Equity, Common law and its Appliance in India: a Study

1. Introduction
“The system of equity includes that portion of natural justice which is judicially enforceable
but which for various reasons was not enforced by the courts of common law.”1 “EQUITY is
that system of justice which was developed in and administered by the high court of chancery
in England in the exercise of its extraordinary jurisdiction. This definition is rather suggestive
than precise; and invites inquiry rather than answers it. EQUITY, in its technical and
scientific legal sense, means neither natural justice nor even all that portion of natural justice
which is susceptible of being judicially enforced. It has, when employed in the language of
English law, a precise, definition and limited signification, and is used to denote system of
justice which was administered in particular court – the nature and extent of which system
cannot be defined in a single sentence, but can be understood and explained only by studying
the history of that court, and the principles upon which it acts. In order to begin to understand
what equity is, it is necessary to understand what the English high court of chancery was, and
how it came to exercise what is known as its extraordinary jurisdiction. Every true definition
of equity must, therefore, be, to a greater or lesser extent, a history.” 2
“In its technical sense, equity may be defined as a portion of natural justice which, although
of a nature more suitable for judicial enforcement, was for historical reasons not enforced by
the common law courts, an omission which was supplied by the court of chancery. In short,
the whole distinction between equity and law is not so much as a matter of substance or
principle as of form and history.”3

1
Historical Outlines of Equity, http://www.unlockingthelaw.co.uk/samples/trusts_ch01.pdf .
2
George T. Bispham, The principle of Equity vol. 1-2(Joseph D. McCoy 11th ed. 1931).
3
R.E. Megarry, Snell‟s Principles of Equity vol. 2(23rd ed. 1947).
2.1 Origin and Development of Equity:
Equity is that system of justice which was administered by the High Court of Chancery in
England in the exercise of its extraordinary jurisdiction. ... Every true definition of equity
must, therefore, be, to a greater or less extent, a history.
Bispham, Principles of Equity, at 1, 2.

“Prior to William the conqueror, there were the old Anglo-Saxon courts. They used to sit in
the open air meetings of freeman. Slowly these folk courts were replaced by itinerant justices
appointed by the crown or by the king‟s court (curia Regis). William the conqueror made
several changes and appointed a chief judiciary to preside over the trials of suits. This led to
the origin of common law tribunals throughout the England. The hardship caused by the king
was removed by the „Magna Carta‟ which provided that „the common pleas shall no longer
follow the king „. Through this charter disputes‟ regarding lands, and other civil matters
known as common pleas was established at Westminster. During the period the judicial
officials became the Court of Exchequer and officials were related to the cases of revenues
and later enlarged through the use of legal fictions. Slowly the chancellor presiding over the
Court of Exchequer became personal advisor and representative of the crown. The court
continued its process until new act came into the force on 2nd November 1875, consolidating
it into the “supreme court of judicature”4
“Two distinct systems of law were administered by different tribunals at the same time in
England till the year 1875. The older system was the common law and it was administered by
the King‟s Benches. The more modern body of legal doctrine developed and administered by
the chancellor in the court of chancery as supplementary to and coercive of the old law was
the law of Equity.
The two systems of law, as mentioned above, were by and large identical and in harmony
leading to the maxims that „equity follows the law’. In other words, the rules already
established in the old Courts were adopted by the Chancellor and incorporated into the
systems of equity, unless there was some sufficient reason for their rejection or modification.
In case of conflict, the rule of Chancery prevailed, because if a common law action was

4
C.M RAO, law of injunctions(Delhi: University Law Publishing Co. Pvt. Lt, 2007),445-667
brought in defiance of a rule of equity, the defendant could apply to the Court of Chancery
for an order called a common injunction, directed to the plaintiff and ordering him not to
continue his action.”5
“The 'fictions' mean that they assumed certain facts for the case, even though those facts were
not true. However, even with these 'fictions' the law was restricted to provide justice. Also,
once a writ was on paper, it could not be changed so if a mistake was made the case would
become void and the person making the claim would lose the case. People were often not
content with the decision made by the Common Law Court, as the only remedy they could
give was 'damages.' This was compensation money paid by the defendant to the plaintiff.
This was more often than not insufficient and inappropriate, as money cannot solve
everything. People who could not obtain justice in the Common Law Court then appealed
directly to the King who was described as 'the fountain of justice. Most of these cases were
referred to the King's Chancellor. He became known as 'the King's conscience.' The
Chancellor based his decisions on what he thought to be fair in the particular case rather than
the strict following of previous patterns. The Chancellor developed new remedies that were
able to compensate plaintiffs more fully than the Common Law remedy of damages.”6

