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March 12, 1923. BERTRAM C.J.

In this case it is impossible to give a judgment based on strict legal rights. The instrument of trust is of too vague a character to be enforced as between two contending parties resting their claim upon it. The Judge has made what in all the circumstances of the case is a reasonable order, and one which accords with the intention of the original founders. The founders directed that from time to time one of their heirs should succeed to the office of trustee of the foundation. No direction was given as to the mode in which that particular heir should be chosen, and I think that in such a case it would be in accordance with the Muhammadan law that, if there was no other more definite way of selecting the particular heir, this should be done by the Judge. In this case the learned Judge has discharged a function which, according to the view I have suggested, would have been discharged by the Judge of a religious Court. He has based his selection upon the fact that for many years Usupu acted unchallenged as trustee of the foundation, and he considers that on the death of Usupu, the most appropriate person to be appointed to discharge the duties of trustee was the son of Usupu. The defendant in the action had no status.

He was not one of the heirs of the original founders. Much to his regret, therefore, the learned Judge felt bound to displace him, and considered that the son of Usupu, if he asserted his claims, ought to be appointed as trustee. The defendant, Meerakandu, has not appealed. The appeal is brought by the added-defendant, who asserts that Meerakandu was in fact his own nominee or representative. The learned Judge has disbelieved this. His opinion on that point is a finding of fact, and we cannot disturb it. It seems to me, therefore, that, whatever be the strict law of the matter, the learned Judge has made his order, and the present appellant has no status to disturb it. He cannot show a better right in himself than the person whom the District Judge has appointed trustee. If the congregation of this mosque want matters to be put upon a strict legal footing, their course is to apply for a scheme under section 102 of the Trusts Ordinance. With regard to the present appeal, in my opinion it should be dismissed, with costs.

DE SAMPAYO J.-I agree.

1923.

Mohomedu

v. Meera Kandu

Appeal dismissed.

1922.

Present: Ennis J.

APPUHAMY v. SIDDAPPU.

528-P. C. Matale, 18,445.

False information to public servant-Penal Code, ss. 180 and 208Higher offence disclosed in complaint-Proceedings taken for lower offence.

Where a complaint discloses a primâ facie case of a higher offence, it is not right for a Magistrate to take proceedings for a lower offence.

Accused gave false information to a Korala that another person had caused hurt to him, knowing such information to be false, and intending to cause the Korala to use his lawful power to the injury or annoyance of such other person. The Magistrate convicted accused under section 180 of the Penal Code. The Supreme Court set aside the conviction, and sent the case for non-summary proceedings under section 208 of Penal Code.

Although a Korala is not a public servant directly concerned in the institution of criminal proceedings, he has the power to present a complaint to the Court under section 148 (b) of the Criminal Procedure Code, which means that he has the power to institute proceedings."

Jayasinghe v. Siyadoris Appu 1 and Seraph v. Kandyah 2 considered.

THE facts appear from the judgment.

Schokman, for the appellant.-The accused has committed no offence under section 180 of the Penal Code, since he charged a definite person in his complaint to the Korala, and after obtaining a report from the latter he instituted criminal proceedings in the Village Tribunal. Section 208 makes special provision for a false charge, while the illustrations to section 180 show that the information referred to in the section is not that relating to the commission of an offence. The charge cannot be altered in appeal, since section 108 is, and section 208 is not, triable by a Police Magistrate summarily.

Counsel cited 13 N. L. R. 10 and 9 and (1913) 15 Bom. L. R. 574.

Vythilingam, C.C., for the Crown.-The information referred to in section 180 may be of any description. Though proceedings in this case could have been taken under section 208, which is a more serious offence, there is no reason why a conviction under section 180, a lower offence, should not be maintained.

1 (1909) 13 N. L. R. 9.

2 (1905) 13 N. L. R. 10.

October 27, 1922. ENNIS J.

1922. Appuhamy

This is an appeal from a conviction under section 180 of the Penal Code. The complainant was a Korala, and he complained v. Siddappu that the accused had given him false information that one Appu Singho had voluntarily caused hurt to him by striking him with a stone on his head, and he asserted that the accused knew that this information was false and intended to cause the complainant to use his lawful power to the injury or annoyance of the said Appu Singho. There is no appeal on the facts, but a point of law has been urged, that the Magistrate should not have taken summary proceedings for the trial of an offence under section 180, because the facts set out in the complaint disclosed an offence under section 208 of the Code, which was triable by a higher Court. The complaint does seem to assert a primâ facie case of an offence under section 208. Although the Korala is not a public servant directly concerned in the institution of criminal proceedings, he has the power to present a complaint to the Court under section 148 (b) of the Code of Criminal Procedure, which means that he has the power to institute proceedings. Two cases have been cited by the appellant in support of his contention. The first of these is Jayasinghe v. Siyadoris Appu.1 In that case the Court agreed with the decision in a previous case and acted upon it. The previous case has been reported on page 10 of the same volume of reports. It is the case of Seraph v. Kandyah. In that case Layard C.J. held that the appellant had not committed an offence under section 180, because an offence had been disclosed under section 208, but, holding that he could not himself convict him under section 208, as he was not in a position to do so, he acquitted the accused. The decision in that case followed some Indian decision which was not cited. Mr. Schokman, for the appellant, has been unable to find any reported Indian decision to this effect. But in the Digest he has found a reference to an Indian case, the report of which is not in the Library, where it was held that where a matter comes fairly under the provisions of section 211 of the Indian Code, which is equivalent to our section 208, and where a sanction is needed in order that a prosecution may proceed under that section, to proceed without any such sanction under section 182, equivalent to our section 180, is to evade the salutary provisions of the law. So that in the present instance no proper authority in support of the Ceylon cases has been cited to me, and the matter has been further complicated by an appearance on behalf of the Attorney-General as respondent to the appeal. I propose to follow the general rule of the Court, and say that where a complaint discloses a primâ facie case of a higher offence, it is not right for the Magistrate to take proceedings for a lesser offence. Without, therefore, going in any way into the 1 (1909) 13 N. L. R. 9. 2 (1905) 13 N. L. R. 10.

