206F Principles of Equity

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LL.B. Semester - III

FOUNDATION 206 K Principles of Equity
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Refer (not in any particular order) :
Google is as easy reference for the subject. Compilation follows.
https://en.wikipedia.org/wiki/Equity_(law)
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/21/a-
students-guide-to-the-meanings-of-equity/?utm_term=.d7d621833cc2
http://www.lawteacher.net/lecture-notes/english-legal-system/equity.php
http://lawfinderlive.com/bts4/Equity.htm
https://en.wikipedia.org/wiki/Maxims_of_equity
http://notes-law.blogspot.in/2008/08/maxims-of-equity.html
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CONTENTS
Module - 1) Equity: Origin Development & Importance
Module - 2) Maxims of Equity
Module - 3) Maxims of Equity
Module - 1) Equity: Origin, Development & Importance :

1.1) Origin and Historical Background of Equity
1.2) Definition, nature and scope of Equity
1.3) Equity as a Branch of Law
1.4) Basis of Equity
1.4.1) Equity - A matter of grace,
1.4.2) Equity A matter of conscience
1.5) Development of Equity in India
1.6) Importance of Equity
1.7) Practice use of Equity in enacting and interpreting the statutes
1.8) Nature of Equitable Rights and interests :
1.8.1) Evolution of Equitable Interests in property
1.8.2) Difference between Legal and equitable estates
Go To Contents
Module-1 QUESTIONS :
What is Equity ? Discuss its origin, historical background, development and importance.
(Oct-2013)
Discuss in detail about origin, development, nature and importance of equity.
(Dec-2015)
Explain in detail the origin and development of the equity. (Nov-2014)
Explain the meaning of equity and state in detail the development as well as
importance of Equity in India. (Dec-2016)
Two streams of law and equity have met, now they run in the same channel
but their water do not mix Discuss. (Dec-2015)
Explain in detail the objects and consequences of the judicature acts of 1873 as
well as 1875. (Nov-2014)
"Equity neither destroys nor creates the law, but helps the law." Explain. (Oct-
2013)
Equity and Law are supplement to each other, discuss this statement with case
laws. (Dec-2016)
Explain : EQUITY and COMMON LAW two separate streams of law running in the
same channel ?
Explain : Basis of Equity : Equity as A matter of grace, and as A matter of
conscience
The basis of equity are matter of grace and matter of conscience Explain this
statement in detail with illustration and decided cases. (Dec-2016)
Explain in detail the origin and development of the equity in India. (Nov-2014)
Explain with illustration and cases, the application of principles of equity in India.
(Dec-2015)
Discuss how Equity has developed new rights, new remedies and new procedures. (Oct-
2013)
Explain the new rights, remedies and procedures developed by equity. (Dec-
2015)
Discuss in detail the new Rights, Remedies and Procedure developed by Equity with
case laws. (Dec-2016)
Explain the following, Use of Equity in enacting and interpreting the statutes .
(Oct-2013)
Explain the following, Evolution of equitable Interest in the Property. (Oct-2013,
Dec-2015)
Explain : Distinction between legal and equitable estates. (Dec-2015)
Go To Contents
Module-1 ANSWERS :
What is Equity ? Discuss its origin, historical background, development and importance.
(Oct-2013)
Discuss in detail about origin, development, nature and importance of equity.
(Dec-2015)
Explain in detail the origin and development of the equity. (Nov-2014)
ANSWER :
Refer :
Google search - equity history origin development nature importance
What is meant by 'equity' ?
The term equity is derived from the latin expression "Aequitas Aequuas ,
connoting the sense of leveling or equalization. Equity implies fairness; right as
founded on the laws of nature; recourse to principles of justice to correct or
supplement law or spirit of justice which enables the laws to be interpreted rightly.
Definition :
According to Sir Henry Maine "Equity is a body of rules existing by the side of
original civil law, founded on distinct principles and claiming incidentally to
supersede the law by virtue of superior sanctity inherent in those principles."
As per Henry Levy Uman "Equity is body of rules the primary source of which
was neither custom nor written law, but the imperative dictates of conscience
and which had been set forth and developed in the courts of Chancery."
Equity is a slippery word, and hard to grasp. What makes it so slippery is its long
history, and the many uses to which the word has been put.
Equity is the body of law which is founded upon the principles of fairness and
conscience. Its piecemeal development took place over many years as a direct
result of the injustices often caused by a strict application of the common law. As a
result, equitable principles have also developed in a piecemeal and responsive way.
The principles of equity are founded on the concept of 'unconscionability'
(extremely unjust, or overwhelmingly one-sided) that is, where an act or omission
is considered to be contrary to good conscience. In those circumstances equity will
often step in and grant relief to a party whose trust has been breached or whose
disadvantage has been used to the advantage of another.
Historically, the High Court of Chancery in England administered the equity system
of justice in the exercise of its extraordinary jurisdiction. The much older system of
law was the common law, which was administered by the Kings Benches. Equity
was viewed essentially as a more modern body of legal doctrine that served to
supplement the coercive old law.
History and origin of Equity System of Law : An understanding of the history of equity
is fundamental to an understanding of this area of the law.
Equity has its origins in the old English Courts of Chancery (namely the court of the
Chancellor). Prime reasons for origin & development of Equity were, (i) inability of
the judges to enforce judgments against powerful individuals (some noble families
were very much a law unto themselves), and (ii) increasing defects or undue
harshness of the common law, people were driven to submit petitions to the King,
who was considered to be a repository of Divine justice.
After the Norman Conquest of England in the 11th century, royal justice came to be
administered in three central courts : the Court of King's Bench, the Court of
Common Pleas, and the Exchequer. The common law developed in these royal
courts.
To commence litigation in these royal courts, it was necessary to fit one's claim
within a form of action. The plaintiff would purchase a writ in the Chancery, the
head of which was the Lord Chancellor.
However, the writ was only available for specified causes of action, so that if a
plaintiff could not bring his or her action within those categories, the common law
courts could not deal with it.
Due to corruption within the court system and the nature of the common law,
many decisions of the common law courts were considered to be harsh and unjust.
Dissatisfied litigants began petitioning the King for relief and leniency.
As the number of petitions grew, the King delegated that review function to the
Lord Chancellor and it was from that function that the Court of Chancery was
established.
The first chancellors were priest or member of the clergy with no formal legal
training whose decisions were largely shaped by questions of conscience and
fairness, and according to church law, rather than the common law. Also equity, as
a body of rules, varied from Chancellor to Chancellor.
Nature of Equity System of Law : Equity System of Law is a corrective of legal justice.
Equitable remedies are both flexible and specific to the circumstances of each case
and the granting of equitable relief is always discretionary. In legal usage, there are
at least three different meanings for word 'equity'.
1. The recognition of an exception to a general rule.
2. A moral reading of the law.
3. The doctrines and remedies developed in the English courts of equity,
especially the Court of Chancery.
1. The recognition of an exception to a general rule : This meaning can be traced
back to Aristotle
Meaning of equitable by Aristotle :-
the equitable is just, but not the legally just but a correction of legal justice.
The reason is that all law is universal but about some things it is not possible
to make a universal statement which will be correct. In those cases in which it
is necessary to speak universally, but not possible to do so correctly, the law
takes the usual case, though it is not ignorant of the possibility of error. And it
is none the less correct; for the error is not in the law nor in the legislator but
in the nature of the thing, since the matter of practical affairs is of this kind
from the start.
When the law speaks universally, then, and a case arises on it which is not
covered by the universal statement, then it is right, when the legislator fails
us and has erred by over-simplicity, to correct the omissionto say what the
legislator himself would have said had he been present, and would have put
into his law if he had known.
Hence the equitable is just, and better than one kind of justice not better
than absolute justice but better than the error that arises from the
absoluteness of the statement. And this is the nature of the equitable, a
correction of law where it is defective owing to its universality.

It is important to note here that, the Aristotles definition had nothing to do with
equitable remedies, and it was not directed to judges. Here equity is about the
exceptional case, the unforeseen circumstance, the extension of a law to a case
that is within its spirit but not quite within its letter.
2. A moral reading of the law : The second meaning of equity does add something
to the first one.
An example of unjust enrichment : Moses v. Macferlan. In that case, even
though the defendant had not committed what we would today call a tort or a
breach of contract, Lord Mansfield held that the plaintiff could still recover
money in an action of assumpsit (an express or implied promise or contract not
under seal on which an action may be brought) : In one word, the gist of this
kind of action is, that the defendant, upon the circumstances of the case, is
obliged by the ties of natural justice and equity to refund the money. Thus the
court held that the plaintiff could recover on what would now be called a claim
for unjust enrichment, not because the case was exceptional but because moral
required it.
Another example of prevention of miscarriage of justice : In Riggs v. Palmer,
where a grandson poisoned his grandfather and then tried to inherit under the
grandfathers will. The court interpreted the inheritance statute not to allow a
murderer to inherit the estate of a victim. In reaching this decision, the court
invoked the first meaning of equity (citing Aristotle and Blackstone) as well as
the second (quoting maxims such as No one shall be permitted to profit by his
own fraud).
3. The doctrines and remedies developed in the English courts of equity, especially
the Court of Chancery :
Court of Chancery : Sometime before or shortly after the Norman Conquest of
England in 1066, there was an English administrative department called the
Chancery. It did not decide cases. Instead, it would issue royal grants and it
would draw up the procedural forms, or writs, that plaintiffs needed to be able
to sue in the royal courts. The official in charge of the Chancery was the
chancellor. But people who could not get justice in the courts started to come to
the chancellor asking for relief. Over time, the chancellors decisions and
interventions came to look more judicial. By the end of the fourteenth century it
was clear that Chancery was a court, often called a court of conscience. Over
the next two centuries, the procedure in Chancery became more regular. And
precedent became more important in the chancellors decisions. By the
seventeenth century it was clear that there were controlling principles in equity
just as there were in the courts of law, even though the chancellor had his own
special procedures (e.g., depositions) and special remedies (e.g., injunctions).
Chancery continued as a separate court until the nineteenth century, when it

