LAW OF EQUITY II

 Law of Equity II

Equity of early days was an unsmooth thing. For Law there was a measure and one knew what to trust to. Equity was according to the conscience of him that was Chancellor; as that was larger or narrower, so was equity. It was all one as if they could make the standard for the measure of the chancellor's foot. “What an uncertain measure that would be. One Chancellor had a long foot, another  a short foot. It was the same with the Chancellor's conscience.” (Seldon).

Equity at its inception was no more than the idea of justice entertained by the Chancellor for the time being in the same way, as justice administered by arbitrators. The exercise of jurisdiction by the earlier Chancellors was not governed by any rules whatsoever. He did justice according to reason, good faith and good conscience. Since the Chancellor was invariably a priest down till Henry 8th’s time, his notions of right and wrong were based rather on the religious notion of wrong to God than on the legal notion or wrong to man.

Maitland observes “on the whole my notion is that with the idea of law of nature in their minds they decided cases without much reference to any written authority, now making use of same analogy drawn from the common law, and now of some great maxim of jurisprudence which they borrowed from the canonists or the civilians.”

That was the equity of the ecclesiastical Chancellors marked among other things by the fact that in exercising his equitable jurisdiction the Chancellor did not consider himself to be bound by precedent.

This has led Hanbury to remark: “But there was nothing automatic about the action of the medieval Chancellors. They would give or withhold relief, not according to any precedent but according to the effect produced in their own individual psychology by the merits of the particular case before them, according to their innate ideas, prompted by morality, honesty, conscience or knowledge of good and evil. From these abstract virtues springs equity; conscience and equity in the medieval period present the appearance of Siamese twins who are well content not to be separated.”

SYSTMATIZATION OF EQUITY

 Great Chancellors systematized equity and lent dignity and character to the Court of Equity; such, among others, were Lord Hardwicke and Lord Eldon. Hardwicke carried on the task of systematising Equity; during the twenty years that he remained on the woolsack, “he examined and formulated nearly all the rules of equity, transforming it from a haphazard collection of rules, some well developed and others hardly yet perceived, into a true and definite system of jurisprudence.”

Eldon completed the task. Equity which in its infancy was fragmentary had now developed into a harmonious system. Precedents were to be followed and reports of cases in Chancery began regularly to be made. Equity was now being administered on established and recorded principles. After Lord Eldon the period of legislative interference begins.

EQUITY JURISPRUDENCE IN INDIA

In India the idea of equity jurisprudence can at least be traced to the Hindu period where commentaries of jurists expounded the law by making old laws obsolete with a view to meeting the requirements of the society. Hindu law has never been static and has consequently introduced equitable principles to meet the exigencies of the times.

The Mohammedan law also partly owes its origin to principles of equity. Abu Hanifa, the founder of the Hanafi sect of Sunnis, expounded the Principle that the rule of law based on analogy could be set aside at the option of the judge on the liberal construction on juristic preference to meet the exigencies of a particular case. These principles embodied in the Mohammedan Law are known as istihasan or juristic equity.

The zilla courts established by the East India Company were presided over by its European servants and they frequently resorted to English Law of in cases of difficulty. The Sadar Adalat Courts, presided over lawyers, which were the final courts of appeal in the days of Company, also took recourse to English Law in case of any ambiguity.

In the Presidency towns the Crown established the Courts of the Recorders by the Royal Charter. The Chief Judge of the Court or the Recorder was usually a barrister and frequently followed rules of justice and equity. The Courts of Recorders were superseded by the Supreme Courts of Judicature, but the judges constituting the Supreme Courts were also barristers: and so were the practitioners. They frequently applied the equitable principles of the English Court of Chancery. Finally, the Privy Council as a Court of Appeal also introduced rules of equity.

The legislature has not remained dormant and various statutes embody the principles of equity. The courts have also been enjoined to act according to justice, equity and good conscience.

