S. C. Agrawal, J. - (1.) This appeal is directed against the judgment and decree dated March 10, 1977 of the High Court of Kerala. It arises out of a suit filed by respondents Nos. 1 to 6 against the appellant and respondent No. 7 for redemption and recovery of possession of property consisting of 25 cents of land in Valiyaveetuparamba in Nagaram Amson, District Kozhikode, and the buildings and the machinery of the Flour Mill standing on the said land.
(2.) The land and the buildings belong in Jenm to the Vettath Tarwad who leased out the same in or about 1939 to Sivarma Iyer, respondent No. 2 on a rent of Rs. 40/ - per mensem. Late C. N. Rama Iyer, father of respondents Nos. 1 to 5 and husband of respondent No. 6 started a flour mill known as 'Sivaram Mills' on the said premises in or about 1940 and for that purpose, he installed an engine and necessary plant and machinery and also made some further constructions over the land. C. N. Rama lyer died on May 21, 1953 and after his death, respondents Nos. 1 to 5 entered into an agreement with the appellant on February 7, 1954 whereunder the appellant advanced Rupees 4,500/- to respondents Nos.1 to 5 and respondents Nos. 1 to 5 agreed to entrust the appellant with the management of the mill for a period of one year from March 5, 1954 on a monthly payment of Rs. 300/- out of which Rs. 125/- to be appropriated every month towards the advance given. Respondents Nos. 1 to 5 could not entrust the management of Mill to the appellant on or before March 5, 1954 and they could do so only in the middle of April, 1954 and on April 13, 1954, a fresh agreement (Ex. B2) modifying the terms of the previous agreement was entered into between respondents Nos. 1 to 5 and the appellant. Under the said agreement dated April 13, 1954 a further .Sum of Rs. 1,900/- (in addition to the sum of Rs. 4,500/ -) was advanced by the appellant to respondents Nos. 1 to 5 and it was agreed by respondents 1 to 5 that the total sum of Rs. 6,400/- which had been advanced by the appellant to respondents Nos. 1 to 5 will not bear any interest from the date of the said agreement and that the appellant shall run the mill for one year and after the stipulated period, respondents Nos. 1 to 5 would get the possession of the mill back from the appellant. It was also agreed that a sum of Rs. 40/- is the rent of the building where the mill is situate and current charges for each month of the electric lights of the mill should be paid by the appellant to respondents Nos. 1 to 5 and a sum of Rs. 100/- per month would be paid by the appellant as rent for the mill, out of which a sum of Rs. 50/- shall be adjusted by the appellant towards Rs. 6,400/- paid in advance and the balance amount of Rs. 50/- be paid to respondents Nos. 1 to 5 every month. It was also agreed that on the expiry of the period of one year, respondents Nos. 1 to 5 would get back the possession of the mill after paying the balance amount of Rs. 5,800/ -to the appellant. Before the expiry of the period of one year fixed under the agreement dated April 13, 1954, the plaintiffs respondents Nos. 1 to 5 entered into an agreement (Ex. B3) dated March 22, 1955 with one T. M. Rama Iyer (who happened to be the father-in-law of respondent No. 2). In the said agreement, reference has been made to the agreement dated April 13, 1954 with the appellant and it was stated that a sum of Rs. 5,600/ - is to be paid as balance amount to the appellant after adjusting the sum of Rs. 800/ - which has already been paid to him. It was further stated that a sum of Rs. 5,072/ - and annas 2 was payable to T. M. Rama lyer towards the arrears of rent for the building belonging to the said T. M. Rama lyer, which has been taken on rent by respondents Nos. 1 to 5 and that since there was difficulty for respondents Nos. 1 to 5 to clear the said liability, they have decided to assign the Company (named 'Sivaram Mills and Co.) to T. M. Rama Iyer for a consideration of Rs. 10,672/- and annas 2, out of which Rs. 5,072/ - and annas 2 had been adjusted and from the balance amount due to them the sum of Rs. 5,600/- due to be paid to the appellant may be paid to him. In the said agreement, it was also stated that the said T.M. Rama Iyer on paying the amount due to the appellant after the stipulated