INTRODUCTION

The system of equity includes that portion of natural justice which is judicially enforceable but
which for various reasons was not enforced by the courts of common law. ”EQUITY is that
system of justice which was developed in and administered by the high court of chancery in
England in the exercise of its extraordinary jurisdiction. EQUITY, in its technical and scientific
legal sense, means neither natural justice nor even all that portion of natural justice which is
susceptible of being judicially enforced. It has, when employed in the language of English law, a
precise, definition and limited signification, and is used to denote system of justice which was
administered in particular court – the nature and extent of which system cannot be defined in a
single sentence, but can be understood and explained only by studying the history of that court,
and the principles upon which it acts. In order to begin to understand what equity is, it is
necessary to understand what the English high court of chancery was, and how it came to
exercise what is known as its extraordinary jurisdiction. Every true definition of equity must,
therefore, be, to a greater or lesser extent, a history.” 

“In its technical sense, equity may be defined as a portion of natural justice which, although of a
nature more 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. In short, the
whole distinction between equity and law is not so much as a matter of substance or principle as
of form and history.” 

ORIGIN OF EQUITY

Equity is that system of justice which was administered by the High Court of Chancery in
England in the exercise of its extraordinary jurisdiction. ... Every true definition of equity must,
therefore, be, to a greater or less extent, a history.

Bispham, Principles of Equity, at 1, 2.

“Prior to William the conqueror, there were the old Anglo-Saxon courts. They used to sit in the
open air meetings of freeman. Slowly these folk courts were replaced by itinerant justices
appointed by the crown or by the king’s court (curia Regis). William the conqueror made several
changes and appointed a chief judiciary to preside over the trials of suits. This led to the origin of
common law tribunals throughout the England. The hardship caused by the king was removed by
the ‘Magna Carta’ which provided that ‘the common pleas shall no longer follow the king
.During the period the judicial officials became the Court of Exchequer and officials were related
to the cases of revenues and later enlarged through the use of legal fictions. Slowly the
chancellor presiding over the Court of Exchequer became personal advisor and representative of
the crown. The court continued its process until new act came into the force on 2nd November
1875, consolidating it into the “supreme court of judicature”  

“Two distinct systems of law were administered by different tribunals at the same time in
England till the year 1875. The older system was the common law and it was administered by the
King’s Benches. The more modern body of legal doctrine developed and administered by the
chancellor in the court of chancery as supplementary to and coercive of the old law was the law
of Equity.

The two systems of law, as mentioned above, were by and large identical and in harmony leading
to the maxims that ‘equity follows the law’. In other words, the rules already established in the
old Courts were adopted by the Chancellor and incorporated into the systems of equity, unless
there was some sufficient reason for their rejection or modification. In case of conflict, the rule
of Chancery prevailed, because if a common law action was brought in defiance of a rule of
equity, the defendant could apply to the Court of Chancery for an order called a common
injunction, directed to the plaintiff and ordering him not to continue his action.” 

“Once a writ was on paper, it could not be changed so if a mistake was made the case would
become void and the person making the claim would lose the case. People were often not content
with the decision made by the Common Law Court, as the only remedy they could give was
'damages.' This was compensation money paid by the defendant to the plaintiff. This was more
often than not insufficient and inappropriate, as money cannot solve everything. People who
could not obtain justice in the Common Law Court then appealed directly to the King who was
described as 'the fountain of justice. Most of these cases were referred to the King's Chancellor.
He became known as 'the King's conscience.' The Chancellor developed new remedies that were
able to compensate plaintiffs more fully than the Common Law remedy of damages.

THE HISTORICAL EVOLUTION OF THE DOCTRINE OF EQUITY

EXPLAINING ITS RELATIONSHIP TO COMMON LAW.

