A. N. SURTI, S. H. SHETH, J.

( 1 ) MR. Shah has tried to raise a new contention before us which did not form the subject-matter of pleadings by the defendants and which was not the subject-matter of issue before the learned trial Judge.

( 2 ) MR. Shah has argued that agreement Ex. 175 was concluded between defendant 1-trust on one hand and the non-existent plaintiff- Society on the other hand. He has further submitted that there is no dispute about these facts. Now Ex. 175 itself states that the plaintiff-Society was a proposed Society not until then registered. Recitals contained in agreement to lease Ex. 175 also make it clear that Nanubhai J. Desai the chief promoter of the plaintiff-Society had entered into the transaction evidenced by Ex. 175 for the benefit of the society which was yet to be born.

( 3 ) THE question which was raised on these facts was whether there could be any such agreement valid and enforceable at law. Mr. Vyas has objected to this contention being raised principally on the ground that it was not pleaded by the defendants in the written statement nor was it a subject-matter of issue before the trial Court. If this contention was required to be decided after a fresh enquiry into facts we would have certainly disallowed it. However in order to make good this contention reliance has been placed only upon the recitals contained in the agreement Ex. 175. If this contention can be decided on the recitals contained in Ex. 175 we see no difficulty in permitting Mr. Shah to raise it. If the agreement itself shows that it was void or a nullity as Mr. Shah has tried to argue in our opinion it should be allowed to be raised. However if the decision on the contention raised before us depends upon the ascertainment of new facts it cannot be allowed at the appellate stage. This contention was not raised in the memorandum of appeal filed in the present case. Obviously Mr. Vyas was therefore taken by surprise. We therefore gave him time to work out his case in that behalf and then to argue it. In order to make good this contention Mr. Shah has invited our attention to six decisions of English Courts.

( 4 ) THE first decision is In re: Northumberland Avenue Hotel Company (1886) 33 Ch. D. 16. In that case one Wallis had negotiated with the Metropolitan Board of Works for the grant to him of a lease of certain plots of ground for a term of eighty years at a particular rent An agreement in writing was entered into in that behalf. In the meantime an agreement had also been entered into between two persons who styled them as trustees for and on behalf of an intended company to be called the Northumberland Avenue Hotel Company Limited. One of them was styled as an agent for and on behalf of Wallis and he agreed to grant to the proposed company an underlease of the said plots of ground on certain terms and conditions. Under the agreement the proposed company agreed to become an underlessee for a term of eighty years less one day of the plots of ground at a particular rent. The agreements contained stipulations of a character similar to those which were usually inserted in building agreements. They were to be performed by the proposed company. Under the agreement the proposed company was entitled to take possession on payment of a certain deposit. The proposed company was incorporated on the next day of the agreement. The agreement entered into was not mentioned in its memorandum but the articles of association of the company purported to adopt that agreement and provided that the company should carry it into effect subject to the modification which might be agreed upon between the parties. The company after incorporation did not enter into any further agreement in writing with Wallis but acted upon the agreement took possession of the ground and spent upon it a large sum of money. There was no note or memorandum of any contract with Wallis signed or sealed on behalf of the company after its incorporation. Thereafter Wallis ins

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