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 of the Indian Arbitration Act, X of 1940.

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 of the Indian 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 the 20th December, 1945. The arbitrators met and recorded depositions on the 20th January, 1946. On the 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 the 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.

The sum and substance of the plaintiff’s case is that some signatures on some papers were obtained by fraud and misrepresentation, particulars of which were given in the counter-affidavit filed by him. In paragraph 2 of the counter, he categorically stated that no reference to arbitration was made to the arbitrators and that he had not signed and in paragraph 5 he added that he did not even sign any deed of reference knowing the same to be a deed of reference to arbitration or understanding the nature of the deed. . He also denied the existence of the razinama between them and that he did not even sign any such document. He also raised some other legal contentions which were overruled by the lower Court and which have not been how pressed before me.

The learned Subordinate Judge who heard the application refused to take evidence on the case of fraud and misrepresentation put forward by the plaintiff on the ground that under section 34 of the Act no evidence on the question of the validity of an arbitration agreement could be taken as the only right of the person raising such defence was to apply under section 33 of the Act, and as the plaintiff had not followed that course, it was not incumbent on him to take evidence. He therefore overruled the objections of the plaintiff and passed an order directing stay of the trial of the suit as, in his opinion, there was a prima facie valid arbitration agreement entered into between the parties.

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.

The Indian Arbitration Act (X of 1940) consolidates and amends the law relating to arbitration in British India. Before this Act, the law relating to arbitration in Presidency Towns was contained in the Indian Arbitration Act, 1839 and so far as the mofussal was c