Equity is the branch of the law which, before the Judicature Act of 1873 came into place applied
and was administered by the Court of Chancery. 1 Equity is the means by which a system of law
balances out the need for certainty in rulemaking with need to achieve fair results in individual
circumstances. Equity then, is that part of English private law which seeks either to prevent any
benefit accruing to a defendant or to compensate any loss suffered by a claimant, which results
from some unconscionable conduct, and to also ensure that common law and statutory rules are
not manipulated unconscionably.2
The period from the Norman invasion of 1066 to the reign of Henry III in the thirteen’s century
witnessed the inception and growth of common law3 The backward judicial policy of the
common law courts received statutory approval in the Provisions of Oxford 1258 which provided
that power of the chancery to issue a new writ was subject to approval of the king and his
council. This hindered litigants from filing their plaints. The Statute of Westminister II, 1258
tried to rectify the situation by giving power to the chancery to modify existing writs in order to
cater for the new ones.4 Common law judges who assumed jurisdiction to decide on the validity
of the writs frustrated the statute where they cancelled any writ which didn’t fall into the existing
writs creating more injustice to litigants. As a result many injuries could not be addressed and
where common law remedies were awarded, they were inadequate. For those excluded from
common law or simply disappointed or frustrated by it, the obvious avenue was to petition the
King for justice. Petitions came to be addressed by the chancellor directly who was the keeper of
the Great seal of England.5In the Medieval period, the power of the chancery court to grant
reliefs was based on the King’s prerogative. Jurisdiction was based on common law in a more
liberal way to achieve justice which showed the equitable side of the chancellor. It is from the
English side of chancery that modern equity emerged in the late Middle Ages.6

1
Hanbury and Martin, Modern Equity, 16TH Edition, Sweet and Maxwell, 2001, at p3
2
Alastair Hudson, Equity and Trusts, Cavendish Publishers 2001, 4th Edition, at p5
3
Snell E.H.T et,Principles of Equity ,Sweet and Maxwell, 29th Edition
4
Bakibinga D.J, Equity and Trusts in Uganda, Fountain Publishers 2003, at p5
5
www.usyd.educ.au
6
ibid
Prior to the Seventeenth Century, chancery jurisdiction tended to be elastic, vague and unclear
due to reasons that reports of decisions in relation to equity were very few and irregular thus
affecting the development of decisions based on precedent. Secondly, majority of chancellors
being non-lawyers exercised equity jurisdiction based on principles of conscience and natural
justice. In middle of the Seventeenth’s century, chancery jurisdiction lost its flexibility and
adopted the common law system of precedent owing to facts that principles on which equity was
then based were very vague and that common law judges later presided over chancery and
influenced the adoption of the precedent system.7
In terms of the relationship between equity and common law, a few illustrations will demonstrate
how courts resolved conflicts between common law and rules of equity in the adjudication of
disputes.8
The dispute between common law and the chancery 1613 to 1616 resulted from the intensified
rivalry between the two. This was largely because of the chancery’s power to issue the common
injunction to restrain the enforcement of the of common law judgments. The decisive stage arose
when Sir Edmund Coke became the Chief Justice of the King’s Bench Division of the High
court, he was totally opposed to chancery jurisdiction. He clashed with Lord Ellesmere in the
Earl Oxford’s case9 the dispute was where he contended that on grounds of equity he had power
to set aside common law decisions. Sir Edmund Coke however, argued that common law must
take precedent over equity. The dispute settled in favor of equity by James I and it was
established that the chancery could set aside common law where they were against conscience so
that when equity in law came into conflict equity should prevail which rule remains a circuit
breaker between the law and equity today.10 In the mentioned case, Lord Ellesmere expressed
his views on chancery, the chancellor and the role of equity, “The cause why there is a chancery
