TMI Blog1949 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... rights. One K. A. Kadir Sahib, father of defendants 2 to 6 and husband of the 7th defendant carried on business in partnership with another, S. A. Sattar Sahib, under the name and style of S. A. Sattar and K. A. Kadir and Co . Sattar Sahib died in June 1938. Kadir Sahib, the other partner filed O. S. No. 363 of 1938 on the file of the District Munsif's Court, Vellore for a declaration that the firm of S. A. Sattar and K. A. Kadir and Co was dissolved on 10-6-1938 and for accounts. The suit was settled by arbitration. The arbitrators, on 25-3-1940, decided to sell the properties of the firm and the trade marks separately in auction and also to sell the amount of decree dues and the arrears of shop rent in another lot. Pursuant to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Co alias K. M. Khadir and Brothers . The second defendant is K. M. Oosman Sahib who is the plaintiff in O. S. No. 14 of 1944. After the dissolution of the aforesaid partnership, the case of the plaintiffs is that they started another 'beedi' business at Gudiyattam in the year 1938. For the purpose of that trade they have designed the trade mark, the subject-matter of the suit, and the prominent feature of the same was number 7 . They alleged that the defendants, who had no right to the said trade mark, were using the said mark, and that, therefore they were entitled to an injunction restraining them from doing so. 2. The learned District Judge held, in O. S. No. 14 of 1944, that the plaintiffs therein did not acquire any ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts)--the business concerned in the goods to which the mark has been affixed. The same principle has been accepted and applied in another decision by Pry Lord Justice in 'Edwards v. Dennis', (1885) 30 Ch D 454: 55 L JCh 125. The learned Lord observes : No trade-mark can be assigned except in connection with the goodwill of the business in 'Which it has been used, which business must be co-extensive with the goods or classes of goods in respect of which the trade-mark is registered. 'The learned Advocates accepted the correctness of the principles embodied in the aforesaid decisions. 4. The first argument of the learned advocate for the appellants may be put thus. The lower court was wrong in considering th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he relied upon 'Jenings v. Jenings', (1898-1) Ch D 378: 67 L J Ch 190 In support of his contention. The passage relied upon by him may be extracted. 'A man may not derogate from his own grant; the vendor is not at liberty to destroy or depreciate the thing which he has sold; there is an implied covenant, on the sale of goodwill, that the vendor does not solicit the custom which he has parted with; it would be a fraud on the contract to do so. In that case, a suit was filed for recession of the partnership on the ground of misrepresentation. The suit was compromised and the defendant got all the assets of the firm except a sum of 1200 which was allotted to the plaintiff. In the assets the goodwill was not mentioned. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r v. Bennis', (1887) 36 Ch D 740 : 57 LJ Ch 11 Lord Justice Cotton observed, It is necessary that the person who alleges this lying-by should have been acting in ignorance of the title of the other man, and that the other man should have known that ignorance and not mentioned his own title. and at page 761 Lord Justice Bowen observed, In order to make out such acquiescence it is necessary for them to establish that the plaintiff stood by and knowingly allowed the defendants to proceed and to expend money in ignorance of the fact that he had rights and meant to assert such rights. 7. Applying this principle it is impossible to hold that in this case there was any acquiescence on the part of the defendants so as to preclud ..... X X X X Extracts X X X X X X X X Extracts X X X X
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