Introduction:

The term, equity is used in three different senses. In the first sense, it means morality,
honesty and uprightness. In the second sense, equity refers to the principles of natural
justice, which tempts the fixed rules of law. In the third sense, equity consists of a set
of fixed rules. It is well-formulated set of rules.

The term “equity” may however, also be used in a different and more restricted sense.
An equitable decision may be one that is neither based on an existing rule of law nor
designed to inaugurate a new sequence of precedents. Its sole aim may be to do
justice to the parties in a case characterized by a configuration of facts unlikely ever
to be repeated in reality in the same or similar way.

In England equity developed distinctly and separately from the common law. It had
its separate jurisdiction and was administered by the Chancellor and he was guided by
the principles of natural justice. The governing principle of the early jurisdiction was
conscience.

In India there never had been any separate equity court but a number of principles of
equity and justice have been incorporated in the substantive law of the land.

Sir Henry Maine while interpreting 'Equity', has observed, “In progressive societies
social necessities and social opinions are always more or less, in advance of law. The
gulf that is thus created between the social opinions and the existing law is bridged up
by three instrumentalities, namely (1') Legal Fiction, (ii) Equity, and (iii) Legislation.
When Law becomes fixed, legal fictions liberalise it, when legal fictions also become
outdated, Equity softens the rigours of law, till finally a point is reached when
expansion of Equity ceases".
The term, ‘Equity’ is a derivation from the Roman term ‘acquitas' which means
equalization or levelling. Etymologically, therefore, equity is that which levels down
any arbitrary preferences or denial of justice.

The term, ‘Equity' is used in various senses, out of many the four main senses in
which the term is used are:
1. Literal sense;
2. General sense;
3. Roman sense; and
4. English sense.

We have to deal only with that 'equity' which was evolved and developed in England
but for the proper understanding of the subject it would be better to explain the term
in all the senses.
1. Literal sense.---The literal meaning given to Equity is “right” as founded on the
laws of the ‘nature’, ‘faimess' and ‘justice'. This is also the most popular notion
about this expression.

2. General sense-In the most general sense, we call that Equity which in human
transactions is founded on ’natural justice’, ’honesty’ and ’right’. In this sense it
means that one should do to all men as he expects to be done to him in this way,
unkindness and ingratitude or other moral wrongs clearly fall outside the scope of
equity.
3. Roman sense.--‘Equity’ In the Roman sense means a body of moral principles
introduced in the Roman law by Praetor which constituted Equity (acquires) by
the side of ‘Jus Civile’. Ancient Civil Law of Rome was a system of extreme
rigidity and adherence to technicalities ill-adapted. Praetor softened the rigour of
law. He was Supreme Judicial Magistrate of Roman Republic. He altered the law
by modifying the terms of formula. Maine therefore, says that “Equity means any
body of rules existing side by side the original civil law, founded on distinct
principles and claiming incidentally, to supersede the civil law by virtue of
superior sanctity in those principles”. In Rome equity played a great part in the
easy development of Roman Law.

It would be better if this observation of Maine is explained with reference to

Roman legal system In the earliest period of Roman Law the ‘Praetor was the
Supreme Judicial Magistrate of Roman Republic. Each ‘Praetor' on entering upon
his judicial functions set out a list of the rights and remedies which he would
recognize during his tenure of office and gave public notice of the modes in which
he intended to give relief against the rigidity of the established system. Whenever
an application of the old ”Jus Civile" would do a moral wrong and produce a
result inequitable, the Praetor’s conforming his decision to the ’law of nature’
provided a remedy by means of an appmpriate action of defence. Gradually the
case as well as the modes in which the ‘Praetor' thus interfered, became more and
more common and thus a body of moral principles was introduced in the Roman
Law which constituted Equity (Acquitas) by the side of Civil Law (”jus Civile”).

4. English sense.--'Equity' in English sense means the body of rules formulated and
administered by the Court of Chancery to supplement the rules and procedure of
the Common Law. As a part of the English system of JuriSprudence, however, its
proper understanding requires a brief reference to history.
Evolution of Equity
By the middle of the 13th Century the law administered in England, was in part
Customary Law and in part statutory law. On account of the narrowness, extreme
rigidity and formalism of the Common Law, it often gave either inadequate remedy or
no remedy at all. The law did not provide relief for all inconveniences. No provisions
were made for matters of natural justice. In such cases a petition was made to the
King-inCouncil to exercise his extraordinary judicial powers. A custom developed of
referring these petitions that the ‘Chancellor’, who was the Chief of the King’s
Secretaries. It was in dealing with these petitions that the ‘Chancellor’ began his
judicial functions and the ‘Court of Chancery ‘was established besides the Court of
Common Law The ‘Chancellor’ acted according to his judicial conscience or the
principles of natural justice. The principles and rules thus arising through the
administration of justice in Courts of Chancery were called ‘Equity’ in
contradistinction to Common Law. Upto 1873 there remained two separate systems of
Courts namely, Common Law Court and Chancery Court, but in 1873 both the Courts
were amalgamated by Act of judicature and the new Courts were assigned with the
power of enfotcing all the rights and remedies legal as well as equitable.