was dissolved by Parliament.
There is a body of law (doctrines and remedies), which originated in a
particular institution (the Court of Chancery), and arose from that institution
using a characteristic mode of reasoning (how it developed).
Thus, the third meaning of equity is related to the preceding two. It is hard to
understand contemporary equity without understanding its history, and it is hard
to understand its history without having some grasp of those other meanings.
Throughout the long history of Chancery as a judicial institutionroughly from
the thirteenth century through the nineteenth centurythe actions of the
chancellor were repeatedly shaped and justified by appeals to general notions of
exceptional cases and the chancellors conscience.
Importance of Equity System of Law :
Creation of the equity as a system of law served as a very important means
through which a legal system could strike the balance between the rule-making
process and the need to achieve fair results in individual and separate
circumstances. The equity system has made very important and vital contribution
to the development of law and legal jurisprudence. These contributions are
particularly evident in the following areas :
auxiliary (new procedures),
exclusive, and
concurrent jurisdictions.
Auxiliary jurisdiction : equity has contributed to the rise of new procedures created
from discoveries made by the court of chancery in documents, subpoena of
witnesses, interrogates, and from testimonies made on oath.
Exclusive jurisdiction: these are new rights also created by the court of chancery
but which the common law courts had failed to enforce e.g. partnerships,
mortgages, bankruptcy, company law, trusts and administration of estates.
Concurrent jurisdiction : refers to the new wide range of remedies that the equity
system developed for the enforcement of rights both at law and in equity. Some
examples include the following :
Rectification; this is an order that requires the defendant to promptly modify a
document to reflect the agreement made between the defendant and the
claimant.
Injunctions: refers to an order given by a court to restrain a party from
committing a wrong.
Account: refers to a court order requiring that a party, which has control of
money belonging to the claimant, reports on the way in which the funds have
been spent.
Specific performance: this is an order that seeks to force the defendant to fulfill
his/her bargain (Anon. Historical Outlines of Equity).
Last but not least, in Indian context, Equity System of law is the one which caused
development of Specific Relief Act 1963 thereby codifying a significant aspects of
lawful conduct.
Development of Equity System of Law :
Criticism of Courts of Chancery : Due to uncertain and arbitrary conduct of
proceedings at Courts of Chancery, there were strong criticisms. A criticism of
Chancery practice as it developed in the early medieval period was that it lacked
fixed rules and that the Lord Chancellor was exercising an unbounded discretion.
The most famous criticism being 17th-century jurist John Selden's aphorism,
"Equity is a roguish thing: for law we have a measure, know what to trust to;
equity is according to the conscience of him that is Chancellor, and as that is
larger or narrower, so is equity. 'Tis all one as if they should make the standard
for the measure we call a foot, a Chancellors foot; what an uncertain measure
would this be? One Chancellor has a long foot, another a short foot, a third an
indifferent foot: 'tis the same thing in a Chancellors conscience."
Often, litigants would go jurisdiction shopping and often would seek an
equitable injunction prohibiting the enforcement of a common law court order
This tension climaxed in the Earl of Oxfords case (1615) where a judgment of
Chief Justice Coke was allegedly obtained by fraud. The Lord Chancellor, Lord
Ellesmere, issued a common injunction from the Chancery prohibiting the
enforcement of the common law order. The two courts became locked in a
stalemate, and the matter was eventually referred to the Attorney-General, Sir
Francis Bacon. Sir Francis, by authority of King James I, upheld the use of the
common injunction and concluded that in the event of any conflict between the
common law and equity, equity would prevail.
Thus during the 16th century the character of the Court of Chancery changed with
the appointment of a lawyer, Sir Thomas Moore as Chancellor. From that point in
time all future chancellors were lawyers, reports of proceedings were kept and
equitable doctrines began to develop. Over time, Equity developed a system of
precedent much like its common-law cousin, records of proceedings in the Courts
of Chancery were kept and several equitable doctrines developed.
However, the two court systems (common law and equity) were soon in conflict
and there are many examples of this conflict as the two bodies of law wrestled with
the issue of supremacy. Dissatisfied litigants from the common law system would
seek relief from the Court of Chancery. Equity would then often give relief by way
of the common injunction which would either restrain the plaintiff from continuing
with his or her common law action or restrain them from enforcing a common law
judgment.
And, the penalty for disobeying the common injunction was imprisonment. The
response of the common lawyers to the common injunction was to issue writs of
habeus corpus which ordered the release of people who had been imprisoned for
disobeying Chancery decrees.
The Earl of Oxford's case : The growing tension between the two bodies of law
culminated in the Earl of Oxford's case in 1615. In that case, Coke CJ gave
judgment in a common law action which was alleged to have been obtained by
fraud. The Lord Chancellor, Lord Ellesmere, then issued a common injunction from
the Court of Chancery, preventing proceedings to enforce the common law
judgment. As the two courts were deadlocked the matter was referred to the
Attorney -General, Sir Francis Bacon, who upheld the use of the common injunction
and determined that whenever there was conflict between the common law and
equity, that equity would prevail.
The Judicature Act 1873 :
During the 17th to 19th centuries the fundamental principles of equity were
developed and followed in the court of chancery by way of precedent. However
the common law and equity continued to be administered by separate courts and
litigants who had commenced their claim in the wrong jurisdiction were forced to
start again in the other.
The cost and time implications of this duality led to the enactment of the
Judicature Act 1873 which fused the administration of the common law and
equity. This Act abolished the old court system and replaced it with a new High
Court of Justice which was vested with all of the jurisdiction previously exercised
by the separate courts. There was one code of procedure for all claims and the
ascendancy of equity in any situation of conflict with the common law was
specifically preserved.
Go To Module-1 QUESTIONS
Go To Contents
Two streams of law and equity have met, now they run in the same channel
but their water do not mix Discuss. (Dec-2015)
Explain in detail the objects and consequences of the judicature acts of 1873 as
well as 1875. (Nov-2014)
"Equity neither destroys nor creates the law, but helps the law." Explain. (Oct-
2013)
Equity and Law are supplement to each other, discuss this statement with case
laws. (Dec-2016)
Explain : EQUITY and COMMON LAW two separate streams of law running in the
same channel ?
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Judicature_Acts
https://dynalex.wordpress.com/2012/10/31/equity-and-common-law-two-
separate-streams-of-law-running-in-the-same-channel/
http://www.lawteacher.net/free-law-essays/finance-law/equity-came-not-to-
destroy-law.php
Intro :
Equity is a set of rules that exists alongside the common law and is applied where
the normal form of dispute resolution, namely damages (monetary compensation),
would not be sufficient, and provides an alternative most often through specific
performance or an injunction, but also by rescission and reformation.
Equity has its origins in the old English Courts of Chancery (namely the court of the
Chancellor). Prime reasons for origin & development of Equity were, (i) inability of
the judges to enforce judgments against powerful individuals (some noble families
were very much a law unto themselves), and (ii) increasing defects or undue
harshness of the common law, people were driven to submit petitions to the King,
who was considered to be a repository of Divine justice.
Such petitions were often passed over to the Lord Chancellor, who would dispose
justice in the name of the King. With the passage of time such petitions were
directed to the Chancellor and his office of the Chancery began to function as a
court of law. A significant aspect of the Equitable principles developed in these
courts of Chancery was that they were so developed by Priests. This explains the
fact that principles of Equity were fundamentally based on the concept of natural
justice in keeping with the lines of the Christian tradition of Good and Evil. In
ancient times also the usage the word Equity meant natural justice.
Three fold jurisdiction of Equity (Vis--vis Common Law) as expounded by American
Judge Dr Story : Before the passing of the Judicature Act 1873, the Equity had three-
fold jurisdiction as classified by the great American judge, Story which was widely
accepted. The three-fold classification of jurisdiction of Equity was as under :-
(1) The Exclusive Jurisdiction,
(2) The Concurrent Jurisdiction,
(3) The Auxiliary Jurisdiction.
STRAHAN has summed up the classification of the jurisdiction of the Equity Courts
in the following words :- "Where
the right to be enforced and the remedy sought were both equitable, the matter
was within the exclusive jurisdiction,
the right to be enforced was illegal but the remedy sought was equitable, it was
within the concurrent jurisdiction;
both the right to be enforced and the remedy sought were legal and the equity
only intervened to help the plaintiff to get the legal remedy, it was within the
auxiliary jurisdiction."
(1) The Exclusive Jurisdiction - The cases where the Common Law Courts did not
recognise the rights and thus provided no relief, were covered under the exclusive
jurisdiction of the Chancery Court. The rights enforced and the remedies granted in
such cases were purely equitable. The most important branch of this jurisdiction
was the right of person claiming under trusts.
For example in case of married woman's property given to them for their
separate use, the Equity recognised their rights in those properties by allowing it
to be settled on her as separate estate; and even in the absence of a trust, if the
property was meant for her separate use, the husband was regarded as a
trustee for her.
The exclusive jurisdiction also included equity of redemption, mortgage, the
doctrine of conversion, election, satisfaction and marshalling of assets.
It should be noted that in all these cases the Common Law Courts did not
recognise the equitable rights and interests and thus provided no relief. The
Courts of Equity therefore had the exclusive jurisdiction over these cases.
(2) The Concurrent Jurisdiction - In some cases the jurisdiction of the Court of
Equity was concurrent with the jurisdiction of Courts of Common Law. In such
cases the rights were recognised by the Courts of Equity as well as Courts of
Common Law as such those rights could be enforced either at Common Law or in
the Court of Chancery but in connection with which Common Law Courts granted
no complete or adequate relief whereas the Courts of Equity gave proper relief. For
example an order for the specific performance of the contract could be passed in
Equity but not in Common Law.
Similarly in cases of fraud, accident, mistake, partnership, recovery of specific
chattels, set-off, dower and partition, the Common Law Courts recognised and
defined the rights of the parties but provided no adequate relief. The Courts of
Equity, on the other hand, not only recognised those rights but also provided
adequate relief. The Court of Equity claimed jurisdiction to give relief against
every sort of fraud except where it related to an acquisition of estate by means
of forged will which fell within the exclusive cognizance of the probate Court.
It should be noted that in such cases damages were granted to plaintiff by
Common Law Courts but in Equity, the plaintiff could claim the rescission of the
contract and restitution of the property. In such cases jurisdiction of Court of
Equity was based on inadequacy of the legal remedy.
(3) The Auxilliary Jurisdiction - In cases within the Auxillary jurisdiction, the nature
and extent of rights and remedies depended exclusively on legal principles. In the
words of Snells:
"The Court of Chancery merely lent its aid as by compelling discovery towards
the enforcement of legal remedy for a legal right which owing to deficiency of
administrative power of machinery, the Common Law Courts were unable
practically to grant"
Judicature acts of 1873 and 1875 :
What they are ? The Judicature Acts are a series of Acts of Parliament, beginning in
the 1870s, which aimed to fuse the hitherto split system of courts in England and
Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the
Supreme Court of Judicature Act 1875.
For most of the history of the common law, there were two sets of courts, the
courts of common law and of equity. Equity had a vigorous separate existence for
nearly 500 years.
Under the Common Law Procedure Act 1854 the common law courts were
given some power to award equitable remedies.
And under the Chancery Amendment Act 1858 gave the Chancellor the power
to grant 'equitable' damages in addition to, or in substitution for, an injunction
or a decree of specific performance.
Consequently, a certain rivalry developed between the two courts and this came to
a head in the Earl of Oxford's Case (1616) in which the common law court gave a
verdict in favour of one party, and the Court of Equity then issued an injunction to
prevent that party enforcing that judgement.
The dispute was referred to the King who asked the Attorney-General to make a
ruling. It was decided that in cases of conflict between common law and equity,
equity was to prevail.
From that time on the common law and equity worked together, side by side,
UNTIL the Judicature Acts of 1873-75 rationalised the position. Judicature Acts
created one system of courts by amalgamating the common law courts and the
court of equity to form the Supreme Court of Judicature which would administer
both, the common law and the equity.
Judicature Act of 1873 : By the Act of 1873, (i) the Court of Chancery, (ii) the
Court of Queen's Bench, (iii) the Court of Common Pleas, (iv) the Court of
Exchequer, (v) the High Court of Admiralty, (vi) the Court of Probate, and (vii) the
Court of Divorce and Matrimonial Causes, were all consolidated into the Supreme
Court of Judicature. The Supreme Court of Judicature was subdivided into two
courts: the "High Court of Justice" ("High Court"), and the "Court of Appeal".
Section 25 of the Judicature Act 1873 provided that if there was any conflict
between these principles, then equity was to prevail.
It is important to note that the concept of "Supreme Court of Judicature" in