High Courts in India have all the powers of an English Court of Equity of enforcing their decrees in personam. The proviso to section 16 of the Code of Civil Procedure affords an application of the maxim "Equity acts in personam." It lays down that where a suit to obtain relief in respect of immovable property can be entirely obtained through the personal obedience of the defendant the suit may be instituted either within the local limits of the court where the property is situate or in the court within whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.

Statutory recognition of the principles of equity is found in The Specific Relief Act, Transfer of Property Act, Indian Succession Act, Guardians and Wards Act and the Indian Contract Act.

The Specific Relief Act by its provisions with regard to injunction, receiver, Specific performance of the contract, etc. recognizes the principles of equity in a large measure.

In India the common law doctrine of equity had traditionally been followed even after it became independent in 1947. However it was in 1963 that the "Specific Relief Act" was passed by the Parliament of India following the recommendation of the Law Commission of India and repealing the earlier "Specific Relief Act" of 1877. Under the 1963 Act, most equitable concepts were codified and made statutory rights, thereby ending the discretionary role of the courts to grant equitable reliefs. The rights codified under the 1963 Act were as under;

• Recovery of possession of immovable property (ss. 5 - 8)
• Specific performance of contracts (ss. 9 - 25)
• Rectification of Instruments (s. 26)
• Recession of Contracts (ss. 27 - 30)
• Cancellation of Instruments (ss. 31 - 33)
• Declaratory Decrees (ss. 34 - 35)
• Injunctions (ss. 36 - 42)

With this codification, the nature and tenure of the equitable reliefs available earlier have been modified to make them statutory rights and are also required to be pleaded specifically to be enforced. Further to the extent that these equitable reliefs have been codified into rights, they are no longer discretionary upon the courts or as the English law has it, “Chancellor's foot” but instead are enforceable rights subject to the conditions under the 1963 Act being satisfied. Nonetheless, in the event of situations not covered under the 1963 Act, the courts in India continue to exercise their inherent powers in terms of Section 151 of the Code of Civil Procedure, 1908, which applies to all civil courts in India. There is no such inherent powers with the criminal courts in India except with the High Courts in terms of Section 482 of the Code of Criminal Procedure, 1973. 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”.

Section 48 of the Transfer of Property Act provides that where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist together, each later created right shall be subject to the rights previously created. Section 51 of the same Act entitles a transferee of immovable property rnaki.ng improvements on the property, believing in good faith that he is entitled thereto, to compensation if he is subsequently evicted there from by any person having a better title. These provisions also form par t of the principles of equity, which have been Incorporated in the Act. In the same way the English equitable doctrine of part performance has also been enshrined in section 53-A of the Transfer of Property Act.

Similarly sections 64 and 65 of the Indian Contract Act also lay down that the party who receives any benefit under a void or voidable contract has to restore such benefit or make compensation to the party from whom he has received it.

All the rules of equity are, however, not applicable in India. Thus expression "equity and good conscience" has been interpreted to mean rules of English law in so far as they are applicable to Indian society and circumstances.

ABSENCE OF DISTINCTION BETWEEN LEGAL AND EQUITABLE TITLE

There is no of any distinction in India between legal and equitable, title or between legal and equitable rights since the passing of the Transfer of Property Act. The right of redemption of a mortgagor, unlike that in English law, is a legal right in India conferred by statute and. has been embodied in the Transfer of Property Act. The Indian mortgagor has a legal interest before and after the expiry of the date of payment and so does a transferee from him get a legal interest either on sale or mortgage,

Indian law does not recognize legal and equitable ownership in the case of trust. There is no such thing as equitable ownership of a beneficiary in India. He has, of course, the right to call upon the trustee to convey the property to him on the fulfillment of the necessary conditions.

Similarly the doctrine of advancement that, if a purchase is made by a father in the name of a child, a presumption arises that it was intended as an advancement, i.e., for the benefit of the child also does not apply to benami transactions in India.

