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assignment on the maxim of equity
An Assignment On : Maxims Of Equity Course Code:  LLB-303 Course Title: Equity and Trust

Submitted To 	     Naila Sohrat Tajbiha Lecturer, Department of Law City university.

Submitted By    		Sherfuddin Id :13233399 Batch:12th Program: LL.B

Submission Date: 18/12/2014

Content page

S.L.	                                             Content	Page no: 01	Acknowledgement     	03 02	Introduction	04 03	Role of Maxims	04 04	List of Maxims	04 05	1. Equity will not suffer a wrong to be without a remedy. 05-06 06	2.Equity follows the law. 06-08 07	3.He who seeks equity must do equity. 08-11	08	4. He who comes into equity must come with clean hands. 11-12 09	5.Equity aids the vigilant, not those who slumber on their rights. 13-15 10	6. Equality is Equity. 15-16 11	7 Equity looks to substance rather than form. 16-18 12	8. Equity sees that as done what ought to be done. 18-20 13	9. Equity imputes an intent to fulfill an obligation. 20-22 14	10. Where equities are equal, the law will prevail. 22-23 15	11.Where the equities are equal the first in order of time shall prevail. 23 16	12 Equity acts in personam. 23-24 17	Other maxims	24-25

Acknowledgement

At first, we are so much  thankful to the Almighty Allah for enable us to make this assignment completely.

Then we cannot but pay respectful thanks to our honorable teacher Naila Sohrat Tajbiha for giving us the opportunity to learn the necessary things through working on the assignment.

Finally, our hearty thanks and love we did offer for our dear classmate of our department who extended their helping hands to complete this report by being beside us constantly with their accurate guidance, suggestion and co-operation.

Introduction The word ‘equity’ has been derived form Roman word ‘aequitas’ which means equalization or leveling. Equity is not a part of law. It just assists the law where it is defective and scrawny in the constitution. The significance of this maxim is that applicants to the chancellors often did so because of the formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and legislature, as lawmakers, through the limits of the substantive law they had created, thus inculcated a certain status quo that affected private conduct, and private ordering of disputes. Equity, in theory, had the power to alter that status quo, ignoring the limits of legal relief, or legal defenses. But courts of equity were hesitant to do so. This maxim reflects the hesitancy to upset the legal status quo. If in such a case, the law created no cause of action, equity would provide no relief; if the law did provide relief, then the applicant would be obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously mentioned "equity follows the law." However, Maxims of equity are principles developed by the English Court of Chancery and other courts who have administered equity jurisdiction, including the law of trusts. They were often expressed in Latin but are translated into English. Role of Maxims Maxims of equity are not a rigid set of rules, but are, rather, general principles which can be deviated from in specific cases. Snell's Equity, an English treatise, takes the view that the "Maxims do not cover the whole ground, and moreover they overlap, one maxim contains by implication what belongs to another. Indeed it would not be difficult to reduce all under two: 'Equity will not suffer a wrong to be without a remedy' and 'Equity acts in the person'". List of Maxims 1. Equity will not suffer a wrong to be without a remedy. 2.Equity follows the law. 3.He who seeks equity must do equity. 4. He who comes into equity must come with clean hands. 5.Equity aids the vigilant, not those who slumber on their rights. 6. Equality is Equity. 7 Equity looks to substance rather than form. 8. Equity sees that as done what ought to be done. 9. Equity imputes an intent to fulfill an obligation. 10. Where equities are equal, the law will prevail. 11.Where the equities are equal the first in order of time shall prevail. 12 Equity acts in personam.

1. Equity will not suffer a wrong to be without a remedy Meaning When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. The Latin legal maxim is ubi jus ibi remedium i.e.,where there is a right, there must be a remedy. sometimes cited as ubi jus ibi remediam. The maxim is necessarily subordinate to positive principles and cannot be applied either to subvert established rules of law or to give the courts a jurisdiction hitherto unknown, and it is only in a general not in a literal sense that the maxim has force.

Application and cases Case law dealing with principle of this maxim at law include Ashby v White. 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. In cases where some document was with the defendant and it was necessary for the plaintiff to obtain its discovery or production, a recourse to the Chancery Courts had to be made for the Common Law becoming ‘wrongs without remedies’. Other case, Bivens v. Six Unknown Named Agents. The application of this principle at law was key in the decision of Marbury v. Madison, wherein it was necessary to establish that Marbury had a right to his commission in the first place in order for Chief Justice Marshall to make his more wide-ranging decision.

Limitation a) If there is a breach of a moral right only. b) 	If the right and remedy both were in within the jurisdiction of the Common Law Courts. c) 	Where due to his own negligence a party either destroyed or allowed to be destroyed, the evidence in his own favour or waived his right to an equitable remedy. Recognition i) The Trust Act ,1882. ii) The Code of Civil Procedure,1909(Section 9 of CPC- entitles a civil court to entertain all kinds of suits unless they are prohibited). iii) The Specific Relief Act, 1877- provides for equitable remedies like specific performance of contracts, injunction, declaratory suits. 2.Equity follows the law Meaning

This maxim, also expressed as Aequitas sequitur legem means more fully that "equity will not allow a remedy that is contrary to law. The Court of Chancery never claimed to override the courts of Common Law. Story states "where a rule, either of the common or the statute law is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it." According to Edmund Henry Turner Snell, “It is only when there is some important circumstance disregarded by the common law rules that equity interferes.” Maitland says, “We ought not to think of common law and equity as of two rival systems. Equity had come not to destroy the law, but to fulfil it. Every jot and every tittle of law was to be obeyed, but when all this had been done yet something might be needful, something that equity would require." The goal of law and equity was the same but due to historical reason they chose a different path. Equity respected every word of law and every right at law but where the law was defective, in those cases, equity provides equitable right and remedies. Snell therefore explained this maxim in slightly different way: “Equity follows the law, but not slavishly, nor always.”

Application and cases The maxim has two-fold application according to the subject-matter.The subject-matter may be- i)	A legal estate ,right or interest, or ii)	An equitable estate, right or interest. As regards a legal estate, right or interest ,Equity is strictly bound by the rules of law and the Court of Chancery neve claimed to override the Couts of Common Law. The 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 hi 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. This decision was held in Stickland v. Aldridge. In other case Graf v. Hope Building Corporation,  (1930) case, "Equity works as a supplement for law and does not supersede the prevailing law." Equity follows the law and even if by analogy law can be followed, it should be followed. Limitation i) Where a rule of law did not specifically and clearly apply ii) Where even by analogy the rule of law did not apply Recognition Bangladesh has not recognized the well-known distinction between legal and equitable interests. Equity rules in Bangladesh, therefore, cannot override the specific provisions of law. As for example, every suit in Bangladesh has to be brought within the limitation period and no judge can create an exception to this or can prolong the time-limit or stop the rule from taking effect on principles of equity. Such a decision was held in Indian Appa Narsappa Magdum case.

