K. S. HEGDE, J.:

The appellants were the plaintiffs in Original Suit No. 4 of 1957 on the file of the learned District Judge, Bellary. They sought injunctions restraining the defendants from infringing their trade mark detailed in the plaint and from passing off their goods as those of the plaintiffs. They also sued for damages for infringement of their rights. Their suit was dismissed on the preliminary ground that the plaintiffs were not entitled to the trade mark on the date of the suit and hence the suit was not maintainable. The trial Court did not go into the merits of the case and therefore, the only question for decision is whether the Court below was right in holding that the suit is not maintainable.

(2) In order to appreciate the riyal contentions advanced at the hearing, it is necessary to set out the history of the right claimed in the suit. Lever Brothers (India) Limited, has been a leading soap manufacturing firm in India for the last several years. One of the soaps manufactured by that Company is the "Sunlight" soap That soap is packed in a waxed paper wrapper carrying a three colour label with a distinctive panelling ink and colour arrangement. The said Company had registered its distinctive label of the "Sunlight" soap under the Trade Marks Act, 1940. On 8-10-1956, the Hindustan Vanaspathi Manufacturing Co., Private Limited, William Gassage and Sons (India) Private Limited and Joseph Crosfield and Sons (India) Private Limited, merged in Lever Brothers (India) Private Limited as seen from Ex. P-63, the Order of the High Court of Judicature at Bombay. Thereafter, Lever Brothers (India) Private Limited was converted into a "Public Company" on 27-10-1956, as could be gathered from Ex. P-18. Immediately, thereafter the Company changed its name to Hindustan Lever Limited. This change in the name was also effected on 27-10-1956. The present suit was filed on 18-2-1957. On 22-4-1957, Lever Brothers (India) Limited applied to the Registrar of Trade Marks, Bombay, under S. 47 of the Trade Marks Act, 1940, to enter the change in the name of the registered proprietor of the trade mark referred to above. The change prayed for was effected on 2-8-1957, as could be seen from Ex. P-24. In other words, the change in the name of the registered proprietor of the suit trade mark was effected during the pendency of the suit.

(3) The trial Court came to the conclusion that Lever Brothers (India) Limited is a different legal entity from Lever Brotheres (India) Private Limited; hence, when the right of the Lever Brothers (India) Private Limited was transmitted to the Lever Brothers (India) Limited on 22-7-1956, the registered proprietor, i.e. Lever Brothers (India) Private Limited should have applied to the Registrar under S. 35 of the Trade Marks Act for a change in the name of the registered proprietor; that not having been done, Lever Brothers (India) Limited did not become the owners of the trade mark in question; consequently the plaintiffs did not become the owners of that trade mark; at any rate the plaintiffs were not the owners of the trade mark on the date of the suit. In that view, it dismissed the plaintiffs suit as not being maintainable.

(4) Quite clearly, the Court below has taken an erroneous view of the law. When a "Private Company" is converted into a "Public Company", there is no change in the legal personality of the Company in question. "Private Company" is defined in section 3(iii) of the Indian Companies Act, 1956, as follows:

" Private Company means a company which, by its articles,

(a) restricts the right to transfer its shares, if any;

(b) limits the number of its members to fifty not including

(i) persons who are in the employment of the company, and

(ii) persons who, having been formerly in the employment of the company, were members ot the company while in that employment and have continued to be members after the employment ceased; and

(c) prohibits any invitation to the public to subscribe for any share in, o