Topic of Assignment

Conflict between law and equity and the application of equity in Pakistan

Name: Muhammad Hussain Razi

Registration No: 2769-FSL/LLB (e)/F15
Section: ‘B’
Semester: 2nd
Last date: 12-5-2016
Submitted to: Madam Annie Munir
Couse name: Law of Equity
University: International Islamic University Islamabad

Table of content
S.no Covered topics P.no
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 01 Introduction 03
02 Definitions 03
2.1 Common law 03
2.1.1 Elaboration of common law’s definition 03
2.2 Equity law 03
2.2.1 Elaboration of equity law’s definition 03
2.3 Result of both definitions 04
03 Conflict between equity and common law 04
04 Equity and application in Pakistan 05
4.1 Equity will not suffer a wrong without remedy 05
4.1.1 Application and cases 06
4.1.2 Recognition in Pakistan 06
4.2 Equity follows the law 06
4.2.1 Application and cases 06
4.2.2 Recognition in Pakistan 06
4.3 He who seeks equity must do equity 06
4.3.1 Islamic point of view 06
4.3.2 Application and cases 06
4.3.3 Recognition in Pakistan 06
4.4 He who comes into equity must come with clean hand 07
4.4.1 Recognition in Pakistan 07
4.5 Delay defeats equity 07
4.5.1 Application and cases 07
4.5.2 Recognition in Pakistan 07
4.6 Equality is equity 07
4.6.1 Application and cases 08
4.6.2 Recognition in Pakistan 08
4.7 Equity looks into the intend rather than the form 08
4.7.1 Application and cases 08
4.7.2 Recognition in Pakistan 08
4.8 Equity looks on that as done which ought to be done 08
4.8.1 Application and cases 08
4.8.2 Recognition in Pakistan 09
4.9 Equity imputes on intention to fulfil obligation 09
4.9.1 Application and cases 09
4.9.2 Recognition in Pakistan 09
05 Conclusion 09
06 End note and references 10
07 Bibliography 10
⮚ Introduction:
My this assignments try to peer in those conflicts which arose between common
law and equity and applicability of equity in Pakistan therefore one cannot understand the
conflict and applicability in Pakistan until we define the both administration of law, in
laconic and comprehensive manner in its meaning.

⮚ Definitions:

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 ● Common law:
1: “The un codified law other than statuary law is known as common law.”(1)
2: “The law which based on customs and early decisions of the court.”(2)
3: “The common law is a body of law based on customs and general principles
embodied in case law which serves as precedents and is applied to situation not covered by
statue.(3)
● Elaboration:
When we studied all the above mentioned definitions at once then we can easily understand
the gist of common law system that is to say common law is something different from equity
and where the precedents and customs are presumed to be the primary source of law and the
decisions are based on these source of law and there is any proper justification to show that
common law accepts any rule of equity, natural rights, moral rights and conscience for
adjudicating the cases which normally filed in the common law. The precedents are also
binds on the future cases of same nature that is to say the doctrine of “stare decisis” were and
are largely diluted with the particular case. Subsequently these customs were written and
gave a frame of “Writ system”

● Equity law:
1:“The rectification of formal justice” (4)
2: “All those rules which are developed to mitigate the severity or the constrains of common
law” (5)
3: “A system of law design to furnish remedies for wrongs which were not legally
recognized under the common law of England or for which no adequate remedy was provided
by common law.”(6)
● Elaboration:
All these three definition shows that there were some deficiencies in the common law system
and to strengthen and solidify the common law equity was emerged as Aristotle’s definition
indicates that as well as both other definition does the same and tells that equity didn’t
developed to destroy the law but to supplement the law and to fulfil the deficiencies like in
adequate remedies. The definition clearly indicates us that when it comes to remove the
deficiencies it also developed its own rights and remedies to supplement and not to destroy
the law.

● Result:
Defined and elaborated search showed that even equity was not came to destroy the law but it
grounded its administration in the orbit of law impliedly and secretly, and well existed.
Therefore we cannot deny the fact that where two bodies of law existed consequently there
were bound to be occasions where there is a conflict. But that was the conflict which brings a