3.He who seeks equity must do equity Meaning 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. To receive equitable relief, the petitioning party must be willing to complete all of its own obligations as well. The applicant to a court of equity is just as much subject to the power of that court as the defendant. This maxim may also overlap with the clean hands maxim. Scriptures of Islam also inform us to be conscientious: “Woe to those who stint the measure: Who when they take by measure from others, exact the full; But when they mete to them or weigh to them, minish…” 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 i) 	Illegal loans: In Lodge v. National Union Investment Co. Ltd., the facts were as follows. One B borrowed money from M by mortgaging certain securities to him. M was a unregistered money-lender. Under the Money-lenders’ Act, 1900, the contract was illegal and therefore void. B sued M for return of the securities. The court refused to make an order except upon the terms that B should repay the money which had been advanced to him. ii) 	Doctrine of election: Where a donor A gives his own property to B and in the same instrument purports to give B’s property to C, B will be put to an election, either accept the benefit granted to him by the donor and give away his own property to C or retain his own property and refuse to accept the property of A on condition. But B can not retain his property and at the same time take the property of A. iii) 	Consolidation of mortgages: Where a person has become entitled to two mortgages from the same mortgagor, he may consolidate these mortgages and refuse to permit the mortgagee to exercise his equitable right to redeem one mortgage unless the other is redeemed. The right of consolidation now exists in England but after the enactment of the Law of Property Act, 1925, it can exist only by express reservation in one of the mortgage deeds. iv) 	Notice to redeem mortgage: Notice to a mortgagor to redeem one’s mortgage is an equitable right of the mortgagor. v) 	Wife’s equity to a settlement: There was a time when woman’s property was merged with that of her husband. She had no property of her own. Equity court imposed on the husband that he must make a reasonable provision for his wife and her children. But, now, Under the Law Reform (Married Women and Tortfeasors) Act, 1935, married women has full right on her property and it is not consolidated with her husband’s property. vi) 	Equitable estoppel: A promissory estoppel arises where a party has expressly or impliedly, by conduct or by negligence, made a statement of fact, or so conducted himself, that another would reasonably understand that he made a promise thereon, then the party who made such promise has to carry out his promise. vii) 	Restitution of benefits on cancellation of transaction: It is proper justice to return the benefits of a contract which was voidable, and, equity enforced this principles in cases where it granted relief of rescission of a contract. A party can not be allowed to take advantage of his own wrong. viii) 	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. Limitation i) can not apply against the State Lagistum.The demand for an equitable relief must arise from a suit that is pending. ii) to out of parliament because thy are representint. iii) where there is a statory prohibition. iv) This maxim is applicable to a party who seeks an equitable relief. Recognition i) the Contract Act, 1872(under sec 19, if a contract becomes voidable and the party who entered into the contract voids the contract, he has return the benefit of the contract). ii) the Transfer of Property Act,1882(under sec 35, embodies the principle of election). iii) Sec 51 and 54 of the Transfer of Property Act. iv) The Code of Civil Procedure,1909( In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized).

4. He who comes into equity must come with clean hands Meaning It is often stated that one who comes into equity must come with clean hands (or alternatively, equity will not permit a party to profit by his own wrong). In other words, if you ask for help about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek. For example, if you desire your tenant to vacate, you must have not violated the tenant's rights. However, the requirement of clean hands does not mean that a "bad person" cannot obtain the aid of equity. "Equity does not demand that its suitors shall have led blameless lives." The defense of unclean hands only applies if there is a nexus between the applicant's wrongful act and the rights he wishes to enforce.

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 behavior of the plaintiff was not against conscience before he came to the court. Application and cases In Highwaymen case, two robbers were partners in their own way. Due to a disagreement in shares one of them filed a bill against another for accounts of the profits of robbery. Courts of equity do grant relief in case of partnership but here was a case where the cause of action arose from an illegal occupation. So, the court refused to help them. The working of this maxim could be seen while giving the relief of specific performance, injunction, rescission or cancellation. For instance, in Riggs v. Palmer, a man who had killed his grandfather to receive his inheritance more quickly (and for fear that his grandfather may change his will) lost all right to the inheritance. In D & C Builders Ltd v Rees, a small building firm did some work on the house of a couple named Rees. The bill came to £732, of which the Rees had already paid £250. When the builders asked for the balance of £482, the Rees announced that the work was defective, and they were only prepared to pay £300. As the builders were in serious financial difficulties (as the Rees knew), they reluctantly accepted the £300 "in completion of the account". The decision to accept the money would not normally be binding in contract law, and afterwards the builders sued the Rees for the outstanding amount. The Rees claimed that the court should apply the doctrine of equitable estoppel, which can make promises binding when they would normally not be. However, Lord Denning refused to apply the doctrine, on the grounds that the Rees had taken unfair advantage of the builders' financial difficulties, and therefore had not come "with clean hands".

