Equity is a body of rules that aims to achieve justice by supplementing the rigidity of common law, developed historically through the Court of Chancery in England. It encompasses principles of natural justice and moral fairness, addressing gaps in the law that could lead to injustice. In India, while there is no separate court for equity, its principles are incorporated into the legal system, guided by notions of justice and good conscience.
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Equity is a body of rules that aims to achieve justice by supplementing the rigidity of common law, developed historically through the Court of Chancery in England. It encompasses principles of natural justice and moral fairness, addressing gaps in the law that could lead to injustice. In India, while there is no separate court for equity, its principles are incorporated into the legal system, guided by notions of justice and good conscience.
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CHAPTER 1
CONCEPT AND DEFINITION OF EQUITY
Introduction—Equity is not a word that can i «,
ee ese ee sod neta qulty
Tae i — 7 administration are made to approximate
See Fr fal jal of justice. There have been three
aga esan eae yy, there is justice and reasonable interpretation of
the lav ly, there is the need to temper the law in its application to the
individual case. A characteristic of law, save in the rarest cases. the
generality, and yet this may produce in the special case a result which
conflicts with man's ideas of justice which law should endeavour to fulfill.
Thirdly, there is the need to supplement the shortcomings of the law. No
system of law, early systems in particular, can boast of being able to provide for
all possible situations. Gaps in the law often result in the gravest injustice.
Now-a-days one seeks a remedy in legislation, but it must be remembered that
legislation is a comparatively modern instrument of legal development. In
carlier times it was resorted to very sparingly, and accordingly some other
method had to be found for filling in these gaps. Doctrines so created may be
described as “equitable” in the sense that they fill in these unjust lacunae.
Equity, in the classic words of Maine, is “any body of riles existing by the side
of the original civil law, founded on distinct principles and claiming
incidentally to supersede the civil law by virtue of a superior sanctity inherent
in those principles”.
The term, equity is used in three different senses. In the first sense, it means
morality, honesty and uprightness. In the second sense, equity refers to the
“principles of natural justice, which tempts the fixed rules of law. In the third
sense, equity co! Ta set of fixed rules. It is well-formulated set of rules. |
/The term “equity” may. however, also be used in a different and more
rebtricted sense. An equitable decision may be one that is neither based on an
existing rule of law nor designed to inaugurate anew sequent’ of precedents. Its
sole aim may be to do justice to the parties in a case characterized by a
configuration of facts unlikely evet to be repeated in reality in the same or
similar way.
In England equity devel
joped distinctly and separately from the common
law. It had its separate jurisdiction and was administered by the Chancellor
and he was guided by the principles of natural justice. The governing principle
of the early jurisdiction was conscience.
In India there never had been any sepa
principles of equity and justice have been incot
the land.
rate equity court but a number o!
porated in the substantive law of EQUITY
hile interpreting ‘Equity’, has observed, “In progressive
ties and social opinions are always more or less, in
If that is thus created between the social opinions and
the existing law is bridged up by three instrumentalities, namely (i) Legal
Tetion. (i) Equity, and (iii) Legislation. When Law becomes fixed, legal
fictions liberalise it, when legal fictions also become outdated, Equity softens
the rigours of law, till finally a point is reached when expansion of Equity
ceases”.
‘The term, ‘Equity’ is a derivation from the Roman term ‘acquitas’ which
means equalization or levelling. Etymologically, therefore, equity is that
wihich levels down any arbitrary preferences or denial of justice.
The term, ‘Equity’ is used in various senses, out of many the four main senses
in which the term is used are:
1. Literal sen:
2. General sense;
3, Roman sense; and
4, English sense.
We have to deal only with that ‘equity’ which was evolved and
developed in England but for the proper understanding of the subject it would be
better to explain the term in all the senses
(1) Literal sense—The literal meaning given to Equity is “right” as
founded on the laws of the ‘nature’, fairness’ and ‘justice’. This is also the most
popular notion about this expression.
(2) General sense.—In the most general sense, we call that Equity which in
human transactions is founded on ‘natural justice’, ‘honesty’ and ‘right’. In this
sense it means that one should do to all men as he expects to be done to him. In
this way, unkindness and ingratitude or other moral wrongs clearly fall outside
the scope of equity.
