(1.) THIS appeal arises out of an order passed by the lower court dismissing an application filed by the appellants herein, who are defendants 1 and 2 in the suit, under S. 34 of the Arbitration Act, 1940, for stay of the suit, O. S. No. 82 of 1975 on the ground that there is an arbitration agreement between that there is an arbitration agreement between the parties to the suit.
(2.) RESPONDENTS 1 to 4 have filed a suit for partition and separate possession of three-fourth share in the suit properties belonging to respondents 1 to 3 and for recovery of maintenance said to be due to the 4th respondent. Respondents 1 to 3 and the appellants are brothers, being the sons of one Arunachala Chettiar who died leaving considerable properties. The 4th respondent is the widow of the said Arunachala Chettiar while respondents 5 and 6 are the wives of appellants 1 and 2 respectively. The said Arunachala Chettiar had executed a will on 6-11-1958, bequeathing his properties equally in favour of all his sons. As no provision was made in the said will in favour of his wife, she disputed the will in O. S. 32 of 1959. However, the said suit was compromised between the parties by the 4th respondent agreeing to receive maintenance at the rate of rs. 350 per month from the sons. After the death of their father, Arunachala chettiar, appellants 1 and 2 have been in management of the entire properties. Respondents 1 to 3 and their mother, the 4th respondent have now filed the suit for partition and maintenance, out of which this appeal arises, alleging fraud on the part of the appellants in the course of the management of the business and other properties of the family and complaining that from the income of the joint family, they have acquired properties benami in the names of their wives, respondents 5 and 6.
(3.) AS against this respondents 1 to 4 had filed an affidavit from one of the attestors to the alleged agreement dated 3-1-1971, wherein he has stated that the parties to the agreement have not signed the same in his presence, and that when the agreement was brought to him for his signature, the document has already been signed by the parties. The lower court has proceeded to decide the question relating to the execution of the agreement in the light of the said affidavits without given any further opportunity to the parties to adduce other evidence, either oral or documentary. It felt that the versions given by the attestors to the agreement are not uniform and that there being a specific issue raised in the suit as regards the existence of the disputed agreement and the maintainability of the suit in the face of the said agreement, the question as to the existence of the agreement can be decided by trying that issue as a preliminary issue at the stage of the trial. The lower Court also took the view that as the agreement creates certain rights in favour of the petitioners 1 and 2 and that it cannot be admitted in evidence for want of registration. One other reason given by the lower Court is that the arbitrator having stated in the affidavit that if the parties had chosen to refer the matter he would arbitrate and the parties having chosen the court for getting their remedy, there is no purpose in staying the suit. Then the lower Court proceeded to say that as the matter involved in the suit being highly complicated and the stakes involved being very high, it would not be possible therefore, the suit need not be stayed. The further reason given by the Court below for not staying the suit is that respondents 4 to 6 not being parties to the alleged arbitration agreement, there cannot be an arbitration in relation to them. The order of the lower Court has been challenged by the appellants in this appeal on various grounds.