is, for that men’s actions are so diverse and infinite, that it is impossible to make any general law
which may aptly meet with every particular act and not fail in the circumstances, The office of
the chancellor is to correct men’s consciences for fraud, breach of trusts, wrongs and oppressions
of what nature so ever they be, and to soften and mollify the extremity of the law.” 11 That
seemingly unlimited power drew criticism for its uncertainty and apparently arbitrary nature of
the chancellor’s jurisdiction. The most famous being John Selden’s aphorism where he stated
that, ”Equity is a roguish thing, for law we have a measure, know what to trust to, equity is
according to the conscience of him that is the chancellor and that it is large or narrower, so is
equity . Tis all one as if they should make the standard for the measure we call a foot, a
chancellors foot, what an uncertain measure would this be? One chancellor has a long foot,
another a short foot, a third an indifferent, tis the same thing in the chancellor’s conscience.”
The decision in Earl Oxford’s case culminated into the chancery court jurisdiction which become
more intensive and attracted a lot of litigants thus become overburdened. Lord Nottingham who
is believed to be the father of equity, in 1673 firmly believed that equity should have clearly
7
ibid
8
Bakibinga , D.J,Equity and Trusts in Uganda, Fountain Publishers 2003,at p6
9
(1615)1 Rep Ch.1
10
www.usyd.educ.au
11
ibid
defined principles and needed to follow the doctrine of precedent. With time courts of equity
were faced with a number of problems such as court officials become more corrupt, incompetent
there by purporting to delays thus the call for reforms of the chancery jurisdiction and procedure.
Reforms included; common law courts applied equity rules to cases brought before them
whenever those rules conflicted with common law rules. Common Law Procedure Acts of 1852,
1854 and 1860 gave the common law courts power to exercise certain jurisdiction which was
originally reserved for the chancery. The Chancery Amendment Act 1852 gave the courts of
chancery power to exercise certain common law powers. Lord Cairn Act 1858 empowered the
court in cases of contracts and torts to award damages in addition to injunctions, specific
performance among others.12 These reforms however did not achieve much in dealing with the
shortcomings of the dual system of administering justice. Thus the Royal Commission on
administration of justice recommended the fusion of this administration by consolidating of all
superior courts of law of and equity.
Judicature Acts 1873, 1875, provided that where there was conflict between the rules of equity
and those of common law, equity should prevail. Under the judicature system the administration
of these bodies of law was brought under control of one court. It is crucial to remember that it is
only administration of these principles which is fused not the principles themselves. The main
features of the judicature system were that all branches of court have power to administer
equitable remedies, equitable defenses can be pleaded in all branches of the court and
appropriate reliefs given, all branches of the court must recognize equitable rights, titles and
interests, and the common injunction was also abolished.
Equity arose and developed in its early days as a reaction to the rigors and inadequacies of
common law13and to provide remedies where common law was unable to avail to the litigants.
Equity is said to have been divided into three categories namely;
Exclusive jurisdiction, this covered situations in which rights could be recognized and enforced
at common law by common law courts but due to the inflexibility of those courts, such rights
were neither recognized nor protected thus the chancery court stepped in to protect and recognize
these rights. These rights included aspects which depended on the subject matter for example
trusts and also depended on the type of remedy.
Concurrent jurisdiction, this involved the creation of new remedies. The exercise of this
jurisdiction depended on rights which common law recognized and enforced, which were
inadequately enforced thus equity intervened to make them adequate. Auxiliary jurisdiction, on
the other hand involved creation of new procedures. This was exercised in order to assist the
defective procedure at common law. This led to new procedures including the administration of
interrogatories, discovery of documents and perpetuation of testimony.