ASSISTANCE TO COMMON LAW

The equitable jurisdiction in England grew up because of the deficiencies of the common law and the inadequacy of the remedies. The common law was deficient in the following three respects:

(1) Remedy was not available in all cases for many wrongs remained un-redressed for want of proper writs;

(2) The relief granted by the common law courts was not always adequate. There was no relief by way of specific performance of the contract or injunction, accounting, appointment of receiver, etc. and

(3) The procedure in the common law courts was defective and unsatisfactory. The inevitable result was that persons who could not get relief in common law courts presented their petitions to the King-in-Council and later to the Chancellor.

The Court of Chancery never claimed to override the courts of common law. It presupposed the existence of common law courts and acquired and exercised power only to redress the wrongs that were left un-remedied by the common law court. It will, therefore, be noticed that the relation between common law and equity was not one of conflict. Maitland points out that every jot and every title of the law was to be obeyed, but when all this had been done something might yet be needful, something that equity would require. Where a role of common law was direct and governed the case with all its circumstances, a court of equity was as much bound by it as a court of common law. It was only when there was some lacuna in the common law that the court of equity stepped in and provided relief.

         The court of chancery provided relief in three ways, viz., by its exclusive, concurrent and auxiliary jurisdiction. In its exclusive jurisdiction it provided relief where the common law was silent. It enabled the beneficiaries to enforce their rights in trust against the trustees. In its concurrent jurisdiction it gave relief in cases in which the common law courts recognised the right but did not grant adequate remedy, e.g., by providing relief of injunction or enforcing specific performance. In its auxiliary jurisdiction the chancery court aided a party to a common law action in matters of procedure, e.g., by ordering discovery of documents, examination of witnesses, etc.

SEEMING CONFLICT

In the case of a trust the common law said that the trustee was the owner of the land, while equity said that the cestui que trust or the beneficiary was the owner. The conflict between equity and common law was, however, only seeming and superficial. If the above two statements are critically analysed the seeming conflict will be apparent for equity did not say that the ces tui que trust was the owner of the land, but it merely said that although the trustee was the owner of the land he was bound to hold it for the benefit of the cestui que trust.

In the same way equitable remedies like specific performance, injunction or appointment of receiver did not destroy the common law remedy but only assisted the common law by providing additional or alternative remedies. Again, specific performance was only a discretionary remedy and could not be specifically enforced if compensation in money was an adequate relief. In such cases the only remedy open to a suitor was an action for damages; equity would advance his case no further.

EQUITY, A MORAL VIRTUE

It was observed by Lord Ellesmere that law and equity have both the same end, which is to do the right, and in some matters, especially in regard to titles to equitable estates, equity followed the law implicitly. Where it differed from the law, this was merely to moderate its rigour, to supply its omissions, to assist the legal remedy or to relieve against the evasion of the law, or the abuse of the legal rights. To the same effect are the observations of Lord Talbot in Dudley v. Dudley (1705, 45 CR. 118): "Equity is no part of the law, but a moral virtue which qualifies, moderates and reforms the vigour, hardness and edge of the law, and is universal truth, it does also assist the law where it is defective and weak 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 rights are made remediless; and this is the office of equity, to support and protect the common Jaw from shifts and crafty contrivances against the justice of the law. Equity, therefore, does not destroy the law, nor creates it but assists it."

SUPPLEMENT TO COMMON LAW

 “Equity without common law would have been a castle in the air, an impossibility.”-Maitland.

“We ought to think of equity as a supplementary law, a sort of appendix added on to our code, or a sort of gloss round our code.”-Maitland. Discuss.

