EQUITY

Equity in short means natural justice. Equity is derived from a Latin word which
means Justice and equality among people. Under English law, it refers to a set
of rules for the administration of justice. It is a system of law which provides for
procedural rules and doctrine – which are not provided in statutory law. Under
Roman legal system, Special courts called „equity courts‟ were set up. They had
a separate existence from that of the Common law courts.

REASON FOR GROWTH

1. The legal system of equity was born out of a desire to correct the defects of
the common law. The common law courts failed to bring in social change.
People might have otherwise lost confidence in the legal system.
2. The common law system was found to be too rigid, too technical and too
slow.
3. The common law system was also found to be not suitable for settlement of
all disputes. At times there was no remedy available.
4. Cases were thrown out due to minor drafting errors.
5. Many cases were lost on technicalities.
6. The common law did not allow oral evidence.

The aim of Equity is to provide sound logical reasons which are not provided
anywhere else. The deficiencies and lacunas in any law are cured by using these
principles. The principle of equity is an unwritten and undocumented form of
doctrine. These new rules of law made it possible to provide more flexible
answers. At times more adapted to particular situations.

Where there was conflict between common law and equity - equity,
should prevail.
Concept of equity is based on DOCTRINES of:

1. Ubi Jus Ibi Remedium (Latin maxim) - which means “where there is a right
there is a remedy”. If a person has been granted a right, he is also granted
with a remedy.
For example - In a leading case, a qualified voter was not allowed to vote
and thus he sued the concerned officer.
2. He who seeks justice must do equity.
For example - plaintiff must restore all the benefits arising from the contract
if wants to rescind/revoke a contract.
3. He who comes to equity must come with clean hands. This maxim is
concerned with the past behaviour of the plaintiff.
For example - plaintiff‟s unfair conduct will disentitle him to the equitable
relief of specific performance of a contract.
4. 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.
Minors cannot be granted specific performance against adults, since minors‟
contracts are in themselves unenforceable.
5. Where the equities are equal, the first in time prevails - Where two
persons have conflicting interests in the same property, the rule of equity
says that the first person whose name is attached to the property first will be
entitled to priority over others.
For example - if A grants an equitable mortgage to X and then subsequently
grants the same mortgage to Y, X‟s mortgage shall take priority.
6. Doctrine of laches - Where the petitioner has made delay in filing a case and
the defendant gets an impression that petitioner has waived his rights, the
court of equity may refuse to accept the case
7. 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.

EQUITY IN INDIAN LEGAL SYSTEM

In India, Equity has its origin from the relevant ancient Hindu period. It was
stated in Smritis that judicial decisions should not be exclusively based on
scriptures, there should be principles based on reasons. These reason-based
principles are qualified with the term equity.

The working by equities principles has been made applicable in India

through these provisions embodied in the statute law.

1. The Specific Relief Act 1963 was successfully passed by the Parliament
rescinding the earlier Act. New act has provided authorization to few
equitable reliefs Act such as injunction, Recovery of possession of
immovable property, Declaratory Decrees etc.
2. The Indian Contract Act, 1872 – provides for the doctrine of penalties,
stipulations as to time in a contract, equitable relief on the ground of
misrepresentation, fraud and undue influence.
3. The Transfer of Property Act, 1882 - doctrine of part performance has
been drawn in section 53A. Section 48 and section 51 are also based on the
equity principles.
4. The Indian Succession Act, 1925 - Section 180 – 190 of the Indian
Succession Act deals with doctrine of election in cases of will.
5. The Indian Trusts Act 1882 - defines 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.
6. Under Section 150 of Code of Civil Procedure, the court continues to
exercise their inherent powers.
7. There is no such inherent power with the criminal courts in India except with
the High Courts in terms of Section 482 of the Code of Criminal
Procedure, 1973.
8. Further, such inherent powers are vested in the Supreme Court of India in
terms of Article 142 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.”

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