(3) Roman sense.—'Equity’ In the Roman sense means a body of moral
principles introduced in the Roman law by Praetor which constituted Equity
{acquitas) by the side of ‘Jus Civile’. Ancient Civil Law of Rome was a system
of extreme rigidity and adherence to technicalities ill-adapted. Praetor
softened the rigour of law. He was Supreme Judicial Magistrate of Roman
Republic. He altered the law by modifying the terms of formula. Maine
therefore, says that “Equity means any body of rules existing side by side the
original civil law, founded on distinct principles and claiming incidentally, '°
supersede the civil law by virtue of superior sanctity in those principles’. In
me equity played a great part in the easy development of Roman Law.
papery be Beste ie cbeeevaton ot Maine ielexpletned) with reference
the Supreme judicial Magistra earliest period of Roman Law the ‘Praetor’ W235
anh Pat re Magistrate of Roman Republic. Each ‘Praetor’ on enterit®
eee inc en set out a list of the rights and remedies which he
ih WHER bee intended ty tenure of office and gave public notice of the modes
intended to give relief against the rigidity of the established
system. Whenever an application of the old “Jus Guile would do a mor
wrong and produce a result inequitable, the Praetor’s conforming his decision "°
Sir Henry Maine w'
societies social necessi
advance of law. The gu!
ad CONCEPT AND DEFINITION OF EQUITY :
the ‘law of nature’ provided a remedy by means of an appropriate action of
defence. Gradually the case as well as the modes in which the ‘Praetor’ thus
interfered, became more and more common and thus a body of moral principles
was introduced in the Roman Law which constituted Equity (Acquitas) by the
side of Civil Law (“Jus Civile”).
(4) English sense.—'Equity’ in English sense means the
formulated and administered by the Court of Chancery to suppl
and procedure of the Common Law. As a part of the Eng
Jurisprudence, however, its proper understanding requires a brief reference to
history.
Historical Background.—By the middle of the 13th Century the law
administered in England, was in part Customary Law and in part Statutory
Law. On account of the narrowness, extreme Tigidity and formalism of the
Common Law, it often gave either inadequate remedy or no remedy at all. The
law did not provide relief for all inconveniences. No provisions were made for
matters of natural justice. In such cases a petition was made to the King-in-
Council to exercise his extraordinary judicial powers. A custom developed of
referring these petitions that the ‘Chancellor’, who was the Chief of the
King’s Secretaries. It was in dealing with these petitions that the ‘Chancellor’
began his judicial functions and the ‘Court of Chancery’ was established
besides the Court of Common Law. The ‘Chancellor’ acted according to his
judicial conscience or the principles of natural justice. The principles and rules
thus arising through the administration of justice in Courts of Chancery were
called ‘Equity’ in contradistinction to Common Law. Upto 1873 there remained
“two separate systems of Courts namely, Common Law Court and Chancery
Court, but in 1873 both the Courts were amalgamated by Act of judicature and
the new Courts were assigned with the power of enfotcing all the rights and
remedies legal as well as equitable.
/ Equity, therefore, in its technical sense, may be said to be “a portion of
nataral justice which, though of such a nature as properly to admit of being
judicially enforced, was for circumstances hereinbefore noticed, omitted to be
enforced by the Common Law Courts—and it was an omission which was
suppiied by the Court of Chancery.” )
‘A Equity as a branch of Law.—Equity as a branch of any legal system, may
therefore be said to mean the principles or rules emerging from the
administration of justice through a power and duty vested in the judges in those
cases which are not covered or adequately provided for by the existing law of
the land. The system of law prevailing in a State springs upon the basis of past
cases or those that may be anticipated for future. It is impossible to prepare
such a comprehensive code as to cover every possible case. It is, therefore,
essential that there must be in the State a machinery which may, by
notification or innovation held the existing body of law in the State. Equity
fulfills this requirement of the society by supplementing the law and making it
more liberal and kind) Equity, has in the words of Storey, “the sanction of
jurists in ancient as welt as in modern terms” and in this sense Equi
in the words of the same learned writer, a place in every national
jurisprudence, if not in name, at least in substance.
body of rules
lement the rules
lish system of
ity must have,
| system of iven a very comprehensive
iris equity t0 pardon human failings and to
jot the law: to the spirit and not to the letter; to the
- to whole and not tO the part; to the character of
moment; to remember good rather
ather than the good that one has
atter by words rather than by deeds;
for the arbitrator sees what is
n arbitrator was first appointed
Aristotle has 8!
ion of Equity.
Descript
Pe Equity as follows:
description of E
Jook to the law~
intention and not t
in the long run an
rbitration to judgments
But judges only the law and for this a!
oorder that Equity might flourish.
Maine describes Equity a5 "any body of
original Civil Law founded on distinct principle
supersede the Civil Law by virtue of a superi
principles.” ;
Definition of Equity—There are many definitions of Equity each distinct
from the other but all agree on the general nature of Equity, which is
synonymous with ‘natural justice’, ‘honesty’ and ‘right.