Limitation i) General or total conduct of the plaintiff is not to be considered. It will be seen whether he was of clean hands in the same suit he brought or not. Brandies J. in Loughran v. Loughran said that “Equity does not demand that its suitors shall have led blameless lives.” ii) It is not an arbitrary or a technical doctrine. Exception i) If the transaction is a against public policy ii) if the party repents for his conduct before his unjust plans are carried out. Recognition i) Section 23 of the Trust Act,1882t- An infant can not setup a defence of the invalidity of the receipt given by him. ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will disentitle him to an equitable relief of specific performance of the contract. 5.Equity aids the vigilant, not those who slumber on their rights Meaning The maxim “Vigilantibus non dormientibus aequitas subvenit”, it has also been expessed in another from i.e. “Equity aids the vigilant and not the indolent.’’ A person who has been wronged must act relatively swiftly to preserve their rights. Otherwise, they are guilty of laches, an untoward delay in litigation with the presumed intent of denying claims. This differs from a statute of limitations, in that a delay is particularized to individual situations, rather than a general prescribed legal amount of time. In addition, even where a limitation period has not yet run, laches may still occur. The equitable rule of laches and acquiescence was first introduced in Chief Young Dede v. African Association Ltd Alternatives: •	Delay defeats equity •	Equity aids the vigilant, not those who sleep on their rights Application and cases To cases which are governed by statutes of limitation either expressly or by analogy the maxim will not apply. Such cases fall into three categories- i) Those equitable claims to which the statute applies expressly. ii) to which the statute applies by analogy. iii) Equitable claims which are covered by ordinary rules of laches. Doctrine of laches- Plaintiff’s unreasonable delay is a weapon of defence by the defendant against the plaintiff. In a Bombay case, the plaintiff allowed his land to be occupied by the defendant and this was acquiesced by him even beyond the period of limitation. On a suit of the land it was decided that as the period of limitation to recover possession had expired, no relief could  be granted. Also the case of Allcard v. Skinner is worth mentioning here. However, the equitable rule of laches and acquiescence was first introduced in Chief Young Dede v. African Association Ltd Limitation This maxim does not apply when- i) where the law of limitation expressly applies ii) where it applies by analogy, and iii) where the law of limitation does not apply but the cases are governed by ordinary rules of laches. Recognition i) The English doctrine of delay and laches showing negligence in seeking relief in a court of equity can not be imported into the Bangladeshi law in view of Article 113 of the Limitation Act, 1908, which fixes a period of one year (previously three years) within which a suit for specific performance should be brought. ii) Section 51 of the Transfer of Property Act embodies this doctrine but with a difference. 6. Equality is Equity Meaning Plato defined that “If you cannot find any other, equality is the proper basis.” This maxim is also explained as “equity delighteth in equality”, which 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. Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been sometimes called proportionate equity.” 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) 	Ratable distribution of legacies v) 	Marshalling of assets In Petit Vs Smith (1956) case,where Snell puts it briefly, ‘in absence of any sufficient reasons for any other basis of division,those who are entitle to property shoul have the certainly and fairness of equal decision,for equity did delight in equity. Limitation of the maxim: Where two persons have an equal right,the property will be divided equally.Thus equity will presume joint owners to be tenants in common unless the parties have expressly agreed otherwise.Equity also favours partition,if requested, of jointly held property. Recognition i)The Contract Act,1872. ii)The Transfer of Property Act,1882. iii)The Succession Act,1925. iv)The Trust Act,1882. v)The Code of Civil Procedue,1909. 7 Equity looks to substance rather than form Meaning Lord Romilly MR recognised that equity will distinguish which is a matter of substance, and which is a matter of form. If they find that by insisting on the form, the substance will be defeated, they shall not allow the form to be relied upon. There are a number of examples for this maxim, the clearest being when a settlor has not specifically said they are creating a trust, equity will recognise a trust if it is clear the property was to be held for the benefit of someone else. Howevere ,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 In case of sale of land, if a party fails to complete it within the fixed for it, he is at Common Law, in breach of the contract, but equity does not take this rigid attitude. It allows a reasonable time to the party to complete it. 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. i) Relief against penalties and forfeitures- Common Law courts insisted on the literal form of the contract that if the contract is breached, certain amount must be given as compensation, though the actual loss is not that much. Equity interpret the purpose and intent of the contract itself. The principal object of the contract is to perform it and not the compensation. The compensation is a subsidiary matter. ii) Precatory trust- A trust is created with- (1) an intention on his part to create a trust thereby, (2) the purpose of the trust, (3) the beneficiary, and (4) the trust property. Where an author uses words such as ‘I hope’, ‘I request’ or ‘I recommend’ the first condition is missing. In cases where subsequent ingredients are found, in early days, it was held by the equity courts that he had the intention. This view is in use now but not as liberally as before. iii) Relief in regard to mortgages- The mortgagor has a right to obtain his property back by payment of the debt and that is his right of redemption. The mortgagor’s right of redemption is guarded by courts and this has been expressed in a well-known legal maxim, “Once a mortgage, always a mortgage, and nothing but a mortgage”. iv) Attitude in regard to statute of frauds- In Parkin v Thorold ,1852 (case).

Recognition i) the Contract Act,1872 (Sec 55 of the Contract Act- If time is the essence of the contract, and it is not performed within the stipulated time, the contract or part of it which is unperformed would be voidable. If time is not the essence, the contract will not be voidable but entitles the promisee to damages and Section 74 of - only a reasonable compensation can be claimed). ii) the Transfer of Property Act,1882 (under Sec 114-A of - Forfeiture clauses in a lease).

8. Equity sees that as done what ought to be done Meaning This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have been done, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion. Sometime this is phrased as "equity regards as done what should have been done". The consequences of this maxim, and of equitable conversion, are significant in their bearing on the risk of loss in transactions. When parties enter a contract for a sale of real property, the buyer is deemed to have obtained an equitable right that becomes a legal right only after the deal is completed. The true function of this maxim was given in Re Anstis 1886,where parties have entered into a contract that is specifically enforceable, equity will treat the contract as having been performed. This maxim is often relevant where land is transferred between parties but formalities have not been observed. In such a situation, the legal title will remain with the vendor, and the purchaser will have a recognised title in equity. Thus, the vendor is holding the property on a constructive trust for the purchaser. However, equity will not pretend the property is in existence when it isn’t; it is only when that which ought to be done can be done that this maxim will work. Application and cases If A makes P trustee leaving 10,000 Taka to purchase a land for the use of B. P does not purchase the land and by the time, B dies leaving all immovable property to X and all movable property to Y. Now, who should get the 10,000 Taka? Equity in such cases would definitely regard the purchase of land which ought to have been made as made. The money thus goes to X. The working of this maxim can be seen- i) the doctrine of conversion ii) Executory contracts iii) doctrine of part performance i) 	Doctrine of conversion- In the case of Lachmere v. Lady Lachmere, money was taken as land. Doctrine of conversion can convert the money into immovable property and immovable property into money. ii) 	Executory contracts- (a) Assignment of future property: When an assignment of property was made for consideration equity treated it as a contract to assign. When the property came into existence in such a contract it was treated as a complete assignment. As a leading case on this point, Holroyd v. Marshall can be cited. (b)	Agreement for a transfer: In Walsh v. Lonsdale, it was decided that an agreement for lease could be treated as a lease in equity. iii) Doctrine of part performance: Under the equitable doctrine of part performance contracts pertaining to land were allowed to be formed by oral evidence where one of the parties did acts of pats performance. Maddison v. Alderson is a leading case on this point. Limitation There are ,however,two limitations on the operation of this maxim which are as under: Firstly,Equity dose not regard and treat as done, what might be done or which could be done,but only which ought to have been done. ii) Secondly,the maxim does not op Recognition Many of the doctrines of English equity have taken statutory form in Bangladesh. Insofar as equitable assignments are concerned no equitable estate is recognized in Bangladesh. A transfer of future property for consideration operates as a contract to be performed in future. i) The Transfer of Property Act,1882- (A Contracts to sell Sultanpur to B. While the contract is still in force, he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A). ii) The Specific Relief Act,1877 (Section 12 relating to the specific performance of part of a contract also illustrates the application of the maxim). iii) The Trust Act,1882(Where a person acquires property with notice that another person has entered into an existing contract affecting that property, the former must hold the property for the benefit of the latter). The true function of this maxim was given in Re Anstis (1886) ,where parties have entered into a contract that is specifically enforceable, equity will treat the contract as having been performed. This maxim is often relevant where land is transferred between parties but formalities have not been observed. In such a situation, the legal title will remain with the vendor, and the purchaser will have a recognised title in equity. Thus, the vendor is holding the property on a constructive trust for the purchaser. However, equity will not pretend the property is in existence when it isn’t; it is only when that which ought to be done can be done that this maxim will work. 9. Equity imputes an intent to fulfill an obligation Meaning Generally speaking, near performance of a general obligation will be treated as sufficient unless the law requires perfect performance, such as in the exercise of an option. Text writers give an example of a debtor leaving a legacy to his creditor equal or greater to his obligation. Equity regards such a gift as performance of the obligation so the creditor cannot claim both the legacy and payment of the debt. 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 fulfillment 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. i) Doctrine of performance and satisfaction- Sowden v. Sowden and Lachmere v. Lady Lachmere cases are examples of performance. Satisfaction is the donation of a thing with it is to be taken in extinguishment of some prior claim of donee. This maxim is helpful where the presumed intention of the testator is to be found out; where the intention is express the maxim has no application. ii) Ademption- Ademption is a transfer of property which operates as a complete or pro tanto substitution for a gift previously made by the will of the donor. e.g. X by his will leaves his daughter Y one-third of his residuary estate. Thereafter on Y’s marriage X gives Y 20,000 Taka. X dies. 20,000 Taka is an ademption -complete or proportionately to the gift of one-third share of the residuary estate of X. iii) Presumption of advancement- When a purchase or transfer of property without consideration is made by a father or a person in loco parentis, to or in the name of a child, a presumption arises. And the presumption is that it was for the benefit of the child. Such presumption, is known as ‘advancement’. The doctrine applies to cases of parent and child, husband and wife, of mother and child and even to illegitimate child, but not to a man and his mistress. iv) Relief against defective execution of power of appointment- A power is an authority vested in a person to deal with or dispose of property not his own. A power may be legal or equitable but after 1925 all powers of appointment are necessarily equitable. e.g. A holds 50,000 Taka upon trust to divide among a certain class of persons. A has no option is this matter He is bound to carry out the trust. On his failing to do so, the court will see that the property is duly divided. A defective execution will always be aided in equity under the circumstances mentioned, it being the duty of every man to pay his debts, and a husband or a father to provide for child. In other case, Sowden v. Sowden, a husband covenanted with the trustee of his marriage settlement to pay to them £50,000 to be laid out by them in purchase of land in a particular area D. He, in fact, never paid the sum, but after marriage purchased the land at D in his own name, for £50,000. He died and could not bring the land into settlement. Equity courts construed that he purchased land to fulfill his obligation.

