Chakravartti, C.J. - (1.) This is an application for leave to appeal to the Supreme Court from a judgment and decree passed by a Division Bench of this Court in a First Appeal. The judgment is one of reversal. It follows that if the petitioner can make out that the two matters mentioned in Clause (a) of Article 133 (1) of the Constitution are of the requisite value, it will make out a claim to leave to appeal as of right. There is no difficulty about the amount or value of the subject-matter of the dispute in the Court of first instance, but the value of the subject-matter still in dispute on appeal requires a little close examination. The learned counsel for the petitioner conceded that if the case failed by the valuation test, he could not contend that it was otherwise a fit case for appeal.
(2.) The facts briefly stated are as follows. Touzi No. 4 of the Howrah Collectorate, known as Perganah Mandalghat, is owned by a number of co-sharers who may conveniently be classed under four heads, namely, the Mullicks Sree Sree Lakshmi Narayan Jew, represented by Manohar Lal Seal Shebait, N. N. Law and the Satkhira Zamindars. These cosharers had all separate accounts standing in their names. It appears that default having been committed in the payment of revenue, the estate was advertised for sale to be held on 25-9-1940, and about that point of time, the co-sharers other than the Satkhira Zamindars, conferred between themselves and agreed to come to an arrangement by which the imminent sale as well as such revenue sales in future might be averted. The terms of the arrangement appear to have been agreed to between the parties on 23-9-1940, and on the next day, namely, the 24th a formal deed of agreement was executed. By that deed it was provided that a private limited company would be formed for the purpose of taking over the shares of the executants in the zamindary, that after the formation of such a company, the executants would grant a lease of their shares to the company for a period of ninety nine years on receipt of a certain consideration and this was the most important term of all-- "all rents and decrees due to the parties hereto in respect of the Zemindary on the date of execution of the lease aforesaid will be duly assigned to the company at such agreed price as may be fixed by the Board and to be paid by the allotment of fully paid up shares." In pursuance of that agreement a limited company, which is the petitioner company before us, was formed and the memorandum of association, as also the articles, was signed on 19-11-1940. The certificate of incorporation was obtained on the next day. On 23rd December following, the lease stipulated for in the agreement of September 24 was executed. The next thing which happened was that on. 27-12-1940, three powers of attorney were executed in favour of the petitioner company by which the company was authorised to collect from the tenants the arrears of rent due to the several co-sharers up to the date of the execution of the lease. One of those powers of attorney was executed by the Mullick cosharers. The preamble to the powers of attorney, which were all in the same language, recited that prior to the formation of the company and the execution of the lease it had been agreed that the co-sharers would assign all the arrears of rents and other dues in respect of the zamindary to the company "for the total consideration of Rs. 20,000/- to be paid by the allotment of 200 fully paid up shares of Rs. 100/- each in the Company, to be issued to each of us and our said cosharers in proportion to the amount of arrears of rents and other dues actually realised in respect of his share in the Zemindary under his separate account." The preamble proceeded to state that as it would take some time to ascertain the amount and other particulars of the arrears of rent and other dues and to execute and register a formal deed of assignment, it had been agreed in the common interest of all that until the execution of the formal deed of assignment, an irrevocable power of attorney should be granted to the company to collect and realise on behalf of the co-sharers all arrears of rent and other dues accrued up to 23-12-1940, that is to say, up to the date of the execution of the lease. It will be noticed that while the agreement executed on 24-9-1940, left the consideration to be paid by the company for the assignment of the arrears unspecified the power of attorney recited that the consideration had been fixed at Rs. 20,000/- to be paid in the shape of 'two hundred shares of the face value of Rs. 100/-each.
(3.) It appears that no deed of assignment was ever executed and one of the Mullick cosharers, namely, Gour Mohan Mullick, became dissatisfied with the arrangements which had been made and in fact began repudiating them. Eventually, he brought a suit in the Court of the First Subordinate Judge at Howrah on 10-9-1946, for a declaration that the agreement of 24-9-1940, in so far as it differed from the draft agreement executed on the previous day, the memorandum and the articles of association of the private limited company which had been formed, the certificate of incorporation, the lease granted on 23-12-1940, and the power of attorney, dated 27-12-1940, were all void 'ab initio' and not binding upon him. He prayed further for recovery of possession of his share as also for damages for the use and occupation of his share by the company for accounts to be taken of the dues for arrears of rent and, alternatively, for a decree for his share of the rent for a period of five years from 23-12-1940.;