Maxims of Equity and

their Application

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Maxims of equity and their application

"Maxims are the proverbs of the law. They

have the same merits and defects as other
proverbs, being brief and pithy statements of
partial truths. They express general
principles without the necessary
qualifications and exceptions, and they are
therefore much too absolute to be taken as
trustworthy guides to the law. Yet they are
not without their uses. False and misleading
when literally read, these established
formulae provide useful means for the
expression of leading doctrines of the law in
a form which is at the same time brief and
intelligible." According to Justice Stephen:
"They are rather minims than maxims, for

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they give not a particularly great, but a
particularly small amount of information. As
often as not the exceptions and qualifications
are more important than the so-called rules,
which while they mostly serve as good
indexes to the law, are mostly bad abstracts
of it." There are twelve such maxims but the
overlapping is so much so that "it
would not be difficult to reduce them all
under the first and the last". The maxims
give a
clue to just and reasonable interpretation.
The twelve maxims are individually
discussed hereunder:
1. EQUITY WILL NOT SUFFER A
WRONG TO BE WITHOUT A REMEDY

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a. Meaning - Where there is a right, there is
a remedy. This idea is expressed in the Latin
maxim ubijus ibi remedium. It means that no
wrong should go unredressed if it is capable
of being remedied by courts. This maxim
indicates the width of the scope and the basis
on which the structure of equity rests.
b. Recognition in Indian subcontinent - The
Trusts Act, Section 151 of the Civil
Procedure Code and the Specific Relief Act
in Indian subcontinent has incorporated the
above principles. The Civil Procedure Code
entitles a civil court to entertain all kinds of
suits unless they are prohibited. The Specific
Relief Act provides for equitable remedies
like specific performance of contracts,
rectification of instruments, injunctions and

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declaratory suits. It can be said that the writ
provisions hi the Constitution, the
Administrative Law and the Public Interest
Litigation devices have now extended the
scope and effective working of this maxim.
2. EQUITY FOLLOWS THE LAW
a. Meaning - The maxim indicates the
discipline which the Chancery Courts
observed while administering justice
according to conscience. Equity had come
not to destroy the common law but to fulfill
it.
b. Recognition in Indian subcontinent -
Equity rules in Indian subcontinent, cannot
override the specific provisions of law. As
for example, every suit in India has to be
brought within the limitation period and no

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judge can create an exception to this or can
prolong the time-limit or stop the rule from
taking effect on principles of equity21.
Similarly no court can confer rights which
can be acquired only by registration of a
document, on a party, without getting the
document registered.

In Appa Narsappa Magdum case, it was

contended that the provisions of Land
Reform Acts being welfare, legislation
enacted for the benefits of tenants should be
construed in a liberal manner. This was
rejected by the Supreme Court of India
holding that, the provisions of law regarding
the period within which tenant must exercise
right to purchase land of widow landlady

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being clear, relief cannot be granted on the
basis of Equity. Where law is clear no
equitable relief is warranted.
3. HE WHO SEEKS EQUITY MUST DO
EQUITY
a. 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.
b. Recognition in Indian subcontinent -
There are some sections of The Contract
Act, The Transfer of Property Act, Specific
Relief Act and Trusts Act, Civil Procedure
Code are based on this maxim.
4. HE WHO COMES INTO EQUITY
MUST COME WITH CLEAN HANDS

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a. Meaning—Equity, as it was based on
good faith and conscience, demanded
fairness, uprightness and good faith not only
from the defendant but also from the
plaintiff.
b. Recognition in Indian subcontinent - This
maxim also has recognition in Indian
Subcontinent. In Section 23 of the Trust Act,
Section 22,24,25,26,28,56 of the Specific
Relief Act are based on this maxim.
5. DELAY DEFEATS EQUITIES
a. Meaning - Where an injured party has
been slow to demand a remedy for a wrong
which he has for a long time regarded with
apparent indifference, the court will decline
to give him that remedy on grounds of
public policy. In the famous words of Lord

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Camden, L.C., "a court of equity has always
refused its aid to stale demands, where a
party has slept upon his right and acquiesced
for a great length of time. Nothing can call
forth this court into activity, but conscience,
good faith and reasonable diligence; where
these are wanting, the court is passive, and
does nothing."
b. Recognition in Indian subcontinent - This
doctrine has no general application to India
but has only a limited scope.
6. EQUALITY IS EQUITY
a. Meaning - The maxim expresses the
object of both law and equity in order to
effectuate a distribution of property and
losses, proportionate to several claims and

