Meaning and Essentials of Equity

“Meaning and Essentials of Equity ”

Trust, Equity and Fiduciary Relationships (LL3411)

Submitted By
NAME- RAJAT SRIVASTAVA
19FLICDDN02143
BA.LL.B. (Hons.) 3rd Year

Submitted To
Ast. Prof. Priya Chanana ma'am
(Faculty Associate)

SCHOOL OF LAW
FACULTY OF LAW
THE ICFAI UNIVERSITY, DEHRADUN
2021

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 Meaning and Essentials of Equity

DECLARATION

I, Rajat Srivastava student of BA.LL.B(H) hereby declare that the assignment work entitled
‘Meaning and Essentials of Equity’ submitted to the ICFAI Law School, THE ICFAI
University, Dehradun is a record of an original work done by me under the guidance of
Ast. Prof. Priya Chanana ma'am, teacher in subject, ICFAI Law School, The ICFAI
University, Dehradun.

Date: 07-11-2021 Name: Rajat Srivastava

Roll No: 19FLICDDN02143

Batch: 2019-24

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 Meaning and Essentials of Equity

ACKNOWLEDGEMENT

I would specially like to thank my guide, mentor, Prof. Ast. Prof. Priya Chanana ma'am
without whose constant support and guidance this assignment would have been a distant
reality.

This work is an outcome of an unparalleled infrastructural support that I have received from
ICFAI Law School, The ICFAI University, Dehradun. I owe my deepest gratitude to the
library staff of the college.

It would never have been possible to complete this study without an untiring support from my
family, specially my parents.

This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name: Rajat Srivastava

Roll no: 19LFICDDN02143
Batch:2019-24

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 Meaning and Essentials of Equity

CONTENTS

TOPIC PAGE NO.

⮚ DECLARATION 2

⮚ ACKNOWLEDGMENT 3

HISTORICAL BACKGROUND 5

MEANING OF EQUITY 5-6

DESCRIPTIONS OF EQUITY 6

DEFINITIONS OF EQUITY 6-7

ORIGIN OF COMMON LAW 7-8

DEFICIENCIES OF COMMON LAW 8

THE CHANCELLOR 8-9

PRACTICE, PROCEDURE AND PROCESS

OF EQUITY COURTS OF EQUITY 9

CLASSIFICATION OF EQUITY 9-11

JURISDICTION

CONCLUSION 12

BIBLIOGRAPHY 13

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 Meaning and Essentials of Equity

INTRODUCTION

HISTORICAL BACKGROUND

England was conquered by the Normans in the year 1066. The period preceding this
date is called that of Anglo-Saxon law of which little is known. There was no common
law for the whole of England at any time before the Norman conquest. With the
Norman conquest, the period of tribal rule came to an end and feudalism was installed.
It prepared and paved the way for the development of the Common Law.

The creation of Common Law (Comune Ley) was to be the exclusive work of the
Royal Courts of Justice, usually called the courts of the Westminster, after the name of
the place where they sat from the thirteenth century1. Common Law is that part of the
law of England which before the Judicature Acts, 1873-75 was adjudicated by the
Common Law courts as opposed to equity, or that part of the law which was
administered by the Court of Chancery at Lincoln's Inn.

In the earlier times the Common Law courts provided no remedy in many cases where one
was required. Hence the custom grew of applying for redress to the King in Parliament or to
the King in Council, who referred the matter to the Chancellor. In later times petitions were
presented to the Chancellor directly. The Chancellor being an ecclesiastic, and keeper of the
King's conscience, did not feel bound to follow the rules of Common Law, but gave such
relief as he thought the petitioner or plaintiff entitled to "in equity and good conscience",

Equity thus represents the conscience of law, and a moral correction of law in order to accord
more with justice.

MEANING OF EQUITY

In its primary sense equity is fairness, or that rule of conduct which in the opinion of a person
or class ought to be followed by all other persons. "Derived from the Roman term "acquitas"
(aequus-equal) equity means equalization or levelling down any arbitrary preferences or
denial of justice. It is a means to reach as near as possible to natural or ideal justice, but one

1
R. David and Brierley: Major Legal Systems in the World Today, p. 258

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 Meaning and Essentials of Equity

cannot. forget that equity is not natural justice. In D.D.A. v. Skipper Construction Co. (P)
Ltd., 2the Supreme Court observed that the jurisdiction and power of Supreme Court to make
orders to do complete justice is exercised to meet the situations which cannot be effectively
dealt with under the existing law. This was a case of fraud committed by public servants.
Referring to the case of A.G. of India v. Amritlal Pranjivandass 3, the Court observed:

DESCRIPTIONS OF EQUITY

Per Sir Nathan Wright, L.K., equity is no part of law, but a moral virtue, which qualifies,
moderates and reforms the rigour, hardness and edge of the law. and is a universal truth, it
does also assist the law where it is defective and weak in the constitution (which is the life of
law) and defends the law from crafty evasions, delusions and new subtleties, invented and
contrived to evade and delude the common law, whereby such as have undoubted right are
made remediless; and this is the office of equity, to support and protect the common law from
shifts and crafty contrivances against the justice of the law. Equity therefore does not destroy
the law, nor create it, but assists it.

