Equity WILL NOT Suffer A Wrong TO BE Without A Remedy PDF

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1. 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 i m p o r ts th a t w h e r e t h e c o mm o n l aw co n f e r s a r i g h t , i t g iv e s a ls o a r e m e d y o r r i g h t o f a ct io n f o r interference with or infringement of that right. Application In Ashby v. White , w h e r e i n a q u a l i fi e d v o t e r wa s n o t a l l o w e d t o v o t e a n d w h o t h e r e f o r e s u e d t h e 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

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. 2. 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 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

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

3. WHERE EQUITIES ARE EQUAL,LAW SHALL PREVAIL INTRODUCTION: This maxim means that “when the conflicting interests of two or more parties are supported by equitable pleas of equal value, equity being unable to prefer one to the other would allow the conflicting equities to cancel out and leave law to take its course”. EXPLANATION: Where one thing follows two claimants on the base of equal equity, equity shall follow the law and legal right shall be preceded. Law provides relief to those who claims on the base of legal right. According to this maxim if legal right is equal to equitable rights, legal right shall remain there. It means the person bearing legal right shall precede however equity is under law. ILLUSTRATION: For instance, if A sells to C land, over which B has a right of way, C takes the land subject to B’s right, although he was ignorant of the right at the time of purchase. But the rule is different as regards equitable rights. It is well established rule that a purchase for valuable consideration without notice of prior equitable right, obtaining the legal estate at the time of his purchase, is entitled to priority in equity as well as at law. In such a case equity follows the law, the purchaser’s conscience not being in any was affected by the equity. APPLICATION: This maxim has certain applications such as: 1. Dispute in transfer of property: When both the contestants are equally entitled to obtain help from courts of equity (because their equities are equal), the party who has law in his favor will succeed. For example, A agrees with B to sell his property for Rs. 5,000/-. Therefore in breach of the above agreement, A sells the property to C for B Rs. 6,000/- and making a document hands over the possession of the property to C. As a result of the agreement B did not get any legal interest in the property. B has only an equitable interest in his favor binding A conscience. C, on the contrary, as a result of his agreement with A, gets the legal interest and has executed a document and obtained possession of the property. B’s interest is an equitable with law in his favor. Naturally, therefore, in a conflict between B and C, C has superior interest as compared to that of B. Thus equitable interest is not as strong as a legal interest and so, according to the maxim the law shall prevail.

2. It may be noted that the doctrine of Election, Marshaling, and Set Off are based on the maxim under discussion 3. In contradiction of legal and equitable right: This maxim is used where equitable and legal rights conflict and precedence go to legal right. Equities must be equal by there should be conflict of legal and equitable rights. It does not apply where priority of time in case of equity is determinant factor in relief. 4. Transfer of property cases: S. 78 of Transfer of Property Act is based on this maxim. It enacts that “where though the fraud, misrepresentation, or gross neglect of a prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee. SEC 53 of Transfer of Property Act is also based upon this maxim. It enacts that “every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be void-able at the option of any creditor so defeated or delayed. EXCEPTION: This maxim has two exceptions as follows: 1. Prior equitable and subsequent legal right: Where interest in legal property comes subsequently, cannot attain precedence. Person, who acquires equitable right in the presence of legal right, he procures breach of duty. In case of negligence or fraud legal property extinct priority right if equitable property comes subsequently. 2. Equal equities without legal right: Where there are equal equities but legal right lacks, this maxim shall not apply.

4. WHERE EQUITIES ARE EQUAL FIRST IN TIME SHALL PREVAIL INTRODUCTION: The related maxim is concerned with priorities of competing interests, that is to say which of various interests prevails in the events of a conflict, may be dealt with together. To understand this maxim, a distinction and understanding of the concept of “legal interest or estate” and “equitable interest” is necessary. LEGAL INTEREST: A legal interest or estate is an interest in the property required by a purchaser for valuable consideration either by cash or marriage consideration. It also includes mortgagee and lessee. EQUITABLE INTEREST: An equitable interest is any interest which recognized from the Chancery court. An example

would be in the case of trust; although the trustee’s name would be registered as the holder of the property, the beneficiaries acquire an equitable interest over the trustee’s property. They have a right to sue the trustee for breach of trust. GENERAL RULE: Under general rule, the interest takes effect in order of their creation. FOR INSTANCE, whose rights are created first will receive priority in the court of equity. However, an equitable interest might be defeated by a legal interest, even though it has been created prior to the legal interest. For example, if the purchaser of a legal interest is bona fide and without notice of any equitable interest, then the equities are equal and legal interest prevails. EXPLANATION: Where equities are equal , the first in time shall prevail – In the absence of a legal estate in the matter and the contest is among the equitable estate only, the rule is that the person whose equity attached to the property first will be entitled to priority over other or others e.g., if A enters into a contract for the sale of his house with B and then with C, the interest of B and C both being equitable, B will have priority over C because his attached to the property first. APPLICATION: 1:This maxim operates where there are two or more competing interests,provided both the interests are equitable. 2: When two parties each have a right to possess something, then the one who acquired an interest first should prevail in equity. ILLUSTRATION: For example, a man advertises a small boat for sale in the classified section of the newspaper. The first person to see the ad offers him $20 less than the asking price, but the man accepts it. That person says he or she will pick up the boat and pay for it on Saturday. Meanwhile another person comes by, offers the man more money, and the man takes it. Who owns the boat? Contract law and equity agree that the first buyer gets the boat, and the second buyer gets his or her money back. CONCLUSION: This maxim is meant for the two comparative equitable estates with time.Time will have preference. If one person gets his equitable interest before the notice of the other,he will definitely have priority because his equity in former point of time that becomes his privilege,

5. 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 recogni0e and submit to the right of his adversary.