The relationship between Common law and Equity, in relation to the introduction of the
Judicature Act style legislation. Even though the Judicature Acts have now unified the
12
Bakibinga, D.J, Equity and Trusts in Uganda,Fountain Publishers 2003,at p12
13
Curzon,L.B,.Equity and Trusts, Cavendish Publishers,1995, at p2
administration of law and equity the two bodies of the law and equity the bodies of law remain
separate. There are, however statements by great judges to the effect of the law and equity are
fused for example in Walsh vs. Lonsdale 14 where Sir George Jessel said, as early as 1881; “there
are not two estates as there were formerly, one estate in common law by reason of payment of
rent year to year, and an estate in equity under the agreement. There is only one court, and equity
rules prevail in it.”15 Even with the above assertion, it is important to be clear as to what is meant
by the claim that law and equity are fused. If it means that there is now no difference between
legal rights and remedies and equitable rights and remedies, it cannot be supported 16and to
properly understand the nature of modern equity it is essential to comprehend the relationship
between equity and the law before their administration under one court. There were a number of
major features of that relationship;
Common law courts would not recognize equitable rights, titles and interests. Thus, at common
law the trustee and not the beneficiary were regarded as the owner of the trust property. This
meant, for instance, that no action could be brought at common law for breach of purely
equitable obligation. In Castlereagh vs. Davies17, a company brought an action against one of its
directors seeking damages for breach of his duty to act in the interests of the company. Asprey
and Jacobs JJ rejected the company's claim saying, “We do not think that . . . all those principles
which must govern the conduct of directors as fiduciaries which have been developed in equity
have become in some manner transposed into the common law so that there is at common law an
action for their breach .... The courts of equity having developed the principles of duty enforce
those principles by their own remedies.” But there were exemptions to this rule; common law
recognized the validity of devises of equitable interests for example in the case of in Pawlett vs.
Attorney General18, a devise of an equity of redemption was upheld. The common law also
recognized equitable claims in interpleader cases, for example in the case ofGourlay vs.
Lindsay19 and in contracts of sale of land always held the purchaser to be entitled to insist on a
conveyance of the equitable as well as the legal title. In some circumstances courts of common
law have recognized trusts in particular where leases have been held on trust. Common law
courts also recognized equitable, rights and interests where the subject matter of a claim was in
tort or contract such as breach of contract.
Equity had no power to award damage. The court of chancery had power to award monetary
remedies by way of resitutionary relief but not damages as they were known at law. In England a
power to award damages in addition to the remedies of injunction and specific performance was
conferred on chancery by Lord Cairn’s Act in 1858 20 this right to award damages was not
unlimited. Some entitlement to one of the two equitable remedies had to be shown before
damages could be awarded. However it was ultimately held that a claim for injunction or specific
performance which could be justified on the original pleadings was sufficient, even though the
14
(1882)21 Ch.D 9
15
Hanbury and Martin, Modern Equity, 16th Edition, Sweet and Maxwell, 2001, at p20
16
 Ibid; at p21
17
(1967)67 (NSW)279
18
(1667) Hard 465
19
(1879)2 SCR NSW 278
20
www.usyd.educ.au
claim might be defeated by some subsequent intervening factor: InKing vs. Poggioli 21, a
purchaser of rural land sought specific performance against the vendor and damages for the
vendor's failure to complete on a specified day as stipulated. However, the purchaser had refused
to tender the full purchase price and retained a sum sufficient to cover the cost of stock lost
through lack of grazing. The High Court held that specific performance was not available as the
purchaser could not show that he was at all times ready and willing to fulfill his part of the
contract and, as he was not entitled to specific performance, he could not get damages under s 9
of the Equity Act 1901.
Common law courts lacked the power to give interlocutory relief. Chancery had inherent power
to order remedies of discovery and interrogatories, to award interim injunctions and to appoint
receivers. The common law courts lacked these powers although a power to order discovery and
interrogatories was conferred on the common law courts in England by Section 50 and 51 of the
Common Law Procedure Act 1854.
Courts of common law had no power to award specific performance, injunctions. The only
exceptions to this were, first a power to award injunctions in addition to damages given to
common law courts by section 48 to 51 of the Common Law Procedure Act 1854. No power
existed to transfer cases from one jurisdiction to another. There was real risk, particularly in
cases concerning mistake or breach of contract, of commercial proceedings in the wrong court. It
was not until 1854 in England and 1857 in New South Wales that power to recognize equitable
defenses was conferred on the courts of common law. However the courts of common law had
no power to impose conditional relief. They could only find for or against a party. As a result the
right to raise equitable defenses at law was restricted to cases in which a court of equity would
have granted an absolute perpetual and unconditional injunction on the pleading raised.
The modern development of the law of estoppel, especially promissory estoppel and proprietary
estoppel has been achieved without enquiring whether the doctrines are doctrines of equity, or of
law or of both.22 The doctrine of promissory estoppel works negatively that is giving protection
to the party who relied on the promise but not to give rise to a new cause of action, but
proprietary estoppel operates positively and is capable of creating new rights. Such rights though
are recognized in equity only. Proprietary estoppel must therefore be regarded as a development
of equity and other estoppels as being based on common law or equity thus a relationship is
created between the two.
In its beginnings equity grew from common law, it has never existed independently of it. Equity
is further a modification of and hence a supplement to common law. Equity came to fulfill the
law.23 In some historical circumstances it has appeared to rival common law as seen above.
Today, however as a result of given developments, Judicature acts 1873 to 1875 in particular;
Law and Equity stand not in rivalry but as an integral part of one system.