Plato said, “Equity is indispensable to any intelligent administration of
justice". According to ‘Aristotle, ‘justice and equity are neither absolutely the
His view is that the difference between justice
‘same nor generally different. ;
I of the degree. He further says that equity possessts a
and equity is only that
nae ideal and is constant and immutable.
high degree of justice. It embodies a moral
‘Aristotle has also said that “Equity is the correction of the law which is
defective on account of its generality.”
equitable,
rules existing by the side of the
Jes and claiming incidentally to
‘or sanctity inherent in those
Blackstone defines Equity as the “soul and spirit of all law; positive law is
construed and natural law is made by it. In this way Equity is synonymous with
justice in that it is the true and sound interpretation of the rule.”
West., J.! says, “Equity is an intellectual energy. It is influenced by the
gradual changes in the mental standpoint taken by successive generation. It
thus moulds its deductions from one set of data as the Common law to another
into continued adaptation to the growing needs of society.”
Snell says that “in its technical sense Equi i i
I : quity may be defined as a portion of
een pe although of a nature suitable for judicial enforcement,
5, rrical reasons not enforced by the Common Li ssi
which was supplied by the Court of Chancery.” a
ee Jurisprudence may properly be said to be that
Equity as cadet ed aeeeae administered by a Court of
led irc i ears . .
exclusively administered by a come pues justice which was
Maitl =
English ee ee Equity now is that body of rules administered by
— ome ee but for the operation of the Judicature
Equity” y those courts, which would be known as Courts of
1. Inre Khandas Narrendas, (1980) 5 Bom. 154, 172. CONCEPT AND DEFINITION OF EQUITY :
Sir Henry Maine “has defined equity as any body of rules, the primary
source of which was neither customary nor written law, but the imperative
dictates of conscience and which had been set forth and developed in the Courts
of Chancery.
According to Aristole "Equity is the correction of the law where it is
defective on account of its generality.” He further elucidates, “It is equity to
pardon human failings and to look to the law giver and not the law, to the
spirit and not the letter.”
No doubt, the definition given by Prof. Maitland is an improvement over
the definition of Story, but it also suffers from the same defect as the definition
of Story. Therefore, we have to concede that the difference between equity and
common law is more in form than in substance, the difference is more historical
than in actual content.
Summary : Taking into consideration the above definitions this becomes
quite clear that ‘Equity’, now is that body of rules administered by the English
Courts of Justice which, before the operation of the Judicature Act of 1873, were
administered only by those courts which were known as Courts of Equity. We
can further describe that—
(i) Equity is founded on principles of natural justice;
(ii) It is the body of rules and principles which exist side by side of the
original Civil Law; and
-{iii) It does not supersede the existing law, but is a supplementary addition
to such law.
Nature and Scope of Equity.—To a layman, equity must primarily mean
right doing, or justice in the purely ethical meaning of that word.
Nevertheless, to the learned in any legal system equity rarely retains that
freshness of interpretation because some sort of technical significance tends to
attach to it.
In England equity has acquired an entirely specialised meaning. It includes
technically only certain rules which were developed in the Court of Chancery.
The basis for its creation may have been the desire to do right between men
according to the moral law of the time, but it was always limited and has now
become a fixed body of principles of a like character to, though different in
many respects from, the Common Law. It is no longer possible to claim redress
simply upon moral grounds; it is necessary to show some principles recognised by
the system of equity before a remedy can be granted, just as some rule of the
Common law must be prayed in aid to support an action at law.
It is difficult, to give a specific statement on the scope of Equity but to quote
Aristotle, “equity is the correction of the law where it is defective on account of
its generality,” and indeed\Equity came to safeguard and promote the interest
of justice against the rigidity, defects or deficiencies of the existing law in the
State and’to achieve this end is generally extended its scope in supplementing
the Common law in the following three respects by enforcing: |
(i) New right;
New remedies; and
(iii) New procedure. ee Oe Me CUHLL CUE LQLES UI UIE Cade NIU UWI NUL BU UeHUEM Sento
EQUITY UNDER THE INDIAN LEGAL SYSTEM
Equity in India not an independent branch of Law.—In India, there was
never any separate Court for the administration of Equity. The greater part of
the law to be applied by the Court, has been codified. But in the absence of
specific law or usage in any matter, the Court has to act according to principles
of ‘Equity’, ‘Justice’ and ‘Good Conscience’ interpreted to mean only those rules
of English Equity which are applicable to Indian society and circumstances.
Origin of Equity—Hindu and Mohammedan law.—In India, the origin of
Equity can be traced back to the Hindu period when jurists explained the old
laws and gave new rules of interpretation and equitable solutions in case of
conflict between the rules of various laws. Hindu Law had never been static and
has consequently introduced equitable principles to meet the exigencies of the
times.
It has been laid down that in case of a conflict between the rules of
“Smritis” either may be followed, as reasoning on the principles of equity.
Yuktivichar shall decide the solutions.
Jayaswal has also collected authorities to the same effect. He says:
“We may recall ‘Kautilya’s provision that in the dharma text is found
opposed to judicial reason the dharma text fails and there the authority of
reason prevails. Yajnavalkya.......says, “where there is a conflict between
two smritis texts, reason (Equity) is there stronger. He limits the
superiority of Reason or Equity to a conflict between the Sastras
themselves.”