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liabilities of the parties concerned. Equality
therefore means proportionate equality.
b. Recognition in Indian subcontinent - The
maxim have been recognized in India under
various enactments - Contract Act, Section
42, illustrates tenancy in common as regards
devolution of liabilities, Section 43
illustrates that one of a number of joint
promisors who has performed the promise is
entitled to compel the other promisors to
contribute equally with him, Sections 69 and
70 illustrate the doctrine of marshalling,
Sections 146 and 147 explain that co-
sureties are liable to contribute equally,
Under the Transfer of Property Act, Section
56 illustrates the doctrine of marshalling,
Section 82 speaks about contribution to

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mortgage debt by co-mortgagors, Section
330 of the Succession Act incorporates and
illustrates the principle of rate able
distribution of assets explaining that the
legacies abate rate ably, (viii) Under the
Indian Trusts Act, Section 27, there is
contribution also as between co-trustees,
Section 73 of the Civil Procedure Code,
Section 45 of the Transfer of Property Act
also illustrates the incorporation and
application of this principle.
7. EQUITY LOOKS TO THE INTENT
RATHER THAN THE FORM
a. Meaning - It means it looks to the
intention of parties and not to the words, and
it looks to the realities rather than to mere
appearances.

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b. Recognition in Indian subcontinent - This
maxim has been recognized in Sections 55
and 74 of Contract Act and Sections 114 and
114-A of Transfer of Property Act.

8. EQUITY LOOKS ON THAT AS DONE

WHICH OUGHT TO BE DONE
a. Meaning - As between two persons, where
one of them has incurred an obligation and
undertaken upon himself to do something for
the other, the equity courts look on it as done
and as producing the same results as if the
obligation or undertaking had been actually
performed.
b. Recognition in Indian subcontinent - The
principle contained in the maxim has been
recognized in the following enactments,

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Section 40 of the Transfer of Property Act,
Section 12 of the Specific Relief Act,
Section 53-A of the Transfer of Property
Act, Section 91 of the Trust Act.
9. EQUITY IMPUTES AN INTENTION
TO FULFIL AN OBLIGATION
a. Meaning - Equity courts came into
existence to do justice. They firmly believed
that a person must be prepared to do what is
right and fair. As the old saying goes, one
must be just before one professes to be
generous. It is on this accepted dictum that
equity considered estimated and construed
acts of parties.
b. Recognition in Indian subcontinent -
Sections 177, 178 and 179 of the Succession
Act make a deliberate departure from the

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English doctrine of satisfaction. Section 92
of the Trust Act puts into practice the
principle of this maxim.
10. WHERE THERE IS EQUAL EQUITY,
THE LAW SHALL PREVAIL
11. WHERE THE EQUITIES ARE
EQUAL, THE FIRST IN TIME SHALL
PREVAIL These two maxims relate to the
question of priority.
12. EQUITY ACTS IN PERSONAM
a. Meaning - Courts of equity, described as
courts of conscience, operate primarily in
personam binding the conscience of a person
and thus bringing an individual's conscience
under its sway. Its decrees were regarded not
merely as decisions concerning the rights
and properties in dispute but as decrees,

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decisions, and directions, positive or
negative, addressed to the individual party or
parties. Thus on one side an individual's
conscience was sought to be bound and on
the other, the Chancellor exercised his
jurisdiction guided according to his own
conscience. This maxim being descriptive of
the Equity Courts' procedure covers a large
portion of its procedural and remedial
action.
b. Recognition in Indian subcontinent -
According to opinions of many learned text
writers22no such jurisdiction is recognized
by Indian courts while according to some,
the courts in India have but limited powers
of making a decree in personam. The
opinions are thus divided. The Civil

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Procedure Code, Section 16 does not deal
with this problem; it explains the division of
jurisdiction of the municipal courts only. Till
now we have no such decisions bearing
directly on this issue. Though courts in India
have limited powers of making a decree in
personam. Equity may act in personam in
India too. The proviso to Section 16 of the
Civil Procedure Code is thus an application,
though in a highly modified form, of the
maxim "equity acts in personam".23
3.4 Application of English equity to the laws
of Indian Sub continent
a. Cases wherein it was successfully applied
- On the basis of the principles of Justice,
Equity and Good Conscience the Courts