Judicature Act is WHOLLY DISTINCT from the current Supreme Court of the
United Kingdom which was established by Part 3 of the Constitutional Reform Act
2005 and which is the supreme court in all matters under English and Welsh law,
Northern Ireland law and Scottish civil law.
Judicature Act of 1875 : Prior to the 1875 Act, considerable latitude was allowed as
to the time when a suitor might abandon his action, and yet preserve his right to
bring another action on the same suit. But since 1875, this right has been
considerably curtailed, and a plaintiff who has delivered his reply (see pleading),
and afterwards wishes to abandon his action, can generally obtain leave so to do
only on condition of bringing no further proceedings in the matter.
Objects of these judicature acts were threefold :
to combine the historically separate courts of common law and equity;
to establish for all divisions of the new Supreme Court a uniform system of
pleading and procedure; and
to provide for the enforcement of the same rule of law in those cases where
equity and common law recognised different rules.
Effects of Judicature Acts :
It would be fair to say that the Judicature Act played the role of fusing the
system under which both the Common law and Equity was administered, namely
an amalgamation of the different courts under one. This can be equated to the
reference made in the statement that sets the theme for this article, the two
streams of jurisdiction meaning the common law and Equity, run in the same
channel meaning the administration of both within a common system of courts.
While the above, is somewhat straightforward, it is this authors opinion that the
reference do not mingle their waters implies that the Common Law and Equity
themselves were not fused but continued to function as two separate systems
of law.
while the Common Law and Equity came to be administered under the same
system the fundamental principles of Common law and Equity continue to act
independently of each other in the interests of Justice. This can, be shown most
effectively through reference to decided cases, where it will be seen that
equitable principles have produced results quite different to what would be
expected under principles of Common Law and extending these decisions to
derive certain fundamental facts as to the position equitable principles hold
within the legal system independently of the common law.
Independence of Equity and Common Law : Independence of Equity and Common
Law can best be shown through examples. eg at common law, under a mortgage, if
the mortgagor had not repaid the loan once the legal redemption date had passed,
he would lose the property but remain liable to repay the loan. Equity allowed him
to keep the property if he repaid the loan with interest. Detailed discussion on
following decided case :
Case-1 : Central London Property Trust Ltd v High Trees House Ltd [1947] :
The facts of the case were as follows :
During the Second World War countless people had left the City of London
to escape the German bombing of Britains Capital. As a result of this many
housing complexes were vacated and left empty. In a certain block of flats,
flats had been leased out for a period of 99 years at 2,500 pounds a year.
To curb vacation the landlord had offered to cut the rent by half (1,250
pounds a year).
Once the blitz was over and the tenants returned the landlord litigated to
recover the full sum of 2,500 pounds.
NOW, as per the Common Law the plaintiffs would have been legally able to
recover the full sum of 2,500 pounds even for the period when the flats had
been empty, BECAUSE the lease that fixed the amount was under seal and
hence (according to common law) could not be changed by a mere agreement
without a 'deed'.
However, the principles of equity took on a different view. The judge deciding
the case Lord Denning quoted
There has been a series of decisions over the last fifty years which,
although they are said to be cases of estopple are not really such. They are
cases in which a promise was made which was intended to create legal
relations and which, to the knowledge of the person making the promise,
was going to be acted on by the person to whom it was made, and which
was in fact acted on. In such cases the courts have said that the promise
must be honoured. As I have said they are not cases of estopple in the
strict sense. They are really promises promises intended to be binding,
intended to be acted on, and in fact acted on.
Thus, in the judgement it was held that through equity, the promise made
was binding on the party making it (whereas the common law did not make
such an allowance) and that the plaintiff could not recover the full amount of
money for the period when the flats were empty.
LESSONS DRAWN : This decision, highlights the following key points :-
a. While both the principles of Common law and Equity were administered
as one totality, in the above case we see the principles of equity coming
into play to lead the judge to arrive at a very different decision than he
would have had to make if he had followed common law principles. Hence
we see equitable principles functioning, quite distinctly from those of the
common law in the interests of justice.

b. Though the principles of equity could be used to take on a different view
of a situation as opposed to that taken by the common law it, in some
instances, needed courage on the part of the judge to break free from the
bindings of common law and allow these equitable principles to take flight.
We see the action of Lord Denning in the High Trees case was doing
precisely this giving due credence to the independent place the principles
of equity held in the legal system, free from the rigidity of the common law
in the interests of doing justice.
c. That the decision was possible in the High Trees case was due to the
conflict or variance clause (section 25 of the Judicature Act of 1873) which
deemed that where the rules of common law and equity contradicted rather
than complement, the rules of Equity would prevail. This reality is one of
the strongest arguments for establishing that the systems of Equity
and Common Law do not mingle and will be discussed in depth towards
the end of this article.
Case-2 : Mr Isaacson :
The facts of the case are as follows;
A tenant, who is referred to as Mr Isaacson holds not a formal lease under
seal but only an equitable lease of a certain premises. Being an informal
lease (not under seal) it is valid ONLY in equity, meaning that it is void
under common law.
The tenant breaks the conditions of his equitable lease by assigning the
premises to a company called Saxon Ltd. (a clause in the lease says that
the premises should not be assigned). Mr Isaacson explains that the
assigning of the premises did not matter, since the company was his own
and in fact the latter half of his name Saxon.
The tenants real defence however was, that though he may be liable in
damages for breaking the terms of the equitable lease (not to assign) but that
this did not justify his being thrown out of the premises in toto.
It was submitted that had the lease been under seal, thus having validity in
common this argument would have held ground. However since the lease was
in equity a different view prevailed. This was that being a lease in equity, THE
LEASE WAS SUBJECT TO THE PRINCIPLES OF EQUITY IN TOTO, AND NOT
JUST ONE PART OF IT, hence the key maxim of equity He who comes into
equity must come with clean hands would also come into play in considering
the tenants rights in equity.
It was held that since by assigning the premises the tenant had broken an
important part of the equitable lease and thereby had soiled his hands
resulting in the tenant losing his lease.
LESSONS DRAWN : From the above case, a number of pertinent observations

as to the position of equitable principles against those of common law can be
drawn, namely,
a. It is clear that the legal position with regard to a lease or contract drawn
up in equity (not under seal as required under common law) will receive
treatment independent of the common law. Hence legal remedies that
would have been valid under common law cease to apply to ones in equity.
THIS IMPLIES THAT THE TWO SYSTEMS OPERATE INDEPENDENTLY OF
EACH OTHER WHILE AIMING FOR THE COMMON GOAL OF JUSTICE.
b. When a particular situation is adjudged to fall within the purview of
equitable principles it becomes subject to the full gamut of those principles.
This too can be extended on the BASIC CONCEPT OF EQUITY THAT ALL
THE MAXIMS OF EQUITY, {save perhaps the one which states that equity
acts in personam} ARE ALL INTER-RELATED, AND OVERLAP AND ACT IN
ACCORDANCE WITH THE FUNDAMENTAL MAXIM EQUITY WILL NOT SUFFER
A WRONG TO BE WITHOUT A REMEDY.
Hence, also the principles that "equity can be though to act as a whole within
the legal system, but independent of the common law". ie Equity and common
law are independent of (but complement) each other
CONCLUSION :
The enactment of judicature acts was bold and revolutionary development in the
legal history of UK. By one section, the jurisdiction of 7 courts were vested in the
new Supreme Court of Judicature.
However, the fusion of the systems of law and equity was not complete.
Nevertheless, all actions could now be initiated in a single High Court.
Though, after the implementation of the Judicature Acts the streams of equity and
common law began to flow in the same channel, they remain two distinct and
independent systems of law each with its own special flavour.
It is clear that even to date, while the common law remains at times rigid and
inflexible, the principles of equity law (in the hands of adventurous and bold judges
who give priority to let justice be done) could be a great leveler and gives greater
flexibility and the right to take on a more liberal view of a situation.
In the coming years there is greater scope and probability that equitable principles
will hold an ever stronger position of an independent system of legal principles to
further the interests of justice.
"The two streams have met and still run in the same channel, but their waters do
not mix" (Maitland).
The two streams have met still run in the same channel, but their waters do not mix :
Rivalry between the Courts : The Court of Equity (or Chancery) became very popular
because of its flexibility; its superior procedures; and its more appropriate remedies.
Problems arose as to the issue of injunctions: the common law courts objected to the
Chancellor issuing injunctions restraining the parties to an action at common law
either from proceeding with it or, having obtained judgement, from entering it in
cases where, in the Chancellor's opinion, injustice would result. Consequently, a
certain rivalry developed between the two courts and this came to a head in the Earl
of Oxford's Case (1616) in which the common law court gave a verdict in favour of
one party and the Court of Equity then issued an injunction to prevent that party
enforcing that judgement. The dispute was referred to the King who asked the
Attorney-General to make a ruling. It was decided that in cases of conflict between
common law and equity, equity was to prevail. From that time on the common law
and equity worked together, side by side.
John Selden, an eminent seventeenth century jurist, declared, "Equity varies with
the length of the Chancellor's foot". To combat this criticism Lord Nottingham
(Lord Chancellor 1673-82) started to introduce a more systematic approach to
cases and by the nineteenth century, equity had become as rigid as the common
law.
Some attempt was made to assimilate the remedies granted by the Court of
Chancery and the common law courts. Thus under the Common Law Procedure Act
1854 the common law courts were given some power to award equitable remedies
and the Chancery Amendment Act 1858 gave the Chancellor the power to grant
damages in addition to, or in substitution for, an injunction or a decree of specific
performance.
The Judicature Acts 1873-75 : The Judicature Acts 1873-75 rationalised the position.
They created one system of courts by amalgamating the common law courts and the
court of equity to form the Supreme Court of Judicature which would administer
common law and equity.
The Supreme Court of Judicature consists of the High Court divided into divisions
known as the
Queen's Bench Division,
Chancery Division, and Probate, Divorce and Admiralty Division (re-named the
Family Division in 1970 and the work reassigned);
Court of Appeal; and,
since the Supreme Court Act 1981, the Crown Court.
Each Division exercises both legal and equitable jurisdiction. Thus any issue can be
adjudicated in any Division; and any point of law or equity can be raised and
determined in any Division; but, for the sake of administrative convenience, cases
are allocated to the Divisions according to their general subject-matter.
Thus the court "is now not a Court of Law or a Court of Equity, it is a Court of
complete jurisdiction." (Pugh v Heath (1882), per Lord Cairns.)
It was forseen that a court which applied the rules both of common law and of
equity would face a conflict where the common law rules would produce one result,
and equity another.
Section 25 of the Judicature Act 1873 provided that if there was any conflict
between these principles, then equity was to prevail. However, this did not fuse
the principles of common law and equity, which still remain as separate bodies
of rules. "The two streams have met and still run in the same channel, but their
waters do not mix" (Maitland).
Go To Contents
Explain : Basis of Equity : Equity as A matter of grace, and as A matter of

conscience
The basis of equity are matter of grace and matter of conscience Explain this
statement in detail with illustration and decided cases. (Dec-2016)
ANSWER :
Refer :
http://lonang.com/commentaries/foundation/framework-of-law/text/f13/
https://en.wikipedia.org/wiki/Court_of_Chancery