Recognition i) The Succession Act- Presumption against satisfaction is mentioned here. In Hasanali v. Popatal, a testator, who had a sum of Rs 9000 as deposit from his brother, gave to is brother a legacy of Rs 9000 and it was held that the brother was entitled to both, the legacy and his deposit. But as decided in Rajmanuar case where a will contained a clear indication that the legacy was meant as a satisfaction of the debt due to X, X could not claim both as the section explains. ii) The Trust Act- Where a person contracts to buy property to be held on trust for certain beneficiaries and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract. Equity thus imputes an intention to fulfill an obligation. The doctrine of advancement does not apply in Bangladesh.

10. Where equities are equal, the law will prevail Meaning Equity will provide no specific remedies where the parties are equal, or where neither has been wronged. The significance of this maxim is that applicants to the chancellors often did so because of the formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and legislature, as lawmakers, through the limits of the substantive law they had created, thus inculcated a certain status quo that affected private conduct, and private ordering of disputes. Equity, in theory, had the power to alter that status quo, ignoring the limits of legal relief, or legal defenses. But courts of equity were hesitant to do so. This maxim reflects the hesitancy to upset the legal status quo. If in such a case, the law created no cause of action, equity would provide no relief; if the law did provide relief, then the applicant would be obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously mentioned "equity follows the law." Application and cases The doctrines of “Election ”,and “Set-Off are based on this maxim. This doctrine comes into operation vey frequently when the assets of a decease person have to be administered. The doctrine has been stated by Lord Eldon in Aldrick Vs. Coope thus: “ If a creditor has two funds ,the interest of debtor shall take to that which paying him ,will leave another fund for another creditor.” Recognition i) The Transfer of Property Act,1882. 11.Where the equities are equal the first in order of time shall prevail Meaning This maxim means that when there is no legal estate in the field and the question is as among the equitable estates only ,the rule is that the person whose Equity attached to the property first will be entitled to priority over the other. operates where there are two or more competing equitable interests; when two equities are equal the original interest (i.e., the first in time) will succeed.

Application and cases The rule ,however, is applicable only when equities are equal .So ,if equities are unequal in the sense that equity on the side of the person otherwise entitled to priority is worse, i.e he is guilty of anything  unconscionable or unfair, he will lose his priority. An apt example of equity is furnished by the case of Rice Vs. Rice. Recognition i) The Transfer of Property Act,1882.

12 Equity acts in personam In England, there was a distinction drawn between the jurisdiction of the law courts and that of the chancery court. Courts of law had jurisdiction over property as well as persons and their coercive power arose out of their ability to adjust ownership rights. Courts of equity had power over persons. Their coercive power arose from the ability, on authority of the crown, to hold a violator in contempt, and take away his or her freedom (or money) until he or she purged himself or herself of his or her contumacious behavior. This distinction helped preserve a separation of powers between the two courts. Nevertheless, courts of equity also developed a doctrine that an applicant must assert a "property interest". This was a limitation on their own power to issue relief. This does not mean that the courts of equity had taken jurisdiction over property. Rather, it means that they came to require that the applicant assert a right of some significant substance as opposed to a claim for relief based on an injury to mere emotional or dignitary interests.

Application and cases This maxim was applied by equity Courts in the follwing matters affecting land outside England- i)for the redemption and foreclosure of a mortgage of it, ii)for specific performance of an agreement to create a motgage of it, iii)for sale and rent, iv)for the appointment of a receiver there of if necessary. Limitation of the maxim The doctrine is, however, subject to the following limitations- i)	The defendant himself must be within the jurisdiction, or should be capable of being served with process outside the jurisdiction. ii)	The remedy sought in such cases must be an equitable remedy. Recognition i)	The Code of Civil Procedure,1909.    ii)  The Letter Patent Act. Other maxims In most cases, equity will follow recognised legal rules. However, if there is a conflict between law and equity, equity will usually prevail. ‘Equity is imaginative’ refers to the flexible nature of equity as opposed to the rigidity of the common law. ‘Equity protects the vulnerable and weak’ is illustrated by the doctrine of undue influence. This doctrine can be used to set aside a contract where one party unduly influenced the other. The final maxim, ‘equity is cynical’ is not formally recognised by the courts. However, it underpins a number of equitable rules. It can be demonstrated by equity’s view on gifts. It will presume the donor did not intend to make an outright gift. All of the above maxims are important to understand before delving into trust law.