We have seen that equitable jurisdiction in England grew up because of the deficiencies of the common law and the inadequacy of remedies. Equity never claimed to override the common law, nor it acted as a rival to that low. It only supplemented the common law where the remedy was not available, where the relief granted by the common law courts was not adequate and where the procedure in common law courts was defective. This the court of equity did by the exercise of its exclusive, concurrent and auxiliary jurisdiction. Equity, therefore, did not pretend to usurp the whole field of law but was only a gloss on some parts of the common law. It did not touch even the fringe of the law of crimes and kept very clear of large portions of the province of tort. It acquired jurisdiction in cases of trust and breach of confidence. It also granted equitable remedies of specific performance of a contract, injunction and appointment of receiver, But here again it only aided the common law courts. The common law recognised the trustee as the owner of the property. Equity went a step further and said that the trustee was the owner of the land but held it for the benefit of the cestui que trust. This could not be done unless the common law existed and declared the trustee as the owner. It was no use for equity to say that A was a trustee of Blackacre for B, unless there be some Court that could say that A was the owner of Blackacre. Equity without common law, therefore, would have been a castle in the air, an impossibility, for it was not a self-sufficient system but was only a collection of appendices. Common law, of course, might have existed without equity, but then it would have been very stringent and harsh.

Maitland, therefore points out that we ought not to think of common law and equity as of two rival systems. Equity was not a self-sufficient system, at every point it presupposed the existence of common law. Common law, on the other hand, was a self-sufficient system, though without equity in same respects it would have been barbarous, unjust and absurd.

EQUITY A COLLECTION OF APPENDICES

 “Equity is collection of appendices.”-Maitland.

Maitland observes that we ought not to think of common law and equity as two rival systems. Equity was not a self-sufficient system. It presupposed the existence of common law. Common law was a self-sufficient system. He cites an illustration that if the legislature had passed a short  Act saying "Equity is hereby abolished," we might still have got on fairly well, though in some respects our law would have been barbarous, unjust and absurd; but still the great elementary rights. the right to immunity from violence, the right to one's good name, the rights of ownership and of possession would have been decently protected and contract would have been enforced. On the other hand had the legislature said “Common Law is hereby abolished.” this decree if obeyed would have meant anarchy. At every point equity presupposed the existence of common law. Equity, therefore, could not be treated as a single, consistent system, an articulate body of law. It is a collection of appendices between which there are is no close connection.

THREEFOLD JURISDICTION OF EQUITY

The scheme adopted by the great American Judge, Story, and which found general acceptation was that equity could be classified into three kinds of jurisdiction, viz., exclusive, concurrent and auxiliary.

EXCLUSIVE

The common law courts in some cases provided no relief, which were covered by the exclusive jurisdiction of the Chancery Court. The right enforced and the remedy granted in such cases were purely equitable. Such cases included trust.

CONCURRENT

This jurisdiction of the equity court was concurrent with the jurisdiction of courts of common law. The common law courts in this case recognised the right but granted no complete and adequate remedy, such as specific performance and injunction. It was the function of the chancery court to provide them.

AUXILIARY

Under the-auxiliary jurisdiction the court of chancery lent assistance to persons in proceedings which they were taking or about to take in courts of law, e.g., by ordering discovery of documents, examination of witnesses, interrogatories, etc.

BLACKSTONE'S VIEW OF EQUITY JURISPRUDENCE

Blackstone in his Commentaries on the Laws of England states that the so called equity of the Court of Chancery was in reality law and the so called law of the three old courts was in a sense equity. In other words Blackstone's view is that Equity and Common Law are not two opposing systems and that there is little to distinguish them except their historical origin and modes of procedure.

He shows this by examining the current views which draw a line between them, setting one in opposition to the other:

It is said that it is the business of a court of equity to abate the rigour of Common Law. But equity never claimed a general power,-this being evident from the fact that it did not interfere with many Common Law rules which involved great hardship, e.g.,

(a) when the debtor devised away his real estate, the bond creditors should not follow the estate in the hands of the devisee,

(b) the heir was not liable for the simple contract debts of the deceased, and

(c) the father could not immediately succeed to the real estate of the son.

(2) Secondly, it is said that a court of equity determines according to the spirit of the rule and not according to the strictness of the letter. But, in fact, both equity and law equally profess to interpret statutes according to the true intent of the legislature.