Go To Contents
Explain in detail the origin and development of the equity in India. (Nov-2014)
Explain with illustration and cases, the application of principles of equity in India.
(Dec-2015)
ANSWER :
Refer :
http://www.lawteacher.net/free-law-essays/equity-law/equity-common-law-
appliance-in-india-equity-law-essay.php
Intro :
The term èquity', is derived from the Latin expression Àequitas Aequuas',
connoting the sense of levelling or equalisation.
Definition :-
According to Sir Henry Maine "Equity is a body of rules existing by the side of
original civil law, founded on distinct principles and claiming incidentally to
supersede the law by virtue of superior sanctity inherent in those principles."
As per Henry Levy Uman "Equity is body of rules the primary source of which
was neither custom nor written law, but the imperative dictates of conscience
and which had been set forth and developed in the courts of Chancery."
The term equity is used in diverse ways and connotes a variety of senses. In its
popular parlance it signifies natural justice, equality and fairness and implies that a
man shall do unto others as he would be done by.
Èquity' is bundle of those rules which basically assist the court, to bring the cause
of justice to its logical end. Equity is not penalty but justice and even were neither
party is at fault, equitable considerations may shape the remedy. So principles of
Èquity' as introduced by English legal system where of significant importance and
played important role in development of Indian law
Equity in pre-independence India :- In India the rise of equity jurisprudence can, at
least, be traced to the Hindu period where commentaries of jurists expounded the law
by making old laws obsolete with a view to meeting the requirements of the society.
Hindu Law has never been static and has consequently introduced equitable
principles to meet the exigencies of the times.
The Mohammedan Law also partly owes its origin to principles of equity. 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 juristic preference to meet the exigencies of a particular
case. These principles embodied in the Mohammedan law are known as istehsan or
juristic equity.
In Hamira Bibi v. Jubaida Bibi, (1916) 43 I.A. 294 their Lordships of Privy
Council observed :- "The chapter on the duties (Adab) of the Hazi in the principal
works on Mohammedan Law clearly shows the rules of equity and equitable
considerations commonly recognized in the courts of chancery in England, are
not foreign to Mussalman system."
Equity in the Courts of East India Company - The Courts established by the East
India Company were presided over by English lawyers who frequently resorted to
English Law of equity in cases of difficulties. Regulation 4 of 1827 required the
Courts of East India Company to act according to justice, equity and good
conscience in the absence of a specific law and usage. The Law Commissioner for
preparing a body of substantive law for India, in its First Report recommended that
the judges should decide those cases for which there is no provision in law in the
manner they deem most consistent with the principles of justice, equity and good
conscience. The Supreme Court of Bombay was expressly made a Court of Equity
and Law. Not only this, the Supreme Court of Bombay was also given an equitable
jurisdiction corresponding to that of the Court of Chancery. But there was no
separate court for exercising only equitable jurisdiction.
In 1861 the Indian High Courts Act was passed by which the Supreme Courts
and the Courts of Sadar Diwani Adalats were abolished and High Courts were
established at Calcutta, Bombay, Madras and Allahabad. These High Courts also
administered justice according to the well established principles of Equity, justice
and good conscious. They had all the powers of a Court of Equity in England of
enforcing their decrees in personam.
Equity in post-independence India :-
In India the common law doctrine of equity had traditionally been followed even
after it became independent in 1947. Statutory recognition of the principles of
Equity in India is found in the Specific Relief Act, 1877, the Indian Trust Act, 1882,
the Indian Contract Act, the Indian Succession Act, the Guardianship and Wards
Act and the Transfer of Property Act.
However, in 1963 the "Specific Relief Act" was passed by the Parliament of India
following the recommendation of the Law Commission of India and repealing the
earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts
were codified and made statutory rights, thereby ending the discretionary role of
the courts to grant equitable reliefs. The rights codified under the 1963 Act were as
under :
Recovery of possession of immovable property (ss. 58)
Specific performance of contracts (ss. 925)
Rectification of Instruments (s. 26)
Recession of Contracts (ss. 2730)
Cancellation of Instruments (ss. 3133)
Declaratory Decrees (ss. 3435)
Injunctions (ss. 3642)
With 1963 codification, the nature and tenure of the equitable reliefs available
earlier have been modified to make them statutory rights and are also required to
be pleaded specifically to be enforced. Further to the extent that these equitable
reliefs have been codified into rights, they are no longer discretionary upon the
courts or as the English law has it ("Chancellor's foot") but instead are enforceable
rights subject to the conditions under the 1963 Act being satisfied.
Nonetheless, in the event of situations not covered under the 1963 Act, the courts
in India continue to exercise their inherent powers in terms of Section 151 of the
Code of Civil Procedure, 1908, which applies to all civil courts in India.
Section 48 and Section 51 of the Transfer of Property Act contain the principles of
Equity. Similarly, the equitable doctrine of part performance of English Equity has
been enunciated in Section 53-A of the Transfer of Property Act.
The Indian Trust Act is based on most important selected and comprehensive
principles of Equity jurisprudence.
Sections 64 and 65 of the Indian Contract Act also contain the principles of Equity
as they provide that the party who receives the benefit under a void or voidable
contract has to restore such benefit or make compensation to the party from whom
he has received it.
Criminal Law : There is no such inherent powers vested with the criminal courts in
India except with the Supreme Court (Article 142 of the Constitution of India), and
High Courts (Section 482 of the Code of Criminal Procedure, 1973). Particularly,
Article 142 of the Constitution of India confers wide powers on the Supreme Court
to pass orders "as is necessary for doing complete justice in any cause of matter
pending before it".
Conclusion : During the centuries it developed and gained an importance in England
and slowly it reflected in Indian legal system too. In India it developed through
various statues and today there are several acts which have passed and are working
by equities principles. The legality of equity has radically gained in significance in
recent years as well in the past. Today, equity has itself gained an importance in India
and various acts works with its principle.
Go To Contents
Discuss how Equity has developed new rights, new remedies and new procedures. (Oct-
2013)
Explain the new rights, remedies and procedures developed by equity. (Dec-
2015)
Discuss in detail the new Rights, Remedies and Procedure developed by Equity with
case laws. (Dec-2016)
ANSWER :
Refer :
http://www.lawteacher.net/lecture-notes/english-legal-system/equity.php
http://www.lawteacher.net/free-law-essays/equity-law/equity-new-rights-law-
essays.php
Meaning :
The word "equity" means fair or just in its wider sense, but its legal meaning is the
rules developed to mitigate the severity of the common law.
Petitioning the King :
Prime reasons for origin & development of Equity were, (i) inability of the judges
to enforce judgments against powerful individuals (some noble families were very
much a law unto themselves), and (ii) increasing defects or undue harshness of the
common law, people were driven to submit petitions to the King, who was
considered to be a repository of Divine justice.
Due to corruption within the court system and the nature of the common law,
many decisions of the common law courts were considered to be harsh and unjust.
Disappointed litigants began to petition the King as the "Fountain of Justice", the
procedure being to present a petition (or bill) asking him to do justice in respect of
some complaint. For a time the King in Council determined these petitions himself,
but as the work increased he passed them to the Chancellor as the "Keeper of the
King's Conscience".
The Chancellor was usually a clergyman, generally a bishop, and learned in the civil
and canon law. The King, through his Chancellor, eventually set up a special court,
the Court of Chancery, to deal with these petitions. The Chancellor supervised the
Chancery where clerks (who originally worked behind a wooden screen - cancelleria
- hence Chancery) issued writs, commissions and other legal documents.
The Chancellor dealt with these petitions on the basis of what was morally right.
The Chancellor would give or withold relief, not according to any precedent, but
according to the effect produced upon his own individual sense of right and wrong
by the merits of the particular case before him.
New Procedures :
Equity was not bound by the writ system and cases were heard in English instead
of Latin.
The Chancellor did not use juries and he concerned himself with questions of fact.
He could order a party to disclose documents.
The Chancellor issued subpoenas compelling the attendance of the defendant or
witnesses whom he could examine on oath.
New Rights : Equity created many new rights that were vested in a person.
For example
1. By recognising trusts and giving beneficiaries rights against trustees. (A trust
arises if one party gives property to trustees to hold for the use of beneficiaries).
Note : The common law did not recognise such a device and regarded the
trustees as owners.
2. Chancery courts also developed the equity of redemption. At common law,

under a mortgage, if the mortgagor had not repaid the loan once the legal
redemption date had passed, he would lose the property but remain liable to
repay the loan.
Equity allowed him to keep the property if he repaid the loan with interest.
This right to redeem the property is known as the equity of redemption.
New Remedies : Equity created new remedies :
(a) Specific performance, which is an order telling a party to perform their part of a
contract. This was useful where damages were not adequate, eg, in the sale of
land. Thus if the seller refused to sell after signing a contract, the buyer could
obtain an order of specific performance making the seller sell the house.
(b) Rectification, which allowed a written document to be changed if it did not
represent the actual agreement made by the parties.
(c) Rescission, which allowed parties to a contract to be put back in their original
position in the case of a contract induced by a misrepresentation.
(d) Injunctions, usually an order to stop a person doing a particular act, like acting
in breach of contract (a prohibitory injunction).
eg Mareva Injunctions : In 1975 the Court of Appeal recognised the Mareva
injunction for the first time. This is a court order freezing the assets of a party to
an action or stopping that party moving the assets out of the country.
In Mareva v International Bulkcarriers [1975] 2 Lloyd's Rep 509, a
shipowner let the 'Mareva' to a foreign charterer, with payment half monthly
in advance. The charterer defaulted on a payment. The shipowner found out
that the charterers had money in an English bank and sought an injunction
freezing the account. It was held that an order would be granted to stop the
charterers from moving the money abroad before the case was heard.
Normally the application will be ex parte, which means that one party applies
without giving notice to the other side for if the other party did have notice,
they could move the assets.
(e) Anton Piller Orders : In Anton Piller v Manufacturing Processes Ltd [1976] Ch
55, the plaintiffs made electrical equipment and employed the defendants as their
agent in the UK. They suspected that he was selling their technical drawings to
competitors and so applied for an order. The court held that an ex parte mandatory
injunction would be granted, to the effect that the plaintiff could enter the
defendant's premises and inspect relevant documents. These orders have been
used for breach of copyright, passing off and matrimonial disputes.
Go To Contents
Explain the following, Use of Equity in enacting and interpreting the statutes.
(Oct-2013)
ANSWER :
Refer :

Go To Contents
Explain the following, Evolution of equitable Interest in the Property. (Oct-2013,