2.2 Common Law Courts

The common law courts which developed in English jurisprudence by the end of the
thirteenth century were The King's Bench, the Court of Common Pleas, and The Exchequer.
Although each of these courts had jurisdiction over different subject matters, they were all
regarded as "common law" courts, that is, courts governed by strict rules of law, a formalized
procedure and bound by judicial precedent. At that point in time, the common law courts had
no equity jurisprudence, and the Court of Chancery did not yet exist.

2.3 The Rise of the Court of Chancery

Beginning in the fourteenth century, the Chancellor, who was the King's Secretary, was
responsible for issuing legal writs to complainants who wished to bring a legal action in one
of the common law courts. Gradually, the Chancellor began to take it upon himself to resolve
disputes for which no legal writ in a common law court was available.

5
Karnwal Megha, “Law of Equity”. http://jurisonline.in/2008/11/law-of-equity/.
6
Black's Law Dictionary,8th ed. edited by GARNER BRYAN A. (USA: west publishing co, 2005), 579-580
2.4 Development of equity in Britain
“Two technical terms of great importance that are likely to puzzle the novice are „common
law „and „equity‟.
The law of England may be said to be composed of three great elements: common law, equity
and legislature. the most important kind of legislature is the act of parliament(otherwise
called a statue), though nowadays what is called delegated legislature, like the many
government orders generally known as stator instruments, which come to be great important
as well. Even a layman is not likely to experience difficulty in understanding the meaning of
legislature.
In the middle ages, the courts of common law failed to give redress to certain types of cases
where it was most needed and how the litigants petitioned the king, who was the “foundation
of justice” for extraordinary relief; and then the king with the help of chancellor set up the
special courts i.e. the courts of chancery to deal with the petition and the rules applied by the
court of chancery hardened into law and become regular part of the law of land. the most
important branch of equity is the law of trusts, but equitable remedies such as specific
performance and injunction are also much need in the case of “conflict or variance” between
the rules of common law and the rules of equity , equity came to prevail. Suppose A brought
an action against B in one of the common law courts and in the view of the court of chancery
the action of inequitable. B‟s proper course was to apply to the court of chancery for an
order, called a common injunction, directed to A and ordering him not to continue his action
if A defied the injunction of the court than this will put him in the prisons for the contempt of
court. Equity does work “behind the scenes” of the common law action.”7
Lawyers are familiar with the proposition that the judicature act, although it fused the
administration of law and equity but it did not fused law and equity themselves.
“The two streams have met and now run in the same channel, but their water do not mix”8

7
Glanville Williams, learning the law (Delhi: University Law Publishing Co. Pvt. Lt, 2009), 24-29.
8
Owing to the prevailing ignorance of legal history, modern courts sometimes express the heretical option that
law and equity have become fused, so that common law remedies are available to enforce equitable rights.
International factors v. Rodriguez[1979]Q.B. at 358A
2.5 Growth of Equity
“A dual system of rights and interests, namely – legal and equitable, came to the fore due to
the double system of the administration of justice in England before the Judicature Act, 1873
– 1875.”9

a) Why was equity important in the development of English law?

Equity was important in the development of English law because it resolved some of the
defects of the common law, which might otherwise have led to a loss of public confidence in
the legal system - since the hallmark of a civilized society is a proper legal system. 10
As these Chancellors had no formal legal training, and were not guided by precedent, their
decisions were often widely diverse. However, in 1529 a lawyer, Sir Thomas More, was
appointed as Chancellor, marking the beginning of a new era. After this time, all future
Chancellors were lawyers, and from around 1557 onwards, records of proceedings in the
Courts of Chancery were kept, leading to the development of a number of equitable
doctrines. Criticisms continued in the court.

b) Evils of the Common Law

The inflexibility of the writ system, and the consequent expense - if a writ had a minor
drafting error, it would be thrown out, for example, in Pinnel's Case,11 where Pinnel won as a
result of Cole's drafting error, even though Cole was legally in the right.

