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Topic of Assignment

Conflict between law and


equity and the application of
equity in Pakistan

Name: Adv. M.H.Razi


Registration No: 3507-FSL/LLB/f12
Section: A
Semester: 8th
Last date: infinite
Submitted to: Confused
Couse name: Law of Equity
University: International Islamic University Islamabad
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Table of content
S.n Covered topics P.no
o
01 Introduction 03
02 Definitions 03
2.1 Common law 03
2.1. Elaboration of common laws definition 03
1
2.2 Equity law 03
2.2. Elaboration of equity laws definition 03
1
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. Application and cases 06
1
4.1. Recognition in Pakistan 06
2
4.2 Equity follows the law 06
4.2. Application and cases 06
1
4.2. Recognition in Pakistan 06
2
4.3 He who seeks equity must do equity 06
4.3. Islamic point of view 06
1
4.3. Application and cases 06
2
4.3. Recognition in Pakistan 06
3
4.4 He who comes into equity must come with clean hand 07
4.4. Recognition in Pakistan 07
1
4.5 Delay defeats equity 07
4.5. Application and cases 07
2
1
4.5. Recognition in Pakistan 07
2
4.6 Equality is equity 07
4.6. Application and cases 08
1
4.6. Recognition in Pakistan 08
2
4.7 Equity looks into the intend rather than the form 08
4.7. Application and cases 08
1
4.7. Recognition in Pakistan 08
2
4.8 Equity looks on that as done which ought to be done 08
4.8. Application and cases 08
1
4.8. Recognition in Pakistan 09
2
4.9 Equity imputes on intention to fulfil obligation 09
4.9. Application and cases 09
1
4.9. Recognition in Pakistan 09
2
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:

Common law:

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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 Aristotles definition indicates that as well as both
other definition does the same and tells that equity didnt developed to
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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 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

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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 oxfords 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 didnt 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.
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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:
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

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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) Wifes 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

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obtained it under such contract. This is but proper because one
cant benefit twice.(18)
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
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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- Plaintiffs 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) Equitys 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:
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:
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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:
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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 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

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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, Snells 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 Snells principle of equity
9) Earl of oxford case (1615)21ER 485
10) Section 25(11) judicature Act
11) Ashby vs White (1703) 92ER 126
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

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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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