Dec-2015)
ANSWER :
Refer :
https://en.wikipedia.org/wiki/Equitable_interest
http://www.inbrief.co.uk/land-law/legal-and-equitable-interests/
http://info.courthousedirect.com/blog/bid/336876/What-s-the-Difference-Between-
Legal-Title-and-Equitable-Title
Equitable interest :
An equitable interest is an "interest held by virtue of an equitable title (a title
that indicates a beneficial interest in property and that gives the holder the right to
acquire formal legal title) or claimed on equitable grounds, such as the interest
held by a trust beneficiary."
The equitable interest is a right in equity that may be protected by an equitable
remedy. This concept exists only in systems influenced by the common law
(connotation 2) tradition, such as New Zealand, England, Canada, Australia and
the United States
What Is Legal Title ?
Legal title is a perfected ownership interest that's enforceable by law. In other
words, property owners with legal title to a given parcel can take legal action
against parties that attempt to infringe upon their ownership rights. Legal title
rights are most often separated from equitable title rights during a contract-for-
deed property sale. During this process, the seller transfers equitable title rights to
a buyer in exchange for an agreement to make on-time payments and perform
certain other obligations. As the legal titleholder, the seller may petition a court to
enforce his legal rights to the property in the event of a breach of the contract-for-
deed agreement.
What Is Equitable Title ?
Equitable title effectively confers a financial or "equitable" interest in a specific
property. In other words, equitable titleholders derive indirect benefit from the
property's appreciation in value. Although an equitable titleholder who lacks legal
title can't reap a profit by transferring the property to another party, he or she can
do so upon receiving proper legal title. If the value of the property in question rose
during the intervening period, the equitable titleholder would keep the difference
between the initial purchase price and final sale price.
Equitable interest in Property :
An enforceable contract for sale confers an equitable interest on the purchaser of
the land, as per the rule established in Lysaght v Edwards. It was similarly held in
Walsh v Lonsdale that 'equity looks on as done that which ought to be done'. A
contract, which does not meet the requirements of a deed, required by the Law of
Property Act 1925 s.52(1), may be specifically enforced to convey the equitable
interest to the new purchaser. This rule has had a significant impact because it
allows interests that have not been conveyed by a deed to still be binding on future
purchasers, through the doctrine of constructive notice. However, the UK
Parliament has weakened the impact of this rule, with the Law of Property
(Miscellaneous Provisions) Act 1989 s.2, which requires all contracts for the sale of
land (which could be specifically enforceable) to be in writing, to contain all the
terms of the agreement and be signed by both parties. Any contracts that are not
in writing and signed by both parties cannot be specifically enforced and so will not
create or transfer an equitable interest in land
Go To Contents
Explain : Distinction between legal and equitable estates. (Dec-2015)

ANSWER :
Definitions : Legal and Equitable estates - Before defining these two estates, it is
necessary to know the meaning of the term "estate".
An èstate' may be defined as an interest in land. The term èstate' denotes the
relation of a person with the property.
A legal estate may be defined as an estate valid against all the world, capable of
subsisting or being created and conveyed at Common Law. The Law of Property
Act, 1925 has cut down the list of legal estates to -
(i) the fee simple absolute in possession,
(ii) the term of year absolute; and

(iii) certain legal interests or charges.
An estate in fee simple is one that is granted to a man and his heirs. It is the
greatest estate a subject of the Crown can possess.
An estate of free hold is one originally held by a free man and subject to free
services, for life or for the life of another.
An Equitable estate may be defined as one created and recognised by the Court
of Equity. Equitable estates in real property are created in two ways, namely -
(i) under trust; and
(ii) under mortgage.
In case of trust, the trustee is the legal owner whereas the equitable estate resides
in the cestui que trust. Similarly in case of mortgage, the mortgagor loses his
rights in case of his failure to redeem the property on the due date but equity
relieves him by vesting in him an equity of redemption.
Difference between Legal Estates and Equitable Estates - The following are the points
of difference between Legal and Equitable estates :
(i) Where there is a prior equitable and subsequent legal estate, an equitable right
cannot be enforced against a purchaser of the legal estate, if the latter has
acquired property for valuable consideration, without notice of a prior equitable
right, the maxims that govern the legal equitable estates are :-
"Where there is equal equity, the law shall prevail" and "Where the equities
are equal, the first in time shall prevail"
(ii) Doctrine of Conversion lies within the domain of equitable estate and not a legal
estate.
(iii) Common Law rule that a fee simple estate could not be conveyed inter vivos
without the use of the word `heirs' or in fee simple was applicable strictly to legal
estate only and not to equitable estate.
(iv) Rights of a married woman to hold property were enlarged by equity whereas
the Common Law gave them limited rights regarding property.
Go To Contents
Module - 2) Maxims of Equity :

2.1) Equity will not suffer a wrong to be without a remedy
2.2) Equity Follows the Law
2.3) He who seeks Equity must do Equity
2.4) He who comes to Equity must come with clean hands
2.5) Delay defeats Equity
2.6) Equality is Equity
Go To Contents
Brief Notes on General Principles of Equity
Explain : Equity will not suffer a wrong to be without a remedy. (Oct-2013)
Equity follows the law explain in detail this maxim by giving illustration. (Nov-2014)
Explain : Equity follows the law. (Oct-2013)
Explain in detail : Equity follows the law. (Dec-2016)
Discuss : He who seeks equity must do equity. (Dec-2015)
Explain in detail : He who seeks equity must do equity. (Dec-2016)
Explain : Who seeks Equity, he must come with clean hands. (Oct-2013, Dec-2015)
Delay defeats equity Explain in detail this maxim by giving illustrations. (Nov-2014)
Explain : Delay defeats Equity. (Oct-2013)
Equality is equity Explain in detail this maxim by giving illustrations. (Nov-2014)
Explain : Equity is Equality. (Oct-2013)
Explain in detail : Equality is equity. (Dec-2016)
Go To Contents
Module-2 ANSWERS :
Brief Notes on General Principles of Equity :

ANSWER :
Refer :
http://www.lawteacher.net/free-law-essays/equity-law/equity-common-law-
appliance-in-india-equity-law-essay.php
The importance of the maxims ought not to be overstated: they are far from being
rigid principles, but exist as terse sentences which illustrate the policy underlying
specific principles.
1. Aequitaes est corectio legis generalities latae, qua parte deficit :
i.e., Equity is a correction of the general law in the part where it is defective.
For a long time, the English Courts were guided by the doctrine ubi remedium ibi
jus (where there is a remedy there is a right) but with the development of the
Court of Chancery in England, this doctrine gave way to a more pragmatic and just
doctrine called ubi jus ibi remedium (where there is a right there is a remedy).
2. He who seeks equity must do equity :
This maxim put a mandate on the seeker of equity. A litigant, claiming something
by way of equity, must, himself be ready and willing to grant to his opponent, that
which the opponent is entitled.
Chappell v. Times Newspapers Ltd, where workers wanted an injunction against
their dismissal for going on strike refused to agree not to strike if the injunction
were to be granted, and thus the injunction was not granted.
3. Aequitas sequitur legem i.e. Equity follows the law :
Equity only intervened when some important factor became ignored by the law.
Thus, in the early stages of the development of the law of trusts, the Lord
Chancellor and, subsequently, the Court of Chancery acknowledged the valid
existence of the legal title to property in the hands of the feoffee (or trustee). The
acquisition of this title by the feoffee was dependent on compliance with the
appropriate legal requirements for the transfer of the property.
4. Equity will not suffer a wrong to be without a remedy :
This maxim illustrates the intervention of the Court of Chancery to provide a
remedy if none was obtainable at common law. The wrongs which equity was
prepared to invent new remedies to redress were those subject to judicial
enforcement is in the first place.
In Cohen v. Roche, specific performance was not granted for a contract for some
Hepplewhite chairs (damages were granted instead) since they were not rare or
unique enough.
5. He who comes to equity must come with clean hands :
The assumption here is that the party claiming an equitable relief must
demonstrate that he has not acted with impropriety in respect of the claim.
6. Equality is equity :
Where two or more parties have an interest in the same property but their
respective interests have not been quantified, equity as a last resort may divide the
interest equally. The same remedy must be available to the other parties if the
position was reversed.

Flight v. Bolland - in this case minors cannot be granted specific performance
against adults, since minors' contracts are in themselves unenforceable.
7. Where there is equal equity, the law prevails :
Equity did not intervene when, according to equitable principles, no injustice
resulted in adopting the solution imposed by law. Thus, the bona fide purchaser of
the legal estate for value without notice is capable of acquiring an equitable
interest both at law and in equity. Equity is not a punishment.
Wroth v. Tyler, specific performance was refused, since it would have forced Tyler
to sue his own wife. Equitable damages were awarded instead, in lieu of specific
performance.
8. Where the equities are equal, the first in time prevails : qui prior est tempore
potior est jure :
Where two persons have conflicting interests in the same property, the rule is that
the first in time has priority at law and in equity,
In the absence of a legal estate in the matter and the contest is among the
equitable estate only, the rule is that the person whose equity attached to the
property first will be entitled to priority over other or others.
9. equity aids the vigilant and not the indolent : Delay defeats equity : Vigilantibus,
non dormientibus jura subvenient :
Where a party has slept on his rights and has given the defendant the impression
that he has waived his rights, the court of equity may refuse its assistance to the
claimant. This is known as the doctrine of laches.
10. Equity looks at the intent rather than the form :
The court looks at the substance of an arrangement rather than its appearance in
order to ascertain the intention of the parties. For example, a deed is not treated in
equity as a substitute for consideration.
11. Equity imputes an intention to fulfill an obligation :
The principle here is based on the premise that if a party is under an obligation to
perform an act and he performs an alternative but similar act, equity assumes that
the second act was done with the intention of fulfilling the obligation.
12. Equity regards as done that which ought to be done :
If a person is under an obligation to perform an act which is specifically
enforceable, the parties acquire the same rights and liabilities in equity as though
the act had been performed.
Go To Contents
Explain : Equity will not suffer a wrong to be without a remedy. (Oct-2013)

ANSWER :
Meaning
Where there is a right there is a remedy. This idea is expressed in the Latin Maxim
ubi jus ibi remedium. It means that no wrong should go unredressed if it is capable
of being remedied by courts. This maxim indicates the width of the scope and the
basis of on which the structure of equity rests. This maxim imports that where the
common law confers a right, it gives also a remedy or right of action for
interference with or infringement of that right.
Application and cases
In Ashby v. White, wherein a qualified voter was not allowed to vote and who
therefore sued the returning officer, it was held that if the law gives a man a right,
he must have a means to maintain it, and a remedy, if he is injured in the
enjoyment of it.
In cases where some document was with the defendant and it was necessary for
the plaintiff to obtain its discovery or production, a recourse to the Chancery Courts
had to be made for the Common Law becoming wrongs without remedies.
Limitation
a) If there is a breach of a moral right only.
b) If the right and remedy both were in within the jurisdiction of the Common Law
Courts.
c) Where due to his own negligence a party either destroyed or allowed to be
destroyed, the evidence in his own favour or waived his right to an equitable
remedy.
Recognition
i) The Trust Act
ii) Section 9 of CPC- entitles a civil court to entertain all kinds of suits unless they
are prohibited.
iii) The Specific Relief Act- provides for equitable remedies like specific performance
of contracts, injunction, declaratory suits.

