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

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