Equity, therefore, in its technical sense, may be said to be ‘a portion of natural justice
which, though of such a nature as properly to admit of being judicially enforced, was
for circumstances hereinbefore noticed omitted to be enforced by the Common Law
Courts-and it was an omission which was supplied by the court of chancery.
Equity as a branch of Law
Equity as a branch of any legal system, may therefore be said to mean the principles
or rules emerging from the administration of justice through a power and duty vested
in the judges in those cases which are not covered or adequately provided for by the
existing law of the land. The system of law prevailing in a State springs upon the
basis of past cases or those that may be anticipated for future. It is impossible to
prepare such a comprehensive code as to cover every possible case. It is, therefore,
essential that there must be in the State a machinery which may, by notification or
innovation held the existing body of law in the State. Equity fulfills this requirement
of the society by supplementing the law and making it more liberal and kind. Equity,
has in the words of Storey, “the sanction of jurists in ancient as well as in modern
terms ” and in this sense Equity must have, in the words of the same learned writer. a
place in every national system of jurisprudence, if not in name, at least in substance.
Definition of Equity
There are many definitions of Equity each distinct from the other but all agree on the
general nature of Equity, which is synonymous with ‘natural justice’, ‘honesty’ and
‘right.’

Plato said, “Equity is indispensable to any intelligent administration of justice".

According to Aristotle, ‘justice and equity are neither absolutely the same nor
generally different. His View is that the difference between justice and equity is only
that of the degree. He further says that equity possesses a high degree of justice. It
embodies a moral ideal and is constant and immutable.

Aristotle has also said that “Equity is the correction of the law which is defective on
account of its generality."

Blackstone defines Equity as the “ soul and spirit of all law; positive law is construed
and natural law is made by it. In this way Equity is synonymous with justice in that it
is the true and sound interpretation of the rule."
Evolution of Equity under the Indian Legal System
Equity in India not an independent branch of Law- In India, there was never any
separate Court for the administration of Equity. The greater part of the law to be
applied by the Court, has been codified. But in the absence of specific law or usage in
any matter, the Court has to act according to principles of ‘Equity', ‘Iustice’ and
‘Good Conscience' interpreted to mean only those rules of English Equity which are
applicable to Indian society and circumstances.

Origin of Equity-Hindu and Mohammedan law- In India, the origin of Equity can be
traced back to the Hindu period when jurists explained the old laws and gave new
rules of interpretation and equitable solutions in case of conflict between the rules of
various laws. Hindu Law had never been static and has consequently introduced
equitable principles to meet the exigencies of the times.

It has been laid down that in case of a conflict between the rules of “Smritis” either
may be followed, as reasoning on the principles of equity.

In Mohammedan Law also the principles of Equity are clearly noticeable. 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 a liberal
construction or judicial preference to meet the requirements of a particular case.
These principles of Mohammedan Law, are known as ‘Istihsan’ or ‘juristic Equity'.
With regard to the Mohammedan Law.

Their Lordships of the Privy Council in Hamira Bibi v. Zubaida Bibi, observed as
follows: “The chapter on the duties (Adab) of the Qazi in the principal Works on
Mussalman Law clearly shows that the rules of Equity and equitable considerations
commonly recognized in the Courts of Chancery in England, are not foreign to the
Mussalman System, but are in fact often referred to and invoked in the adjudication
of cases.” It may be noted that all the rules of English Equity are not applicable in
India.
Statutory recognition of Equity
The Supreme Court observed in Official Trustee, W.B. v. Sachindra,3 that “in fact in
this country we have codified the very principles that were exercised by the Chancery
Courts in England under their equitable jurisdiction.” Statutory recognition of the
principles of Equity is found in the Specific Relief Act, 1877,4 the Indian Trusts Act,
1882, Indian Succession Act, 1925, Guardian and Wards Act, 1890, Indian Contract
Act, 1872 and in the Transfer of Property Act, 1882.

Specific Relief Act.--The provisions of the Specific Relief Act regarding injunction,
specific performance, cancellation, rectification, and recession, etc, recognize, the
principles of Equity to a large extent. Banerjee in his Tagore Law Lectures observes
that “the Specific Relief Act is admittedly based on doctrines of equity jurisprudence
which were originally developed in England. The guidance afforded by the decisions
of the foreign Courts in interpreting and applying the provisions of the Indian Acts is
therefore of peculiarly valuable character.”

Indian Trusts Act.--The rules contained in the Indian Trusts Act, 1882 are
substantially the same which were administered at that time by English Courts of
Equity under the name of ‘justice’, ‘equity' and ‘good conscience.’

Indian Contract Act.--There are certain equitable doctrines which have been imported
in the Indian Contract Act, and some of the important doctrines re ating generally to
the law of contract are the doctrines of penalties and forfeitures. stipulation as to time
in a contract, equitable relief on ground of misrepresentation, fraud and undue
influence. Sections 64 and 65 of the Indian Contract Act is nothing but the codified
form of the maxim, " He who seeks equity must do equity.”

Transfer of Property Act.--The Transfer of Property Act has also included many
doctrines of Equity originated in the Court of Chancery in England. Apart from such
doctrines Sections 48 and 51 of the present Transfer of Property Act are based on the
principles of Equity. The English equitable doctrine of part performance has also
been drawn in Section 53-A of the Transfer of Property Act.
Conclusion –
Equity fulfils this requirement of the society by supplementing the law and making it
more liberal and kind. Equity as a branch of any legal system is the principles or rules
emerging from the administration of justice through a power and duty vested in the
judges in those cases which are not covered by the existing law of the land. Equity in
its technical sense, may be said to be ‘a portion of natural justice which, though of
such a nature as properly to admit of being judicially enforced, was for circumstances
hereinbefore noticed omitted to be enforced by the Common Law Courts-and it was
an omission which was supplied by the court of chancery. Equity is synonymous with
justice in that it is the true and sound interpretation of the rule