JUDGMENT

Parekh, J. - This appeal arises out of the decree and judgment dated September, 12, 1961, passed by a learned Single Judge of this Court dismissing application u/s 46. Trade Marks Act, 1940.

2. The petitioners-appellants filed application u/s 46 of the Trade Marks Act, 1940, and prayed that the two entries of registration of Trade Mark under Registration Nos. 93543 and 108250 favouring respondents be expunged. Entry No. 93543 is a label bearing the picture of Gadadhar Prasad (father of respondents Nos. 1 and 2) and the words "Himkalyan Tail" (in Deonagri script) and the words "Him Kalyan" in English. Entry No. 108250 is an associated trade mark of the former and relates to registration of the word "Himkalayan" per se. These entries in the register of Trade Marks will henceforth be referred by us as TM 1 and TM 2.

3. The case of the appellant was that the registration of trade marks of TM 1 and TM 2 was obtained by Gadadhar Prasad by practising fraud on the Registrar of Trade Marks, It was the further case of the appellants that the words "Him" and "Kalyan" are words widely used in Ayurved and for purposes of hair oils and cannot be said to have been invented by Gadadhar Prasad. It is also stated by the appellants that the two trade marks were the joint family property of Gadadhar Prasad his sons and grand-sons. For these reasons the appellants' case has been that these two trade marks could not have been registered exclusively in the name of Chakradhar Saran respondent No. 1.

4. Respondents Nos. 1 and 2 inter se have put different claims of ownership of TM 1 and TM 2. Chakradhar Saran, respondent No. 1, claims that the business and trade marks were the self-acquired property of Gadadhar Prasad and not joint family or ancestral property. According to respondent No. 1, he obtained the two trade marks on the application of Gadadhar Prasad. He based his claim on a gift deed executed by Gadadhar Prasad in his favour. He further pleaded that no fraud was practised in obtaining registration of the two trade marks and he claimed that 'Himkalyan' is a single word invented by Gadadhar Prasad. Badri Prasad claimed that the business and the trade mark being ancestral properties could not have been gifted by Gadhadhar Prasad to Chakradhar Saran.

5. The Registrar of Trade mark, being a party to the proceedings, also filed a written statement wherein it has been stated that Gadadhar Prasad gave two applications for registration of trade mark. The first was dated 4th March, 1944, and the subsequent application was a joint application by Chakradhar Saran and Gadadhar Prasad. On the subsequent application the name of Chakradhar Saran was substituted and all the formalities were completed for the publication of the trade marks in the Trade Mark Journal. The Registrar has further stated that these two trade marks were thus registered, which registration is effective from the date of the application and has further been renewed for a further period of 15 years.

6. The learned Single Judge has held on the basis of the pleadings of the parties and evidence on the record that Gadadhar Prasad Sharma was manufacturing and selling Him Kalyan Tail since 1909. He has further held that the appellants failed to prove that Gadadhar Prasad or Chakradhar Saran committed any fraud in obtaining the two trade marks. He further held that respondents Nos. 1 and 2 were joint proprietors of the trade marks at the time of the application for registration (i.e. in the year 1944 and 1945) but on the date of the passing of the decree respondent No. 1 alone was the proprietor of the two trade marks. As for the trade mark being public juris, the learned Single Judge held that Gadadhar Prasad had the exclusive right to use the word "Himkalyan Tail" which was distinctively recognised. He held that although the two words "Him" and "Kalyan" have become public juris the combination "Himkalyan" has not become public juris. In connection with these two words separately, i. e.,