1. This is an application in revision against the judgment of the First Glass Subordinate Judge of Broach. It appears that in 1911 the defendant entered into a contract with one Devshankar to perform the latter's duties as priest in certain villages and to share the emoluments from those services. The actual agreement is Exhibit 27 and it is there provided that the defendant and another man who was in the same position were to work as long as Devshankar pleased as his gumastas and they undertook to work for a minimum term of five years. Devshankar died in 1927 and the plaintiff is his widow. She sues the defendant for the half share of emoluments received in the years 1929 and 1930, that is, since the death of Devshankar.
2. Now, it is perfectly plain that the original contract came to an end, at the latest on the death of Devshankar, because it is to endure only during his will. Therefore if the widow is entitled to recover these sums, as the learned Judge has held, it must be, I think, on one or other of two grounds; either she must prove that she entered into a fresh contract with the defendant that he would continue to work for her or under her directions on the terms of the original karar so far as applicable, that is to say, on the terms of sharing the emoluments with her, or she must prove that the services in respect of which these emoluments were earned by the defendant were in effect her property and that the defendant in receiving moneys for the performance of these services is accountable to her for those moneys as being moneys had and received to her use. So far as the first point-that of an implied contract-is concerned, there is no evidence of any new contract made expressly, and it seems to me that any suggestion of an implied contract is entirely negatived by Exhibit 30, which was a notice given by the plaintiff on May 9, 1928, to the defendant saying :-
We have brought a man to do the work of priesthood in Vagra, therefore henceforward you should not go to do the work of priesthood in Vagra at anybody's place.
So that, if up to that date the defendant was acting as agent for the plaintiff, that notice put an end to the agency, and the moneys sued for were received after that date. Therefore it seems to me that the plaintiff is driven back upon the other ground of claiming that these moneys received by the plaintiff in respect of services rendered as priest are moneys which in equity belonged to the plaintiff. Now, under the old law these duties of priest were regarded as hereditary, and if the plaintiff could have shown that the right to perform these duties passed on the death of her husband to herself, then I think she would have been entitled to say that the defendant had received rewards for these services on her behalf and was accountable to her. But by Section 4 of Bombay Act XI of 1926, called the Invalidation of Hindu Ceremonial Emoluments Act, it seems to me that any right which the plaintiff had to the proceeds of these services is taken away, because Section 4 says that no person shall be entitled to claim as a matter of right any ceremonial emoluments from any Hindu who does not call in the services of the person claiming those emoluments, and 'ceremonial emoluments'. is defined as all perquisites, fees and any other dues claimable by any person for religious ceremonials on account of his being a hereditary priest or an alienee from a hereditary priest. So that if the defendant has received moneys for performing on his own behalf the duties of a priest it seems to me that the plaintiff cannot claim those moneys because they are payable by persons who have not called in her services. The original agreement contains no contract by the defendant not to perform services for any persons for whom he has acted on behalf of Devshankar, and in the absence of any such contract, and in the absence of any proof that the emoluments he has received belonged to the plaintiff, it seems to me that he is entitled to act as priest and to retain for his own benefit the sums which are paid to him. That being so, I think the judgment of the learned Judge was wrong in law and that we must set it aside. Rule absolute; plaintiff's claim dismissed with costs throughout.