• Equity Origin with related to Indian law and English law

Introduction

Equity itself is derived from a Latin word which means Justice and egalitarianism.
It’s a system of law which emanated in the English chancery and encompasses a
formal body of indispensable and procedural rules and doctrine, that appendage
or override common and statutory law.

In India, Equity has its origin from the relevant ancient Hindu period, when some
of the well-known legal experts defined the old law and set out the new rules for
a better edible solution in case of any conflict arising between rules of different
laws. Hindu law has never been undeviating and has accordingly introduced
equitable principles to meet the requirements of the time. The smritis were the
oldest attempt for the compilation of law. In which smriti karas (the author of
Smriti) have actually conceded the principle of law.

Equity Under English Legal System

To trace the development of Equity under English law, we will have to go back to
the 13th century when Edward I was ruling over England. In those days there were
three great courts in existence namely-

 The King’s Bench;

 The Court of Common Pleas; and
  The Exchequer.

Of the above three Courts, the King’s Bench administered equity also but at the
same time they did not regard themselves as administering a new body of rules.
They were trying to provide relief in hard cases. Allen has observed that “Norman
and English Kings were fountains of justice and the defenders of the poor and
defenseless persons.” The law which these Courts administered was in part
‘Traditional Law’ and in part ‘Statutory Law’. The Statute law was also called
‘Common Law’.

In English Law we may distinguish between two meanings of “Equity”, the

distinction having come about as the result of historical development. In the first
place, the term may be taken to represent the general endeavor to make the law
and its administration as just and as humane as possible. In its other meaning it
denotes the doctrines evolved by the Court of Chancery in giving effect to the first
and more general meaning. This must not be taken to imply that there never has
been in the English system, outside the Court of Chancery, any manifestation of
that general, tampering discretion exercised by the judiciary.

Indeed, from the very earliest times down to the present era, we find instances of
all three manifestations of equity, the liberal interpretation of the law, its
relaxation in particular cases and the creation of new doctrines. Examples of
liberal interpretation, solicited at random, are the presumptions of innocence in
favor of the accused, the principles of natural justice, the rule that the Privy
Council will entertain appeals from colonies to prevent injustice being done, and
the statutory rule empowering the judges to refuse the extradition of fugitive
offenders to other parts of the Commonwealth if it would be unjust or oppressive
to do so.

The correction of the Common law by equity has been the subject of some
dispute. Maitland insisted that, apart from a few trifling instances, there was no
conflict between them. “Equity” had come, not to destroy the law, but to fulfill it.
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”

Roman and English Equity: Resemblance and Distinction

The Roman Equity, resembles the English Equity on the following points:

 Basic authority is similar– Just as the authority of the English Equity was
based on the “royal prerogative”, the authority of the Roman Equity was
based on the imperium, a survival of the royal power to see justice done to
the people which vested in Praetor during his period of office.
 Common object– The object of both types of equity was the same, i.e., to
reduce the rigors and deficiencies of the old law.
 No repealing of old law– Both left the old law unrepealed, rather
supplemented the old law.
 Based on analogy– Both were in certain matters founded on analogy to the
old law.
  Nature- Both claimed to override the old law by virtue of an inherent
superiority of principles of equity.
 Development & Origin– Both English and Roman Equity had similar origin
and development. In both places it was evolved as a reaction against the
rigidity and formalism of Common law.

Distinction Between The Two

Administration– English Equity was administered by a different official and not by

one who administered the common law. The result was that there was constant
conflict between the Common Law Courts and the Court of Equity in England.
Roman Equity was administered by the same official viz. The Praetor, who
administered, both the civil law and Equity hence, the conflict at Rome between
Equity and civil law was devoid of practical inconveniences.

Nature– English Equity was a judicial principle and in many cases exposed facts in
nature. Roman Equity was in nature and form statutory law embodying general
principles to meet defects which had become apparent in the past.