1922.

ENNIS J.

facts of this case, or deciding whether the conviction under section 180 be right or wrong, I propose to set aside the conviction and send the case back for non-summary proceedings on charges which Appuhamy include section 208. It is unnecessary for me at present to conv. Siddappu sider whether a charge should also be framed under section 180. It may be that the Magistrate, who has all the facts before him, or the Attorney-General, when he comes to frame charges, may decide to frame a charge under section 180, as well as adding a charge under section 208.

I accordingly set aside the conviction, and send the case back for non-summary proceedings.

Sent back.

1923.

Present: De Sampayo and Schneider JJ.

HOLLANDIA AND ANGLO-SWISS CONDENSED
MILK CO. v. THE NESTLÉ AND ANGLO-
SWISS CONDENSED MILK CO.

94-D. C. Colombo, 930.

Trade Marks Ordinance, 1888-Passing off-Both marks having the figure of a female-Possibility of deception of ignorant people by traders-Is that ground for refusing registration?

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The appellants and respondents were manufacturers of condensed milk. The respondents' trade mark, registered in 1893, was the figure of a maid with a pail on the head and another in the Milkmaid hand, and their condensed milk was known as the Brand." The appellants sought to register their mark, which consisted of a female figure carrying a bunch of flowers in one hand and a sword in the other enclosed in an oval with five medals above the figure, and the words of guarantee in thick letters across it. and the word, "Hollandia," displayed beneath. The District Judge refused the application, on the ground that the use of a female figure by the appellants, though it may not mislead an intelligent and cautious purchaser who knew English, might deceive an unwary purchaser in Ceylon.

Held, that appellant was entitled to register his mark.

"The appellants' mark is in itself not calculated to deceive, and there is no evidence whatever that the appellants have any design to facilitate the passing-off of their goods as the goods of the respondents."

"The deception is not in the use of the mark, but in passing-off of the goods of one person as those of another by the trader. The remedy in such a case is an action for damages against the trader, and the mere possibility of deception by passing-off is not a good ground for refusing registration of the mark."

THE

HE facts are set out as follows by the District Judge (A. St.
V. Jayawardene, Esq.) :-

The applicants, by their petition, pray for an order on the Registrar
of Trade Marks directing him to proceed with the registration of two
marks, which are the subject of applications Nos. 1,790 and 1,773. The
applications are made by the Hollandia Anglo-Dutch Milk and Food Co.
of Holland, through their local agents, the Holland Ceylon Commercial
Co. of Colombo, and are opposed by the Nestlé and Anglo-Swiss Con-
densed Milk Co. of Colombo. The mark in application No. 1,790, which
is the subject of proceedings No. 930, consist of a figure of a woman
said to be the figure of "Hope," enclosed in an oval with five medals
above the figure. The mark in application No. 1,773 also consists of
the same figure, similarly enclosed with coat of arms in circles on either
side. The opponents are the proprietors of two trade marks already on
the register, one of which consists of a figure of a woman—a milkmaid
with a pail in one hand and with the other hand supporting another
pail on her head (see R 6). The other trade mark No. 60 contains the
identical figure, with the addition of a medal on either side of the figure
(see R 5 and R 7). Mark No. 61 is registered in respect of condensed
milk and No. 60 in respect of sterilized natural milk. The opposition
to registration is based on the grounds that the applicants' marks are
not distinctive, and have such resemblance to the trade marks of the
respondents as to be calculated to deceive. The applicants, of course,
deny this, and claim to be entitled to register their marks. It appears
that the applicant company is well known in Europe, and a trade mark
similar to the ones now in question had been registered in Holland in
1883 and internationally at Berne in 1894. A similar mark has been
registered in England in the year 1886 (see A 1 with marks B and A 2
with mark A 1). The respondents themselves registered their mark
A 1 in England so far back as the year 1877, and in Ceylon in 1893
(see R 15 and R 9). It appears, however, that the respondents, who
had their mark in the register in 1877, did not oppose the registration
of the mark of the applicant company in England in 1886.
This may
be due to various reasons, and to the fact that the applicant company
never seriously attempted to sell their condensed milk in England. I
may mention that I have found a case of the year 1886, in which the
respondent company successfully asserted their right to the exclusive
use of their trade mark in respect of condensed milk, and prevented
another trader in condensed milk from using a mark very slightly
similar to theirs in connection with the same goods (see The Anglo-Swiss
Condensed Milk Co. v. Metcalff). This registration of the applicants'
trade mark in England, however, would not give them any rights or
privileges here, and such registration might, as Mr. Hayley contended,
negative any suggestion of malá fides on their part. According to the
evidence on record, the respondents have been selling condensed milk
with the "Milkmaid Brand" very largely in this country for many
years, and their milk has acquired a reputation for itself in the local
markets. They seem to be very jealously guarding their trade mark in
Ceylon, evidently appreciating the truth of the saying of a learned
English Judge "that the very life of a trade mark depends on the
promptitude with which it is vindicated," and they have resisted every
attempt to sell condensed milk with a mark in any way resembling
their own. According to the witness Alliar, he applied to register a
mark of a woman holding a basket of flowers on her head called "The

1

1 (1886) L. R. 31, Ch D. 454.

1923. Hollandia and AngloSwiss Condensed Milk

Co. v. The
Nestlé and
Anglo-Swiss

Condensed
Milk Co.

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