Mirza Mohammad Rifat.: What are the sources of Hindu Law.

Mirza Mohammad Rifat.: What are the sources of Hindu Law.

Mirza Mohammad Rifat.:Maxims of Equity.

ONE-EQUITY WILL NOT SUFFER A WRONG TO BE WITHOUT A REMEDY.

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 un redressed 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 of this Maxim.

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.

Limitation of this Maxim.

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 in Bangladesh.

1. The Trust Act
2. Section 9 of Code of Criminal Procedure entitles a civil court to entertain all kinds of suits unless they are prohibited.
3. The Specific Relief Act- provides for equitable remedies like specific performance of contracts, injunction, and declaratory suits.

TWO-EQUITY FOLLOWS THE LAW.

 Meaning

The maxim indicates the discipline which the Chancery Courts observed while administering justice according to conscience. Jekyll observed that, the discretion of the court is governed by the rules of law and equity.

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.

Application and cases.

A person leaves sons and daughters after died. The eldest son was entitled to the whole of the land by exclusion of his younger brothers and sisters under the rules of primogeniture. This was unfair, yet no relief was granted by Equity Courts.

The eldest son had induced his father not to make a will and giving a promise to divide the land with his brothers and sisters. Then the equity court interfered and compelled the eldest son to carry out his promise, because he takes it as a trustee for himself and his brothers and sisters. This decision was held in Stickland v. Aldridge.

 Limitation of this Maxim.

1. Where a rule of law did not specifically and clearly apply.
2. Where even by analogy the rule of law did not apply.

Recognition in Bangladesh.

Bangladesh has not recognized the well-known distinction between legal and equitable interests. Equity rules in Bangladesh, therefore, cannot override the specific provisions of law. As for example, every suit in Bangladesh 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.

THREE- HE WHO SEEKS EQUITY MUST DO EQUITY

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.

Application and cases

This maxim has application in the following doctrines-

1. Illegal loans
2. Doctrine of Election
3. Wife’s equity to settlement
4. Equitable estoppel
5. Set-off

1. 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.

2. Doctrine of election: Where a donor A gives his own property to B and in the same instrument purports to give B’s 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.

3. Wife’s equity to a settlement: There was a time when woman’s 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 husband’s property.

4. 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.

5. 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

1. The demand for an equitable relief must arise from a suit that is pending.
2. This maxim is applicable to a party who seeks an equitable relief.

Recognition

1. Under sec 19-A of the Contract Act, 1872 if a contract becomes void able and the party who entered into the contract voids the contract, he has return the benefit of the contract.
2. Sec 35 of the Transfer of Property Act embodies the principle of election.
3. Sec 51 and 54 of the Transfer of Property Act.
4. In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized.

FOUR- HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS

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.

Application and cases

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

1. If the transaction is a against public policy
2. If the party repents for his conduct before his unjust plans are carried out.

Recognition

1. Section 23 of the Indian Trust Act- An infant can not setup a defence of the invalidity of the receipt given by him.
2. Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will disentitle him to an equitable relief of specific performance of the contract.

Distinction between maxim- He who seeks equity must do equity Vs. He who comes into equity must come with clean hands.

He who seeks equity must do equity	He who comes into equity must come with clean hands
i) It is applicable when both the plaintiff and the defendant have claims of equitable relief against each other.	i) It is applicable when the defendant has no separate claim to relief and the plaintiff’s conduct is unfair.
ii) It exposes the condition subsequent to the relief sought.	ii) It is a condition precedent to seeking equitable relief.
iii) It refers to the plaintiff’s conduct as the court thinks it ought to be, after he comes to the court.	iii) It refers to the plaitiff’s conduct before he   approaches the court.
iv) The plaintiff has to mould his behavior according to the impositions by the court.	iv) If the plaintiff’s conduct is unfair, it would not entitle him to the relief sought.
v) The plaintiff has an option or a choice before him either to submit to the conditions put by the court, or to get out of the court.	v) The conduct of the plaintiff snatched his choice from him. His equitable right therefore neither be recognized nor enforced.
vi) This maxim looks to the future.	vi) This maxim looks at the past.

FIVE- DELAY DEFEATS EQUITIES

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.

Application and cases

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-

1. Those equitable claims to which the statute applies expressly.
2. To which the statute applies by analogy.
3. Equitable claims which are covered by ordinary rules of laches.

Doctrine of Laches- Plaintiff’s 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-

1. Where the law of limitation expressly applies.
2. Where it applies by analogy, and
3. Where the law of limitation does not apply but the cases are governed by ordinary rules of laches.

Recognition

The English doctrine of delay and laches showing negligence in seeking relief in a court of equity can not be imported into the Bangladeshi law in view of Article 113 of the Limitation Act, 1908, which fixes a period of one year (previously three years) within which a suit for specific performance should be brought. Section 51 of the Transfer of Property Act embodies this doctrine but with a difference.

Thank you.

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