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successfully applied the principles of
English law in the following cases.
In the first case a Muslim created a charge
on his property by deposit of title deeds in
favour of an Armenian. After some time the
Muslim transferred the property in favour of
a Hindu who in turn transferred it to a
British subject. The Armenian filed a suit
against all in the S.D.A. of Madras but the
court dismissed it holding that the doctrine
of constructive notice was not applicable in
India. However the Privy Council, in appeal,
held that direction to act according to
Justice, Equity and Good Conscience
required that the principles of English law so
that right created by deposit of title deeds
could be deprived only by a subsequent

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bonafide purchaser for value without notice
should be applied. The decision of the S.DA.
was therefore reversed.24The Bombay High
Court followed this decision and applied the
principle in Dada Honaji v. Babaji25. In
Waghela Rajsanji v. Shekh Masluddin26 a
question was raised whether a guardian was
competent to make covenants on behalf of
the ward so as to create a personal liability
on the ward. Applying the principles of
English law on grounds of Justice, Equity
and Good Conscience the Privy Council held
that it would be improper to uphold the
validity of such a covenant. In one case27
the land was washed away by Ganges and
later it was formed again. Applying the
principles it was held that the land regained

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belonged to the owner. In the famous case of
Ram Coomar v. Macqueen28 the Privy
Council applied the principle of estoppel by
holding out. The principle is-that where a
person who is the real owner of property
allows another to hold himself as the owner
and that when a third person purchases the
property believing that the apparent owner is
the real owner, the latter was debarred to
assert his undisclosed or secret title, in the
absence of the knowledge on the part of the
purchaser about the title of the real owner. In
yet another important decision the Privy
Council recognized the right of the Crown to
escheat the property of a deceased
Brahmin.29 According to Hindu law this
could not be done but that principle was

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excluded. Besides the principle of the clog
on-the equity of redemption66 and
restriction on alienation of property to
strangers, and that transfer should be only to
any one of the relatives were held valid and
applied.30
b. Statutes or Acts wherein it was
successfully applied - Statutory recognition
of the principles Of equity is found in the
The Specific Relief Act, 1877, The Transfer
of Property Act, 1882, The Law of Contract,
1872 , Guardian and Wards Act, 1890, The
Trust Act, 1882, The Code of Civil
Procedure, 1908, The Code of Criminal
Procedure, 1898. In these Acts which
principles of equity are applied is discussing
bellow -

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The Specific Relief Act, 1877 - The
provisions of the Act regarding Sections 12-
44, 52 -57, recognize, the principles of
equity to a large extent, such as, which
contract can be specifically enforced
(section 12 - 20), which contract cannot be
specifically enforced (section 21 - 30),
Rectification of Instrument (section 31 - 34),
Rescission of contract (section 35 -38),
Cancellation of instrument (section 39-41),
Declaratory suit (section 42), Result of
Declaratory suit (section 43), Appointment
of receiver (section 44), Preventive relief
(section 52 - 57).
The Transfer of Property Act, 1882 - This
Act has also included many doctrines of
equity. Apart from such doctrines Sections

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48 - 51 of the present Act is based on the
principles of equity. The English equitable
doctrine of part performance has also been
drawn in section 53A of the Act. Doctrine of
Election (section 35), Feeding the grant by
estoppel (section 43), Fraudulent transfer
(section 53) also accepted from equity.
The Law of Contract, 1872 - There are
certain equitable doctrines which have been
imported in the Act and some of the
important doctrines relating generally to the
law of contract are the doctrine of penalties
and forfeitures, stipulation as to time in a
contract, equitable relief on ground of
misrepresentation, fraud and undue
influence. Section 64 and 65 of this Act is

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nothing but the codified form of the maxim,
He who seeks equity must do equity.
Guardian and Wards Act, 1890 - hi some
sections of this Act import principles of
equity.
The Trust Act, 1882 - This Act mainly the
creation of equity. The rules contained in
this Act are substantially the same which
were administered at the time by English
courts of equity under the name of justice,
equity and good conscience.

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