References: i) Equity ,Trust And Mortgage (Aqil Ahmad)      ii) Equity and Trust (B.M.Gandi)

assignment on the maxim of equity
An Assignment On : Maxims Of Equity Course Code:  LLB-303 Course Title: Equity and Trust

Submitted To 	     Naila Sohrat Tajbiha Lecturer, Department of Law City university.

Submitted By    		Sherfuddin Id :13233399 Batch:12th Program: LL.B

Submission Date: 18/12/2014

Content page

S.L.	                                             Content	Page no: 01	Acknowledgement     	03 02	Introduction	04 03	Role of Maxims	04 04	List of Maxims	04 05	1. Equity will not suffer a wrong to be without a remedy. 05-06 06	2.Equity follows the law. 06-08 07	3.He who seeks equity must do equity. 08-11	08	4. He who comes into equity must come with clean hands. 11-12 09	5.Equity aids the vigilant, not those who slumber on their rights. 13-15 10	6. Equality is Equity. 15-16 11	7 Equity looks to substance rather than form. 16-18 12	8. Equity sees that as done what ought to be done. 18-20 13	9. Equity imputes an intent to fulfill an obligation. 20-22 14	10. Where equities are equal, the law will prevail. 22-23 15	11.Where the equities are equal the first in order of time shall prevail. 23 16	12 Equity acts in personam. 23-24 17	Other maxims	24-25

Acknowledgement

At first, we are so much  thankful to the Almighty Allah for enable us to make this assignment completely.

Then we cannot but pay respectful thanks to our honorable teacher Naila Sohrat Tajbiha for giving us the opportunity to learn the necessary things through working on the assignment.

Finally, our hearty thanks and love we did offer for our dear classmate of our department who extended their helping hands to complete this report by being beside us constantly with their accurate guidance, suggestion and co-operation.

Introduction The word ‘equity’ has been derived form Roman word ‘aequitas’ which means equalization or leveling. Equity is not a part of law. It just assists the law where it is defective and scrawny in the constitution. The significance of this maxim is that applicants to the chancellors often did so because of the formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and legislature, as lawmakers, through the limits of the substantive law they had created, thus inculcated a certain status quo that affected private conduct, and private ordering of disputes. Equity, in theory, had the power to alter that status quo, ignoring the limits of legal relief, or legal defenses. But courts of equity were hesitant to do so. This maxim reflects the hesitancy to upset the legal status quo. If in such a case, the law created no cause of action, equity would provide no relief; if the law did provide relief, then the applicant would be obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously mentioned "equity follows the law." However, Maxims of equity are principles developed by the English Court of Chancery and other courts who have administered equity jurisdiction, including the law of trusts. They were often expressed in Latin but are translated into English. Role of Maxims Maxims of equity are not a rigid set of rules, but are, rather, general principles which can be deviated from in specific cases. Snell's Equity, an English treatise, takes the view that the "Maxims do not cover the whole ground, and moreover they overlap, one maxim contains by implication what belongs to another. Indeed it would not be difficult to reduce all under two: 'Equity will not suffer a wrong to be without a remedy' and 'Equity acts in the person'". List of Maxims 1. Equity will not suffer a wrong to be without a remedy. 2.Equity follows the law. 3.He who seeks equity must do equity. 4. He who comes into equity must come with clean hands. 5.Equity aids the vigilant, not those who slumber on their rights. 6. Equality is Equity. 7 Equity looks to substance rather than form. 8. Equity sees that as done what ought to be done. 9. Equity imputes an intent to fulfill an obligation. 10. Where equities are equal, the law will prevail. 11.Where the equities are equal the first in order of time shall prevail. 12 Equity acts in personam.

1. Equity will not suffer a wrong to be without a remedy Meaning When seeking an equitable relief, the one that has been wronged has the stronger hand. The stronger hand is the one that has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of specific performance or an injunction (injunctive relief). These are superior remedies to those administered at common law such as damages. The Latin legal maxim is ubi jus ibi remedium i.e.,where there is a right, there must be a remedy. sometimes cited as ubi jus ibi remediam. The maxim is necessarily subordinate to positive principles and cannot be applied either to subvert established rules of law or to give the courts a jurisdiction hitherto unknown, and it is only in a general not in a literal sense that the maxim has force.

Application and cases Case law dealing with principle of this maxim at law include Ashby v White. 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. In cases where some document was with the defendant and it was necessary for the plaintiff to obtain its discovery or production, a recourse to the Chancery Courts had to be made for the Common Law becoming ‘wrongs without remedies’. Other case, Bivens v. Six Unknown Named Agents. The application of this principle at law was key in the decision of Marbury v. Madison, wherein it was necessary to establish that Marbury had a right to his commission in the first place in order for Chief Justice Marshall to make his more wide-ranging decision.

Limitation a) If there is a breach of a moral right only. b) 	If the right and remedy both were in within the jurisdiction of the Common Law Courts. c) 	Where due to his own negligence a party either destroyed or allowed to be destroyed, the evidence in his own favour or waived his right to an equitable remedy. Recognition i) The Trust Act ,1882. ii) The Code of Civil Procedure,1909(Section 9 of CPC- entitles a civil court to entertain all kinds of suits unless they are prohibited). iii) The Specific Relief Act, 1877- provides for equitable remedies like specific performance of contracts, injunction, declaratory suits. 2.Equity follows the law Meaning

This maxim, also expressed as Aequitas sequitur legem means more fully that "equity will not allow a remedy that is contrary to law. The Court of Chancery never claimed to override the courts of Common Law. Story states "where a rule, either of the common or the statute law is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it." According to Edmund Henry Turner Snell, “It is only when there is some important circumstance disregarded by the common law rules that equity interferes.” Maitland says, “We ought not to think of common law and equity as of two rival systems. Equity had come not to destroy the law, but to fulfil it. Every jot and every tittle of law was to be obeyed, but when all this had been done yet something might be needful, something that equity would require." The goal of law and equity was the same but due to historical reason they chose a different path. Equity respected every word of law and every right at law but where the law was defective, in those cases, equity provides equitable right and remedies. Snell therefore explained this maxim in slightly different way: “Equity follows the law, but not slavishly, nor always.”

