 43 of the Arbitration Act,
which provides that the Limitation Act shall apply
to the arbitrations, as it applies to proceedings in
Courts."
68. She relied upon the judgment of the Hon'ble Apex Court in Thakamma
Mathew (Smt.) v. M.Azmathullu Khan & Others 12, wherein it was held that
"In view of Article 54 of the Limitation Act, 1963, a
suit for specific performance of contract has to be
filed within three years of the date fixed for the
performance or if no such date is fixed where
plaintiff has noticed that performance is refused."
69. She also relied upon the judgment of the Hon'ble Apex Court in Saligram
Ruplal Khanna & Another v. Kanwar Rajnath 13 on the aspect that the period of
(2021) 5 SCC 738
1993 Supp (4) SCC 492
(1974) 2 SCC 642
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limitation for filing a suit for rendition of accounts is three years from the date of
dissolution of partnership firm.
70. She relied upon the judgment of the Hon'ble Apex Court in Balakrishnan v.
Malaiyandi Konar 14, wherein it was held that the limitation for the purpose of
Article 134 starts from the date of confirmation of sale.
71. She further relied upon the judgment of the Hon'ble Apex Court in
D.S.Lakshmaiah & Another v. L.Balasubramanyam & Another 15, wherein it
was held that:
"The legal principle, therefore, is that there is no
presumption of a property being joint family
property only on account of existence of a joint
Hindu family. The one who asserts has to prove that
the property is a joint family property. If, however,
the person so asserting proves that there was
nucleus with which the joint family property could
be acquired, there would be presumption of the
property being joint and the onus would shift on the
person who claims it to be self-acquired property to
prove that he purchased the property with his own
funds and not out of joint family nucleus that was
available."
72. All the above judgments have no relevance to the case on hand.
73. Acquiescence is a legal doctrine that arises when a party, through its actions
/ in-actions, appears to accept or tolerate a situation or conduct that would
(2006) 3 SCC 49
(2003) 10 SCC 310
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otherwise constitute an infringement of their rights. Acquiescence is based on the
principle that a party cannot lead another party to believe that their conduct is
acceptable and then later claim infringement.
74. The learned counsel for the appellant relied upon the judgment of the
Hon'ble Apex Court in Jai Narain Parasrampuria (Dead) and Others v. Pushpa
Devi Saraf and Others (cited supra), on the aspect that:
"33. While applying the procedural law like the
principle of estoppel or acquiescence, the Court
would be concerned with the conduct of a party for
determination as to whether he can be permitted to
take a different stand in a subsequent proceeding,
unless there exists a statutory interdict."
"41.The doctrine of estoppel by acquiescence was
not restricted to cases where the representor was
aware both of what his strict rights were and that the
representee was acting on the belief that those rights
would not be enforced against him. Instead, the
court was required to ascertain whether in the
particular circumstances, it would be
unconscionable for a party to be permitted to deny
that which, knowingly or unknowingly, he had
allowed or encouraged another to assume to his
detriment. Accordingly, the principle would apply if
at the time the expectation was encouraged."
75. The doctrine of estoppel is a legal principle that prohibits a person from
denying or asserting something contrary to what they had previously stated or done.
It is a rule of evidence that prevents a party from denying the truth of a statement
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that they had previously made. To establish the defence of estoppel, the
defendants have to establish that:
1. The plaintiff must know the facts underlying the defendants' alleged
infringement.
2. The plaintiff must intend the defendant to rely upon the plaintiff's conduct or
must act in a way that gives the defendant the right to believe the plaintiff intended
reliance.
3. The defendant must be ignorant of the true facts.
4. The defendant must rely on the plaintiff's conduct to its detriment.
In copyright cases, the doctrine is primarily used to protect defendants from
infringement liability where plaintiff's past behavior led the defendants to
reasonably believe that they were not infringing on the plaintiff's copyright.
76. To prove the above defences, the defendants must establish that the plaintiff
had full knowledge of infringement of his right, but had kept silent and slept over
his right and allowed defendant No.2 to publish the books, but had not issued any
notice or objected the defendant No.2. But, the publication / printing of the books
and their availability in the market is a continuous cause of action. As such, the
suit is not barred by limitation.
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77. With regard to the contention of the learned counsel for the appellant that the
appellant failed to exercise his rights within five years from the date of Ex.A2 or
failed to publish any books within 12 months from the said date, the learned trial
court gave a finding that it was clear from Section 19(7) of Copyright Act, 1957
that Sub-Sections 2 to 6 of Section 19 were not applicable to the assignments made
before coming into force of the copyright (Amendment) Act, 1994. The said
Amendment Act, 38 of 1994 came into force with effect from 10.05.1995. Since
the assignment under Ex.A2 was made on 02.12.1989, prior to the copyright
Amendment Act, 1994, the provisions under Sub-Sections 4 and 5 of Section 19 of
copyright Act were not applicable to Ex.A2. This Court approves the said finding
recorded by the trial court.
78. As such, the suit was not barred by limitation, acquiescence or estoppel.
P O I N T No.4:
Whether the judgment of the trial court is in accordance with law and facts on
record or whether the same needs any interference by this Court?
79. On perusal of the judgment of the trial court, the same was based on
appreciation of the oral and documentary evidence on record adduced by both the
parties and on considering the law of Copyrights Act, 1957 applicable to the facts
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of the case. As such, this Court does not find any illegality or error in the
judgment of the trial court which requires any interference by this Court.
P O I N T No.5:
To what result?
80. In the result, the appeal is dismissed confirming the judgment of the trial
court dated 07.02.2018 passed in O.S.No.419 of 2008 by the XI Additional Chief
Judge, City Civil Court, Hyderabad.
No order as to costs.
As a sequel, miscellaneous applications pending in this appeal if any, shall
stand closed.
_____________________
Dr. G.RADHA RANI, J
Date: 25th January, 2024
Nsk.
