HISTORICAL BACKGROUND

England was conquered by the Normans in the year 1066. The period before this date is called as
Anglo- Saxon law , about which very little is known to the public. With norman conquest, the
period of tribal rule came to an end and federalism was established. It paved the way for the
development of Common law. The creation of common law was the exclusive work of the Royal
courts of Justice, which are also called as the courts of Westminster. Common law is that part of

law in England which exists a way before the acts were made by the English crown.

Blackstone defines Common Law as the Municipal law of England or the rule of civil conduct
prescribed to the inhabitants of the Kingdom1. According to Blackstone it is based on the latin
maxin, “ King can do no wrong”.

EQUITY
The term equity basically means fairness and justice. Equity is a legal system for obtaining a fair
result when existing laws do not provide solution. It means equalization or leveling down any
arbitrary preferences or denial of Justice. Principle is equity is followed while giving reservation.
It is a means to reach as near as possible to natural or ideal justice, but equity is not natural justice 2.
Equity is basically a way to reach natural Justice. Equity therefore does not destroy the law, nor
creates it, but just assist it 3. Airstotle terms equity as correction of legal system.

Case- C. Chenga Reddy vs State of A.P4- In this case the court held that court of equity must act
within the permissible limits to prevents natural justice. “Equity is not past the age of child
bearing” and an effort to do justice between the parties is a compulsion of judicial conscience.

The word equity is generally used in two senses 5- one is a broad popular sense and second is a
narrow technical sense

Broad Sense- In the broad sense equity resembles the natural justice or morality. But it is not
actually par with the principles of natural justice, because the matters of natural justice give space
for the public opinions or conscience of each individual which are subject to various legal
sanctions.

Narrow Sense- A portion of natural justice which is of such nature which can be judicially
enforced, for some special circumstances omitted to be enforced by the Common Law courts.

1
Blackstone: Commentaries on English Law, 4th Edition of Chase`s Edition, page 29
2
Equity Trust and Specific Relief by BM Gandhi, page 4.
3
Dudley vs Dudley, (1705) Prec Ch 241, per Sir Nathan Wright, L.K.
4
(1996), 10 SCC 193
5
Snell`s Principles of Equity, 27th Edition, pg 13
 DEFINITIONS OF EQUITY
1. Plato- According to Plato, “Equity is necessary element supplementary to the imperfect
generalization of the rules.
2. Snell- According to Snell, “Equity is a portion of natural justice which although of a nature
suitable for judicial enforcement, was for historical reasons not enforced by the common
law courts, an omission supplied by the Court of Chancery.
3. Story- According to Story, “ Equity is that portion of remedial justice which was
exclusively administered by a court of equity as a contradistinguished from that portion of
remedial justice which was executively administered by a court of common law”.

EQUITY UNDER THE ROMAN LEGAL SYSTEM

Romans had also evolved an equity jurisprudence. The kings in Rome were the absolute monarchs
and all the powers of legal system are vested in it. There were also forms of actions like those
under the English Common law. The laws which they were making became hard, formal and
arbitrary and many other wrongs, because that time the rule of kings were final.

In 366 BC the first praetor was appointed on behalf of the king who had the power to change and
modify the rules according to situations. He thus create new rules which are known as edictum
novum which simply means a body of moral principles was introduced to the Roman Law. Later
his role was of an ancient Roman magistrate responsible for administering justice and overseeing
legal matters

HISTORY OF EQUITY IN ENGLAND

1. Origin of Common Law- After the advent of Normans, the system prevalent in England
was such that , the decisions of judges were based on the common customs of the society.
The view of one judge is adopted by the other regarding the similar situations. Later these
customs were developed as a body of laws which are known as Common Law. Later during
the time of Edward I, there were three common law courts which are namely King`s Bench,
Common Pleas and the Exchequer.
(a) King`s Bench- It used to give decision on the basis of equity but is not a major
administering body of law. They give relief only in hard cases.
(b) Exchequer- It is one of the major courts, apart from being the court it is also a
administrative department. The head of this was the Chancellor, whose main business
was to collect the revenue from the public. This court meet thrice a year on the occasion
of great feasts. To start an action in common law a writ with a prescribed fees is to file
before Chancellor. By the year 1348 king completely assigned his equity jurisdiction
to the chancellor.
(c) Common Pleas
 2. Deficiencies of Common Law- There were three major deficiencies in common law 6:
(i) Incomplete or no remedy in many cases
(ii) Inadequate relief and
(iii) Incomplete and defective procedures.
3. Classification of Equity Jurisdiction- Upto the middle of 14th century the, Common law
courts reigned supreme. In 1349 the chancellor was empowered to give justice on behalf
of the king, and this slowly increased his powers, which culminated into a separate and
independent chancery court in 1474. The jurisdiction7 of equity court has been classified
by Story as exclusive, concurrent and auxiliary. The main work of equity can be classified
as:
(i) Exclusive Jurisdiction- Cases where according to conscience there should be a
right, but the common law courts failed to recognize one or grant relief are major
subjects of Exclusive Jurisdiction For example right of redemption of a mortgage,
mortgages, Rights of person claiming under uses and trusts.
(ii) Concurrent Jurisdiction- Cases where the plaintiff at his option could proceed
either to the common law courts or at the chancery courts and where the plantiff
was almost the same but the method and manner in which it was granted was not
so effective.
(iii) Auxiliary Jurisdiction- Cases where the plaintiff sought the help of the equity
courts to render a relief granted by the Common Law courts more effective.