Application and cases The maxim has two-fold application according to the subject-matter.The subject-matter may be- i)	A legal estate ,right or interest, or ii)	An equitable estate, right or interest. As regards a legal estate, right or interest ,Equity is strictly bound by the rules of law and the Court of Chancery neve claimed to override the Couts of Common Law. The 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 hi 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. This decision was held in Stickland v. Aldridge. In other case Graf v. Hope Building Corporation,  (1930) case, "Equity works as a supplement for law and does not supersede the prevailing law." Equity follows the law and even if by analogy law can be followed, it should be followed. Limitation i) Where a rule of law did not specifically and clearly apply ii) Where even by analogy the rule of law did not apply Recognition Bangladesh has not recognized the well-known distinction between legal and equitable interests. Equity rules in Bangladesh, therefore, cannot override the specific provisions of law. As for example, every suit in Bangladesh has to be brought within the limitation period and no judge can create an exception to this or can prolong the time-limit or stop the rule from taking effect on principles of equity. Such a decision was held in Indian Appa Narsappa Magdum case.

3.He who seeks equity must do equity Meaning 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. To receive equitable relief, the petitioning party must be willing to complete all of its own obligations as well. The applicant to a court of equity is just as much subject to the power of that court as the defendant. This maxim may also overlap with the clean hands maxim. Scriptures of Islam also inform us to be conscientious: “Woe to those who stint the measure: Who when they take by measure from others, exact the full; But when they mete to them or weigh to them, minish…” 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 i) 	Illegal loans: In Lodge v. National Union Investment Co. Ltd., the facts were as follows. One B borrowed money from M by mortgaging certain securities to him. M was a unregistered money-lender. Under the Money-lenders’ Act, 1900, the contract was illegal and therefore void. B sued M for return of the securities. The court refused to make an order except upon the terms that B should repay the money which had been advanced to him. ii) 	Doctrine of election: Where a donor A gives his own property to B and in the same instrument purports to give B’s property to C, B will be put to an election, either accept the benefit granted to him by the donor and give away his own property to C or retain his own property and refuse to accept the property of A on condition. But B can not retain his property and at the same time take the property of A. iii) 	Consolidation of mortgages: Where a person has become entitled to two mortgages from the same mortgagor, he may consolidate these mortgages and refuse to permit the mortgagee to exercise his equitable right to redeem one mortgage unless the other is redeemed. The right of consolidation now exists in England but after the enactment of the Law of Property Act, 1925, it can exist only by express reservation in one of the mortgage deeds. iv) 	Notice to redeem mortgage: Notice to a mortgagor to redeem one’s mortgage is an equitable right of the mortgagor. v) 	Wife’s equity to a settlement: There was a time when woman’s property was merged with that of her husband. She had no property of her own. Equity court imposed on the husband that he must make a reasonable provision for his wife and her children. But, now, Under the Law Reform (Married Women and Tortfeasors) Act, 1935, married women has full right on her property and it is not consolidated with her husband’s property. vi) 	Equitable estoppel: A promissory estoppel arises where a party has expressly or impliedly, by conduct or by negligence, made a statement of fact, or so conducted himself, that another would reasonably understand that he made a promise thereon, then the party who made such promise has to carry out his promise. vii) 	Restitution of benefits on cancellation of transaction: It is proper justice to return the benefits of a contract which was voidable, and, equity enforced this principles in cases where it granted relief of rescission of a contract. A party can not be allowed to take advantage of his own wrong. viii) 	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. Limitation i) can not apply against the State Lagistum.The demand for an equitable relief must arise from a suit that is pending. ii) to out of parliament because thy are representint. iii) where there is a statory prohibition. iv) This maxim is applicable to a party who seeks an equitable relief. Recognition i) the Contract Act, 1872(under sec 19, if a contract becomes voidable and the party who entered into the contract voids the contract, he has return the benefit of the contract). ii) the Transfer of Property Act,1882(under sec 35, embodies the principle of election). iii) Sec 51 and 54 of the Transfer of Property Act. iv) The Code of Civil Procedure,1909( In Order 8, Rule 6 of the CPC, the doctrine of Set-off is recognized).

4. He who comes into equity must come with clean hands Meaning It is often stated that one who comes into equity must come with clean hands (or alternatively, equity will not permit a party to profit by his own wrong). In other words, if you ask for help about the actions of someone else but have acted wrongly, then you do not have clean hands and you may not receive the help you seek. For example, if you desire your tenant to vacate, you must have not violated the tenant's rights. However, the requirement of clean hands does not mean that a "bad person" cannot obtain the aid of equity. "Equity does not demand that its suitors shall have led blameless lives." The defense of unclean hands only applies if there is a nexus between the applicant's wrongful act and the rights he wishes to enforce.

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 behavior of the plaintiff was not against conscience before he came to the court. Application and cases In Highwaymen case, two robbers were partners in their own way. Due to a disagreement in shares one of them filed a bill against another for accounts of the profits of robbery. Courts of equity do grant relief in case of partnership but here was a case where the cause of action arose from an illegal occupation. So, the court refused to help them. The working of this maxim could be seen while giving the relief of specific performance, injunction, rescission or cancellation. For instance, in Riggs v. Palmer, a man who had killed his grandfather to receive his inheritance more quickly (and for fear that his grandfather may change his will) lost all right to the inheritance. In D & C Builders Ltd v Rees, a small building firm did some work on the house of a couple named Rees. The bill came to £732, of which the Rees had already paid £250. When the builders asked for the balance of £482, the Rees announced that the work was defective, and they were only prepared to pay £300. As the builders were in serious financial difficulties (as the Rees knew), they reluctantly accepted the £300 "in completion of the account". The decision to accept the money would not normally be binding in contract law, and afterwards the builders sued the Rees for the outstanding amount. The Rees claimed that the court should apply the doctrine of equitable estoppel, which can make promises binding when they would normally not be. However, Lord Denning refused to apply the doctrine, on the grounds that the Rees had taken unfair advantage of the builders' financial difficulties, and therefore had not come "with clean hands".

