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Equity under the legal system of Bangladesh

In Bangladesh, there was never any separate Court for the administration of
Equity. The greater part of the law to be applied by the Court has been
codified. But in the absence of specific law or usage in any matter, the Court
has to act according to principles of Equity, Justice and Good
Conscience interpreted to mean only those rules of English Equity which
are applicable to the society and circumstances of Bangladesh.

Statutory recognition of Equity


Statutory recognition of the principles of Equity is found in the Specific
Relief Act, 1882, the Trusts Act, 1882, the Contract Act, 1872, the Transfer
of Property Act, 1882 etc.
The Specific Relief Act
The provisions of the Specific Relief Act regarding injunction, specific
performance, cancellation, rectification and recession, etc. recognize the
principles of Equity to a large extent.
a) Injunction: Preventing a party from doing what he is under an
obligation not to do. [Sec. 5 of the SR Act]
b) Specific Performance: When the defendant performs the very thing to
which he was under an obligation.
c) Cancellation: Any person against whom a written instrument is void or
voidable and who has reasonable apprehension that such instrument
may cause serious injury to him, if left outstanding, may apply to the
court to cancel the instrument. [Sec. 39]
d) Rectification: Instrument doesnt express the real intention of parties
due to fraud or mutual mistake can be rectified under section 31 of
the SR Act. [Equity looks to the intent rather than form]
The Trusts Act
The rules contained in the Trusts Act, 1882 are substantially the same
which were administered at that time by English Courts of Equity under the
name of justice, equity, and good conscience.
The Contract Act
There are certain equitable doctrines which have been imported in the
Contract Act, and some of the important doctrines relating generally to the
law of contract are the doctrines of penalties and forfeitures, stipulation as
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to time in a contract, equitable relief on ground of misrepresentation, fraud


and undue influence. Section 64 and 65 of the Contract Act are nothing but
the codified form of the maxim, He who seeks equity must to equity.
a) Person whose consent has been obtained by fraud, misrepresentation,
coercion or undue influence may cancel the contract. Such kind of
contract is voidable at the option of the party not in default.
b) Section 64 of says: When a person at whose option a contract is
voidable rescinds it, the other party thereto need not perform any
promise therein contained in which he is promisor. The party
rescinding a voidable contract shall, if he have received any benefit
thereunder from another party to such contract, restore such benefit,
so far as may be, to the person from whom it was received.
c) Section 65 says: When an agreement is discovered to be void, or
when a contact becomes void, any person who has received any
advantage under such agreement or contract is bound to restore it, or
to make compensation for it to the person from whom he received it.
The Transfer of Property Act
The Transfer of Property Act has also included many doctrines of Equity
originated in the Court of Chancery in England. Apart from such doctrines
Sections 48 and 51 of the TP Act are based on the principles of Equity. The
English Equitable doctrine of part performance has also been drawn in
section 53A of this Act.
a) 48: Where a person purports to create by transfer at different times
rights in or over the same immoveable 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.
b) 51: If bonafide holders of immovable property under defective titles
make some improvements on the property, he must be compensated
for the improvement before being evicted by the person of better title.
c) 53A: A contract for sale of immovable property which fails to meet the
requirement for written signed contracts will raise an equitable title if
it has been partly performed.

English Equity is not always followed


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English rules of Equity are substantially adopted in enacting many statutes,


but all the English rules of Equity are not applicable in Bangladesh. For
example:
1. While the English rule is that a Court of Equity will not compel
specific performance of a continuous duty extending over many years,
section 21(g) of the Specific Relief Act puts a definite time limit in this
regard, viz., that contract requiring performance of a continuous duty
extending over more than 3 years will not be specifically enforced.
2. The conception of a trust in English law involves that of a double
ownership, the trustee is said to be legal owner while the beneficiary
as the equitable owner. In Bangladesh there is no such thing as
equitable ownership and according to the law of Bangladesh there can
be only one owner of a property. When property is vested in a trustee
there can be only one owner of a property and the Bangladeshi
beneficiary cannot be said to have an equitable ownership.
3. The distinction between legal and equitable rights and interests does
not exist since the passing of the Transfer of Property Act. Thus, the
right of redemption of a mortgagor is not an equitable right in
Bangladesh, but a legal right conferred by a statute.
4. In Bangladesh there is no room for the application of the English
doctrine that a contract for sale of real property makes the purchaser
the owner in equity of the estate. Section 54 of the TP Act expressly
enacts that a contract for the sale of immovable property does not by
itself create any interest in or charge on the property.
Its worth noting that:
1. The principles of justice, equity and good conscience are not binding
upon the Courts of Bangladesh but are provided to cover the points
not covered by the statute or general law.
2. The English equity does not apply to the adjudication of Bangladesh:
a. where it is of local character and not suitable to the society and
circumstance of Bangladesh.
b. where it lacks certainty,
c. where it is not universally acceptable on account of poor merit.
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3. Though the Courts of Bangladesh have power to discover new


principles of equity they should not do so if English Equity on the
point is clear and satisfactory, nor can an express statutory law be
overridden by the principles of equity.