A. Hariprasad, J.

1. Non-suited plaintiffs in an action for declaration, partition and prohibitory injunction are the appellants. Suit, as it originally stood, was for a permanent prohibitory injunction relief alone. It was subsequently amended by incorporating a prayer for partition. It was further amended by adding a prayer for a declaration that Ext.B3 gift deed is a fraudulent, void and sham document. Could all these contentions be legally raised together is an aspect worthy to be considered. It is also pertinent to note that when the plaint was amended as above, additional 3rd defendant was impleaded, as he had purchased the property from the original 1st defendant pending litigation. He is the contesting respondent in this appeal.

2. Heard Sri. S. Sreekumar, learned Senior Counsel appearing for the appellants and Sri. S.V. Balakrishna Iyer, learned Senior Counsel appearing for the contesting respondent.

3. Brief facts: 1st appellant is the mother of appellants 2 and 3. Deceased 1st defendant was the father-in-law of the 1st plaintiff/1st appellant. Respondents 1, 4 and 5 are the children of deceased 1st defendant and the siblings of the 1st appellant's husband, deceased Sreedharan. 2nd respondent (additional 3rd defendant) is the purchaser pendente lite. 3rd respondent is the wife of 1st defendant.

4. Plaint schedule property was purchased by the 1st appellant, her husband, deceased Sreedharan, and the 2nd defendant, Vasu, in the year 1975 as per Ext.A1 document. Sreedharan died about three years before the suit. Plaintiffs claimed 2/3rd right over the plaint schedule property. As the defendants were about to alienate the property, initially a suit for prohibitory injunction was filed. As per Ext.A1, the 1st appellant was put in possession of about 20 cents and the remaining extent was managed by the respondents.

5. Deceased 1st defendant filed a written statement contending that as per Ext.B3, 1st appellant's husband Sreedharan and the 2nd defendant/1st respondent, Vasu, had executed a gift deed in his favour. The gift was accepted by the 1st defendant and he had been enjoying the property as absolute owner. According to him, consideration for purchasing the property as per Ext.A1 itself was paid by him. The nominal rights of the assignees in Ext.A1 was released to him by way of Ext.B3 gift deed. Immediately before the gift deed, the 1st defendant had given 18 cents of land to the 1st appellant. 5 cents of land was sold to one Kochuvareed. Excluding those lands, rest of the property remained in title and possession with the 1st defendant. He sold the land to the additional 3rd defendant.

6. 1st respondent (2nd defendant) disputed the allegations raised by the 1st defendant and he virtually supported the plaintiffs. He also claimed a right over the property.

7. Subsequent to the 1st defendant's written statement, the plaint was amended and additional 3rd defendant (2nd respondent) was impleaded. He raised a contention that he had purchased the property from the 1st defendant for a valid consideration. Ext.B1 is the assignment deed executed by the 1st defendant in favour of the 3rd defendant/2nd respondent. He also adopted the contentions of the 1st defendant.

8. Thereafter the plaint was again amended, initially seeking a relief of partition and then by incorporating a prayer for declaration that Ext.B3 is a void, sham and fraudulent document.

9. During the first round, the trial court decreed the suit and a preliminary decree for partition was passed. It was taken up in a first appeal before the lower appellate court. As per judgment in A.S. No. 41 of 1994, the learned Additional District Judge set aside the judgment of the trial court and remanded the case for a fresh disposal, permitting both sides to adduce evidence. Additional document produced before the lower appellate court, along with an interlocutory application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short “Code”), was ordered to be s