In Mohammedan Law also the principles of Equity are clearly noticeable.
Abu Hanifa, the founder of the Hanafi Sect of Sunnis, expounded the principle
that the rule of law based on analogy could be set aside at the option of the
judge on a liberal construction or judicial preference to meet the requirements of
a particular case. These principles of Mohammedan Law, are known as
‘Istihsan’ or ‘juristic Equity’. With regard to the Mohammedan Law.
Their Lordships of the Privy Council in Hamira Bibi v. Zubaida Bibi,
observed as follows: “The chapter on the duties (Adab) of the Qazi in the
Principal Works on Mussalman Law clearly shows that the rules of Equity and
equitable consider:itions commonly recognized in the Courts of Chancery in
——_ JolI>
HOA TURE OF EQUITABLE relies INTERESTS aN
A ‘chose in action’ means a thin
possession’ means a thing of which a
action”, therefore, are all personal rigl
action, and not by taking possession,
Chose in action are classified into—
(i) legal choses in action, and
(ii) equitable choses in action,
Legal choses in action are those which can be recovered or enforced by
action at law e.g. a debt, or bill of exchange.
Equitable choses in action are those which are enforceable in the Courts of
Chancery, e.g: an interest in trust funds at a legacy.
The Common Law rule provided that ‘choses in action’ such as debt, could
not be assigned without the concurrence of the debtor’. The Courts of Equity,
however, permitted ‘legal choses in action’ to be assigned.
8 recoverable by action. A ‘chose in
Person has actual possession. "Chose in
hts which can be claimed or enforced by
Classification of Equitable Rights :
Strahan classifies equitable rights under the following three heads !—
(1) Equities to protect confidences—"Trust" is important item in this head.
(2) Equities to promote fair dealings—The equitable rights are—
(a) Conversion;
(b) Election;
(c) Accidents;
(d) Set off,
(e) Administration of assets;
(f) Mistake, Misrepresentation, fraud, and undue influence;
(g) Performance, satisfaction and ademption.
(3) Equities to prevent oppression.—ic., the following are equitable rights
to prevent oppression:
(a) Married women;
(b) Infants;
(c) Mortgages and liens;
(d) Penalties and forfeitures;
(e) Idiots and Lunatics.
Mere Equities.—Equitable rights and interests are not the same as “mere
equities”. It is not easy to define this term with precision. Mere equities
8enerally refer to rights to equitable relief in respect of property and usually
relate to questions of procedure. Thus, mere equities include the right to have a
document rectified for mistake, or to have set aside for fraud or undue influence.
Recently, the right of a deserted wife to remain in her husband's wife has been
held to be a mere equity.
118095
gaa CHAPTER 8
MAXIMS OF EQUITY
Introduction.—The subject-matter of Equity can oe ces
maxims which embody general principles on which the Town & Titty
exercised its jurisdiction. They are based upon and derived from Sie Coen
Principles of rights and obligations which have a ju Ratan ciieseloe eauiltabla
events of society. These judicial principles constituting the sourres O° fave
doctrines are commonly known as "Maxims of Equity”. a vlies every doctrine
the following Chapters, one or other of these maxims un ee 7 law and provide
of Equity. Maxims as Salmond observes, are proverbs é ein ean when
useful means for the expression of leading doctrines of the law in a form. which
is brief and intelligible. Although as a matter of fact, these twelve maxims 4
To ef aera
‘igi ret as Hanbury says, they
bees ea caenle peneee ‘he ideas embodied them are far older than
their articulate expression.
The maxims are as follows :
1. Equity will not suffer a wrong to be without a remedy.
2, Equity follows the Law.
3, He who seeks Equity, must do Equity.
4, He who comes to Equity, must come with clean hands.
5. Delay defeats Equity, or Equity aids the vigilant and not the indolent.
6. Equality is Equity.
7. Equity looks to the intent rather than to the form.
8. Equity looks on that as done which ought to have been done.
9. Equity imputes an intention to fulfil obligation.
10. Equity acts in persona.
11. Where the Equities are equal, the first in time shall prevail.
12. Where there is equal Equity, the law shall Prevail.
Now we proceed to examine the field of an application of each maxim.
1 EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT AREMEDY
compen natin explained —This maxim is a restricted derivation of a more
oo n setts legal maxim, “Ubi jus ibi remedium" ie., where there is a right
{here is a remedy. Rights and remedies co-exist as has been said in the case of
= ae) . Hes : ee the law clothes a man with a right, he must have
Bor ret Cra a aes and remedy if he is \jured in the exercise
; i pipet: oa
Peay toca tiaee Is a vain thing to Imagine a right without a
and want of remedy are reciprocal.”