(3) Thirdly, it is said that fraud, accident and trust are the proper and peculiar object of a court of equity. But frauds and accidents are equally cognizable by courts of law and though trusts are not recognised by courts of law, still they take notice of bailments, which are in the nature of trusts.

(4) Lastly, it is said that a court of equity is not bound by precedents. But this holds good no more.

Blackstone thus sums up the position: Both law and equity are now equally artificial systems, founded on the same principles of justice and the mode of their proceedings; the one being originally derived from the feudal customs, the other from the Roman formularies introduced by the clerical chancellors.

 Maitland supports Blackstone's view by saying that though Blackstone overrules the importance of Roman influence, we cannot in general terms distinguish the two systems except by a historical explanation. We ought not to think of Common Law and Equity as two rival systems. Equity is not a single, self-sufficient system like Common Law which it supplements. It is a collection of appendices between which there is no close relation.

STORY'S CLASSIFICATION OF EQUITY JURISDICTION

It has been customary to classify the jurisdiction of Equity in relation to that of law, after the scheme set up by Story, viz., that Equity jurisdiction is (a) exclusive Jurisdiction, (b) concurrent Jurisdiction and (c) auxiliary Jurisdiction.

 (A) EXCLUSIVE JURISDICTION

The exclusive jurisdiction comprised matters where there was no relief at Common Law, and equitable rights were enforced by equitable remedies, e.g., trusts. The Court of Chancery had a cognizance of such matters exclusive of the courts of law. In matters within the exclusive jurisdiction, the nature and extent of the rights given depended exclusively on equitable principles and they could be forced only by equitable remedies.

 (B) CONCURRENT JURISDICTION

The concurrent jurisdiction comprised cases in which the common law remedy was inadequate. It was based on the various circumstances, e.g., the legal remedy was not available or the equitable remedy was more efficient, or the procedure in equity afforded advantages which were not attainable at law. Here, legal rights were enforced by equitable remedy, e.g., specific performance of contracts. In these cases, the suitor had a choice between the remedies granted by the two courts. But the equitable remedies were granted only on proof of violation of legal rights. The existence of the right and whether it has been infringed were ascertained upon legal principles, and then equitable principles were applied to ascertain on what condition an equitable remedy would be granted within that sphere. Before an equitable remedy could be given, it had to be shown that the right had been or was about to be violated in such a way as would compel a court of law to grant the legal remedy, if the complainant had applied for it. '

(C) AUXILIARY JURISDICTION.

The auxiliary jurisdiction stepped in where common law litigants required the aid of Equity in the assertion of their legal rights. No cases were tried here. Equity intervened merely to supply the defects of the legal process so as to enable the court of law to give effectively the legal remedies. Thus a plaintiff in an action at law went to the Chancery in order that he might obtain discovery of the documents on which his opponent will rely.

To sum up: "Where the right to be enforced and the remedy sought were both equitable, the matter was within the exclusive jurisdiction; where the right to be enforced was legal but the remedy sought was equitable, It was within the concurrent jurisdiction ; where both the remedy to be enforced and the remedy sought were legal and the equity only intervened to help the plaintiff to get the legal remedy, it was within the auxiliary jurisdiction." (Strahan).

According to Maitland such a classification is inaccurate in two respects-

(i) first it presupposes a logical scheme but Equity is not a single connected system that may be subjected to classification. Equity is a collection and of appendices between which there is no very close connection

(ii) secondly, such classification is no longer useful. It presupposes that there is one set of courts administering law, another set administering equity.

But the Judicature Acts have abolished the independent nature of such courts; and since then every division of the High Court is capable of administering whatever rules, are applicable to the cases before it, whether they are rules of common law or rules of equity. Thus the auxiliary jurisdiction exists no more; all such air can be obtained in the King's Bench Division itself. Again though the business assigned to the present Chancery Division is practically the same as was formerly done by the Court of Chancery in its exclusive jurisdiction, it has been expressly provided by the Judicature Acts that each division shall have jurisdiction of the other divisions in addition to its own.