Limitation i) General or total conduct of the plaintiff is not to be considered. It will be seen whether he was of clean hands in the same suit he brought or not. Brandies J. in Loughran v. Loughran said that “Equity does not demand that its suitors shall have led blameless lives.” ii) It is not an arbitrary or a technical doctrine. Exception i) If the transaction is a against public policy ii) if the party repents for his conduct before his unjust plans are carried out. Recognition i) Section 23 of the Trust Act,1882t- An infant can not setup a defence of the invalidity of the receipt given by him. ii) Section 17, 18 and 20 of the Specific Relief Act, 1877- Plaintiff’s unfair conduct will disentitle him to an equitable relief of specific performance of the contract. 5.Equity aids the vigilant, not those who slumber on their rights Meaning The maxim “Vigilantibus non dormientibus aequitas subvenit”, it has also been expessed in another from i.e. “Equity aids the vigilant and not the indolent.’’ A person who has been wronged must act relatively swiftly to preserve their rights. Otherwise, they are guilty of laches, an untoward delay in litigation with the presumed intent of denying claims. This differs from a statute of limitations, in that a delay is particularized to individual situations, rather than a general prescribed legal amount of time. In addition, even where a limitation period has not yet run, laches may still occur. The equitable rule of laches and acquiescence was first introduced in Chief Young Dede v. African Association Ltd Alternatives: •	Delay defeats equity •	Equity aids the vigilant, not those who sleep on their rights Application and cases To cases which are governed by statutes of limitation either expressly or by analogy the maxim will not apply. Such cases fall into three categories- i) Those equitable claims to which the statute applies expressly. ii) to which the statute applies by analogy. iii) Equitable claims which are covered by ordinary rules of laches. Doctrine of laches- Plaintiff’s unreasonable delay is a weapon of defence by the defendant against the plaintiff. In a Bombay case, the plaintiff allowed his land to be occupied by the defendant and this was acquiesced by him even beyond the period of limitation. On a suit of the land it was decided that as the period of limitation to recover possession had expired, no relief could  be granted. Also the case of Allcard v. Skinner is worth mentioning here. However, the equitable rule of laches and acquiescence was first introduced in Chief Young Dede v. African Association Ltd Limitation This maxim does not apply when- i) where the law of limitation expressly applies ii) where it applies by analogy, and iii) where the law of limitation does not apply but the cases are governed by ordinary rules of laches. Recognition i) The English doctrine of delay and laches showing negligence in seeking relief in a court of equity can not be imported into the Bangladeshi law in view of Article 113 of the Limitation Act, 1908, which fixes a period of one year (previously three years) within which a suit for specific performance should be brought. ii) Section 51 of the Transfer of Property Act embodies this doctrine but with a difference. 6. Equality is Equity Meaning Plato defined that “If you cannot find any other, equality is the proper basis.” This maxim is also explained as “equity delighteth in equality”, which 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. Justice Fry said, “When I say equality, I do not mean equality in its simplest form, but which has been sometimes called proportionate equity.” 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) 	Ratable distribution of legacies v) 	Marshalling of assets In Petit Vs Smith (1956) case,where Snell puts it briefly, ‘in absence of any sufficient reasons for any other basis of division,those who are entitle to property shoul have the certainly and fairness of equal decision,for equity did delight in equity. Limitation of the maxim: Where two persons have an equal right,the property will be divided equally.Thus equity will presume joint owners to be tenants in common unless the parties have expressly agreed otherwise.Equity also favours partition,if requested, of jointly held property. Recognition i)The Contract Act,1872. ii)The Transfer of Property Act,1882. iii)The Succession Act,1925. iv)The Trust Act,1882. v)The Code of Civil Procedue,1909. 7 Equity looks to substance rather than form Meaning Lord Romilly MR recognised that equity will distinguish which is a matter of substance, and which is a matter of form. If they find that by insisting on the form, the substance will be defeated, they shall not allow the form to be relied upon. There are a number of examples for this maxim, the clearest being when a settlor has not specifically said they are creating a trust, equity will recognise a trust if it is clear the property was to be held for the benefit of someone else. Howevere ,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 In case of sale of land, if a party fails to complete it within the fixed for it, he is at Common Law, in breach of the contract, but equity does not take this rigid attitude. It allows a reasonable time to the party to complete it. 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. i) Relief against penalties and forfeitures- Common Law courts insisted on the literal form of the contract that if the contract is breached, certain amount must be given as compensation, though the actual loss is not that much. Equity interpret the purpose and intent of the contract itself. The principal object of the contract is to perform it and not the compensation. The compensation is a subsidiary matter. ii) Precatory trust- A trust is created with- (1) an intention on his part to create a trust thereby, (2) the purpose of the trust, (3) the beneficiary, and (4) the trust property. Where an author uses words such as ‘I hope’, ‘I request’ or ‘I recommend’ the first condition is missing. In cases where subsequent ingredients are found, in early days, it was held by the equity courts that he had the intention. This view is in use now but not as liberally as before. iii) Relief in regard to mortgages- The mortgagor has a right to obtain his property back by payment of the debt and that is his right of redemption. The mortgagor’s right of redemption is guarded by courts and this has been expressed in a well-known legal maxim, “Once a mortgage, always a mortgage, and nothing but a mortgage”. iv) Attitude in regard to statute of frauds- In Parkin v Thorold ,1852 (case).

Recognition i) the Contract Act,1872 (Sec 55 of the Contract Act- If time is the essence of the contract, and it is not performed within the stipulated time, the contract or part of it which is unperformed would be voidable. If time is not the essence, the contract will not be voidable but entitles the promisee to damages and Section 74 of - only a reasonable compensation can be claimed). ii) the Transfer of Property Act,1882 (under Sec 114-A of - Forfeiture clauses in a lease).