⮚ Many cases were lost on technicalities.

⮚ The common law did not allow oral evidence.

⮚ There was no power of enforcement.

⮚ If a person had a debt by way of a bond and if pay the debt, but neglected to have the

bond cancelled, the common law courts would force them to pay it again.

⮚ It was easy to avoid the consequences of one's actions.

⮚ The wager of law system was unfair.

⮚ There was no recognition of trusts.

⮚ The common law did not recognize security for loans (mortgages) or rights of third

parties in general.
9
Karnwal Megha, “Law of Equity”. http://jurisonline.in/2008/11/law-of-equity/.
10
http://members.lycos.co.uk/lawnet/EQUITY.HTM
11
(1602) 5 Co Rep 117a
 ⮚ If damages were not appropriate (e.g., trespass), then the common law remedy did not

provide an adequate remedy.

c) Important Developments in Equity

❖ As a result of the inadequacies of the common law courts, people petitioned the King

through his Chancellor. This developed into a full legal system, and the Chancellor, as
petitions increased, set up the Court of Chancery (1474), the rules of which became
equity.

❖ The Earl of Oxford's Case 161512, which decided that if equity and the common law

were in conflict, equity would prevail (codified in the Judicature Act 1873 and
currently contained in the Supreme Court Act 1981).

❖ In the mid-19th century, the procedure of the Court of Chancery (discovery of

documents and injunctions) was made available in the common law courts.

❖ At the same time the Court of Chancery was given the power to determine matters of

common law, use juries, award damages, and receive oral evidence.

❖ The Judicature Acts 1873-5 merged the equity and common law courts - previously it

had been necessary to start parallel actions in separate courts.

d) Advantages of Equity over the Common Law

The Court of Chancery succeeded in stopping unconscionable writs through the injunction,
by which the common law claimant was restrained from continuing his action. If the claimant
defied the order he would be imprisoned for contempt.
It was said that there existed two legal systems - one to do injustice, and the other stop it, and
that equity was the conscience of the law.
“Equity in U.S. law can be traced to England, where it began as a response to the rigid
procedures of England's law courts. Through the thirteenth and fourteenth centuries, the
judges in England's courts developed the common law, a system of accepting and deciding
cases based on principles of law shaped and developed in preceding cases. Pleading became
quite intricate, and only certain causes of action qualified for legal redress. Aggrieved
citizens found that otherwise valid complaints were being dismissed for failure to comply

12
[1615]1. Chan. Rep. 5-16 in English Reports, vol. 21,485-489.
with pleading technicalities. If a complaint was not dismissed, relief was often denied based
on little more than the lack of a controlling statute or precedent.
Frustrated plaintiffs turned to the king, who referred these extraordinary requests for relief to
a royal court called the Chancery. The Chancery was headed by a chancellor who possessed
the power to settle disputes and order relief according to his conscience. The decisions of a
chancellor were made without regard for the common law, and they became the basis for the
law of equity.13

2.6 Remedies Discovered by the Chancellors

The Chancellor developed new remedies that were able to compensate plaintiffs more fully
than the Common Law remedy of damages.
1) Injunction
2) Specific performance
3) Account of profits
4) Rescission
5) Declaratory relief
6) Rectification
7) Estoppels
8) Certain proprietary remedies, such as constructive trusts or tracing
9) Subrogation
10) In very specific circumstances, an equitable lien
There were four main remedies known as injunctions, specific performance, rescission and
rectification. Injunction was a court order that asked a person to do or refrain from doing
something. Specific performance was an order that a contract should be carried out as agreed.
Rescission was where the parties are returned as far as possible to their pre-contract position.
Rectification was where the court will order that a document should be altered to reflect the
parties' intentions. There were also two other remedies known as trusts and mortgages. An
account of profits is usually ordered where payment of damages would still leave the
wrongdoer unjustly enriched at the expense of the wronged party.

13
Black's Law Dictionary,8th ed. edited by GARNER BRYAN A. (USA: west publishing co, 2005), 579-580
3. General Principles of Equity
The intervention of the court of equity over the centuries may be reduced into the following
Maxims. 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.14

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). The subject matter of the equity can be
grouped around some legal maxims which embody the principles.