(52)
[eee MAXIMS OF EQUITY
53
This maxim gives the way that each an: .
the wrongs have to be redressed by ei ae has to be enforced and
Maressed by the Common Law. This maxim is the beekbes ot sing
jurisdiction of Equity. is the backbone of the whole
In fact, the very object of this maxim is to gi : ,
suitable for judicial enforcement but which se ere eee ee
aecount of some technical defect, forced at common law on
Snell traces to this maxim the auxiliary jurisdicti
Y isdict i
¢ that it must not be supposed that every moral wnong ses redvesced by
Court of Chancery but remedy was provided only in those cases which were not
taken up by the Common Law owing to some technical defects
oe equitable jurisdiction The equitable jurisdiction in England
UP om tl : leficiencies of the law and inadequacy of remedies
Tessa pt eo Law. This maxim covers equitable jurisdiction.
This maxim is the source of the entire Equity jurisdiction, exclusive, concurrent
and auxiliary. The jurisdiction is ‘exclusive’ where the right to be enforced
is wholly equitable; €g. a trust; concurrent, where Equity contributes something
to the legal doctrine, ¢.g., mistake or'fraud; auxiliary, where Equity lends
its aid to the production of evidence which may be required in the action at
law.
Thus, this maxim led the Chancellor to intervene in the administration of
justice in order-—
1. to give relief where the Common Law gave none;
2, to give an adequate relief where the one available in Common Law
Courts was inadequate;
3, to help the litigants by offering facilities in evidence and procedure
which the Common Law Courts did not secure.
In order to invoke the aid of this maxim either of the three conditions
should exist, namely—
(i) The right be recognised by equity, although not by law; or
(ii) the right be recognised by the law, although the remedy be not
8
available there; or
the remedy at law for the violation of the right be not complete or
adequate.
Limitations.—The maxim is subject to the following restrictions:
(1) The maxim does not apply where the right in question is a moral one
PP
and is not capable of being judicially enforced. The Court of Equity only
interferes when there is an invasion of legal or equitable right.
(2) The second limitation is that Equity does not interfere to remedy any
wrong where the right and the remedy, both completely belong to the
domain of the law.
The maxim does not apply where a party has destroyed, lost, or
waived his right to an equitable remedy by his own act or laches.
(3)
a —— tl - EQUITY
With these limitations the principle has been developed into the vast
range of equitable jurisdiction which provides following, remedies :
(i) legal remedies for the violation of the legal rights in a more certain,
ee ate and complete manner than the law can 817°:
squtable remedles son of legal rights which the law has no
(ii) equitable remedies for violatic
power to jive. : :
Tt may be ne that although the maxim must continue . ea active
doctrine of equity, its scope ‘would continuously diminish as la yps and
becomes more and more comprehensive.
Illustrations : :
(a) A cestui que trust was not recognized at law, but was considered in
i f the property. Therefore Equity granted
Equity to be the owner of the PICT?! preach of trust by the trustee.
remedy to the cestui que trust in case O! z :
{b) Another very important application of the maxim is to te in the
appointment of a receiver by way of equitable execution. If a successful
plaintiff could not have legal execution against the property of the
Fdgment-debtor, eg., an Equity of redemption, the Court of Chancery
interfered, and gave equitable relief in the nature of execution by the
appointment of a receiver, supplemented, if necessary, by an injunction
festraining the debtor from dealing with the property. In a recent
judgment in Madan Paul Singh v. State of U.P. Supreme ‘Court has held
in clear terms that whatever the situation, the Court cannot permit
injustice to perpetuate.
Rule embodied in Indian enactments—The maxim ubi jus ibi remedium is
incorporated in many Indian enactments. The Indian Specific Relief Act
provides equitable remedies by way of specific performance of contracts,
rectification of instruments, declaratory decrees, injunctions, etc. The Indian
Trusts Act provides for trusts. Section 9 of the Civil Procedure Code practically
incorporates the maxim. In this way, this maxim is responsible for the whole
jurisdiction of equity. This maxim is the crux of all maxims of Court of
Chancery.
_X EQUITY FOLLOWS THE LAW
The maxim explained.—This maxim means that Equity is n¢
jurisprudence acting contrary to law, but rather a ea ce ncn
of Chancery never claimed to override the Courts of Common Law. Maitland
correctly observes that “Every jot and every title of Law, was to be obeyed but
when all this had been done, something might yet be needful eae that
Equity would require’. Storey in elucidation of the above maxim explained
that “where a rule either of the Common Law or the Statute Law, is direct and
governs the case with all its circumstances on a particular point, the Equi
Court is as much bound by it as a Court of Law, and aaa lit ‘usaly 4
departure from it! 1 as little justify 2
\is maxim is understood in the following two respects:
1. Equity adopts and follows the rules of law in all ca :
2. Equity follows the analogies of Common Law. Stee e
‘MAXIMS OF EQUITY 55
1, Equity follows the rules of Law.—As Storey explains that where a rule
aiher of the Common Law or of Statute Law, is direct and governs the case
oii all its circumstances, on a particular point, a Court of Equity is as much
ound by itas a Court of Law.
