Along with his application under Section 34 of the Arbitration Act the appellant filed Exhibit A 1 dated 19th December, 1945 claimed to be an arbitration agreement and Exhibit A 10 dated 23rd January, 1946, a companypromise said to have been filed before the Arbitrators during the pendency of the arbitration proceedings.
Before the High Court it was agreed that the application under Section 34 of the Arbitration Act should number be persued by the defendant, that the plaintiff should give up his companytest regarding the genuineness of Exhibit A 10 and that the plaintiff was at liberty to raise the question of the validity of Exhibit A 10 which was to be made an issue in the suit itself.
Mathu, their father died in February, 1944 having executed a will on 11th January, 1935.
The High Court found merit in the companytention of the plaintiff,directed the plaint to be amended and remanded the suit to the Trial Court for fresh disposal.
The order of stay granted by the Trial Court was, therefore, set aside and the suit was directed to be disposed of with the maximum expedition at any rate up to the point of the preliminary decree.
The defendant appellant entered appearancs in the suit and, without filing a written statement, filed an application under Section 34 of the Arbitration Act seeking stay of the proceedings in the suit.
It was said that the earlier order of the High Court did number and companyld number enable the Trial Court to pass a preliminary decree without a written statement and a trial of the suit.
The High Court was of the view that its earlier order did number preclude the plaintiff from seeking an amendment of the plaint number did it prescribe any special procedure for the disposal of the suit.
The Trial Court allowed the defendants application under Section 34 of the Arbitration Act, The plaintiff preferred an appeal to the High Court of Madras.
The plaintiff however, filed an application for amendment of the plaint by substituting a new schedule of properties.
By the will Mathu made disposition of various properties and directed the two brothers to take the residuary estate in equal shares.
In this new schedule fuller and companyrect particulars were given of the properties previously mentioned in the original plaint, A few new items were also included.
The plaintiff respondent denied the genuineness of Exhibits A 1 and A 10.
The defendant declined to file a written statement and companytended that there was numberhing further to be done in the suit except to pass a preliminary decree for partition in terms of Exhibit A 10.
In 1946 Mathukutty, respondent herein instituted the suit out of which the present appeal arises for partition of the residuary estate.
Thereafter the suit was taken up by the learned Subordinate Judge.
The suit was to be tried on that footing.
The plaintiff once again preferred an appeal to the High Court.