=============
The maxim that Equity will not suffer a wrong to be without a remedy, is the crux of
the whole jurisdiction of Equity. The idea expressed in this maxim is that every right
will be enforced and wrong redressed by Equity if not by Common Law, provided the
right be suitable for judicial enforcement or the wrong be capable of redress by Courts
of Justice. In other words, the maxim propounded by the Chancellor was that no
wrong should be allowed to go unredressed if it is capable of being remedied by the

Courts of justice. This maxim is a restricted derivation of a more comprehensive legal
maxim "ubi jus ibi remedium" which means - where there is a right there is a remedy.
Thus rights and remedies co-exist. In Ashby v. White, (1703) 2 L.R. 938 Chief Justice
Hall said :
"When the law clothes a man with a right, he must have a means to vindicate and
maintain it, and remedy if he is injured in the exercise and enjoyment of it, and
indeed it is a vain thing to imagine a right without a remedy, for want of right and
want of remedy are reciprocal."
As discussed earlier, the equity came into existence due to the deficiencies in
Common Law. There were many wrongs which were left without remedy under
Common Law. Not only this, in many cases, the reliefs granted by Common Law
Courts were inadequate. This led to the establishment of the Courts of Chancery for
redress of wrongs which remained unredressed by Common Law Courts.
It is important to point out here that this maxim finds place in many Indian
Enactment also. For example the Specific Relief Act contained equitable remedies,
Indian Trusts Act deals with trusts.
Go To Contents
Equity follows the law explain in detail this maxim by giving illustration. (Nov-2014)
Explain : Equity follows the law. (Oct-2013)
Explain in detail : Equity follows the law. (Dec-2016)
ANSWER :
Meaning
The maxim indicates the discipline which the Chancery Courts observed while
administering justice according to conscience. As has been observed by Jekyll. M.R:
The discretion of the court is governed by the rules of law and equity, which are
not to oppose, but each, in turn, to be subservient to the other. Maitland said,
Thus equity came not to destroy the law but to fulfill it, to supplement it, to
explain it. The goal of equity and law is the same, but due to their nature and due
to historic accident they chose different paths. Equity respected every word of law
and every right at law but where the law was defective, in those instances, these
Common Law rights were controlled by recognition of equitable Rights. Snell
therefore explained this maxim in slightly different way: Equity follows the law,
but not slavishly, nor always.
At common law, where a person died intestate who owned an estate in fee-simple,
leaving sons and daughters, the eldest son was entitled to the whole of the land to
the exclusion of his younger brothers and sisters. This was unfair, yet no relief was
granted by Equity Courts. But in this case it was held that if the son had induced
his father not to make a will by agreeing to divide the estate with his brothers and
sisters, equity would have interfered and compelled him to carry out hi promise,
because it would have been against conscience to allow the son to keep the benefit
of a legal estate which he obtained by reason of his promise. This decision was held
in Stickland v. Aldridge.
Equity follows the law and even if by analogy law can be followed, it should be
followed.
Limitation
i) Where a rule of law did not specifically and clearly apply
ii) Where even by analogy the rule of law did not apply
Recognition
India does not recognize the distinction between legal and equitable interests.
Equity rules in India, therefore, cannot override the specific provisions of law. As
for example, every suit in India has to be brought within the limitation period and
no judge can create an exception to this or can prolong the time-limit or stop the
rule from taking effect on principles of equity. Such a decision was held in Indian
Appa Narsappa Magdum case.

================
Courts of Equity granted relief by recognising and enforcing those rights which were
either not recognised and enforced or which were not adequately redressable in case
of their infringement. Under these circumstances a question was raised : Did Equity,
in the exercise of its jurisdiction altogether ignore the law ? The Maxim, "Equity
follows the law" is an answer to this question which connotes that the Court of Equity
in the exercise of its jurisdiction did not ignore the rules of Common Law, but followed
them. Equity treated the Common Law as laying the foundation of all jurisprudence.
Story observed :
"Where a rule, either of the Common or the statute law, is direct, and governs the
case with all its circumstances on the particular point, a Court of Equity is as much
bound by it as a Court of land and can little justify a departure from it."
In Burgess v. Wheate, (1759) 1 Eden. 177, it was observed that "The court of
Chancery never claimed to override the express provisions of Common Law. Equity
treated the Common Laws as laying the foundation of all jurisprudence and did not
depart unnecessarily from legal principles."
The maxim may be considered in the following two respects :
(i) As regards legal estates, rights and interests

(ii) As regards equitable estates and interests.
(i) As regards legal estates, rights and interests - As regards legal estates, rights
and interest the Equity follows the law. The Court of equity cannot depart from the
legal principles where the common Law or the Statute Law was clear on the point
and as such followed the rules of law as the appropriate system. Thus for example,
the Common Law provided that where a man died intestate, leaving sons and
daughters, the eldest son was entitled to the whole real estate to the exclusion of
the younger sons and daughters. Although it was most unfair, Equity followed the
rule of Common Law and did not grant relief to the younger sons and daughters.
The equity interfered only in case of fraud. Thus if in the above case, the eldest son
had persuaded his father not to make a will and had agreed to share the property
with his younger brothers and sisters. Equity would interfere and would compel the
eldest son to divide the property with his brothers and sisters.
(ii) As regards equitable estates and interests - As regards equitable estates and
interests equity although not bound by the rules of law but followed the law in the
sense of acting in analogy with legal rules when an analogy existed. In Cowper v.
Cowper, Jekyll M.R. said that the law was clear and the Courts of Equity ought to
follow it in their judgments concerning titles to equitable estates, otherwise great
uncertainty and confusion would ensure.
Thus for example, if B was the beneficiary under a trust, his interest in the trust
property was merely equitable and not recognised by the Common Law but his
interest in Equity was held to devolve according to the legal rules for the devolution of
property. It should be noted that in dealing with its own equitable estates and rights
Equity had adopted most of the legal rules.
Exception : The maxim Èquity follows the Law' has following exceptions -
(i) In case where the rules of Law were not directly applicable nor capable of being
extended on principle of analogy, Equity follow its course of principles
(ii) In cases where the court of Equity found the legal rules right but not adequate
it followed them and extended its help to redress it and to enforce the legal right, if
it was capable of being judicially enforced.
This maxim has full application in Indian Legal system. In Yeshwant v. Wal Chand,
1950 SCR 852 it was observed that "Rules of equity have no application where there
are definite statutory provisions specifying the grounds on the basis of which alone
the stoppage or suspension of running of time can arise. While the courts are
necessarily astute in checkmating fraud, it should equally borne in mind that the
Statutes of Limitation are statutes of repose."
Go To Contents
Discuss : He who seeks equity must do equity. (Dec-2015)

Explain in detail : He who seeks equity must do equity. (Dec-2016)
ANSWER :
Meaning
The maxim means that to obtain an equitable relief the plaintiff must himself be
prepared to do equity, that is, a plaintiff must recognize and submit to the right of
his adversary. Scriptures of Islam also inform us to be conscientious :
Woe to those who stint the measure:
Who when they take by measure from others, exact the full;
But when they mete to them or weigh to them, minish
This maxim has application in the following doctrines-
i) Illegal loans
ii) Doctrine of Election
iii) Consolidation of mortgages
iv) Notice to redeem mortgage
v) Wifes equity to settlement
vi) Equitable estoppel
vii) Restitution of benefits on cancellation of transaction
viii) Set-off
i) Illegal loans: In Lodge v. National Union Investment Co. Ltd., the facts were as
follows. One B borrowed money from M by mortgaging certain securities to him. M
was a unregistered money-lender. Under the Money-lenders Act, 1900, the
contract was illegal and therefore void. B sued M for return of the securities. The
court refused to make an order except upon the terms that B should repay the
money which had been advanced to him.
ii) Doctrine of election: Where a donor A gives his own property to B and in the
same instrument purports to give Bs property to C, B will be put to an election,
either accept the benefit granted to him by the donor and give away his own
property to C or retain his own property and refuse to accept the property of A on
condition. But B can not retain his property and at the same time take the property
of A.
iii) Consolidation of mortgages: Where a person has become entitled to two
mortgages from the same mortgagor, he may consolidate these mortgages and
refuse to permit the mortgagee to exercise his equitable right to redeem one
mortgage unless the other is redeemed. The right of consolidation now exists in
England but after the enactment of the Law of Property Act, 1925, it can exist only
by express reservation in one of the mortgage deeds.
iv) Notice to redeem mortgage: Notice to a mortgagor to redeem ones mortgage is
an equitable right of the mortgagor.
v) Wifes equity to a settlement: There was a time when womans property was
merged with that of her husband. She had no property of her own. Equity court
imposed on the husband that he must make a reasonable provision for his wife and
her children. But, now, Under the Law Reform (Married Women and Tortfeasors)
Act, 1935, married women has full right on her property and it is not consolidated
with her husbands property.
vi) Equitable estoppel: A promissory estoppel arises where a party has expressly or
impliedly, by conduct or by negligence, made a statement of fact, or so conducted
himself, that another would reasonably understand that he made a promise
thereon, then the party who made such promise has to carry out his promise.
vii) Restitution of benefits on cancellation of transaction: It is proper justice to
return the benefits of a contract which was voidable, and, equity enforced this
principles in cases where it granted relief of rescission of a contract. A party can
not be allowed to take advantage of his own wrong.
viii) Set-off: Where there have been mutual credits, mutual debts or other natural
dealings between the debtor and any creditor, the sum due from one party is to be
set-off against any sum due from the other party, and only the balance of the
account is to be claimed or paid on either side respectively.
Limitation
i) The demand for an equitable relief must arise from a suit that is pending.
ii) This maxim is applicable to a party who seeks an equitable relief.
Recognition
i) Under sec 19-A of the Contract Act, 1872 if a contract becomes voidable and the
party who entered into the contract voids the contract, he has return the benefit of
the contract.
ii) sec 35 of the Transfer of Property Act embodies the principle of election.
iii) Sec 51 and 54 of the Transfer of Property Act.
iv) In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized.

====================
The court of equity is a court of the conscience. The relief granted by it is
discretionary. The maxim provides that the court of equity will not assist a person
seeking its assistance unless he is prepared to act fairly. The plaintiff must concede all
equitable rights of his adversary which grow out of or are inseparably connected
which the matter in dispute.
This does not mean that the court can impose arbitrary conditions upon a plaintiff
simply because he stands in that position on the accord.
Thus a Court of Equity would not allow the party to say, "Give me the equitable relief
that I seek, but I am not prepared to recognise the claim of or the right of the other
party. Let him enforce it by a separate suit."
Wife's equity to settlement. - Before the passing of the Married Women's Property Act
in England the courts of equity refused to render any assistance to a husband who
claimed possession of his wife's property on the basis of his common law right unless
he made a suitable provision for her and her children out of that property.
Improvement made by bona fide holders under defective title. - Section 51 of the
transfer of Property Act also provides that a transferee who makes improvement on
any immovable property believing in good faith that he is absolutely entitled thereto
and is subsequently evicted therefrom by a person having a better title, is entitled to
compensation for improvement made by him. The section thus enjoins upon the
rightful owner to do equity to the transferee be repaying the money expended in
improvements, except improvements made after he had discovered the defect of title,
before he can evict the latter.
Election. - The maxim is also generally illustrated by the equitable doctrine of
election, as embodied in Section 35 of the Transfer of Property Act, which lays down
that he who takes a benefit under an instrument must accept or reject the instrument
as a whole. Thus where a settlement purports to settle certain property, but is not
effectual to do so, a person who claims that property adversely to the settlement
cannot at the same time take advantage of other provisions of the settlement in his
favour. (Anderson v. Abbott, (1857) 23 Beav. 457). The topic has been discussed in
detail in a subsequent chapter.
Power to set aside contract induced by undue influence. - Section 19-A of the Indian
Contract Act lays down : -
"When consent to an agreement is caused by undue influence, the agreement is
a contract voidable at the option of the party whose consent was so caused. Any
such contract may be set aside either absolutely or if the party who was entitled
to avoid it has received any benefit thereunder, upon such terms and conditions
as the court may seem just."
The provisions of the section explain the maxim by laying down that in cases of
unconscionable money lending, the court may relieve the borrower against the
oppressive terms of his contract, but subject to the repayment to the lender of the
money actually advanced with reasonable interest.
Go To Contents
Explain : Who seeks Equity, he must come with clean hands. (Oct-2013, Dec-2015)
ANSWER :
Meaning
Equity demands fairness not only from the defendant but also from the plaintiff. It
is therefore said that he that hath committed an inequity, shall not have equity.
While applying this maxim the court believed that the behavior of the plaintiff was
not against conscience before he came to the court.
In Highwaymen case, two robbers were partners in their own way. Due to a
disagreement in shares one of them filed a bill against another for accounts of the
profits of robbery. Courts of equity do grant relief in case of partnership but here
was a case where the cause of action arose from an illegal occupation. So, the
court refused to help them.
The working of this maxim could be seen while giving the relief of specific
performance, injunction, rescission or cancellation.
Limitation
General or total conduct of the plaintiff is not to be considered. It will be seen
whether he was of clean hands in the same suit he brought or not. Brandies J. in
Loughran v. Loughran said that Equity does not demand that its suitors shall have
led blameless lives.
Exception
i) If the transaction is a against public policy
ii) if the party repents for his conduct before his unjust plans are carried out.
Recognition
i) Section 23 of the Indian Trust Act- An infant can not setup a defence of the
invalidity of the receipt given by him.
ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiffs unfair conduct
will disentitle him to an equitable relief of specific performance of the contract.
Distinction between maxims (i) He who seeks equity must do equity, and (ii) He who
comes into equity must come with clean hands
He who seeks equity must do He who comes into equity must

equity come with clean hands
i) It is applicable when both the i) It is applicable when the defendant
plaintiff and the defendant have has no separate claim to relief and
claims of equitable relief against the plaintiffs conduct is unfair.