21
(1923)32 CLR 222
22
Hanbury
23
Curzon L .B,Equity and Trusts, Cavendish Publishers, 1995, at p2
DOCTRINE OF EQUITY

The doctrine of equity is a principle of inter-jurisdictional water allocation developed by the U.S.
Supreme Court in response to interstate water conflicts. It is a doctrine of necessity because of
the juxtaposition of the legal theory allowing each state to develop its own form of water law
against the physical reality that streams flow from one state to another. The doctrine states that
when there is a disagreement over the water use of an interstate stream, the court must fashion an
equitable apportionment of the water that serves the needs of water users in both states. Equitable
apportionment of the water is not based on any mathematical formula but on a fair consideration
of all the interests involved.

The doctrine originated in the Great Plains, where water flows not only from west to east but also
from appropriation water law jurisdictions to riparian water law jurisdictions. Water allocation
and consumptive uses of water by an upstream state have significant consequences when
downstream states seek to use water of the same stream. Such was the case with the states of
Colorado and Kansas. In 1901 Kansas sued Colorado on behalf of water users of the Arkansas
River in western Kansas, alleging that Colorado, through its appropriation law, had encouraged
its citizens to consume the water of the Arkansas to the detriment of the people in Kansas.
Colorado countered, maintaining that as an independent state it had the right to use all the water
it needed, even to the detriment of Kansas residents. By 1904, the case, Kansas v. Colorado, had
reached the U.S. Supreme Court. In 1907 the Supreme Court rejected both positions. Justice
David Brewer, a native of Kansas, wrote the court's opinion. While the Court did not find that
Colorado had injured residents of southwestern Kansas to any great degree, it did establish the
principle of the "equality of right," which fashioned a remedy requiring courts to ensure each
state an equitable opportunity to use interstate stream water. This balancing of relative economic
advantages continues to determine decisions on interstate water disputes.

GENERAL PRINCIPLES OF EQUITY

The importance of the maxims ought not to be overstated: they are far from being rigid
principles, but exist as terse sentences which illustrate the policy underlying specific principles.

1. Aequitaes est corectio legis generalities latae, qua parte deficit: i.e., Equity is a correction of
the general law in the part where it is defective.

For a long time, the English Courts were guided by the doctrine ubi remedium ibi jus (where
there is a remedy there is a right) but with the development of the Court of Chancery in England,
this doctrine gave way to a more pragmatic and just doctrine called ‘ubi jus ibi remedium’
(where there is a right there is a remedy).  

2. He who seeks equity must do equity

This maxim put a mandate on the seeker of equity. A litigant, claiming something by way of
equity, must, himself be ready and willing to grant to his opponent, that which the opponent is
entitled. Chappell v. Times Newspapers Ltd,where workers wanted an injunction against their
dismissal for going on strike refused to agree not to strike if the injunction were to be granted,
and thus the injunction was not granted.

3. Aequitas sequitur legem i.e. Equity follows the law

Equity only intervened when some important factor became ignored by the law. Thus, in the
early stages of the development of the law of trusts, the Lord Chancellor and, subsequently, the
Court of Chancery acknowledged the valid existence of the legal title to property in the hands of
the feoffee (or trustee). The acquisition of this title by the feoffee was dependent on compliance
with the appropriate legal requirements for the transfer of the property.

4. Equity will not suffer a wrong to be without a remedy

This maxim illustrates the intervention of the Court of Chancery to provide a remedy if none was
obtainable at common law. The ‘wrongs’ which equity was prepared to invent new remedies to
redress were those subject to judicial enforcement is in the first place.
In Cohen v. Roche, specific performance was not granted for a contract for some Hepplewhite
chairs (damages were granted instead) since they were not rare or unique enough.

5. He who comes to equity must come with clean hands

The assumption here is that the party claiming an equitable relief must demonstrate that he has
not acted with impropriety in respect of the claim.

6. Equality is equity

Where two or more parties have an interest in the same property but their respective interests
have not been quantified, equity as a last resort may divide the interest equally. The same remedy
must be available to the other parties if the position was reversed. Flight v. Bolland - in this case
minors cannot be granted specific performance against adults, since minors' contracts are in
themselves unenforceable.

7. Where there is equal equity, the law prevails

Equity did not intervene when, according to equitable principles, no injustice resulted in
adopting the solution imposed by law. Thus, the bona fide purchaser of the legal estate for value
without notice is capable of acquiring an equitable interest both at law and in equity. Equity is
not a punishment.

Wroth v. Tyler, specific performance was refused, since it would have forced Tyler to sue his
own wife. Equitable damages were awarded instead, in lieu of specific performance.

8. Where the equities are equal, the first in time prevails

Where two persons have conflicting interests in the same property, the rule is that the first in
time has priority at law and in equity: qui prior est tempore potior est jure. – 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.
9. Vigilantibus, non dormientibus jura subvenient Delay defeats equity (equity aids the vigilant
and not the indolent)

Where a party has slept on his rights and has given the defendant the impression that he has
waived his rights, the court of equity may refuse its assistance to the claimant. This is known as
the doctrine of laches.

