C M MATHU KUTTY Vs. VAREE KUTTY

JUDGEMENT

(1.) THIS is an appeal by the plaintiff in O. S. No. 15 of 1946, Subordinate Judge's Court, Ottapalam, against the order of the learned Subordinate Judge staying the trial of the suit under Section 34, Arbitration Act, X [10] of 1940.

(2.) THE plaintiff and the defendant are brothers and are the sons of one Cheeran Mathu who died in February 1944. After the father's death, there were disputes between the brothers regarding the property left by the father and the suit for partition was instituted for division of the properties. THE defendant filed an application under Section 34, Arbitration Act for stay of trial of the suit on the ground that there was an agreement between the parties to refer the disputes to five named arbitrators and that in pursuance of the agreement there was a reference to arbitrators. It was also alleged in the petition filed by the defendant that the parties filed detailed statements regarding the disputes before the arbitrators. THE agreement to refer the disputes before the arbitrators, is dated 19th December 1945. THE detailed statement was filed before the arbitrators by the parties on 20th December 1945. THE arbitrators met and recorded depositions on 20th January 1946. On 23rd January 1946 according to the case of the defendant there was also a razinama between the two brothers, whereunder some of the disputes between them were actually settled and the arbitrators were authorised to carry out the partition of the properties to give effect to the settlement of that date. He, therefore, claimed in the petition that in view of the existence of an arbitration agreement between the parties under which a reference was made to the arbitrators and which reference was pending enquiry before them, the trial of the suit should be stayed under Section 34 of the Act. This application was opposed by the plaintiff on various grounds, the most important of which was the denial of the existence of a valid agreement referring the disputes to arbitration.

(3.) IN this appeal by the plaintiff the only argument raised on behalf of the appellant is that the learned Judge was not justified in refusing to take oral evidence to establish his plea that the agreement was vitiated by fraud and misrepresentation.