IVIL Appeal No768 NT of 1977 etc
From the judgment Order dated 9101975 of the Madhya Pradesh High Court in MCC No144 of 1966
VA Bobde BRAggarwala and UARana for the Appellant
SVDeshpande and SKAgnihotri for the Respondents
The Judgment of the Court was delivered by RANGANATH MISHRA CJ
These are appeals by special leave 252 and are directed against the separate decisions of the Madhya Pradesh High Court in references under the Madhya Pradesh Sales Tax Act
Civil Appeal No76877 relates to the assessment period 1951 52 Civil Appeal 53978 relates to 1950 51 and Civil Appeal 103878 to 1952 53
The appellant is a manufacturer of cement in the factory located at Kymore in Madhya Pradesh
Several cement manufacturing companies as also the appellant had entered into arrangement with the Cement Manufacturing Company of India Limited whereunder the Marketing Company was appointed as the sole and exclusive sales manager for the sale of cement manufactured by the manufacturing companies and the manufacturing companies had agreed not to sell directly or indirectly any of their cement to any person save and except through the Marketing Company
The manufacturing companies were entitled to be paid a certain sum for every ton of cement supplied by them or at such other rate as might be decided upon by the Directors of the Marketing Company
The Marketing Company had the authority to sell cement at such price or prices and upon such terms as it might in its sole discretion consider appropriate
For the three periods referred to above the appellant had supplied cement manufactured by it to the Marketing Company and maintained at the assessment stage for the respective periods that these were covered by the Explanation to Article 28611 as it then stood and therefore the transactions were not exigible to sales tax in Madhya Pradesh
This stand was negatived by the Assessing Officer the First Appellate Authority and the Board of Revenue
The Board in the statement of the case drawn up by it held that cement became a controlled commodity from 8th of August 1942 and notwithstanding the expiry of the Defence of India Rules with effect from 30th of September 1946 distribution of cement continued to be controlled even during the period
The Marketing Company had its establishment at Nagpur then within Madhya Pradesh which received the orders of authorisations and managed the supply from the factory at Kymore
The Board in its statement further stated The entire question in dispute hinges round the fact as to whether the sales in question are inter State in nature or should be regarded as intra State
It is seen that the Cement Marketing Company is an independent organisation and is carrying on business as an independent entity
It is also seen that what has actually been taxed are the sales effected by the appellant to the Cement Marketing Company 253 of India and not the sales made to the parties which obtained an authorisation from the Cement Controller
This seems to be the crux of the matter
 On this basis reliance was placed on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar 12 STC 621 where after analysing the terms of the contract between the manufacturer appellant before the Supreme Court and the Marketing Company this Court held On a review of these terms of the agreement it is manifest that the manufacturing companies had no control over the terms of the contract of sales by the Marketing Company and that the price at which cement was sold by the Marketing Company could not be controlled by the manufacturing companies that the manufacturing companies were entitled for ordinary cement to be paid at the rate of Rs24 per ton at works or at such other rate as might be decided upon by the Directors of the Marketing Company and in respect of special cement at such additional rates as the Directors of the Marketing Company might determine that sale by the Marketing Company was not for and on behalf of the manufacturing companies but for itself and the manufacturing companies had no control over the sales nor had they any concern with the persons to whom cement was sold
In fine the goods were supplied to the orders of the Marketing Company which had the right under the terms of the agreement to sell on such terms as it thought fit and that the manufacturing companies had the right to receive only the price fixed by the Marketing Company
The relationship in such cases can be regarded only as that of a seller and buyer and not of principal and agent
 This Court in Rohtas Industries case on a detailed analysis of the terms of the contract came to hold that there was a sale between the manufacturer and the Marketing Company
It is not in dispute that the agreement between the appellant and the Marketing Company in this case has the same terms as this Court considered in Rohtas Industries case
It follows therefore that it must be held that there was a sale between the appellant and the Marketing Company
The Marketing Company had its establishment at Nagpur within the State of Madhya Pradesh at that time
There was therefore a 254 preceding local sale prior to the sales between the Marketing Company and the allottee of cement by the regulating authority
This Court in Rohtas Industries further found that the transaction between the manufacturer and the Marketing Company had nothing to do with the Marketing Company s sales to third parties
There was no privity between the manufacturer and the ultimate consumer who was said to have been located outside the State of Madhya Pradesh
The question for consideration is whether the sale that look place between the manufacturer and the Marketing Company can be taken to be covered by the Explanation