Subject– The subjects covered by the two also present a distinct contrast.
Originally the main subject of English Equity was the development and
enforcement of ‘trusts’. It devised equitable remedies like injunction and specific
performance in case of breach of contract. Roman Equity did not at first recognize
the binding nature of trust. On the other hand, the largest portion of Roman
Equity dealt with ‘wills’ and ‘succession’, English Equity refused to deal with such
matters.

Equity Under Indian Legal System

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’, ‘Justice’ and ‘Good Conscience’ interpreted to mean only
those rules of English Equity which are applicable to Indian society and
circumstances.

In Mohd. Idris v. R.J. Babuji, the Court held that undergoing the punishment for
contempt does not mean that the court is not entitled to give appropriate
directions for remedying and rectifying the things done in violation of its orders.

In Re: Vinay Chandra Mishra, the court held that statutory provisions cannot
override the constitutional provisions and Article 142 (1) of Constitution of India is
of such nature and provides powers to the court to supplement the existing legal
framework to do complete justice in any matter. This power should be undefined
and uncatalogued so that it remains elastic enough to be molded to suit the given
situation.

Origin of Equity

Hindu 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. Yuktivichar shall
decide the solutions.

Jayaswal has also collected authorities to the same effect. He says: “We may recall
‘Kautilya’s provision that in the dharma text is found opposed to judicial reason
the dharma text fails and there the authority of reason prevails.
Yajnavalkya…….says, “Where there is a conflict between two smritis texts. The
texts had to give way to reason which were in fact, the principles of equity and to
which they were named as “YuktiVichar“. This “Yukti Vichar” was necessarily the
principles of equity which were based on justice and right. He limits the
superiority of Reason or Equity to a conflict between the Sastras themselves.”

Muslim Law

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 as English
Equity is not applicable in India to and invoked in the adjudication of cases. It may
be noted that all the rules of English Equity are not applicable to India.

Courts Under the East India Company

Regulation of 1827 required the East India Company Courts to act according to
justice, equity and good conscience in the absence of a specific law and usage.
Under Clause 36 of the Supreme Court Charter of 1823, the Supreme Court of
Bombay was expressly made a Court of Equity, and given an equitable jurisdiction
corresponding to that of the Court of Chancery. The provision of the rule of
‘justice’, ‘equity’ and ‘good conscience’ was expressly laid down nearly in all
subsequent Acts for the guidance of Judges.

Thus, in India, the Courts were vested with the equitable jurisdiction also and
would decide those cases for which there was a provision under the existing body
of law according to the principles of ‘justice’, ‘equity’ and ‘good conscience’.

Statutory Recognition Of Equity Law In India

Most of the equitable principles and rules have in India been embodied in the
statute law and have been made applicable for the extent of the provision made
therein. That, the provision of equity in Indian statute books might have their
source in common law or in the equity or in adjustment between the two, is
immaterial. Statutory recognition of the principle of equity is found in the:

Indian Contract Act (1872) – There are certain equitable doctrines which have
been imported in the Indian Contract Act, and some of the important doctrines
relating generally to the law of contract are the doctrines of penalties and
forfeitures, stipulation as to time in a contract, equitable relief on the grounds of
fraud, misrepresentation and undue influence.

Specific Relief Act (1877) – 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.”

The Indian Trust Act, (1882)– 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’.
The Transfer of Property Act (1882) – The Transfer of Property Act has also
included many doctrines of equity originated in the Courts of Chancery in
England. Apart from such doctrines Sections 48-51 of the present transfer of
property act are based on the principles of equity.

Conclusion

We have seen that in enacting many statutes, the Indian Legislature has
substantially adopted the English rules of equity, but it must also be noted that all
the rules of English Equity are not applicable In India. There are many rules of
English Equity which have either not been followed in India or imported only in a
modified form in view of the special circumstances of this country.

The Importance of equity was greater emphasis than the common law system.
During the centuries it gained importance and became an integral part of an
Indian legal system too. In India it developed through various statues which have
gained momentum with the various acts which have been passed throughout