JUDGMENT :

1. Being aggrieved and dissatisfied with the order dated 4.1.2021 passed below Exh-5 in Special Civil Suit No. 120 of 2020 by the learned 4th Additional Senior Civil Judge, Ahmedabad (Rural) at Mirzapur, the appellant who is the original plaintiff has filed the present Appeal from Order under Order 43 Rule 1(r) of CPC.

2. The appellant is the plaintiff and respondents are original defendant before the trial Court. For the sake of brevity and convenience, the parties are referred to in this order, as per the status assigned to them before the trial Court i.e. plaintiff and defendants.

3. The brief facts of the present appeal in nutshell, are as under:

3.1 The plaintiff minor Saumya S/o. Pradipkumar Sunilbhai Patel has preferred the suit, through his next friend namely Haresh Kumar Keshavlal Patel, who is alleged to be maternal uncle of the mother of the minor and he has no adverse interest to that of the minor, for cancellation of the Banakhat dated 15.6.2019 as well as 16.11.2019 General Power of Attorney dated 16.11.2019 as well as sale executed dated 16.11.2019 on the ground that without obtaining required permission under Section 8 (2) of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956 (hereinafter referred to as “the Act”) property having his share has been sold out by sale deed. Along with the plaint, the plaintiff has also moved an application for temporary injunction restraining the defendant No.1 from putting any construction over the suit land and for making any improvement in respect of the suit property till disposal of the suit and from selling, transferring or creating any charge or creating any third party right or otherwise in the suit property or dealing with the suit in any manner till the disposal of the suit. The said application for interim injunction came to be dismissed by the trial Court. This order has been challenged by the plaintiff mainly on the ground that without prior permission of the Court, the Share of the plaintiff could not have been sold and no title to the property could be said to be passed in favour of the defendant No.1. It is also contended that the sale transaction was no for the necessity of the minor and since the transaction was in breach of provision of Section 8 (2) of the HINDU MINORITY AND GUARDIANSHIP ACT , 1956, the trial Court ought to have granted interim injunction against defendant No.1.

4. Heard Mr. Jal Unwala, learned Senior Counsel with Mr. Jigar Gadhvi, learned advocate for the appellant, Mr. Kamal Trivedi, learned Senior Counsel with Mr. Tattvam Patel, learned advocate for the caveator-defendant No.1. None has remained present for other respective respondents, though served. Perused the material placed on record and the decisions cited at bar.

5. Mr. Jal Unwala, learned Senior Counsel assisted by Mr. Jigar Gadhvi, learned advocate for the plaintiff- appellant, has vehemently submitted that in the present case, without prior permission of the concerned Court, the share of the minor has been sold by the mother of the minor. He has submitted that as per Section 8 of the HINDU MINORITY AND GUARDIANSHIP ACT , the prior permission of the Court is required if the share of the minor is proposed to be disposed of by the guardian. He has submitted that in the present case, as per the averment made in the agreement to sell, there was recital to pay Rs. 20 Lakh to the minor and there was also recital that prior permission of the Court would be obtained. He has also submitted that inspite of this averment, share of the minor has been sold by his mother without any prior permission of the Court. He has also submitted that even the purchaser has not persisted for such permission. According to him, in view of