The Explanation which was repealed by the Sixth Amendment of the Constitution in 1956 read thus For the purposes of sub clause a a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State Rohtas Industries case was dealing with a period prior to the Constitution therefore without the Explanation
The question for consideration thus is does the presence of the Explanation make any difference What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company
The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration
The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State
In the absence of such privity the Explanation is not attracted to the transactions
An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down
It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered 255 as a direct result of such sale or purchase for the purpose of consumption outside the State
That is a finding clinching enough and once that is taken as binding on this Court the only conclusion that can follow is that the Explanation does not apply and the assessments are justified
The ratio of Mohd Serajuddin vs State of Orissa is also against the appellant s stand
We accordingly dismiss the appeals and uphold the decisions of the High Court
There would be no order for costs
VPR Appeals dismissed


Summary:
The appellant purchased the suit property of the minor from a person to whom the same was sold by the father the natural guardian whereas the respondent purchased the suit property from the minor within three years on his attaining majority
The respondent plaintiff instituted a suit against the appellant defendant to set aside the transfer of property made by the natural guardian and for recovery of possession of property
The suit was decreed and the decree was confirmed by the appellate Court as well as by the High Court
Dismissing the second appeal the High Court held that the suit instituted bythe respondent as a transferee from the ex minor within three years after the minor attained majority was not hit by section 6e of the  against which the present appeal preferred by the appellant defendant
The appellant contended that the suit was hit by section 6e of the  as all that the ex minor was in a position to transfer was the mere right to sue to set aside the sale and recover possession of the property transferred by the natural guardian and 390 that a person claiming under a minor referred to in section 83 of the Hindu Minority and Guardianship Act 1956 can only be a legal representative of a deceased minor and not a person succeeding to the interest of the minor by reason of transfer inter vivos
The contentions of the respondent were that the ex minor was competent to bring a suit to set aside the sale within a period of three years of his attaining majority and any person claiming under the minor was equally competent to institute action for the same purpose that the suit to set aside a sale was not for the enforcement of any personal right but a right in property and the suit was not hit by Section 6e of the TPAct and that the provisions contained in Section 6 of the TP Act and Section 8 of the Guardianship Act were to be read together
On the question whether the respondent in his capacity as a transferee from the ex minor was competent to bring a suit to set aside the sale effected by the minor s guardian who had sold the property without obtaining the permission of the Court as required under Section 8 of the Hindu Minority and Guardianship Act 1956 and without any legal necessity
Dismissing the appeal of the appellant defendant this Court HELD 1
In the instant case on the facts found the transfer of the property made by the guardian was a voidable transaction and it was therefore open to the minor to challenge it and seek recovery of possession
Such a right of the minor is a right or interest in property which he himself or any person claiming under him may enforce by instituting a suit Section 83 of the Guardianship Act
Any person claiming under him must necessarily include a purchaser
396G 397A 2
Section 83 confers a right of suit in the special circumstances postulated therein
The object of the Act being the protection of the minor the legislature has though it fit to confer a right of suit in certain circumstances not only on the minor but also on a person to whom the minor has transferred his rights397A B 3
The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex minor prior to the transfer
Such a provision intended specially for the protection of the interests of the minor must be read in harmony and consistently with the general provisions con 391 tained in section 6 of the TP Act
397B C
A construction which is unduly restrictive of the statory provisions intended for the protections of the interests of the minor must be avoided
397F G 5
The transfer made by the father during his son s minority was voidable at the instance of his son who was the real owner and any person purchasing such property from the natural guardian obtained only a defeasible title
The minor retained a right in the property to defeat existing adverse claims and such right is an assignable right
397D E The JKCotton Spinning  Weaving Mills CoLtd
vs The State of Uttar Pradesh  Ors 1961 3 SCR185 194 and Ashoka Marketing Ltd  Anr
vs Punjab National Bank  Ors  439 followed
Palaniappa Goundan vs Nallappa Goundan  Ors AIR 1951 Madras 817 and PKamaraju vs CGunnayya  Ors AIR 1924 Madras 322 approved
Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel  Ors AIR 1933 Bom42 Mon Mohan Battacharjee  Ors
vs Bidhu Bhusan Dutta  Ors and Palani Goundan  Anr
vs Vanjiakkal  Anr 1956 ILR Mad1062 over ruled
Preprakash Surajmal vs Maharashtra Revenue Tribunal
Nagpur Ors AIR 1969 Bom361 and Ghanshyam Dass vs Dr
Shiva Shankar Lal  Ors 1980 All Law Journal 130 referred to