Sidha v Dairaj [1962] FijiLawRp 45; [1962] 8 FLR 91 (3 May 1962)

(1962) 8 FLR 91

COURT OF APPEAL OF FIJI

 

PRAGJI SIDHA AND ANOTHER

v.

DAIRAJ

[COURT OF APPEAL, 1962 (Marsack P., Trainor J.A., Hunter J.A.),
16th February, 3rd May]

Civil Jurisdiction

Contract-construction-obligation to pay maintenance-construed as importing obligation to maintain in a reasonable manner having regard to station in life.

Contract-implied term-obligation to maintain-no implication of term that person maintained must reside in family home.

The appellants convenated by deed to maintain the respondent until her death or remarriage, whichever should first occur.

Held: 1. The covenant to maintain the respondent should be read as creating an obligation to maintain her in a reasonable manner taking into consideration her station in life.

2. It was not proper to import into the deed a term obliging the respondent to live in the family home.

Appeal from a judgment of the Supreme Court.

R. G. Kermode for the appellants.
R. I. Kapadia for the respondent.

The facts sufficiently appear from the judgment of Marsack P.

MARSACK P.: [26th February, 1962]-

This is an appeal from a judgment of the Supreme Court awarding the respondent the sum of £411. The matter arose in this way. The respondent is the widow and administratrix of the estate of Ganesh Sidha her husband. On the 14th February, 1955, she entered into a Deed as administratrix and also in her personal capacity, with her deceased husband's brothers. Clause 4 of the Deed provides as follows:

"4. The Assignees" (the said brothers) "further covenant that 'they will maintain' the Assignor" (the said administratrix) "and any infant child or children of hers, in so far as she is concerned until she shall die or remarry whichever event shall first occur, and in respect of such infant child or children until such child or children shall obtain employment, marry, or attain the age of sixteen years, whichever event shall first occur."

At the time the Deed was executed the respondent was living in the family home with the appellants and continued to live there until December, 1956, when she left. While in the family home she was maintained by the appellants. She said (in evidence) that she left owing to their treatment of her. Since she left, the appellants had paid nothing for her support. On the 27th October she instituted proceedings and on the 25th November, 1961, she delivered a statement of claim, claiming from the appellants £702 which she alleged was due to her and her children under Clause 4 of the said Deed. The appellants admitted that they had paid nothing since she left their home, but said that they were quite willing to support her if she returned to the home, and that they always had been so willing.

At the hearing Counsel for the defendants (the appellants) submitted that the claim was for breach of contract and that the plaintiff (the respondent) had given no evidence of damage and, therefore, the claim should fail. He also submitted that the plaintiff should have sued in her own name and not as administratrix, but he did not press this point on appeal.

Counsel for the plaintiff (the respondent), on the other hand, submitted that the claim was for "reasonable" maintenance and that sufficient evidence had been given to enable the Judge to assess the amount of damage to which the plaintiff was entitled. The only evidence as to damage was given by the plaintiff herself. She said:

"Since I left defendants' family I have been living in the family unit of my brother. I share in the household work. As soon I can get my maintenance from defendants I will share with my brother the expenses. My brother charges £30-38 per month. That includes rent, food, etc. From December 1960. Up to then I had agreed to pay but from December 1960 the actual expenses were fixed. I would have to pay my expenses as a member of my brother's family unit. I promised to pay then when I came there to them.

Q: When you commenced this action you did not owe your brother £75 for clothing?

A: I did.

Under the Deed the appellants were bound to "maintain" the respondent and, in certain circumstances, her children. The clause is certainly vague, but the submission of the plaintiff was that this must mean that they were bound to maintain her "in a reasonable manner"; and that there was nothing in the Deed providing that in order to be entitled to maintenance she was bound to live in the family house.

It is true that in construing a contract the Court in certain circumstances may imply a term or condition not expressly stated, if it is clear from the nature of the transaction, or from something actually found in the document, that the contracting parties must have intended such a term or condition to be part of the agreement between them (see 8 Halsbury's Laws of England 3rd Ed. para. 212) Is it permissible in this case to read into Clause 4 of the Deed "in a reasonable manner according to her station of life?" In my view the Deed should be so read because it is clear from the nature of the transaction that this was the intention of the contracting parties. But were the appellants maintaining her "in a reasonable manner according to her station in life" in their home? The only evidence of this is again the plaintiff's evidence when she said "my position was like that of the family dog". She was not cross-examined on this, and there is nothing else to show how she was treated. Apparently she had lived this house from the time she was married (1939) until she left in 1956.

There is nothing in the Deed as to where the appellants were to maintain her, nor is there any obligation under the Deed whereby she is bound to live in the family house. I do not think that it would be proper to import into the Deed any such term. The appellants' duty under the Deed is to maintain her, and to maintain her in a reasonable manner taking into consideration her station in life.

There is nothing in the judgment of the learned trial Judge to indicate upon what basis he assessed the proper amount payable to the respondent under the Deed. He seems to have made a purely arbitrary assessment. It must, however, be remembered that this is not a maintenance claim in the ordinary sense of the word. The obligation to maintain the respondent arises from the Deed signed by the appellants; and the action was based upon a breach of contract.

In my opinion it is impossible to say whether the damages awarded by the trial Judge were calculated upon a proper basis, and I would remit the case to him so that a proper assessment could be made. In my opinion the learned trial Judge was right when he held that the obligation of the appellants to provide the respondent with reasonable maintenance subsisted under the terms of the Deed whether or not the respondent continued to live in the family home. The first ground of appeal, in my opinion, fails. I would, however, set aside the judgment for the sum of £411 and remit the case to the trial Judge for the purpose of making an assessment of the damages upon the basis that the amount of maintenance payable should be calculated upon a due consideration of the respondent's station in life. The cost of maintenance and education of the children for whose maintenance the appellants are liable under the deed, should be calculated on the same basis. I think that power should be given to the trial Judge to hear additional evidence, on this point only, if he considers it desirable.

I would give respondent her costs in the Court below. With regard to the costs of the appeal, however, I think that she is entitled to payment from the appellants of one-half her taxed costs of the appeal and I would so order.

HUNTER J.A. I concur.

TRAINOR J.A. I concur.

Case remitted to the Supreme Court for assessment of damages.