2 Equity follows the analogies of law.—As regards equitable rights and
interests, Equity although not strictly speaking, bound by the rules of law, acts
in analogy thereto whenever an analogy exists. In the case of Hopkins v.
Hopkins, Lord Hardwicke had said: It is the maxim of the Court that trust
estates which are the creatures of Equity, shall be governed by the same rules
as legal estates, in order to preserve the uniform rules of property.” Equitable
sstates are thus guided by the same rules of descent and the rules of construction
o{ words of limitation as legal estates.
Application of maxim.—The maxim has two-fold application according to
the subject-matter. The subject-matter may be—
1. a legal estate, right or interest, or
2. an equitable estate, right or interest.
‘As regards a legal estate, right or interest, Equity is strictly bound by the
rules of law and the Court of Chancery never claimed to override the Courts of
Common Law. Equity in these cases, obeyed the law even if the legal rules in
questions were hard or unfair.
illustrations.—The rule of Common Law that where a man died intestate,
leaving sons and daughters and possessed of a free simple estate, the eldest son
was entitled to the whole of the land, was undoubtedly most unfair to the
younger sons and the daughters, but Equity granted them no relief. But if the
sydest son had persuaded his father not to make a will and had promised to
Share the property with his brothers and sisters, Equity would have compelled
him to fulfil his promise. It would have been against conscience to allow him to
keep the benefit of the legal estate which he only obtained by reason of his
vomise. So, while recognising the legal rule and giving full effect to it, Equity
Pid that this did not conclude the matter, the circumstances of the son's
promise must also be taken into consideration, and he must be a trustee of the
land for himself and his brothers and sisters."?
In Loffus v. Maw,? X induced his niece to live with him on a verbal
representation that he had given her certain property by his Will.
Subsequently, he revoked the Will, It was held that the Will was no doubt
ineffective zs a Will was revocable at common law, that the property was
subject to the contract in favour of the niece, and equity would hold the heir as
a trustee to the niece to the extent of her legacy.
AAs regards equitable estate, right and interest, Equity follows the law in
the case of acting on analogy with legal rules in so far as an analogy clearly
exists, For example, if B was the beneficiary under a trust, his interest in the
trust property was merely equitable and not recognized by the Common Law, but
‘ interest in Equity has held to devolve according to the legal rule for the
levolution of property. Similarly in case of Equitable claims which were
; Stickland v. Aldridge, (1804) 9 Ves. 516 at p. 519.
(G Giff. 502). EQUITY
the rule of ‘time-barreg:
56
Je, applied :
in an action brought p
claims, Equity: 6 2 example, i
tutes of limita oy 7a oid the UE fant
0 receive trust ME Lo of fact, Was held to be in the nature of
beneficiary U" ‘common mr aa received and on analogy the statuto,
action for money pal ied. This shows that Equity requireg
‘ period for legal proceedings of a similar
proceedings to
kind.
The maxim,
dealing with its ow
the legal rules. rts
Limitations. —"
equitable estate gener
sneral application 0! e 7
general Pe ner aiely applicable Pot
an infant fraudulently
concealed her age and obtained from her trustees a sum of money to which she
was entitled only on coming of age. Subsequently she instituted a suit against
the trustees to compel them to pay over again the money which had been
improperly paid by them to her during her minority. It was held that the girl
could not enforce payment over again for although the receipt of an infant is
ineffectual to discharge a debt, yet the girl having misrepresented her age,
could not set up the invalidity of the receipt.
Application of Maxim in India—{i) Indian Trusts Act-—This principle
beneficiary has, by fraud, induc '
concurred or acquiesced in the b
influence, etc.
If there is abuse of proces
different Courts within a short
=a
5. (1844) 3 Hare, 503,
's of Court by filing multi ings i
f f ple proceedings in
Period of time, it shall be held ee such party
——_ ossessed of clean hands therefor 7
i e not entitled t i i
ierol led to an
reser ey pe ne
(oa be anga Singh® Even possesion of immovable property
i e n ut resorting to the due process of law. A
gon, taking Possession, without legal process cannot be deemed to be with
Fan hands.”
aes conduct equitable relief of specific performance will
i] UK ii i
= saa ie ct in obtaining or acting under the contract is
section 22 of the Specific Relief Act says, “Jurisdiction to decree specific
erformance is discretionary and the Court is not bound to grant such relief
merely because it 1s lawful to do so.” Similarly, Section 25 of the Act denies
specific performance ‘of a contract for the sale or letting of property to the
vendor or lessor if he entered into the contract knowing that he had no title to
the property. Besides, Section 28 of the Act lays down that Equity will refuse
specific performance of a contract, which may be perfectly valid in law if the
plaintiff has been guilty of undue advantage, circumvention, oF unfair
practices.