THE JUDICATURE ACTS

THE JUDICATURE ACT, 1813

Before the passing of the Judicature Act of 1873 there were two distinct systems of justice administered by the English Court. The Courts of Queen's Bench, Common Pleas and the Exchequer were governed by the principles of the common law, while the court of chancery was guided by the principles of equity. The common law courts did not grant equitable remedies like specific performance, injunction of appointment of receiver, while the court of chancery as a rule had no power to grant damages. The result was that the litigants had to suffer great inconvenience and, as Snell points out, in many cases, in the course of the same litigation parties were driven backwards and forwards from courts of law to courts of equity, and from courts of equity to courts of law. No court had full power to grant complete relief in all cases. And although the Chancery Amendment Act, 1858, and the Common law Procedure Act, 1854, enabled the Chancery Court to award damages instead of or in addition to, an injunction or specific performance, and the common law courts to grant a limited power of Injunctions, it remained for the Judicature Acts to fuse the administration of the two systems and to abolish wholly any possibility of a direct conflict between them. The Judicature Act of 1873 abolished the old courts of chancery and common law and in their place established a High Court of Justice with a Court of Appeal over it. The High Court of Justice was divided into five divisions, viz., the Chancery, Queen's Bench, Common Pleas, Exchequer and the Probate, Divorce and Admiralty. And this Court and the Court of Appeal were directed to administer both law and equity. Instead of different courts administering different systems, the Judicature Act established one Supreme Court administering both law and equity.

No doubt for the sake of convenience the High Court is split up into divisions and most of the equitable matters dealt with by the old court of chancery are assigned to the Chancery division of the High Court, while the King's Bench division mostly deals with matters which formerly came before the common law courts. But this division was quite different 'from the old independent courts. And every Judge to whatever division he might belong administered both the rules of equity and common law and gave effect to all equitable rights, obligations and defences as also to all legal rights and obligations.

Fusion of law and Equity

Having thus fused the administration of law and equity, the Act of 1873 then provided that where the two were In conflict, equity should prevail over the legal rule. In Wash v. Lonsdale (1882, 21 Ch.D. 9) Lonsdale agreed in writing to grant a seven years lease of a mill to Walsh at a rent payable quarterly in arrear, but with a year's rent payable in advance if demanded. Walsh entered into possession without any lease having been granted and paid his rent quarterly in arrear. Subsequently Lonsdale demanded a year's rent in advance, and Walsh refusing to pay put in a distress. Walsh prayed for an injunction claiming that at law he was a tenant from year to year at a rent not payable in advance. The Court of Appeal repelled the contention of the plaintiff on the ground of the absence of a deed and held that Walsh held on the same terms as if a lease has been granted since the agreement was one of which the court would order specific performance. Jessel, M.R., observed that there were not two estates as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one court, and equity rules prevail in it.

Similarly, the equity rule prevailed over common law rules in the case of Berry v. Berry (1929,.2 K.B. 316) where it was held that a subsequent change in the terms of the deed by an agreement in writing not under seal was a good defence to an action brought on the deed, although at law a contract made by deed could only be varied by another deed. The Act had thus the effect of rendering it always possible to vary a deed by a subsequent simple contract.

The Judicature Acts, however, only apply to principles and not to practice for in case of difference in the practice of the two former courts, the more convenient one is now followed by the High Court of Justice. The enactment, however, retains the distinction between legal and equitable rights and between legal and equitable remedies. Thus a person who acquires the legal interest in property for value and without notice of another person's equitable interest therein, takes free from that equitable interest. This is based on the maxim that equity follows the law. But in case there are equal equities, the first in time prevails and he who acquires merely an equitable interest is subject to the prior equitable interest, in spite of the fact that he had no notice, actual or constructive, of its existence and that he gave value for acquiring the same.