each other.
ii) It exposes the condition ii) It is a condition precedent to
subsequent to the relief sought. seeking equitable relief.
iii) It refers to the plaintiffs conduct iii) It refers to the plaitiffs conduct
as the court thinks it ought to be, before he approaches the court.
after he comes to the court.
iv) The plaintiff has to mould his iv) If the plaintiffs conduct is unfair, it
behavior according to the would not entitle him to the relief
impositions by the court. sought.
v) The plaintiff has an option or a v) The conduct of the plaintiff
choice before him either to submit snatched his choice from him. His
to the conditions put by the court, equitable right therefore neither be
or to get out of the court. recognized nor enforced.
vi) This maxim looks to the future. vi) This maxim looks at the past.
Go To Contents
Delay defeats equity Explain in detail this maxim by giving illustrations. (Nov-2014)
Explain : Delay defeats Equity. (Oct-2013)
ANSWER :
Meaning
A Latin term in this regard is Vigilantibus, non dormentibus, jura subvenient.
which means Equity aids the vigilant and not the indolent. So, if one sleeps on his
rights, his rights will slip away from him. Legal claims are barred by statutes of
limitation and equitable claims may be barred not only by limitation law but also by
unreasonable delay, called laches.
To cases which are governed by statutes of limitation either expressly or by
analogy the maxim will not apply. Such cases fall into three categories-
i) Those equitable claims to which the statute applies expressly.
ii) to which the statute applies by analogy.
iii) Equitable claims which are covered by ordinary rules of laches.
Doctrine of laches- Plaintiffs unreasonable delay is a weapon of defence by the
defendant against the plaintiff.
In a Bombay case, the plaintiff allowed his land to be occupied by the defendant
and this was acquiesced by him even beyond the period of limitation. On a suit of
the land it was decided that as the period of limitation to recover possession had
expired, no relief could be granted. Also the case of Allcard v. Skinner is worth
mentioning here.
Limitation
This maxim does not apply when-
i) where the law of limitation expressly applies
ii) where it applies by analogy, and
iii) where the law of limitation does not apply but the cases are governed by
ordinary rules of laches.
Go To Contents
Equality is equity Explain in detail this maxim by giving illustrations. (Nov-2014)

Explain : Equity is Equality. (Oct-2013)
Explain in detail : Equality is equity. (Dec-2016)
ANSWER :
Meaning
Plato defined that If you cannot find any other, equality is the proper basis. This
maxim is also explained as equity delighteth in equality, which means that as far
as possible equity would put the litigating parties on an equal level so far as their
rights and responsibilities are concerned.
Justice Fry said, When I say equality, I do not mean equality in its simplest form,
but which has been sometimes called proportionate equity.
Application of this maxim can be understood from the following:
i) Equitys dislike for joint tenancy and presumption of tenancy-in-common
ii) Equal distribution of joint funds and joint purchases
iii) Contribution between co-trustees, co-sureties and co-contractors
iv) Ratable distribution of legacies
v) Marshalling of assets
Go To Contents
Module - 3) Maxims of Equity :

3.1) Equity looks to the Intent rather to the Form
3.2) Equity looks on that as done which ought to have been done
3.3) Equity imputes an intention to fulfill an obligation
3.4) Equity acts in Personam
3.5) Where the Equities are equal the first in time shall prevail
3.6) Where there is equal Equity, the law shall prevail
Go To Contents
Equity looks to the intent rather than form explain in detail this maxim with
illustrations. (Nov-2014)
Explain : Equity looks to the Intent rather than the Form. (Oct-2013, Dec-2015)
Explain in detail : Equity looks to the intent rather than the forms. (Dec-2016)
Explain : Equity looks on that as done which ought to have been done
Explain : Equity imputes an intention to fulfill an obligation. (Oct-2013, Dec-2015)
Discuss : equity acts in personam. (Dec-2015)
Explain in detail : Equity acts in personam. (Dec-2016)
Explain : Where the Equities are equal the first in time shall prevail
Where there is equal equity, the law shall prevail explain in detail this maxim with
Explain : Where there is equal Equity, the law shall prevail. (Oct-2013, Dec-2015)
Explain in detail : Where there is equal equity, the law shall prevail. (Dec-2016)
Go To Contents
Module-3 ANSWERS :
Equity looks to the intent rather than form explain in detail this maxim with
Explain : Equity looks to the Intent rather than the Form. (Oct-2013, Dec-2015)
Explain in detail : Equity looks to the intent rather than the forms. (Dec-2016)
ANSWER :
Meaning
Common law was very rigid and inflexible. It could not respond favourably to the
demand of time. It regarded the form of a transaction to be more important than

its substance. It looked to the very letter of the agreement and not the intention
behind it. On the other hand, Equity looks to the spirit not to the letter, it looks to
the intention of parties and not to the words.
In case of sale of land, if a party fails to complete it within the fixed for it, he is at
Common Law, in breach of the contract, but equity does not take this rigid attitude.
It allows a reasonable time to the party to complete it.
The application can be seen in the following instances-
i) Relief against penalties and forfeitures
ii) Relief in regard to precatory trust
iii) Relief in regard to mortgages, the doctrine of equity of redemption and
the doctrine of clogs on redemptions
iv) Attitude in regard to statute of frauds.
i) Relief against penalties and forfeitures- Common Law courts insisted on the
literal form of the contract that if the contract is breached, certain amount must be
given as compensation, though the actual loss is not that much. Equity interpret
the purpose and intent of the contract itself. The principal object of the contract is
to perform it and not the compensation. The compensation is a subsidiary matter.
ii) Precatory trust- A trust is created with- (1) an intention on his part to create a
trust thereby, (2) the purpose of the trust, (3) the beneficiary, and (4) the trust
property. Where an author uses words such as I hope, I request or I
recommend the first condition is missing. In cases where subsequent ingredients
are found, in early days, it was held by the equity courts that he had the intention.
This view is in use now but not as liberally as before.
iii) Relief in regard to mortgages- The mortgagor has a right to obtain his property
back by payment of the debt and that is his right of redemption. The mortgagors
right of redemption is guarded by courts and this has been expressed in a well-
known legal maxim, Once a mortgage, always a mortgage, and nothing but a
mortgage.
iv) Attitude in regard to statute of frauds-
Recognition
i) Sec 55 of the Contract Act- If time is the essence of the contract, and it is not
performed within the stipulated time, the contract or part of it which is
unperformed would be voidable. If time is not the essence, the contract will not be
voidable but entitles the promisee to damages.
ii) Section 74 of the Contract Act- only a reasonable compensation can be claimed.
iii) Sec 114-A of the Transfer of Property Act- Forfeiture clauses in a lease.
Go To Contents
Explain : Equity looks on that as done which ought to have been done
ANSWER :
Meaning
If someone undertakes an obligation for the other, equity courts look on it as done
and as producing the same results as if the obligation had been actually performed.
Equity courts therefore look to the acts of the person bound by his conscience and
interpret and construe them in such a way that they amount to what ought to be
done.
If A makes T trustee leaving 50,000 Taka to purchase a land for the use of B. T
does not purchase the land and by the time, B dies leaving all immovable property
to X and all movable property to Y. Now, who should get the 50,000 Taka? Equity
in such cases would definitely regard the purchase of land which ought to have
been made as made. The money thus goes to X.
The working of this maxim can be seen-
i) the doctrine of conversion
ii) Executory contracts
iii) doctrine of part performance
i) Doctrine of conversion- In the case of Lachmere v. Lady Lachmere, money was
taken as land. Doctrine of conversion can convert the money into immovable
property and immovable property into money.
ii) Executory contracts-
(a) Assignment of future property: When an assignment of property was made
for consideration equity treated it as a contract to assign. When the property
came into existence in such a contract it was treated as a complete assignment.
As a leading case on this point, Holroyd v. Marshall can be cited.
(b) Agreement for a transfer: In Walsh v. Lonsdale, it was decided that an
agreement for lease could be treated as a lease in equity.
iii) Doctrine of part performance: Under the equitable doctrine of part performance
contracts pertaining to land were allowed to be formed by oral evidence where one
of the parties did acts of pats performance. Maddison v. Alderson is a leading case
on this point.
Recognition
Many of the doctrines of English equity have taken statutory form in India. A
transfer of future property for consideration operates as a contract to be performed
in future.
i) The Transfer of Property Act- A Contracts to sell Sultanpur to B. While the
contract is still in force, he sells Sultanpur to C, who has notice of the contract. B
may enforce the contract against C to the same extent as against A.
ii) The Specific Relief Act- Section 12 relating to the specific performance of part of
a contract also illustrates the application of the maxim.
iii) The Trust Act- Where a person acquires property with notice that another
person has entered into an existing contract affecting that property, the former
must hold the property for the benefit of the latter.
Go To Contents
Explain : Equity imputes an intention to fulfill an obligation. (Oct-2013, Dec-2015)