(iii) Injunction.—On the same principle, the Court of Equity will not grant
any injunction to a party in the continuance of a legal wrong even if the
defendant is also guilty of legal wrong. Equity will not grant injunction, for
Equity will not adjust difference between wrong-doers. Fraud, illegality and
breach of copyright in works are the instances ‘of immoral or libellous acts for
the continuance of which the Court will not grant injunction.
iv) Relief of rescission or cancellation.—These are equitable reliefs
provided under Chapters IV and V of the Specific Relief Act and the conditions
being fulfilled, the Court would rescind a contract or cancel an instrument. But if
there is anything unfair or inequitable on the part of the plaintiff, the relief
will not be available to him.
Limitation.—This maxim does not apply to every unconscientious or
inequitable conduct on the part of the plaintiff. It is confined to the misconduct
in regard to the matter in litigation.
Exceptions.—The maxim does not apply in the following cases:
(1) Case of public policy.—Where a transaction is against public policy,
the plaintiff need not have clean hands. He can even then be released
from obligation. The relief is not given for the sake of the parties but
for the sake of the public.
(2). Repentance.—If there is repentance On the part of the person who was
intending to commit fraud, but did nothing to further the fraudulent
design, the maxim as to clean hands, will not apply. ,
Distinction between “do Equity” and “with clean hhands.”—(1) It should
carefully be noted that the previous maxim does not assume that the plaintiff's
conduct has been unconscionable but applies where both parties have claims to
§ W358) 85.274, EQUITY
: r
6 d grant relief to the Plaintfg
‘where the defendant has ng
er, and so Equity woul
ilty of such unfairness thay
t maxim applies
relief as against each oth
t the plaintiff is gu
with a condition. But the present
independent claim of his own, But
Equity refuses him any relief at all. a on en ea
im, “He who comes to equity, la
_ (2) The ae “Ine who seeks Equity must ee 7 The ae
eae faites the plaintiff to do Equity to the ei Se aay ies
maxim requires ‘he Fe plaintiff not only to be ready 0 ee a (or fair
first maxim requlttg past record in the transaction OA Tt an
ae ie) THs the maxim “clean hands, emphasises the past conduc ott
plaintft, hile the maxim, “seeks Equity, do Equity’ 2
conduct of the plaintiff.
(3) In case of the maxim, “seeks Equity, do Lecrote 5 eal 7 ra
it ic ili condition
to get the equitable relief after fulfilling the eats ae
i im, “ hands”,
future but in the case of the maxim, clean a i h :
aoe ie., if the past conduct of the plaintiff has been inequitable with
regard to the transaction in question, he would not be entitled to any equitable
relief.
5, DELAY DEFEATS EQUITY
The maxim explained.—The maxim has also been expressed in another
form ie. “Equity aids the vigilant and not the indolent”. This maxim means
that while a legal claim is not barred by any lapse of time shorter than the
period prescribed by the Statute of Limitation, an equitable claim, on the other
hand, may in some cases be barred by the unreasonable delay on the part of the
plaintiff in seeking the relief. The Court of Equity discourages the laches i..,
unreasonable delay of a suit in asserting or conforming the right, holding that
it would be unjust to allow a claim to be asserted after an undue lapse of time.
The Court of Equity irrespective of the Statute of Limitation refuses to give
relief when the party seeking relief has delayed for a long time without
ee ere ue right The plaintiff seeking the equitable remedy has
that a Court of Equity has alway ees And Camden in Smith v. Clay said
always refused its aid to stale demands, where a
ili ito activit . "
ane “filigence when these are wanting, na fame good faith and
peaesrnle Sait Constitutes reasonable diligence can by is passive and does
Tah cae Wot ince the question must be determined ues tes ened by nO
with diligene may be inexcusable delay in upon the circumstances of
iiligence in another. one case will not be inconsistent
Lapse of time will afford
a defen
has been barred, not onl ce to a legal clai
other hand, may be barred, aaatt® of Limation® Eon the seme
unreasonable delay of the eee! a Statute of ¢uitable claims, on the
iff i
unreasonable delay is technical in seeki
ly called “4; "
laches”,
8 (1767) 3 Bro. cc. 640.