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,15 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. A party claiming equitable relief is required
to act fairly towards his opponent. For example, a tracing order would not be obtained in
equity if the effect would be to promote injustice.

3. Aequitas sequitur legem i.e. Equity follows the law

The view originally taken by the Court of Equity was that deliberate and carefully considered
rules of common law would be followed. 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

14
Historical Outlines of Equity, http://www.unlockingthelaw.co.uk/samples/trusts_ch01.pdf .
15
[1975] 1 WLR 482
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. At the same time it must not be supposed that every
infringement of a right was capable of being remedied. The „wrongs‟ which equity was
prepared to invent new remedies to redress were those subject to judicial enforcement in the
first place. If an adequate remedy exists at common law, then equity will be denied - the
superior remedy will not been ordered when the inferior one would suffice.
In Cohen v. Roche,16 specific performance was not granted for a contract for some
Hepplewhite chairs (damages were granted instead) since they were not rare or unique
enough. Contrast Beswick v. Beswick,17 where the House of Lords granted specific
performance for a contract to pay money since it was the most equitable remedy - £5 a week
for life could not fairly be enforced with damages.

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 18
- 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.

16
[1927] 1 KB 169
17
[1968] AC 58
18
(1828) 38 ER 817
Wroth v. Tyler,19 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.
Patel v. Ali,20 specific performance was refused, since to grant the decree would have evicted
a defendant whose leg had been amputated through bone cancer and had given birth to two
children, and would have caused great hardship if the defendant had had to move away from
her relatives

8. Where the equities are equal, the first in time prevails

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: qui prior est tempore potior est jure. – 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 e.g., if A enters into a contract for the sale of his house with B and then with
C, the interest of B and C both being equitable, B will have priority over C because his
attached to the property first.

9. Vigilantibus, non dormientibus jura subvenient Delay defeats equity (equity

aids the vigilant and not the indolent)
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.

20
[1984] 1 All ER 978
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.

13. Equity acts in personam

Originally, equitable orders were enforced against the person of the defendant, with the
ultimate sanction of imprisonment. A later equitable invention permitted an order to be
attached to the defendant‟s property, i.e. in rem. Today this maxim has lost much of its
importance.”21

21
Historical Outlines of Equity, http://www.unlockingthelaw.co.uk/samples/trusts_ch01.pdf .
4.1 Equity in Indian Legal System
“Most of the equitable principles and rules have, in India, been embodied in the statute law
and has been made applicable to the extent of the provisions made therein. The provisions of
equity in Indian statute books might have their source in common law or in equity or in an
adjustment between the two, is immaterial.
Statutory recognitions of the principles of equity are found in:
A. The Indian Contract Act, 1872;
B. The Specific Relief Act, 1877; 22
C. The Indian Trust act, 1882;23
D. The Transfer of Property Act, 1882; 24 and
E. The Indian Succession Act, 1925.
“The point primarily relates to the section 2825 of the Indian contract act 1872. The subject is
of great importance from the point of view of economic justice, avoidance of hardship to
consumers and certainly and symmetry of the law. The equitable doctrines featuring in the
Indian Contract Act are mainly, the doctrine of penalties and forfeiture, stipulations as to time
in a contract, equitable relief on the ground of misrepresentation, fraud and undue influence.
In a case which went to the Supreme Court, a clause in an insurance policy provided that all
the benefits under the insurance policy shall be forfeited if the suit was not brought within the
specified period26, the clause was held to be valid.”27
“Trust and trustees is a concurrent subject [Entry 10 of List III of Seventh Schedule to
Constitution]. Thus, the Act will apply all over India except when specifically amended /
altered by any State Government.