Application This maxim has application in the following doctrines: 1. Illegal loans 2 . Doctrine of election 3. Wif e ’ s e q uity to s e ttle me n t 4. Equitable estoppel 5 . S e t - o f f

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 : W h er e a d o n o r A g iv e s h is o w n p r o p e r ty t o B a n d in th e s a me in s tr u m en t 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 cannot 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 have 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.

6. HE WHO COMES INTO EQUITY MUST COME WITH CLEAN HANDS INTRODUCTION: The person seeking relief must not himself guilty of illegal or immoral conduct with regard to the

same transaction which would dis entitle him to any assistance of the court. the court of equity will take into consideration, the personal conduct of the plaintiff in the transaction in dispute and if he had not sought the help of the court with clean hands, court will refuse to grant him relief. 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: This maxim has application on the following cases. I. Specific performance: If the plaintiff has been guilty of undue advantage the court of equity will refuse the specific performance of a contract. II. Illegality: Where the parties to n illegal agreement appear before the court of equity for division of their respective shares towards the property obtained. it is revealed before the court that they had looted it at the road so equity refused to give any relief to any party. III. Fraud: In case of fraud, equity will not grant relief to a party who has committed fraud. IV. Benami Transaction: Real owner is not allowed to recover the property. V. Infant's misrepresentation: Where a minor fraudulently concealing his age and obtained a sum from his trustee which he was entitled to only at the age of majority. he was refused to get the assistance from the court of equity. 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: i) If the transaction is a against public policy ii) if the party repents for his conduct before his unjust plans are carried out. RECOGNITION: i) Section 23 of the Indian Trust Act- An infant can not setup a defence of the invalidity of the receipt given by him. ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will dis entitle him to an equitable relief of specific performance of the contract. CONCLUSION: To conclude I can say that, he who committed inequity shall not have equity. a court of equity declines to interfere in a case where the conduct of this plaintiff in regard to the subject matter of

the litigation has been improper. a person who wants the equity his hands should not be spotted with injustice.

7. DELAY DEFEATS EQUITY EQUITY AIDS THE VIGILANT, NOT THE INDOLENT

INTRODUCTION: If there is an unreasonable delay in bringing proceedings the case may be disallowed in equity. Acquiescence is where one party breaches another's rights and that party doesn't take an action against them they may not be allowed to pursue this claim at a later stage. These may be used as defenses in relation to equity cases. For a defence of laches courts must decide whether the plaintiff has delayed unreasonably in bringing forth their claim and the defence of acquiescence can be used if the actions of the defendant suggest that they are not going ahead with the claim so it is reasonable for the other party to assume that there is no claim. 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: To cases which are governed by statutes of limitation either expressly or by analogy the maxim will not apply. Such cases fall into three categoriesi) Those equitable claims to which the statute applies expressly. ii) to which the statute applies by analogy. iii) Equitable claims which are covered by ordinary rules of laches. DOCTRINE OF LACHES: Delay which is sufficient to prevent a party from exercising its rights and obtaining relief from court of law is called laches. Laches is more than mere delay, and instead implies neglect to do what ought to have been done. Thus, the maxim means that a party who delays in enforcing rights will not be able to seek equitable relief. EXAMPLE: 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. DELAY WHEN FATAL: In the following cases delay is fatal for a party desirous of enforcing his rights;

1-LOSS OF EVIDENCE: As a result of delay when the available evidence is lost or destroyed. 2-WAIVER OF RIGHT: When the other party is induced to assume or draw an inference from one’s conduct that one has waived his rights. 3-RELEASE OF RIGHT: Delay provides a ground to the other party and leads him to believe that one has agreed to abandon and release his right 4-LOSS OF WITNESS: Loss of witnesses could be occurred in case of death. EXCEPTIONS TO THE MAXIM : Following are the exceptions to the maxim : 1-Where the law of limitation expressly applies. 2-Where it apply by analogy, and 3-Where the law of limitation does not apply but the cases are governed by ordinary rules of latches. LIMITATION: This maxim does not apply wheni) where the law of limitation expressly applies ii) where it applies by analogy, and iii) 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 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.

8. EQUALITY IS EQUITY EQUITY DELIGHTETH IN EQUALITY INTRODUCTION: Equity always tries to put the litigating parties on a an equal level so for as their rights and liabilities are concerned. equity acts in such manner that no party gets an under advantage over the other party. benefits and burden of common interests and obligation cannot be imposed upon and pressed against any one. PLATO defined that' If you cannot find any other, equality is the proper basis.”

MEANING: "Equality is equity" is also expressed "Equity delighteth in equality which means that as for as possible equity would put the litigating parties at equal pedestal. it expresses the object of both law and equity in order to effectuate distribution of property and losses proportionate to several claims and liabilities of the parties concerned so equality therefore means proportionate equality. Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been sometimes called proportionate equity.” APPLICATION: This maxim has application on the following matters. I. Joint tenancy: Equity dislikes joint tenancy. Meaning of joint tenancy Joint tenancy means joint ownership regarding the rights of survivor ship. II. Equal distribution: Whenever property is to be distributed between the right claimant court will equally distribute, if there is not basis for division. III. Contribution: When a creditor has a single claim against several person he has the option of realizing the best form any one of them and by common law, the debtor who had been compelled to pay debt in full had no remedy against his co-debtor, but in equity has could claim contribution from the latter so that the burden. IV. Abatement of legacies: If legacies are general, they are liable to a proportionate reduction in assets proving insufficient to pay to the legacies in full. V. Power of appointment: Where donee of a powers, in the nature of ...