Snell, therefore, concludes that what the Judicature Acts have really done is to provide for the administration of law and equity in the same courts, for the recognition by those courts of both legal and equitable rights, remedies and defences, and for the submission of law to equity where they were previously in direct conflict. It is a fusion of administration rather than of principles. And, as has been well said by Prof. Ashburner, the two streams have met and now run in the same channel but their waters do not mix.

CHANGES INTRODUCED BY JUDICATURE ACTS

The Judicature Acts abolished the old courts, viz., the Chancery, Queen's Bench, Common Pleas, Exchequer and also the Courts of Probate, Divorce and Admiralty. In their place there came into existence a High Court of Justice with a Court of Appeal above It. The High Court of Justice was divided into five divisions, viz., Chancery, Queen's Bench, Common Pleas, Exchequer and the fifth being Probate, Divorce and Admiralty. Certain business was assigned to each division, but this division was merely for administrative convenience and the distribution of business might at any time be· changed without any Act of Parliament by rules· made by the judges and even the divisions could be abolished by an Order in Council. Every Judge to whatever division he belonged applied both the rules of common law and the rules of equity.

The Judicature Acts also brought about a great change in procedure introducing a Code of Civil Procedure, which combines the best features of the two old systems, viz., the common law and equity.

The Judicature Acts gave immunity from the bar of limitation to a claim of a cestui que trust against the trustee in respect of any property held on trust.

Sub-section (8) (a) section 25 of the Act of 1873 enabled a mandamus or injunction to be granted or a receiver to be appointed by a interlocutory order by any division of the High Court.

The most important provision was the residuary clause as contained in section 25 (11) (d) of the Act of 1873, which provided that generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of common law with reference to the same matter, the rule of equity shall prevail.

RESIDUARY POWERS UNDER SECTION 25 (11) (D) OF JUDICATURE ACT OF 1873

The first thing that is apparent on a reading of section 25 (11) (d) is that the sub-section is quite non-committal. It does not recognise that there was any conflict between the rules of equity and the rules of the common law in any case. The question, however, as to whether there was ever any conflict between the two system is difficult to answer. The Chancellor Ellesmere argued that there was no conflict in the issue of common injunction, but Lord Chief Justice Coke strongly refused that contention. There are no doubt admitted cas.es of conflict where the above provision definitely uprooted the legal rule and replaced it by the equitable rule. An example is furnished by the case of Berry v. Berry (1929, 2 K.B. 316) where the provisions of common law that the terms of a deed could be varied or dispensed with only by another deed were superseded by the equitable rule or vary a deed by a that it was always possible to rescind subsequent simple contract. There is, on the other hand, a catena of cases where although conflict may have existed its presence was unacknowledged.

In this connection Maitland observes that the first thing that we have to observe is that relation between law and equity was not one of conflict. Equity had come not to destroy the law but to fulfill it. Every jot and every title of the law was to be obeyed but when all this had been done something might yet be needful something that equity would require. There might have been conflicts but, according to Maitland for two centuries before the year 187 the two systems had been working together harmoniously.

It was held in the case of Pugh v. Heath (7 App. Cas., 237) that the Supreme Court is now not a court of law or a court of equity but a court of complete jurisdiction, and if there is any variance between what a court of law and a court of equity would have done the rule of the court of equity must now prevail. But it was observe in Joseph v. lyons (15 Q.B.D. 280) that the distinction between legal and equitable interest is not abolished by the Judicature Acts, otherwise they would abolish the distinction between trustee an cestui que trust.

It will thus be apparent that, although the residuary power of S. 25 (11) (d) sounded high, .it was not of very great significance". The distinction between the legal ownership of the trustee and that of beneficial ownership of the cestui que trust still existed. The Judicature Acts left the law of trusts just where it stood because there was no conflict, no variance even, between the rules of the Common law and the rules of equity. Further, the Judicature Act also did not destroy the distinction between legal and equitable claims, between legal and equitable defences and between legal and equitable remedies. They still maintained that a person who acquired the legal estate for value and without notice of another person's equitable interest therein took precedence over the person having only equitable estate. This was in consonance with the maxim that equity follows the law.