22
An Act to define and amend the law relating to certain kinds of Specific Reliefs.
23
The Indian Trusts Act was passed in 1882 to define law relating to private trusts and trustees. A trust is not a
'legal person'. Property of trust is held in name of trustee for benefit of beneficiary.
24
(4 of 1882) 17th February, 1882 An Act to amend the law relating to the Transfer of Property by act of
Parties.
25
Every agreement,—
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any
contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may
thus enforce his rights; or
(b) Which extinguishes the rights of any party thereto, or discharges any party thereto from any liability,
under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing
his rights, is void to that extent?]
26
Vulcan insurance co. v. Maharaj singh, AIR 1976 S.C., pages 287-294
27
Justice KK Mathew. “Section 28, Indian Contract Act, 1878 Prescriptive clause in contracts.” Law
Commission of India Ninety-Seventh Report, (March 1984), http://lawcommissionofindia.nic.in/51-
100/Report97.pdf.
The Indian Trusts Act was passed in 1882 to define law relating to private trusts and trustees.
A trust is not a 'legal person'. Property of trust is held in name of trustee for benefit of
beneficiary. The rules administered by the English Courts of equity under the head of justice,
equity and good conscience are contained in the Indian Trust Act.” 28
Many doctrines of equity are contained in the Transfer of Property Act. The English doctrine
of part performance has been drawn in section 53A29 of the Act. Section 4830and section 5131
are also based on the equity principles. Equity of redemption in England was codified to
32
Right of redemption in India as in the case of Gangadhar v. Shankar Lal33 and Prithi Nath
Singh v. Suraj Ahir34 the codified law was followed.
Section 180-19035 of the Indian Succession Act36 deals with doctrine of election in cases of
will and section 3537 of the Transfer of Property give effect to this doctrine in general.

28
General law Primer, Indian trust act, 1882. http://www.dateyvs.com/gener06.htm.
29
Every transfer of immovable property made without consideration with intent to defraud a subsequent
transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer
made without consideration shall be deemed to have been made with intent to defraud by reason only that a
subsequent transfer for consideration was made.
30
Where a person purports to create by transfer at different times rights in or over the same immovable property,
and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the
absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously
created.
31
When the transferee of immovable property makes any improvement on the property, believing in good faith
that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better
title, the transferee has a right to require the person causing the eviction either to have the value of the
improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the
transferee at the then market-value thereof, irrespective of the value of such improvement.
33
AIR 1958 SC 770
34
AIR 1963 SC 1041
35
It deals with election:
180-Circumstances in which election takes place
181-Devolution of interest relinquished by owner
182 -Testator's belief as to his ownership immaterial
183 -Bequest for man's benefit how regarded for purpose of election
184 -Person deriving benefit indirectly not put to election
185 -Person taking in individual capacity under will may in other character elect to take in opposition
186 -Exception to provisions of last six sections
187-When acceptance of benefit given by will constitutes election to take under will
188-Circumstances in which knowledge or waiver is presumed or inferred
189 -When testator's representatives may call upon legatee to elect
190 -Postponement of election in case of disability
36
Dasureddi vs. M. Venkatasubbammal (1934) 2 MLJ 650
37
Where a person professes to transfer property which he has no right to transfer, and as part of the same
transaction confers any benefit on the owner of the property, such owner must elect either to confirm such
transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so
relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject
nevertheless,
where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable
of making a fresh transfer, and in all cases where the transfer is for consideration,
To the charge of making good to the disappointed transferee the amount or value of the property attempted to be
transferred to him.
It is important to bring to the notice for the researcher that though the English rules of equity
have been substantially incorporated by the Indian Legislature, yet, there are many other rules
of English Equity are either not been followed in India or are adopted only in a modified
form, keeping in view the different ground realities of the country.”38.
The statutory recognition of the principles of equity in the Specific Relief Act is regarding
injunction, specific performance, cancellation, rectification and recession etc.
“In India the common law doctrine of equity had traditionally been followed even after it
became independent in 1947. However it was in 1963 that 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 1877.39 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. 5 - 8)

⮚ Specific performance of contracts (ss. 9 - 25)

⮚ Rectification of Instruments (s. 26)

⮚ Recession of Contracts (ss. 27 - 30)

⮚ Cancellation of Instruments (ss. 31 - 33)

⮚ Declaratory Decrees (ss. 34 - 35)

⮚ Injunctions (ss. 36 - 42)

With this 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 have 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 15140 of the Code of Civil
Procedure, 190841, which applies to all civil courts in India. There is no such inherent power