EQUITY IN INDIA
Prior to the Anglo- Indian Law, that is before 1600, Equity had its place on Hindu and Mohamedan
law. Hindu legal system or hindu jurisprudence is embedded in Dharma as propounded in the
Vedas, puranas, smritis and any other works. It has wide variety of meanings such as nyaya. In
Hindu Law according to the jurists like Kautilya and Yagnavalkya where there was a conflict
between Dharma and reason , the text had to give way and this was on the principles of equity
which was named as Yukti Vichar.

Where there is a conflict between two smritis , the principle of equity is determined by populas
usages shall prevail. Under Muslim law Abu Hanifa expounded such principles known as Istihan
or juristic equity.

MAXIMS OF EQUITY
1. Equity will not suffer a wrong to be without remedy- This legal maxim indicates that
equity will not let any wrong without remedy. This maxim indicates the width and scope
of the equity which leads to provide remedy to the persons. This legal maxim is applicable

6
Equity Trusts and Specific Relief by B.M. Gandhi, pg. 13
7
Story on Equity, 3rd Edn., p. cited by Snell`s principles of Equity, p.13
 in the cases of injunctions, specific performance etc. In India, this maxim gets recognized
under the Indian Trust act, Section 9 of the Civil Procedure Code and Specific relief act.

Case- Ashby vs White8- In this case a qualified voter was not allowed to vote, later he sued the
returning officer and it was held that if law gives man a right, then there must also be a remedy of
it.

2. Equity follows the law- The maxim "Equity follows the law" means that equity respects
established legal rules and does not contradict or override them. Equity complements the
law by providing fairness in situations where strict application of the law may lead to
unjust outcomes. This maxim is applicable to the property law, contract law etc. In India
this maxim gets recognized under Limitation act, Transfer of property and Contract act.

Case- Appa Narsappa Magdum vs Akubai Ganpati Nimbalkar 9- In this case, it was contended
that land reforms act are welfare legislation so they shall be construed in a liberal manner but it
was held by the apex court that, if the law is clear then equity must follow the law.

3. He who seeks equity must do equity- This maxim states that a person who needs equity
must also do equity with others. This maxim defines the reciprocal nature of equity. This
maxim is applicable on Illegal loans, doctrine of election, Consolidation of mortgages,
Notice to redeem mortgage, Wife `s equity to settlement, Equitable estoppel, Restitution
of benefits on cancellation of transaction, Set off and waiver.

Case- Lodge vs National Union Investment Co. Ltd.10- In this case a person borrowed money
from other by mortgaging securities but such a person was an unregistered money lender and the
contract was illegal. Then the person sued other for return of securities. In this case court refused
to make order except upon the terms that B should repay the money

4. He who comes into equity must come with clean hands- This legal maxim provides that
equity demands fairness, uprightness and good faith not only from the defendant but also
from the plaintiff. This maxim is applicable on contracts, unforceable agreements etc. In
India it gets recognition under Section 23 of the Indian Trust act.

Case- Rasiklal Vaghajibhai patel vs Ahmedabad Municipal Corpn. 11- In this case it was held
that if the person himself is guilty of misconduct, then he cannot get advantage of equity.

5. Delay defeats equities- This maxim is based on the principle that equality aids the vigilant
and not the indolent. According to this maxim when a person delays in proper execution
of his right, he defeats the chance of equity. This maxim is applicable on the Limitation

8
Smith`s leading cases, 13th Edn., p. 253
9
AIR 1999 SC 1963
10
(1907) 1 Ch 300
11
AIR 1985 SC 504
 acts. In India this maxim is enshrined under Article 113 of limitation act and section 51 of
the Transfer of property act.