9. Knox v. Gye, (1872) LR. 5 HL. 656, MAXIMS OF EQUITY
6
sus, for an example, where a
Purchaser se :
cnt he must apply for relief with reasonable cfg ie of rescind a
wo ely on his part other parties have acquired 1 hoe
gered in value or changed in condition, the Coutt wil rehace eye
pelay fatal e laim—Three conditions.—Delay will be fatal ty son
jorequitable relief only under the following conditiong- fatal to a claim
1. when it has resulted in the destruction o loss of evid i
claim might have been rebutted: or idence by which the
. when there is evide
2 lease of his right; nce of an agreement by the plaintiff to abandon a
3. if the plaintiff has so acte :
position on the reasonable a as eaten ce eae ie
Cinims Bal shar onfeucnincae cae ee a
ee ince, delay will be immaterial.
ore observation—Strahan observes that “The doctrine of Laches in
Court of Equity is not an arbitrary or technical doctrine where it would be
ractically unjust to give a remedy either because the party has by his conduct
done that which might fairly be regarded as equivalent to a waiver of it, or
whereby his conduct or neglect he has, though perhaps not waiving that
remedy, yet put the other party in a situation in which it would not be
reasonable to place him if the remedy were afterwards to be asserted, in either
of these cases lapse of time and delay are most material.”
“Though the maxim is not applicable to cases covered by the Statutes of
Limitation, expressly or by analogy in other cases, however, delay will be
fatal to claim for equitable relief, if it may have resulted in the destruction or
loss of evidence by which the claim might have been rebutted, or if it is
evidence of an agreement whereby the plaintiff has so acted as to induce the
defendant to alter his position on the reasonable faith that he has released or
abandoned his claim.”1°
Laches and acquiescence should be distinguished. Laches denotes negligence
or unreasonable delay. Acquiescence means assent to an infringement of one’s
rights, which may either be expressed or implied from conduct.
Exceptions.—This maxim will, however, not apply to legal or equitable
daims te which the Statutes of Limitation apply expressly or by analogy. In
such cases, delay so far as it is within the statutory period will not defeat a
claim.
Excuses of delay.—As there can be no abandonment of a right without full”
knowledge, legal capacity, or free will, ignorance oF disability or undue
influence will be satisfactory excuse of delay. The plaintiff shall be heard
after a reasonable lapse of time only when he gives a satisfactory reason of his
delay and Court is satisfied with that account.
Hanbury's propositions.—Dr. Hanbury resolves the attitude of Equity
towards the Statute of Limitation into the following three simple propositions:
(i) In the case of purely equitable claims, Equity will grant or refuse
equitable relief at its discretion without reference 'o ‘any Statute of
ere
10. (1874) LR. 5 P.C. 221 at p. 239. EQUITY
Limitation unless an equitable claim has expressly been included in
such a statute.
(ii) In the case of legal claims, t
analogous to legal claims, Equity will, as
prescribed by the Statute of Limitation.
n the part of the defendant, and the
aud, though no fault of his own, till
ed, the Equity will consider
ti] the date of the discovery of
or equitable claims which are closely
a rule; apply the period
(iii) But if there has been fraud o1
plaintiff did not discover the fr
after the statutory period has elaps
that the period has not begun to run unt
fraud.
Application of the Maxim in India—The Indian Limitation Act has made
provision for all conceivable cases, and cases not specially provided for in Act
are governed by the residuary Article 120. Indian Limitation Act provides
under Section 113 three years as the period within which to file a suit for
specific performance of a contract. Hence, mere delay in suing will not be
sufficient to defeat the plaintiff's suit for specific performance. It is only when
delay amounts to waiver or abandonment or acquiescence and had so altered the
position of the defendant that it disentitles the plaintiff to a decree for
specific performance or other equitable relief.'! And even where the statutes do
not expressly apply to equitable claims, a Court of Equity acts by analogy to the
statute where the remedy in Equity corresponds with the remedy at law which
is subject to a statutory limitation.
6. EQUALITY IS EQUITY
The Maxim explained. —This maxim is also expressed in another way, viz.
"Equity delights in equality”. It means that a Court of Equity will, as far as
possible, put the parties to a transaction on an equality, although the strict
rules of law may give one party an advantage over the other. The notion of
equality or impartiality lay at the very foundation of the (acquitas) as
conceived by the Roman jurists. The same idea was incorporated into the Equity
Jurisprudence of English Law while the Common Law looked at and protected
the rights of a person as a separate and distinct individual. Equity rather
regards and maintains, as far as possible, the rights of all who are connected b
any common bond of interest and obligation (The rule of ordinary law ma a
ove ie aries on coat . other, but a Court of Equity will, where hen
but th ies on equality} Equity proceed: inciple th i
liability should as far as possible be equalised a = alin pee ene
Equality as expressed in this maxim doce nor oe
proportionate equality. The maxim expresses in is ee
of law and Equity, namely, to effect a dls¢baton 9 Tage
Proportionate to the several claims or to the several ratchet and. losses
concerned: This doctrine of cacy he ever bilities of the persons
Court of Equity than a Court of law and wae