Underhill: "Equity was originally the result of common sense against the pedantry of law and
trammels of the feudal system; it became a highly artificial and refined body of legal
principles and it is at the present day an amendment and modification of the Common Law."

DEFINITIONS OF EQUITY

Plato expressed that "equity is a necessary element supplementary to the imperfect

generalization of legal rules".

Aristotle described equity as eternal and immutable and reiterated that "the equitable is just
and better than one kind of justice-not better than absolute justice, but better than the error
that arises from the absoluteness of the statement:...it is a correction of legal justice".

Blackstone defines equity as the soul and spirit of all law. Positive law is onstrued and natural
law is made by it. In this, equity is synonymous with justice, in that it is the true and sound
interpretation of the rule.

2
(1966) 4 SCC 622 AIR 1966 SC 2005
3
(1966) 5 SCC 4

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 Meaning and Essentials of Equity

West, J., describing equity as "an intellectual energy", expressed that "it moulds its
deductions from one set of data as the common law to another into continued adaptation to
the growing need of society". 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 which was supplied by the Court of
Chancery"

Maitland says that we ought not to think of Common Law and Equity as of two rival
systems" but, "we ought to think of Equity as supplementary law, a sort of appendix added to
our code, or a sort of gloss written round our code... which used to be administered by the
High Court of Justice as part of the code".

ORIGIN OF COMMON LAW

Prior to the Norman conquest in the eleventh century certain customs and usages had become
common to almost the whole of England and now and then some of them were also
recognised in their 'dooms' issued by kings, with the advent of the Normans they swelled in
number in an unwritten form. The kings' judges in the course of hearing a case tried to find
out these common customs and based their decisions thereon. The view of one judge was
then adopted by another, because that course saved the judges the trouble of ascertaining such
customs and usages again and again and in this way grew the precedents and the rine of stare
decisis. In course of time these customs were applied by judges as having the force of law,
and thus developed a body of rules which, as Professor Munro says. "had really never been
ordained by any monarch or enacted by any legislative body, but which merely represented
the crystallization of usages and customs, and these gradually came to be known as the
Common Law4.

If a person wanted to start an action at Common Law, he had to obtain a writ on payment of
prescibed frees from the Chancery section. The Chancellor issued such writs. It should be
noted that in the 13th century the available writs covered a very narrow ground. An injured
party could only sue at Common Law if his complaint came within the scope of an existing
writ or form of action. Many genuine cases remained unredressed and the plaintiff was
without a remedy because his cause of action did not fit into any of the existing forms of

4
Munro : Government of Europe

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 Meaning and Essentials of Equity

action. This position has been expressed as the dancing of the Common Law round the
recognised forms of action". As noted by Snell.. a plaintiff was often unable to obtain a
remedy in the Common Law courts, even when they should have had one for him. The
dictum therefore was that "where there is no writ, there is no remedy". Even when the claim
came within the scope of an existing writ, it may have been that due to the power and
influence of the defendant, he could intimidate the jury and defy even the court, and the
plaintiff could not get justice before a Common Law court. In those rough days of the 13th
century, it was the King and the King alone in his council who had wide discretionary powers
to do justice among his subjects. The plaintiff therefore had to petition to the King in council
praying for a remedy

DEFICIENCIES OF COMMON LAW

The special deficiencies or imperfections of medieval Common Law were as to the law itself,
that its rules were too strict and that it did not cover the whole field of obligations; as to its
administration, that it had no effectual means of extracting the truth from the parties, that its
judgments were not capable of being adopted to meet special circumstances; and that they
were often. unenforceable through the opposition of the defendant, or were turned into a
means of oppression5.

There were thus three types of major deficiencies:

(i) incomplete or no remedies in many cases;

(ii) inadequate relief; and

(iii) incomplete and defective procedures.

As noted by Pomeroy, (i) rigidity of judicial precedents, (ii) adherence to feudalistic

institutions and technicalities of forms, (iii) antipathy towards Roman Law, and (iv) the
defective and rigid procedure, were the outstanding defects of the Common Law. Besides
this, influence of the defendant enabled him to be get rid of the law.

5
Butterworth's Dictionary Vol 2 1969 p 173

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 Meaning and Essentials of Equity

THE CHANCELLOR

In medieval times, the Chancellor was the most important and the most powerful personage
in the country next to the King himself. He has been described as 'the King's prime minister',
'the King's secretary of State for all departments' and 'the keeper of the King's conscience'.
The Chancery issued royal writs which began an action at law. The Chancellor kept the
King's seal and all the writings which were to be in the King's name were done under his
supervision. As noted by Snell38 his jurisdiction was undefined, his powers were wide and
vague and co-extensive with the authority that evoked them. He exercised those powers on
the ground of conscience which in theory was based on universal and natural justice. As the
personal representative of the King he acted entirely to the dictates of his conscience and
proceeded by the rules of equity unhampered by any judicial precedent, which gave rise in
due course to the well-known legal term, "rules of equity, justice and good conscience",
which moderated the, rigour of the Common Law, considering the intention rather than the
words of law.