Case- Union of India vs Kishorilal Bablani12- In this case it was held that belated applications
cannot be considered as it is a well known principle of jurisprudence that Delay defeats equity.

6. Equality is equity- The maxim "Equity is equality" signifies that equity seeks fair and
equal treatment, often distributing benefits or burdens equally among parties in relevant
cases. This maxim is applicable on Equal distribution of joint funds, Contribution between
co- trustees, power to appoint etc. In India this maxim is enshrined under Section 42, 43,
69, 70, 146 and 147 of the Contract act, 1872, Section 45, 56 and 82 of the Transfer of
property act, Section 330 of the Indian Succession Act, Section 27 of the Indian Trust act
and section 73 of the Civil Procedure code.
7. Equity looks to the intent rather than form- This maxim provides that equity looks the
intention of the parties and not the exact words of the contract. This maxim puts focus on
intention and not on substance. This maxim is applicable in granting relief against penalties
and forfeitures, relief in regard to precatory trust etc. In India this maxim is enshrined under
Section 55 and 74 of the Indian Contract Act and section 114 and 114A of the Transfer of
property act.
8. Equity looks on that as done which ought to be done- This maxim provides that means
that equity treats obligations or promises as if they have already been fulfilled when justice
requires it. This principle allows courts of equity to enforce intentions and agreements that,
though not yet executed in form, are morally or legally binding. This maxim is applicable
on doctrine of conversion, executory contracts and doctrine of part performance. In India,
this maxim is recognized under section 40 and section 53 A of the Transfer of property act,
section 12 of the specific relief act and section 91 of the Indian Trust act
9. When there is equal equity, the law shall prevail- The maxim "where the equities are
equal, the law shall prevail" means that when two parties have equally valid equitable
claims to a particular right or property, the decision will favor the party with the stronger
legal right. If both parties are equally deserving of fairness and equity does not favor one
over the other, the court will defer to the established legal rules to resolve the matter.
This principle prevents equity from overriding the law in cases where both parties have an
equal standing in equity. For instance, if two people claim a property, but one holds a legal
title while the other holds only an equitable interest (like a beneficial interest), the court
will recognize the legal title as superior if both parties are equally deserving. In this way,
it maintains the balance between equitable principles and the rule of law.
10. When the equities are equal, the first in time shall prevail- This maxim provides that
when both the parties have equal equitable claims, then priority is given to the party who

12
AIR 1999 SC 517
 firstly arose its claim. This maxim is applicable on equitable mortgages, trust interests and
beneficial claims etc.
11. Equity acts in personam- The maxim "Equity acts in personam" means that equity
enforces its remedies on individuals rather than directly on property. In equitable cases, the
court issues orders (such as injunctions or specific performance) requiring a person to act
or refrain from acting in a certain way, targeting their personal behavior and obligations.
This principle is significant because it allows courts of equity to enforce rights and
obligations across borders; for example, even if property is located outside the court's
jurisdiction, the court can compel a person within its jurisdiction to act concerning that
property. The focus on personal accountability allows equity to deliver justice based on
fairness, irrespective of location or property status. In India this maxim is debatable some
consider it as applicable here and some consider it not applicable here.

PYQ
Q. Who is Praetor(2014) 1 marks

Q. Define equity(2016,2018,2019) 1 marks

Q. Give another name of equity under Hindu Law(2016) 1 marks

Q. Explain the maxim equity follows the law(2017) 1 marks

Q. Elucidate the maxim ‘ He who comes to Equity, must come with clean hands’(2018) 1 marks

Q. What is common law(2022) 1 marks

Q. What is the concept and evolution of equality in roman law? Compare it with common
law(2014) 4 marks

Q. What do you understand by chancery(2014, 2019) 4 marks

Q. Explain the maxim, “Equity acts in Personam”(2014, 2019) 4 marks

Q. Explain evolution of equity under Roman law(2016, 2019) 4 marks

Q. Equity and common law are complementary to each other. Comment(2017, 2018) 4 marks

Q. Explain the maxim, “where the equities are equal the law shall prevail”(2014) 8 marks

Q. Explain in detail the origin and development of equity(2016) 8 marks

Q. Discuss the modern applicability of equity with the help of maxims(2016) 8 marks

Q. Discuss he who seeks equity must do equity(2017) 8 marks

Q. Critically examine the relevancy and applicability of the concept of equity in the existing Indian
legal system(2022) 8 marks