INTRODUCTION
The maxims of equity may fairly be described as a set of general principles which are said to
govern the way in which equity operates. They tend to illustrate the qualities of equity, in contrast
to the common law, as more flexible, responsive to the needs of the individual and more inclined
to take account of the parties’ conduct and worthiness. It cannot be said that there is a definitive
list of the maxims: different sources give different examples and some works prefer to avoid the
term altogether in favour of a broader discussion of the character of equity. Above all, the maxims
are applied only when the court feels it appropriate: none of the maxims is in the nature of a
binding rule and for each maxim it is possible to find as many instances of its not having been
applied as instances where it has been.
Though the other maxim indicates equity’s willingness to intervene where the common law will
not, it should not be thought that equity will automatically intervene whenever a certain situation
arises. In general, one can say that wherever certain facts are found and a common law right or
interest has been established, common law remedies will be available whether that produces a
fair result or not. By contrast, equitable remedies are discretionary and the court will not grant
them if it feels that the plaintiff is unworthy, notwithstanding that prima facie he has established
an equitable right or interest. The maxim that he who seeks equity must do equity, together with
the next two maxims, concerning ‘clean hands’ and delay, are aspects of this discretionary quality.
It should not be supposed that the discretion is entirely unfettered. As Lord Romilly MR explained
in Haywood v Cope (1858) 25 Beav 140: “the discretion of the Court must be exercised according
to fixed and settled rules; you cannot exercise a discretion by merely considering what, as
between the parties, would be fair to be done; what one person may consider fair, another person
may consider very unfair; you must have some settled rule and principle upon which to determine
how that discretion is to be exercised.”
So the person who seeks an equitable remedy must be prepared to act equitably, and the
court may oblige him to do so. In the field of contract, the court will not grant an injunction to
prevent breach for the benefit of a party who is not prepared to perform his side of the bargain!
The maxim is also behind the principle of mutuality of remedies (if specific performance is
available to one party then it will be available to the other, even though damages would be
adequate for that party) and the doctrine of election.
WHAT IS EQUITY
Equity is a legal system for obtaining a fair result where existing laws do not provide a solution
equity is the set of legal principles that supplement strict rules of law where their application
would operate harshly According to Osborne -‘it is primarily fairness or natural justice’
DEFINITION OF EQUITY
According to : Plato “equity is a necessary element supplementary to the imperfect generalization
of legal rules”
Snell” equity is a portion of natural justice which, although of a nature suitable for judicial
enforcement, was for historical reasons not enforced by the Common Law courts, an omission
which was supplied by the Courts of Chancery”
Aristotle described equity as eternal and immutable. Blackstone defines equity as the soul and
spirit of all law.
APPLICATION OF THIS MAXIM
a. Dcotrin of Election
b. Equitable EstoppelImprovements made by purchaser
c. Consolidation of Mortgages
d. Notice to redeem Mortgage
e. Illegal loansMortgage by deposit of title settlement
f. Rectification and Cancellation
g. Wife’s equity to a settlement
h. Set – off
i. Rescission of contracts
j. In junctions
LIMITATION OF THE MAXIM
The Principle has certain limitation including:
(1) Clean Hand Doctrine:- A person seeking equity must with clear hands and must not
themselves be guilty of inequitable conduct.
(2) Balancing Public and private interest:- Relief may be denied if granting it would harm
public interest, even if the applicant acted fairly.
(3) Discretionary Nature:- Courts are not obligated to grant relief, they evaluate the
circumstances on a case-by-case.
(4) Statutory overrides:-In some cases statutory provisions may limit the application of
eqitable principles, if they conflict with specific legal rules.
(5) The Principle would apply:- The principles was in effect in the common law of court
England. Effective for equity claim not effective for legal claims.
(6) Must be a suit:- The demand for an equitable relief must arise from a suit that is pending.
(7) Equitable relief:- This maxim is applicable to a party who seeks an equitable relief.
RECOGNITION OF MAXIM IN BANGLADESH
Dcotrin of Election:
- Section 35: Election when necessary:
Where a person professes to transfer property which he has no right to transfer, and as part of the
same transaction confers any benefit on the owner_of the property, such owner must elect either
to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit
so conferred, and the benefit so relinquished shall revert to the transferor or his representative as
if it had not been disposed of…..
[Transfer of Property Act 1882]
Equitable Estoppel:
The purpose of this section is that the transferee cannot say that he had no title to the property
when he sold it. He later took possession of the property. So he will not get that property. That is,
no one can take advantage of his own wrongdoing. This section shall have the same effect as
section 18 of the Specific Remedies Act.
The estoppel principle is further described as:
- Section 18 of the Specific Remedies Act;
- Section 115 of the Evidence Act.
No provision of this section shall affect any right acquired by the next transferee in exchange
for a price in good faith without knowledge of the existence of this will.
[Transfer of Property Act 1882]
Improvements made by purchaser:
When a person with a defective title who makes improvements on the land on his possession,
believing that he is absolutely entitled to it is evicted, the rightful owner has to pay for
compensation on the principle that he did not stop the person in possession from making
improvements.
Section 51. Improvement made by bona fide holders:
When the transferee of immoveable property makes any improvement on the property, believing
in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by
any person having a better title, the transferee has a right to require the person causing the eviction
either to have the value of the improvement estimated and paid or secured the transferee, or to
sell his interest in the property to the transferee at the then market value thereof, irrespective of
the value of such improvement.
