Rajamannar, C.J.-This appeal arises out of a petition filed by the first respondent, who will hereafter be referred to as the respondent, on the Original Side of this Court, under section 46 of the Indian Trade Marks Act, 1940, for a direction that the entry in the Trade Mark Register at Bombay registering the trade mark referred to in paragraph 4 of the petition in the name of the appellant under No. 126612 be expunged from the register and that the registration granted to the appellant under the said entry be cancelled. The petition was disposed of after contest by Ramaswami, J., who allowed the petition to this extent, namely, that he directed a joint registration of the trade mark in the name of both the appellant and the respondent. The respondent in the Court below is the appellant before us.

The facts which led up to the petition have been fully set out in the judgment of the learned Judge and it is sufficient to state only such of the facts as are essential for the disposal of this appeal. The appellant and the respondent are the sons of one Bolar Ramappa who was carrying on the business of manufacturing tiles in two factories, one called the Indian National Tile and Lime Works at Hige Bazaar in Mangalore, and the other the Jayaram Tile Works at Kudroli in Mangalore. It is common ground that he was employing for the tiles manufactured at these two factories a distinctive trade mark which may be described as the “Taj Double Bavta” trade mark. In or about 1936, he appears to have registered the trade mark with the Chamber of Commerce at Madras, though this registration did not have any statutory force. The appellant appears to have been assisting the father in his business, it is not necessary to state whether as a mere employee or as a manager. On the 18th December, 1946, the appellant made an application to the Registrar of Trade Marks to register the above said trade mark. He gave his business address as Manager, Jayaram Tile Works, Kudroli. He claimed to have been using the trade mark since 1936. Evidently in reply to a query by the Registrar of Trade Marks he made a statement on 23rd July, 1948, that he was the sole proprietor of the National Tile Works and had been using the said mark since 1936. The trade mark was eventually registered in the name and entered in the register on 12th May, 1950. This registration under the Statute would take effect from the date of the application. On the 10th November, 1953, this registration was renewed for a period of 15 years from the 18th December, 1953. Meanwhile the father had executed on the 17th January, 1950, a deed settling on one of his sons, the respondent herein, Monappan, the factory called the Indian National Tile Works. Subsequently by another deed, dated 8th February, 1953, the father settled on his second son, the appellant, the factory conducted under the name of the Jayaram Tile Factory. From July, 1951, disputes started between the two brothers because the respondent also began to manufacture tiles using the trade mark which his father had been using. There was an exchange of notices between the lawyers. In 1953, the appellant filed in the District Court of South Kanara a suit against the respondent for infringment of trade mark and claimed an injunction against him. In his plaint he stated that he was the registered proprietor of the trade mark and also relied on the settlement deed executed by the father in his favour on 8th February, 1953, which he alleged conveyed to him also the goodwill and the trade mark and other rights pertaining to the factory. Thereupon the respondent filed the application out of which the present appeal arises, praying for expunging of the registration in favour of the appellant.

Section 46(2) under which the application was made runs thus:

“Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or

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