period could take up the management by himself, pay the rent of the building, conduct the business and if necessary to file a suit against the appellant and get the company vacated and do anything as per his will and pleasure. In the said agreement, respondents Nos.1 to 5 further agreed that either after his taking the possession of the company or whenever demanded by T. M. Rama lyer, they would execute the sale deed and get the same registered. On December 11, 1956, the said T. M. Rama Iyer executed a Deed of Assignment (Ex. B4) in favour of the appellant and, his younger brother, Gopalan Nair, whereby he assigned the Sivaram Oil Mill and Flour Mill to the appellant and his younger brother on a sale consideration of Rs. 8,000/-. The sum of Rs. 6,000/- that was payable to the appellant inclusive of interest was adjusted against the said consideration and the balance amount of Rs. 2,000/- was paid by the appellant to the said T. M. Rama Iyer. In the said document, it was stated that after execution of the agreement dated March 22, 1955, T. M. Rama Iyer had taken the building where the mills are situated on a monthly rent of Rs. 75 / - for a period of one year from Vettathu Tharavad under an oral agreement. In the said document, it was further mentioned that the appellant and his younger brother had the liberty to manage the mills, to enter into rental agreements with the Jenmi of the building by paying the rent directly, to effect alienation etc. as per their wishes and he (T. M. Rama Iyer) would not have any right or liability hereafter. In the said document, it is also mentioned that the rent receipts for the rent paid to the Jenmi were being handed over with the document.
(3.) Respondents Nos. 1, 3 and 5 filed a suit (O.S. No. 3 of 1964) against respondents Nos. 2,4 and 6 as well as against the appellant and T. M. Rama Iyer. In the said suit, the plaintiffs, while seeking partition and separate possession of their shares in the suit properties, had also prayed for possession of the oil and flour mills and had asserted that the agreement dated March 22, 1955 executed by respondents Nos. 1 to 5 in favour of T. M. Rama Iyer was a sham transaction and no rights were conferred on T. M. Rama lyer under the said agreement. T. M. Rama Iyer, who was defendant No. 1 in the said suit, died during the pendency of the suit. In the suit all disputes between the plaintiffs (respondents Nos. 1, 3 and 5) and defendants Nos. 2 to 4 (respondents Nos. 2, 4 and 6) and the legal representatives of T. M. Rama Iyer were settled out of court and the only dispute requiring adjudication was that relating to the property in question in these proceedings which was claimed by the appellant as the assignee from R. M. Rama lyer. The said suit was dismissed by the Additional Sub-Judge, Kozhikode by judgment (Ex. Al) dated January 25, 1968. It was held that the agreement dated March 22, 1955 was not sham, nominal and void and it operates as an outright sale of plant and machinery. It was, however, held that the tenancy right of the plaintiffs had not been affected by either the agreement dated March 22, 1954 or the Deed of Assignment dated- December 11, 1956 and that the plaintiffs would be entitled to possession of the site and buildings in which the plant and machinery were installed. It was further held that the appellant had been inducted into possession of the site and buildings by virtue of the agreement dated April 13, 1954, and that the appellant would be entitled to continue in possession of the same until the right created in his favour as per agreement dated April 13, 1954 was extinguished. Respondents 1 to 6 filed an appeal (A. S. No. 129/68) in the High Court against the said judgment and decree of the Additional Sub-Judge. The said appeal was dismissed by the High Court by its judgment dated April 6, 1973. The High Court found that according to the averments in the plaint what was conveyed under the agreement dated March 22, 1955 was only the oil mill and it was not the case of the plaintiffs that immovable property was conveyed under the said agreement and that in view of the pleadings, there was no scope for considering whether any immovable property had been transferred and, therefore, no question of registration of the document arose.;