Consolidation of Mortgages:
- Section 61. Right to redeem separately or simultaneously: A mortgagor who has executed two
or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the
contrary, when the principal money of any two or more of the mortgagees has become due, be
entitled to redeem any one such mortgage separately, or any two or more of such mortgages
together.
[Transfer of Property Act 1882]
Notice to redeem Mortgage:
- Section 60. Right of mortgagor to redeem: At any time after the principal money has become
due, the mortgagor has a right, on payment or tender, at a proper time and place, or the mortgage – money, to require the mortgagee.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the
time fixed for payment of the principal money has been allowed to pass or no such time has been
fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such
money. According to Section 148 of the Limitation Act, the suit for discharge of mortgage has to
be filed within 60 years.
[Transfer of Property Act 1882]
Illegal loans:
If anyone has taken illegal loan he must payback the loan before relief is given in favour of him.
Mortage by deposit of title settlement:
- Section 96: Mortgage by deposit of title deeds: If a borrower deposits his title deeds a security
for loan, he must repay the money before he can get back the deeds.
Rectification and Cancellation:
• Section 31: Rectification of the deed Precise intention of the parties – Court of equity will
reform the written statement conformable to precise intention of the parties ifthe real intention is
misrepresented by mutual mistake or fraud.
The rectification of instruments is an important principle of equity It enshrined in sections 31 to
34 of the Specific Relief Act, 1877, which is effective in our country.
- Section 32: the Court must be satisfied that all the parties thereto intended to make an
equitable and conscientious agreement. - Section 41: On adjudging the cancellation of an instrument, the court may require the party to
whom such relief is granted to make any compensation to the other which justice may require.
Wife’s equity to a settlement:
Law of equity recognize the wife’s equity to a settlement right to a separate estate in certain
circumstances and her right to deatch that property.
Set–off:
Where there have been mutual credits, mutual debts or other natural dealings between the debtor
and any creditor, the sum due from one party is to be set-off against any sum due from the other
party, and only the balance of the account is to be claimed or paid on either side respectively.
(a) Civil Prucedure code: Equtable set off can be pleaded in Bangladesh Conditions for a
legal set of are consider in order 8, Rule 6 of the CPC, the doctrine of Set-off is
recognized.
Rescission of contracts:
- Sec-38: Court may require party rescinding to do equity:- On adjudging the rescission of a
contract, the Court may require the party to whom such relief is granted to make any
compensation to the other which justice may require. This maxim was established in Bangladesh
through section 38 of the Specific Relief Act.
In junctions:
The principle “He who seeks equity must do equity” is a maxim in equity law. In the context
of injunctions, it means that a person who requests equitable relief (such as an injunction)
must themselves act fairly and equitably. This principle embodies the idea that equity is
not just a matter of law but also fairness in conduct.
For injunctions, this typically implies that:
(a) Clean Hands Doctrine: The party seeking an injunction must not have acted in bad faith,
engaged in misconduct, or been complicit in the issue they are asking the court to
resolve.
(b) Fairness: The person requesting equitable relief must be prepared to act equitably
toward the other party in the same situation.
It is enshrined in sections 52 to 57 of the Specific Relief Act of 1877, which is effective in our
country.
EXCEPTIONS
Following are exceptions to this doctrine.
State legislature: It cannot apply against state legislature
CASE REFERENCES
Overton v Banister (1844)
An infant, fraudulently misrepresenting herself to be of age, obtained from her trustees a sum of
stock to which she was entitled only on coming of age.
Subsequently she instituted a suit against the trustees to compel them to pay over again the stock
which they had improperly transferred to her during her minority.
The court held that the infant could not enforce payment over again, for although the receipt of
an infant is ineffectual to discharge a debt, yet as the infant had A misrepresented her age, she
could not set up the invalidity of the receipt.
CONCLUSION
To conclude I can say that the court of equity being a court of conscience has to look not a only
the benefits of the plaintiff but also to the interest of the defendant and grant relief to the plaintiff
only on the condition that he is prepared to give to the defendant what the latter deserves. the
basis of the doctrine is the interposition of equity.
So, the maxim He who seeks equity must do equity is an essential guideline for ensuring fairness
in equitable remedies in Bangladesh.
REFERENCE
- The Specific Relief Act 1877 Book: Abdullah Al Mamun.
- Transfer of Property Act Book [Act No. IV OF 1882]: Aminul Islam.
- BJS Preli Master Book: Simon Syed.
- The Law of Equity and Trust by Arnab kumar Das
- https://www.slideshare.net/slideshow/equity-49850030/49850030
- Maxims of Equity and Their Applications in Bangladesh by Preeti Sikder.
- https://www.slideshare.net/slideshow/maxims-of-equity-and-their-applications-in
- bangladesh/178114857#23
- “One Who Seeks Equity Must Do Equity” by Kunal Sharma.
- https://www.scribd.com/document/323888717/Equity-Project
- Who Comes To Equity Must Do Equity by Hamid Ali
- https://www.scribd.com/document/295268607/Who-Comes-to-Equity-Must-Do-Equity
- The Law of Equity and Equitable Remedies https://www.lawteacher.net/free-law
- essays/property-trusts/the-law-of-equity.php
- Talukdar Rasel Mahmud (Maxims of equity)
- https://forum.daffodilvarsity.edu.bd/index.php?topic=28031.0
- He Who Seeks Equity Must Do Equity by M.Sufyan wains.
- https://www.scribd.com/document/660793944/he-who-seeks-equity-must-do-equity
Author
Jayed Hossain Rakib
2nd Year Law Student