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creativity in the system of law named as “Supreme court of judicature”. So we can say that
conflict were there but every conflict results in best reforms.
Because
“Creativity comes from a conflict of ideas” (Donatella Versace) (7)
Some conflicts were implied like in the “source of law of both administration of justice and
both frequently and usually counter attack each other in arguments. There were also implied
conflict in “rights” and especially in the “remedies” emerged in the result of emergence of
equity court. The conflict which is our subject of study is the one which was express in nature
and that we will discuss with reference of cases in detail.
⮚ Conflict between Equity and Law:
As I told earlier that nonetheless, in a legal system where two body of law existed, there were
bound to be occasions where there is a conflict. The conflict arose in the sixteenth century as
the chancellor extended and consolidated his jurisdiction, and the dispute centred on what
became known as “common injunctions” issued by the chancellor, who contended that, even
though a judgement was technically good, he was entitle to set it aside where it had been
obtain by oppression, wrong and bad conscience. By a ‘common injunction’, he would
restrain parties to an action at common law either from proceeding with their action at law, or
having obtained judgement, from enforcing it. The rule was laid down in Neath v Rydley
that where any matter was properly traceable at common law, common law could prohibit the
chancery from interfering. In fact in Courtney v Glinvil coke threaten to imprison any party
to a suit, who after losing at common law, appealed to the chancellor for relief.
The another conflict which I found the criticism of common law to the sources of equity court
that is the equity courts has no strict rule and their judgements where made through conscious
therefore the common law criticise on them that the flexibility given by the equity court in
deciding cases and on moral principles and conscious so no one can know how and where the
justification of his case comes which create unpredictability in the mind of people which
results in uncertainty of law in the mind of people.
There was another implied conflict in between the equity and common law as to the new
rights brought by equity law e.g. equitable tittle in case of trust and equitable redemption in
case of mortgage, because these rights endanger the custom of England that in case of trust
the person who holds the legal tittle is presumed to be the legal owner and if refuses there is
only compensation for the beneficiary. But the equitable tittle which is introduced by equity
law challenge the custom of England and the common law presumed that they are degrading
our law.
There were also conflict between the common law and equity law as to the jurisdiction (8) of
the court. As study discover that the equity courts had three jurisdiction that were
conclusive/exclusive, concurrent and auxiliary jurisdiction of equity court, there were no
such dispute in the conclusive and auxiliary jurisdiction but many of the conflict seems to be
in concurrent jurisdiction as both of them had jurisdiction to hear the case.
The conflict reached climax in earl of oxford’s case (9) where the defendant forcefully ejected
the plaintiff from a land (i.e. plaintiff) had built and in an action for wrongfully ejectment, the
court found in the favour of defendant. The plaintiff brought the action in the court of
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chancery and it granted an injunction restraining the defendant from ejecting the plaintiff
from the house he had built upon. According to Lord Ellesmere, he that builds the house must
live in it and argued that equity and good conscious found in favour of the plaintiff. This
didn’t enjoy the pleasure of coke, the then the chief justice of the king bench, who protested
that the chancellor should stop frustrating the rules of common law.
The dispute finally came to a head under James I, when coke was chief justice and Ellesmere
Lord Chancellor. It was implicit in the ruling that if in any situation there was a direct clash
between the two systems; the rule of equity would prevail.
Later on this principle was incorporated in the judicature act (10). And judicature act was
passed due to the above conflicts in which both administration of justice were fused.
⮚ Equity and application in Pakistan:
As we know that when people of England got inadequate remedy from the common law they
start “petitioning the king” and when the cases were few the king start deciding the cases. By
the passage of time he delegate the cases to his chancellors for adjudication, and in the
beginning the chancellors were decide cases in a delegated capacity and in 1474 for the first
time the chancellor pass the decree in his own name and that was the emergence of equity
and after that they formulated different maxims for the standardization of law. So our
application of equity in Pakistan revolves around these maxims.
The maxims which were formulated by the equity courts were:
1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfil an obligation.
12. Equity acts in personam.

● Equity will not suffer a wrong without a remedy:

Where there is a right there is a remedy. This idea is expressed in the Latin Maxim ubi jus ibi
remedium. It means that no wrong should go un-redressed if it is capable of being remedied
by courts.
Application and cases:
In Ashby v. White, (11) wherein a qualified voter was not allowed to vote and who therefore
sued the returning officer, it was held that if the law gives a man a right, he must have a
means to maintain it, and a remedy, if he is injured in the enjoyment of it.
Recognition in Pakistan:
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The civil procedure of Pakistan (12) and the specific relief act in Pakistan have incorporated
this principle. The CPC entitles a civil court to entertain all kinds of suit unless prohibited.
The specific relief act provides for equitable remedies like specific performance of contract,
recovery of possession and injunction etc. (13)

● Equity follows the law:

Equity follows the law means “Thus equity came not to destroy the law but to fulfil it, to
supplement it, to explain it.”(14)
Application and cases:
At common law, where a person died intestate who owned an estate in fee-simple, leaving
sons and daughters, the eldest son was entitled to the whole of the land to the exclusion of his
younger brothers and sisters. This was unfair, yet no relief was granted by Equity Courts. But
in this case it was held that if the son had induced his father not to make a will by agreeing to
divide the estate with his brothers and sisters, equity would have interfered and compelled
him to carry out his promise, because it would have been against conscience to allow the son
to keep the benefit of a legal estate which he obtained by reason of his promise. (15)
Recognition in Pakistan:
Recognized under limitation act.
For instance if someone is going to conceal some facts through which a person deprived from
his property when the bar comes, then there will be no bar on the concealment of fact(16)
● HE WHO SEEKS EQUITY MUST DO EQUITY:
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.
Islamic point of view:
“Woe to those who stint the measure” (17)
Application and cases
This maxim has application in the following doctrines-
i) Illegal loans
ii) Doctrine of Election
iii) Consolidation of mortgages
iv)Notice to redeem mortgage
v) Wife’s equity to settlement
vi)Equitable estoppel
vii) Restitution of benefits on cancellation of transaction
viii) Set-off
Recognition in Pakistan:
1) Contract act 1872 of Pakistan recognized it that contracts enter into under undue
influence are voidable and therefore a party to contract who has the option of getting
the contract declared void will have to return the benefits so obtain to party from
whom he obtained it under such contract. This is but proper because one can’t benefit
twice.(18)

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 2) Under the transfer of property act embodies the principle of election which rest on the
principle of “approbate and reprobate”(19)
3) This maxim is illustrated also in specific relief act(20) and also in trust act(21)
4) Precedent of India that was Clerk v Ruthnavaloo is recognized in Pakistan, in which it
was decided that equitable set off can be pleaded.(22)

● HE WHO COMES INTO EQUITY MUST COME WITH CLEAN

HANDS:
Means equity demands fairness not only from the defendant but also from the plaintiff. It is
therefore said that “he that hath committed an inequity, shall not have equity.” While
applying this maxim the court believed that the behaviour of the plaintiff was not against
conscience before he came to the court.
Recognition in Pakistan:
1) The precedent “overton v Banister” is incorporated in Pakistani trust act, (23) that is to
say an infant receipt for money though ineffectual to discharge a debt, albeit as he
obtained the same by misrepresentation, he cannot set up a defence of invalidity of
receipt given by him.
2) A plaintiff conduct will dis entitle him to an equitable relief of specific performance
of contract under specific relief Act(24)

● DELAY DEFEATS EQUITIES:

Meaning:
A Latin term in this regard is “Vigilantibus, non dormentibus, jura subvenient” which means
“Equity aids the vigilant and not the indolent”. So, if one sleeps on his rights, his rights will
slip away from him. Legal claims are barred by statutes of limitation and equitable claims
may be barred not only by limitation law but also by unreasonable delay, called laches.
Application and cases:
This maxim applies where doctrine of lashes applies
Doctrine of laches- Plaintiff’s unreasonable delay is a weapon of defence by the defendant
against the plaintiff.
Recognition in Pakistan:
This doctrine directly or indirectly found recognized in Pakistan in the limitation Act (25)
which fixes a period of three year within which a suit for specific performance should be
brought. This is also recognized in transfer of property act in Pakistan (26)
● EQUALITY IS EQUITY:
Means that as far as possible equity would put the litigating parties on an equal level so far as
their rights and responsibilities are concerned.
Application and cases:
Application of this maxim can be understood from the following:
i) Equity’s dislike for joint tenancy and presumption of tenancy-in-common
ii) Equal distribution of joint funds and joint purchases
iii) Contribution between co-trustees, co-sureties and co-contractors
iv)Rateable distribution of legacies
v) Marshalling of assets
Recognition in Pakistan:
It is recognized in Pakistan under various enactments:
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 a) Contract act sec 42 illustrate tenancy in common as regards devolution of liabilities
b) Sec 69 and 70 illustrate the doctrine of marshalling
c) Sec 146 and 147 explains that co-sureties are liable to contribute equally
d) Under transfer of property act sec 56 illustrates the doctrine of marshalling
e) Sec 73 of civil procedure code
f) Sec 45 of transfer of property
● EQUITY LOOKS TO THE INTENT RATHER THAN THE FORM:
Meaning:
Common law was very rigid and inflexible. It could not respond favourably to the demand of
time. It regarded the form of a transaction to be more important than its substance. It looked
to the very letter of the agreement and not the intention behind it. On the other hand, Equity
looks to the spirit not to the letter, it looks to the intention of parties and not to the words.
Application and cases:
The application can be seen in the following instances-
i) Relief against penalties and forfeitures
ii) Relief in regard to precatory trust
iii) Relief in regard to mortgages, the doctrine of equity of redemption and the doctrine of
clogs on redemptions
iv)Attitude in regard to statute of frauds.
Recognition in Pakistan:
Forfeiture clauses in a lease are similarly disregarded in some cases where they are inserted
only for securing or ensuring the prompt payment of the rent. These provisions based on this
maxim are incorporated in transfer of property act (27)
● EQUITY LOOKS ON THAT AS DONE WHICH OUGHT TO BE
DONE:
Meaning:
If someone undertakes an obligation for the other, equity courts look on it as done and as
producing the same results as if the obligation had been actually performed. Equity courts
therefore look to the acts of the person bound by his conscience and interpret and construe
them in such a way that they amount to what ought to be done.
Application and cases:
The working of this maxim can be seen-
i) The doctrine of conversion
ii) Executory contracts
iii) Doctrine of part performance
Recognition in Pakistan:
The principle contain in the maxim has been recognized in Pakistan law under the following
enactments:
a) Section 40 of transfer of property
b) Section 91 of trust act
c) Sec 53-a of transfer of property act
● EQUITY IMPUTES AN INTENTION TO FULFILL AN
OBLIGATION:
Meaning:
Equity considered and estimated acts of parties. Thus where a person is under an obligation to
do a certain act, and he does some other act which is capable of being regarded as an act in
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fulfilment of his obligation. In other words a person is presumed to do what he is bound to
do.
Application and cases:

i) Doctrine of performance and satisfaction

ii) Ademption
iii) Doctrine of presumption of advancement
iv)Relief against defective execution of power of appointment
Recognition in Pakistan:
The Pakistani succession act make a deliberate departure from the English doctrine of
satisfaction. As the first section goes “where a debtor bequeaths a legacy to his creditor and it
does not appear from the will that the legacy is meant as a satisfaction of debt, the creditor
shall be entitle to the legacy as well as the debt”(28)

⮚ Conclusion:
The equitable maxims provide a set of general principles which can be said to have
influenced the development of equity. This assignment gives an overview of a selection of
these maxims, examining them in varying amounts of detail and identifying many of the
particular areas of the law which have been affected. From the research about the recognition
of these maxims in Pakistan shows that all the maxims which were formulated by the equity
is incorporated and is working and applying in Pakistan. These maxims helps a lot in the
standardization of law and to achieve more and more justice for righteous litigant.

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⮚ End notes and references:

1) Origin of common law p11, Equity trust and specific relief act by B.M Ghandi
2) Origin of common law , p11, equity trust and specific relief act by B.M Ghandi
3) Historical background of common law, Snell’s principle of Equity
4) Define by Aristotle
5) Maitland, Lectures on Equity
6) equity trust and specific relief act by B.M Ghandi, p3 what is equity
7) quotation of Donatella Versace
8) story on equity 3rd edition cited by Snell’s principle of equity
9) Earl of oxford case (1615)21ER 485
10) Section 25(11) judicature Act
11) Ashby vs White (1703) 92ER 126
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 12) Under Section 9 Code of Civil Procedure (CPC)
13) Under Section 5 specific relief Act b/c it shows all the specific relief remedy)
14) Maitland
15) Stikland vs Aldrige
16) Section 18 Limitation Act
17) Al-Quran
18) Under Section 19(a) contract Act 1872
19) Under Section 35 transfer of property
20) Under Section 30 and 33 specific relief act
21) Under Section 62 and 86 of trust act
22) Under Order 8 rule 6 Civil Procedure Code (CPC)
23) Under section 23 of trust act
24) Under section 17 18 and 20 specific relief act
25) In Article 113 of limitation act
26) Under section 51 of transfer of property
27) Under section 114 of transfer of property
28) Under section 177,178 and 179 of succession Act

Note☹(some of the section may be vary from Pakistani law act, as some of them taken from
Indian writer but it will not defeat any provision as our law is same)

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⮚ Bibliography:

1) Equity trust and specific relief act by B.M Ghandi (Book)

2) Principle of equity PLD Publication (book)
3) Principles maxims and leading cases in equity by Ch. Karim (book)
4) Law teacher(conflict between law and equity) (link)
5) Find law Australia (the nature and history of equity) (link)
6) J store (relationship between common law and equity) (link)
7) Lecture 2 part 6: common law and equity(19:02 min) YouTube (video lecture)

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