10. Equity looks at the intent rather than the form

The court looks at the substance of an arrangement rather than its appearance in order to
ascertain the intention of the parties. For example, a deed is not treated in equity as a substitute
for consideration.

11. Equity imputes an intention to fulfill an obligation

The principle here is based on the premise that if a party is under an obligation to perform an act
and he performs an alternative but similar act, equity assumes that the second act was done with
the intention of fulfilling the obligation.

12. Equity regards as done that which ought to be done

If a person is under an obligation to perform an act which is specifically enforceable, the parties
acquire the same rights and liabilities in equity as though the act had been performed.

EQUITY IN INDIAN LEGAL SYSTEM

Most of the equitable principles and rules have, in India, been embodied in the statute law and
has been made applicable to the extent of the provisions made therein. The provisions of equity
in Indian statute books might have their source in common law or in equity or in an adjustment
between the two, is immaterial.

Statutory recognitions of the principles of equity are found in:

The Indian Contract Act, 1872;

The Specific Relief Act, 1877; 

The Indian Trust act, 1882

The Transfer of Property Act, 1882;and

The Indian Succession Act, 1925.

“The point primarily relates to the section 28 of the Indian Contract Act, 1872. The subject is of
great importance from the point of view of economic justice, avoidance of hardship to consumers
and certainly and symmetry of the law. The equitable doctrines featuring in the Indian Contract
Act are mainly, the doctrine of penalties and forfeiture, stipulations as to time in a contract,
equitable relief on the ground of misrepresentation, fraud and undue influence. In a case which
went to the Supreme Court, a clause in an insurance policy provided that all the benefits under
the insurance policy shall be forfeited if the suit was not brought within the specified period, the
clause was held to be valid.” 

“Trust and trustees is a concurrent subject [Entry 10 of List III of Seventh Schedule to
Constitution]. Thus, the Act will apply all over India except when specifically amended / altered
by any State Government.

The Indian Trusts Act was passed in 1882 to define law relating to private trusts and trustees. A
trust is not a 'legal person'. Property of trust is held in name of trustee for benefit of beneficiary.
The rules administered by the English Courts of equity under the head of justice, equity and good
conscience are contained in the Indian Trust Act.” 

Many doctrines of equity are contained in the Transfer of Property Act. The English doctrine of
part performance has been drawn in section 53A of the Act. Section 48 and section 51 are also
based on the equity principles. Equity of redemption in England was codified to Right of
redemption in India as in the case of Gangadhar v. Shankar Lal and Prithi Nath Singh v. Suraj
Ahir the codified law was followed.

Section 180-190  of the Indian Succession Act deals with doctrine of election in cases of will and
section 35 of the Transfer of Property give effect to this doctrine in general.
It is important to bring to the notice for the researcher that though the English rules of equity
have been substantially incorporated by the Indian Legislature, yet, there are many other rules of
English Equity are either not been followed in India or are adopted only in a modified form,
keeping in view the different ground realities of the country.”

“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 have 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 151of the Code of Civil Procedure,
1908, which applies to all civil courts in India. There is no such inherent power 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.” 

Woodruff says: not only may there be in India rights to be protected which are unknown to
English law ,but interests of which it does take cognizance , may here require protection by
injunction, or otherwise, in a set of circumstances in which it is not necessary to grant relief in
England, or the converse may be the case. 

Thus according to the usages obtaining in certain places in India, the right of privacy is
recognized and injunctions are issued to protect the right of privacy. The rule of English law is
different from that. 

English rules and decision to the relation which existed between the court of chancery and the
courts of common law in England were very different from those between the high court’s and
mofussils courts in India as they were also the respective powers and functions of these courts.

In India, in view of its large cultural diversity, and for various social circumstances, different
factual circumstances may warrant circumstances for protection. The broad principles of the
English decisions may apply, particularly those based on equity, though the ratio itself may not
act as a binding precedent”

BIBLIOGRAPHY

Case Laws

Alastair Hudson , Equity and Trusts, Cavendish Publishers 2001 4th Edition

Bakibinga D.J, Equity and Trusts in Uganda, Fountain Publishers 2003

Curzon L.B, Equity and Trusts, Cavendish Publishers, 1995

Hanbury and Martin, Modern Equity, Sweet and Maxwell, 2001 16th Edition

Snell E.H.T et, Principles of Equity, Sweet and Maxwell, 29th Edition