38
Karnwal Megha, “Law of Equity”. http://jurisonline.in/2008/11/law-of-equity/.
39
An Act to define and amend the law relating to certain kinds of Specific Reliefs.
40
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such
orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
41
The Code of Civil Procedure, 1908 (Act No. 5 of 1908) of India is an act to consolidate and amend the laws
relating to the procedure of the Courts of Civil Judicature.
with the criminal courts in India except with the High Courts in terms of Section 48242 of the
Code of Criminal Procedure, 197343. Further, such inherent powers are vested in the Supreme
Court of India in terms of Article 14244 of the Constitution of India which 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
“In the matter of rules of procedure and practice, though the utmost respect should be paid to
the wisdom and authority of the English courts, yet courts in India are by no means bound to
adopt such rules which the equity courts in England may had established45
Edge CJ, says:
The condition of domestic life in the two countries have from remote times been essentially
different and, in my opinion , it is owing to the difference in conditions of domestic life alone
that a custom which appears to me to be perfectly reasonable one in INDIA should be
unknown in England46
Woodroffe says:
Not only may there be in India rights to be protected which are unknown to English law ,47
but interests of which it does take cognizance , may here require protection by injunction, or
otherwise, in a set of circumstances in which it is not necessary to grant relief in England, or
the converse may be the case48
Thus according to the usages obtaining in certain places in India, the right of privacy is
recognized and injunctions are issued to protect the right of privacy. The rule of English law
is different from that.49

42
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court
or otherwise to secure the ends of justice.
43
An Act to consolidate and amend the law relating to Criminal Procedure.
44
Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court
in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete
justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable
throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such manner as the President may by order prescribe
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects
the whole of the territory of India, have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or the investigation or punishment of
any contempt of itself
45
Woodroffe‟s dutt v Watson co
Venkatacharyulu v. Rangacharyulu (1890) 1 M.L.J. 85: I.L.R. 14
46
Gokal Prasad v Radho (1888) I.L.R. 10 Allahabad 358
47
Manishankar hargovan v trikam narsi (1867) 5 B.H.C.B.
48
Woodroff‟s law of injunction
49
Turner v Spooner (1861) 30 LJ Ch 801, 803)
English rules and decision to the relation which existed between the court of chancery and the
courts of common law in England were very different from those between the high court‟s
and mofussils courts in India 50 as they were also the respective powers and functions of these
courts.
In India, in view of its large cultural diversity, and for various social circumstances, different
factual circumstances may warrant circumstances for protection. The broad principles of the
English decisions may apply, particularly those based on equity, though the ratio itself may
not act as a binding precedent”51

50
Moran v river steam navigation [1964] S.C.R. 333
51
C.M RAO, law of injunctions(Delhi: University Law Publishing Co. Pvt. Lt, 2007),445-667
5. Conclusion
The scope of this project was to trace the history and development of equity and also its
current relevance primarily for Indian legal system. It seeks to specifically determine the
reasons if any, for the failure of the common law courts in bringing about social change and
suggests certain important methods of overcoming the impediments. Changing attitudes of
people towards common law which led to the formation of the law of equity where king
would prescribed over the matters, in the cases where plaintiff were not satisfied with the
decision given to them. In doing so this project examines the origin, development and its
application and relevance in Indian legal system. In India too certain laws has derived like
Transfer of Property Act and more which had a reasonable effect in the working of Indian
legal system. Finally and most importantly, by way of examining the development of equity,
this project seeks to demonstrate the principle that any development in any legal system
which seeks to bring a change to the social values can be a success only if socio economic
cultural situation in the society is made conducive for the operation of the law i.e. the law in
isolation can never be successful in bringing about a social change unless backed by various
socio economic and cultural factors.
Bibliography

⮚ George T. Bispham, The principle of Equity vol. 1-2(Joseph D. McCoy 11 th ed. 1931).

⮚ R.E. Megarry, Snell‟s Principles of uity vol. 2(23rd ed. 1947).

⮚ C.M RAO, law of injunctions(Delhi: University Law Publishing Co. Pvt. Lt,

2007),445-667

⮚ Black's Law Dictionary,8th ed. edited by GARNER BRYAN A. (USA: west publishing

co, 2005), 579-580

⮚ Glanville Williams, learning the law (Delhi: University Law Publishing Co. Pvt. Lt,

2009), 24-29.

⮚ Karnwal Megha, “Law of Equity”. http://jurisonline.in/2008/11/law-of-equity/.

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contracts.” Law Commission of India Ninety-Seventh Report, (March 1984),

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