COMMON LAW

The term “common law” signifies a law common to the whole country. It is that part of the law of England formulated, developed and administered by the old common law courts, which was based on the custom of the country and originally unwritten. The common law developed after the Norman conquest because of a strong Central Government and the extensive use of prerogative of the King.

DISTINCTION BETWEEN COMMON LAW AND EQUITY

(1) The parties in a court of law were called plaintiff and defendant, while the parties in a court of equity were called suitor or petitioner.

(2) In a court of law the plaintiff was entitled to only those reliefs which had been recognised by the law. But in a court of equity, the relief to the suitor depended upon the court's grace. This means that the court would provide only that relief which the law did not provide but the King could by the exercise of his prerogative provide the relief.

(3) While granting relief to the petitioner, a court of law did not take into consideration his conduct in the matter but the court of equity took into consideration suitor's conduct.

(4) The origin to common law is in the feudal customs while equity's origin is to Roman and Canon law.

(5) The legal title to the property we altered by the judgments of the common law courts. !n equity, the property is transferred not by the order or decree of the court but by the conveyances made by the parties.

(6) The common Jaw courts had both civil and criminal jurisdiction while the equity courts had only civil jurisdiction.

To sum up, Common law differs from equity in the sense that the latter comprised the body of rules administered by the Court of Chancery. Equity consisted of that portion of natural justice which although of a nature suitable for judicial enforcement, was for historical reasons not enforced by the common law courts.

The defects and rigidity of the old common law gave rise to equity. The difference between common law and equity has very well been summarized by Underhill in these words:

"Equity was originally· the revolt of commonsense 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 common law."

Statute law consists of the law down in Acts of Parliament While common law, as stated above, was based on the common custom of the country and was originally unwritten.

Common law also differs from special law, which is the law Administered in special courts, such as ecclesiastical law.

Common law also differs from civil law, which was the law of Rome.

Does the distinction exist in India? In India the distinction between equity and law does not exist. The equitable jurisdiction is vested in the general courts. Dr. Banerjee observed that "the administration of justice in India does not suffer by reason of any unnatural divorce between law and equity."

High Courts in India have all the powers of a court of Equity in England of enforcing their decrees in personam. The proviso to S. 16 of the Code of Civil Procedure affords an application of the maxim "Equity acts in personam."

Statutory recognition of the principles of equity is found in the Specific Relief Act, the Indian Trusts Acts, Transfer of Property Act, Indian Succession Act, etc.

There is no recognition of any distinction in India between legal and equitable title or between legal and equitable rights since the passing of the Transfer of Property Act.

THE SECOND STATUTE OF WESTMINSTER, i.e. STATUTE IN “CONSIMILI CASU”

An attempt to remove or improve upon the narrowness of the common law and its consequential failure in the administration of justice was made by the Parliament in the year 1285 by passing the Act known as the Statute of Westminster II also known as statute in consimili casu. By it the Chancery was empowered to invent new writs for certain cases which were similar to those for which there were appropriate writs. The Statute of Westminster was designed to relax the rigour of the existing law.

LORD NOTTINGHAM

Lord Nottingham, who was Chancellor from 1673 to 1682, is called the father of modern equity. He systematized the rules of equity under his Chancellorship. The theory that there can be no clog on equity of redemption was propagated by him. Lord Nottingham is one of the architects of the modern system of equity.

LORD CAIRN'S ACT

The Chancery Amendment Act of 1858, also known as lord Cairn's Act, conferred on the Chancery Courts a power to award damages. Prior to it the power was exclusively enjoyed by Common law Courts. The Courts of Chancery now could award damages in addition to, or in lieu of, injunction.