Judgment

CHINNAPPA REDDY, J. :- Two brothers. untouched by any trace of fraternal affection, have been waging war in the Courts without grace and with sheer cantankerousness for over thirty years. Mathu, their father, died in February, 1944 having executed a will on 11th January, 1935. By the will Mathu made dispositions of various properties and directed the two brothers to take the residuary estate in equal shares. In 1946 Mathukutty, respondent herein instituted the suit out of which the present appeal arises for partition of the residuary estate. The defendant-appellant entered appearance 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. Along with his application under Section 34 of the Arbitration Act the appellant filed Exhibit A-I dated 19th December, 1945 claimed to be an arbitration agreement and Exhibit A-40 dated 23rd January, 1946, a compromise said to have been filed before the arbitrators during the pendency of the arbitration proceedings. The plaintiff-respondent denied the genuineness of Exhibits A-1 and A-10. 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 High Court remanded the application for fresh disposal directing the trial Court to decide upon the question of the genuineness of Exhts. A-1 and A-10. After remand the trial Court found that Exts. A-1 and A-10 were true and valid and, therefore. stayed the proceedings in the suit. The plaintiff once again preferred an appeal to the High Court. Before the High Court it was agreed that the application under Section 34 of the Arbitration Act should not be pursued by the defendant, that the plaintiff should give up his contest 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. 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. It was reiterated in the order of the High Court that the question of genuineness of Exhibit A-10 was not to be made an issue in the suit. The suit was to be tried on that footing. Thereafter the suit was taken up by the learned Subordinate Judge. The defendant declined to file a written statement and contended that there was nothing further to be done in the suit except to pass a preliminary decree for partition in terms of Exhibit A-10. The plaintiff however, filed an application for amendment of the plaint by substituting a new schedule of properties. In this new schedule fuller and correct particulars were given of the properties previously mentioned in the original plaint. A few new items were also included. The application for amendment of the plaint was opposed by the defendant. The learned Subordinate Judge allowed the amendment but the High Court of Kerala allowed a Civil Revision Petition filed by the defendant and dismissed the application for amending the plaint. Varadaraja Iyengar, J. who disposed of the Civil Revision Petition took the view that the application for amendment ought not have been allowed as according to the learned Judge the direction given by the High Court previously barred the trial Court from deciding any question other than that relating to the validity of Exhibit A-10. In that view the learned Judge directed the trial Court to decide the question of validity of Exhibit A-10 and pass a preliminary decree. Thereafter the learned Subordinate Judge pronounced upon the validity of Exhibit A-10 and, holding it to be valid. passed a preliminary decree. The plaintiff preferred an appeal to the High Court of Kerala against the preliminary decree passed by the High Court and in the appeal he once again pleaded that the appl