Practice, Procedure and Process of Equity Courts of equity.

By filing a bill of complaint in the Court of Chancery the proceedings started. The bill was in
the plaintiff's own simple language. It was addressed to the Chancellor. Bona fides of the
complaint were to be guaranteed by some persons who were to satisfy the defendant's
damages if the petitioner did not succeed. After receiving the complaint, the chancery issued
a writ of subpoena (summons) calling the defendant to appear personally and to present his
reply. If he disregarded the summons and/or remained absent he was imprisoned. If he was
unable to appear the court granted a commission to take his answer. At first he was examined
viva voce and upon oath. So were the plaintiff and other witnesses. By the middle of the 15th
century this used to be in writing. The answer from the defendant, as has been noted by Lord
Macclesfield, served two purposes; it supplied the plaintiff with the evidence and the plaintiff
could request for discovery of facts and materials for his advantage. A judgment was then
given.

CLASSIFICATION OF EQUITY JURISDICTION

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 Meaning and Essentials of Equity

1. Exclusive Jurisdiction: New Rights.-Cases wherein according to conscience there should

be a right, but the Common Law courts failed to recognise one or grant relief, were fitting
subjects for exclusive equity jurisdiction. Rights of persons claiming under uses and trusts,
rights of a married woman in relation to property for her separate use, mortgages, right of
redemption of a mortgage, penalties and forfeitures and administration of assets of a testator
and intestate were the subjects wherein equity courts recognized the equitable right or interest
and granted relief. Over these matters equity had an exclusive jurisdiction and hence the
nomenclature "exclusive jurisdiction"." These were the matters which the Common Law
courts could have dealt with, but did not.

2. Concurrent Jurisdiction: New Remedies.-Cases wherein the plaintiff at his option could
proceed either at the Common Law courts or at the chancery courts and wherein the relief
granted to the plaintiff was almost the same but the method and manner in which it was
granted by the Common Law courts wasn't so effective and sweeping as that of the chancery
courts were, where equity developed a wide range of remedies for enforcement of Common
Law rights which were available in addition to the remedies provided by it. These remedies
were not wholly unknown to the Common Law, but it failed to develop them. In cases of
actual or express fraud, accident, mistake, partnership, recovery of specific chattels, specific
performance of contracts, set-off, partition and dower, it was the novelty and effectiveness of
the procedure employed by the chancery court that attracted the petitioners The remedies
successfully tried and effectively employed may be stated as delivery of chattels, specific
performance of contracts for sale and purchase of land, injunctions and rectification of
instruments.

3. Auxiliary Jurisdiction: New Procedure.-Cases wherein the plaintiff sought the help of
equity courts to render a relief granted by the Common Law courts more effective became the
subject of its auxiliary jurisdiction. Such relief from the Equity Courts could be obtained, as
Ashburner points out, either before adjudication in the Common Law courts (thereby
maintaining status quo), or even after the decision in the suit was reached. Its main purpose
was to prevent transgression of rights of the parties to a suit. The remedies granted under this
kind of jurisdiction rested mainly on legal principles; equity intervening merely to supply the
defects of the legal process.

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 Meaning and Essentials of Equity

Thus, where a contract was broken and the person guilty of its breach held the document
production of which was necessary to assess the damage, discovery of the same was ordered
by the Chancery Courts.

The principles of equity have found statutory recognition in India in:

(a) The Specific Relief Act, 1877

(b) The Indian Trusts Act, 1882

(c) The Indian Succession Act, 1925.

(d) The Guardians and Wards Act, 1890

(e) The Indian Contract Act, 1872

(f)The Transfer of Property Act, 1882

(g) The Indian Divorce Act, 1869

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 Meaning and Essentials of Equity

CONCLUSION

Equity plays a crucial role in the justice delivery system. In the world of digitalization, almost
every organism is now familiar with the technological part, wherein the computers are the
best replacement for humans nowadays mainly from the position of judge, ‘feed the fact and
laws into it and getting a judgement with all accuracy’. The importance of equity was greater
emphasis than the common law system. During the centuries it gained importance and
became an integral part of an Indian legal system too. In India it developed through various
statues which have gained momentum with the various acts which have been passed
throughout. The legality of equity has gained its own significance in the recent years. There
are certain acts which work through the principle of equity nowadays in India.

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 Meaning and Essentials of Equity

Bibliography

Websites:
https://www.legalserviceindia.com/legal/article-1729-concepts-of-fiduciary-relationship-in-in
dian-laws.html#:~:text=A%20fiduciary%20relationship%20is%20where,interest%20of%20th
e%20other%20party.

Book: B M Gandhi

References: legalserviceindia

Jstor.org

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