ANSWER :
Meaning
Equity considered and estimated acts of parties. Thus where a person is under an
obligation to do a certain act, and he does some other act which is capable of being
regarded as an act in fulfillment of his obligation. In other words a person is
presumed to do what he is bound to do.
In Sowden v. Sowden, a husband covenanted with the trustee of his marriage
settlement to pay to them 50,000 to be laid out by them in purchase of land in a
particular area D. He, in fact, never paid the sum, but after marriage purchased the
land at D in his own name, for 50,000. He died and could not bring the land into
settlement. Equity courts construed that he purchased land to fulfill his obligation.
i) Doctrine of performance and satisfaction
ii) Ademption
iii) Doctrine of presumption of advancement
iv) Relief against defective execution of power of appointment.
i) Doctrine of performance and satisfaction- Sowden v. Sowden and Lachmere v.
Lady Lachmere cases are examples of performance. Satisfaction is the donation of
a thing with it is to be taken in extinguishment of some prior claim of donee. This
maxim is helpful where the presumed intention of the testator is to be found out;
where the intention is express the maxim has no application.
ii) Ademption- Ademption is a transfer of property which operates as a complete or

pro tanto substitution for a gift previously made by the will of the donor.
e.g. X by his will leaves his daughter Y one-third of his residuary estate.
Thereafter on Ys marriage X gives Y 20,000 Taka. X dies. 20,000 Taka is an
ademption -complete or proportionately to the gift of one-third share of the
residuary estate of X.
iii) Presumption of advancement- When a purchase or transfer of property without
consideration is made by a father or a person in loco parentis, to or in the name of
a child, a presumption arises. And the presumption is that it was for the benefit of
the child. Such presumption, is known as advancement. The doctrine applies to
cases of parent and child, husband and wife, of mother and child and even to
illegitimate child, but not to a man and his mistress.
iv) Relief against defective execution of power of appointment- A power is an
authority vested in a person to deal with or dispose of property not his own. A
power may be legal or equitable but after 1925 all powers of appointment are
necessarily equitable.
e.g. A holds 50,000 Taka upon trust to divide among a certain class of persons.
A has no option is this matter He is bound to carry out the trust. On his failing to
do so, the court will see that the property is duly divided.
A defective execution will always be aided in equity under the circumstances
mentioned, it being the duty of every man to pay his debts, and a husband or a
father to provide for child.
Recognition
i) The Succession Act- Presumption against satisfaction is mentioned here. In
Hasanali v. Popatal, a testator, who had a sum of Rs 9000 as deposit from his
brother, gave to is brother a legacy of Rs 9000 and it was held that the brother
was entitled to both, the legacy and his deposit. But as decided in Rajmanuar case
where a will contained a clear indication that the legacy was meant as a
satisfaction of the debt due to X, X could not claim both as the section explains.
ii) The Trust Act- Where a person contracts to buy property to be held on trust for
certain beneficiaries and buys the property accordingly, he must hold the property
for their benefit to the extent necessary to give effect to the contract. Equity thus
imputes an intention to fulfill an obligation.
Go To Contents
Discuss : equity acts in personam. (Dec-2015)
Explain in detail : Equity acts in personam. (Dec-2016)

ANSWER :
This maxim in a sense comprise the whole of Equity. It lays down the procedure
rather than any substantive law. In England the Chancery Court had now the
Chancery divisions of the High Court has jurisdiction to entertain certain suits
respecting immovable property, though the property might be situate abroad if the
relief sought could be obtained through the personal obedience of the defendant. The
personal obedience of the defendant could be secured only if the defendant resided
within the local limits of the jurisdiction of the court or carried on business within
those limits. Its essential feature was that the land in respect of which the suit was
brought was situate abroad, but the person of the defendant or his personal property
was within the jurisdiction of the court in which the suit was brought. The land being
situate abroad the decree could not be executed against the land, but the person or
personal property of the defendant being within the jurisdiction of the court the
decree could be executed in person.
A court of equity operates primarily in personam not in rem; and in the exercise of its
jurisdiction in personam it will compel the performance of contracts and trusts relating
to property which is not locally within the jurisdiction. (Halsbury's Laws of England,
Fourth Edn. Vol. 16 para. 1295 p. 868).
The doctrine was thus explained by Lord Selborne L.C. in William Ewing v. Malcolm
Hari Orr Ewing, (L.R. (1883) 9 A.C. 34, 400 :
"The courts of Equity in England are, and always have been, Court of conscience
operating in personam and not in rem, and in the exercise of this personal
jurisdiction they have always been accustomed to compel the performance of
contracts and trusts as to subjects which were not either locally or ratione damicilli
within their jurisdiction.
The jurisdiction in personam wielded by the Chancery Court gave it a longer arm than
that of the common law courts, especially in case of land falling outside the
jurisdiction of the court. But the court of equity never assumed to determine
questions of title in the land which was situate in England or abroad; all that it did
was to get hold of the defendant or other personal property of his and bring pressure
to bear on him.
Go To Contents
Explain : Where the Equities are equal the first in time shall prevail
ANSWER :
When two parties each have a right to possess something, then the one who acquired
an interest first should prevail in equity. For example, a man advertises a small boat
for sale in the classified section of the newspaper. The first person to see the ad offers
him $20 less than the asking price, but the man accepts it. That person says he or
she will pick up the boat and pay for it on Saturday. Meanwhile another person comes
by, offers the man more money, and the man takes it. Who owns the boat? Contract
law and equity agree that the first buyer gets the boat, and the second buyer gets his
or her money back.
It deals with the priority of competing interests. This maxim is sometimes quoted in
its Latin form, Qui prior est tempore, potior est jure.
This maxim is concerned with the priority that is to say which of interests prevails in
thetime of conflict. The general rule, is that interests take effect in order of their
creation, but, asregards equitable interests, these may be defeated if a bona fide
purchaser acquires a subsequentlegal estate without notice of the equitable one. The
position of the bona fide purchaser of a legal estate is stated in the case of Pilcher v
Rawlins. For the purchaser of the legal estate to gainthe priority, it is the must to
show off that he is bona fide. Moreover, the purchaser would beinterrogated to the
valuable consideration where he has given the opportunity to his bona fide and to
prove the presence of the absence of notice.
In the case of Cave v Cave the question arose of the priority of an equitable interest,
alegal interest and an equitable interest created in that order. The interests were a
beneficial interest under a trust, a legal mortgage created without notice of the prior
beneficial interest anda legal mortgage created without notice of an equitable
mortgage. Applying the legal maximabove, the court held that the beneficial interest
took the priority over the equitable interest because he is the bona fide for value
without notice, neither beneficial owner being at fault.
The sort of action that the party might lose his priority, i.e making the equities
unequal,was culled from the case of Abigail v Lapin. The Privy Council states that; In
the case of acontest between two equitable claimants the first in time, all other things
being equal, is entitledto priority. But all other things must be equal, and the claimant
who is first in time may lose his priority by any act or omission which has, or might
have had, the effect of inducing a claimantlater in time to act to his prejudice.
Go To Contents
Where there is equal equity, the law shall prevail explain in detail this maxim with
Explain : Where there is equal Equity, the law shall prevail. (Oct-2013, Dec-2015)
Explain in detail : Where there is equal equity, the law shall prevail. (Dec-2016)
ANSWER :
This maxim and another maxim - "Where Equities are equal, the first in time shall
prevail" constitute a complete principle relating to questions of priority among rival
claimants to the same property. The second maxim will be discussed in the next
question.
The Maxim - "Where Equities are equal, the Law shall prevail" connotes that as
between holders of equal equities the one who can get in legal estate will gain
priority. It should be noted that this maxim applies in case of a conflict between a
legal and equitable estate whereas the other maxim quoted above applies where
there is no legal estate and conflict is one between equitable estates only.
This maxim means that Law shall prevail over the Equity. Thus if two persons have
equally equitable claims upon the same subject-matter and one of them, in addition
to his equitable claim also has legal claim in that subject-matter, then the claim the
person having legal claim in addition shall prevail over the claim of other person who
has merely equally equitable claims.
In Shamlal v. Banua, (1882) 4 All. 296 it was held that where `X' acquires the legal
estate with notice of pre-existing equitable interests attaching to the property and
then transfers it to `Y' who had no notice of equitable interest, Y's priority as a
transferee without notice will not be defeated by notice or the inequity of `X' his
transferor.
It is pertinent to point out here that this maxim applies in case of a conflict between a
legal and equitable estate and in that case the legal estate prevails over equitable
estates.
In India - In India, the principle of this maxim has been incorporated in Sections 40
and 78 of the Transfer of Property Act, 1882 which provides as under :
"Section 40 : Burden of obligation imposing restriction on use of land : where a
third person is entitled to the benefits of an obligation arising out of contract and
annexed to the ownership of immovable property, but not amounting to an interest
or an easement thereon, such right or obligation may be enforced against a
transferee with notice thereof or a gratuitous transferee for consideration and
without notice of the right or obligation, nor against such property in his hands."
Illustration : "A contracts to sell Sultanpur to B. While the contract is still in force
he sells Sultanpur to C who has notice of the contract. B may enforce the
contract against C to the same extent as against A."
Section 78 of the Transfer of Property Act provides as under : "Where, through the
fraud, misrepresentation or gross neglect of a prior mortgagee, another person has
been induced to advance money on the security of the mortgaged property the
prior mortgagee shall be postponed to the subsequent mortgagee."
It should be noted that the principle embodied in section 78 of the Transfer of
Property Act also applies to sell. Thus if a prior mortgagee is guilty of fraud or
misrepresentation or gross negligence as a result of which a subsequent purchaser
is induced to enter into a transaction of sale with the owner of the property as
though there was no prior transfer, the prior mortgagee will be postponed after the
subsequent purchaser.
Go To Contents
*** End-of-Compilation ***

Source : Public domain print/ internet contents.
URLs of some such resources are listed herein above.
Credits/ copyrights duly acknowledged.
Suggested Reading :
Snell, Equity
Curzon L. B., Euity
Horsfield, Peter M., Equity in a nutshell
Pettit, Philip H., Equity and the Law of Trusts Butterworths Publication
Keeton G. W., and L. A. Sheridan, Equity, Pitman
H. G. Hanbury, Modern Equity The Principles of Equity English Language Book Society
Aquil Ahmad, Equity, Trusts and Specific Relief, Central Law Publication -
Basu D. D., Equity, Trusts, Specific Relief
Desai T. R., Equity, Trusts and Specific Relief
B. M. Gandhi, Equity, Trusts and Specific Relief, Eastern Book Company

206F Principles of Equity

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206F Principles of Equity

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LL.B. Semester - III

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Module - 1) Equity: Origin, Development & Importance :

correction of law where it is defective owing to its universality.

Chancery continued as a separate court until the nineteenth century, when it

It is important to note that the concept of "Supreme Court of Judicature" in

common law in the interests of justice.

LESSONS DRAWN : From the above case, a number of pertinent observations

Explain : Basis of Equity : Equity as A matter of grace, and as A matter of

2. Chancery courts also developed the equity of redemption. At common law,

Explain the following, Evolution of equitable Interest in the Property. (Oct-2013,

Explain : Distinction between legal and equitable estates. (Dec-2015)

(ii) the term of year absolute; and

Module - 2) Maxims of Equity :

Brief Notes on General Principles of Equity :

position was reversed.

Explain : Equity will not suffer a wrong to be without a remedy. (Oct-2013)

wrong should be allowed to go unredressed if it is capable of being remedied by the

(i) As regards legal estates, rights and interests

Discuss : He who seeks equity must do equity. (Dec-2015)

He who seeks equity must do He who comes into equity must

claims of equitable relief against the plaintiffs conduct is unfair.

Equality is equity Explain in detail this maxim by giving illustrations. (Nov-2014)

Module - 3) Maxims of Equity :

demand of time. It regarded the form of a transaction to be more important than

Explain : Equity imputes an intention to fulfill an obligation. (Oct-2013, Dec-2015)

ii) Ademption- Ademption is a transfer of property which operates as a complete or

Discuss : equity acts in personam. (Dec-2015)

Explain in detail : Equity acts in personam. (Dec-2016)

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