8. Equity sees that as done what ought to be done Meaning This maxim means that when individuals are required, by their agreements or by law, to perform some act of legal significance, equity will regard that act as having been done as it ought to have been done, even before it has actually happened. This makes possible the legal phenomenon of equitable conversion. Sometime this is phrased as "equity regards as done what should have been done". The consequences of this maxim, and of equitable conversion, are significant in their bearing on the risk of loss in transactions. When parties enter a contract for a sale of real property, the buyer is deemed to have obtained an equitable right that becomes a legal right only after the deal is completed. The true function of this maxim was given in Re Anstis 1886,where parties have entered into a contract that is specifically enforceable, equity will treat the contract as having been performed. This maxim is often relevant where land is transferred between parties but formalities have not been observed. In such a situation, the legal title will remain with the vendor, and the purchaser will have a recognised title in equity. Thus, the vendor is holding the property on a constructive trust for the purchaser. However, equity will not pretend the property is in existence when it isn’t; it is only when that which ought to be done can be done that this maxim will work. Application and cases If A makes P trustee leaving 10,000 Taka to purchase a land for the use of B. P does not purchase the land and by the time, B dies leaving all immovable property to X and all movable property to Y. Now, who should get the 10,000 Taka? Equity in such cases would definitely regard the purchase of land which ought to have been made as made. The money thus goes to X. The working of this maxim can be seen- i) the doctrine of conversion ii) Executory contracts iii) doctrine of part performance i) 	Doctrine of conversion- In the case of Lachmere v. Lady Lachmere, money was taken as land. Doctrine of conversion can convert the money into immovable property and immovable property into money. ii) 	Executory contracts- (a) Assignment of future property: When an assignment of property was made for consideration equity treated it as a contract to assign. When the property came into existence in such a contract it was treated as a complete assignment. As a leading case on this point, Holroyd v. Marshall can be cited. (b)	Agreement for a transfer: In Walsh v. Lonsdale, it was decided that an agreement for lease could be treated as a lease in equity. iii) Doctrine of part performance: Under the equitable doctrine of part performance contracts pertaining to land were allowed to be formed by oral evidence where one of the parties did acts of pats performance. Maddison v. Alderson is a leading case on this point. Limitation There are ,however,two limitations on the operation of this maxim which are as under: Firstly,Equity dose not regard and treat as done, what might be done or which could be done,but only which ought to have been done. ii) Secondly,the maxim does not op Recognition Many of the doctrines of English equity have taken statutory form in Bangladesh. Insofar as equitable assignments are concerned no equitable estate is recognized in Bangladesh. A transfer of future property for consideration operates as a contract to be performed in future. i) The Transfer of Property Act,1882- (A Contracts to sell Sultanpur to B. While the contract is still in force, he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A). ii) The Specific Relief Act,1877 (Section 12 relating to the specific performance of part of a contract also illustrates the application of the maxim). iii) The Trust Act,1882(Where a person acquires property with notice that another person has entered into an existing contract affecting that property, the former must hold the property for the benefit of the latter). The true function of this maxim was given in Re Anstis (1886) ,where parties have entered into a contract that is specifically enforceable, equity will treat the contract as having been performed. This maxim is often relevant where land is transferred between parties but formalities have not been observed. In such a situation, the legal title will remain with the vendor, and the purchaser will have a recognised title in equity. Thus, the vendor is holding the property on a constructive trust for the purchaser. However, equity will not pretend the property is in existence when it isn’t; it is only when that which ought to be done can be done that this maxim will work. 9. Equity imputes an intent to fulfill an obligation Meaning Generally speaking, near performance of a general obligation will be treated as sufficient unless the law requires perfect performance, such as in the exercise of an option. Text writers give an example of a debtor leaving a legacy to his creditor equal or greater to his obligation. Equity regards such a gift as performance of the obligation so the creditor cannot claim both the legacy and payment of the debt. 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 fulfillment 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. i) Doctrine of performance and satisfaction- Sowden v. Sowden and Lachmere v. Lady Lachmere cases are examples of performance. Satisfaction is the donation of a thing with it is to be taken in extinguishment of some prior claim of donee. This maxim is helpful where the presumed intention of the testator is to be found out; where the intention is express the maxim has no application. ii) Ademption- Ademption is a transfer of property which operates as a complete or pro tanto substitution for a gift previously made by the will of the donor. e.g. X by his will leaves his daughter Y one-third of his residuary estate. Thereafter on Y’s marriage X gives Y 20,000 Taka. X dies. 20,000 Taka is an ademption -complete or proportionately to the gift of one-third share of the residuary estate of X. iii) Presumption of advancement- When a purchase or transfer of property without consideration is made by a father or a person in loco parentis, to or in the name of a child, a presumption arises. And the presumption is that it was for the benefit of the child. Such presumption, is known as ‘advancement’. The doctrine applies to cases of parent and child, husband and wife, of mother and child and even to illegitimate child, but not to a man and his mistress. iv) Relief against defective execution of power of appointment- A power is an authority vested in a person to deal with or dispose of property not his own. A power may be legal or equitable but after 1925 all powers of appointment are necessarily equitable. e.g. A holds 50,000 Taka upon trust to divide among a certain class of persons. A has no option is this matter He is bound to carry out the trust. On his failing to do so, the court will see that the property is duly divided. A defective execution will always be aided in equity under the circumstances mentioned, it being the duty of every man to pay his debts, and a husband or a father to provide for child. In other case, Sowden v. Sowden, a husband covenanted with the trustee of his marriage settlement to pay to them £50,000 to be laid out by them in purchase of land in a particular area D. He, in fact, never paid the sum, but after marriage purchased the land at D in his own name, for £50,000. He died and could not bring the land into settlement. Equity courts construed that he purchased land to fulfill his obligation.

Recognition i) The Succession Act- Presumption against satisfaction is mentioned here. In Hasanali v. Popatal, a testator, who had a sum of Rs 9000 as deposit from his brother, gave to is brother a legacy of Rs 9000 and it was held that the brother was entitled to both, the legacy and his deposit. But as decided in Rajmanuar case where a will contained a clear indication that the legacy was meant as a satisfaction of the debt due to X, X could not claim both as the section explains. ii) The Trust Act- Where a person contracts to buy property to be held on trust for certain beneficiaries and buys the property accordingly, he must hold the property for their benefit to the extent necessary to give effect to the contract. Equity thus imputes an intention to fulfill an obligation. The doctrine of advancement does not apply in Bangladesh.

10. Where equities are equal, the law will prevail Meaning Equity will provide no specific remedies where the parties are equal, or where neither has been wronged. The significance of this maxim is that applicants to the chancellors often did so because of the formal pleading of the law courts, and the lack of flexibility they offered to litigants. Law courts and legislature, as lawmakers, through the limits of the substantive law they had created, thus inculcated a certain status quo that affected private conduct, and private ordering of disputes. Equity, in theory, had the power to alter that status quo, ignoring the limits of legal relief, or legal defenses. But courts of equity were hesitant to do so. This maxim reflects the hesitancy to upset the legal status quo. If in such a case, the law created no cause of action, equity would provide no relief; if the law did provide relief, then the applicant would be obligated to bring a legal, rather than equitable action. This maxim overlaps with the previously mentioned "equity follows the law." Application and cases The doctrines of “Election ”,and “Set-Off are based on this maxim. This doctrine comes into operation vey frequently when the assets of a decease person have to be administered. The doctrine has been stated by Lord Eldon in Aldrick Vs. Coope thus: “ If a creditor has two funds ,the interest of debtor shall take to that which paying him ,will leave another fund for another creditor.” Recognition i) The Transfer of Property Act,1882. 11.Where the equities are equal the first in order of time shall prevail Meaning This maxim means that when there is no legal estate in the field and the question is as among the equitable estates only ,the rule is that the person whose Equity attached to the property first will be entitled to priority over the other. operates where there are two or more competing equitable interests; when two equities are equal the original interest (i.e., the first in time) will succeed.

Application and cases The rule ,however, is applicable only when equities are equal .So ,if equities are unequal in the sense that equity on the side of the person otherwise entitled to priority is worse, i.e he is guilty of anything  unconscionable or unfair, he will lose his priority. An apt example of equity is furnished by the case of Rice Vs. Rice. Recognition i) The Transfer of Property Act,1882.

12 Equity acts in personam In England, there was a distinction drawn between the jurisdiction of the law courts and that of the chancery court. Courts of law had jurisdiction over property as well as persons and their coercive power arose out of their ability to adjust ownership rights. Courts of equity had power over persons. Their coercive power arose from the ability, on authority of the crown, to hold a violator in contempt, and take away his or her freedom (or money) until he or she purged himself or herself of his or her contumacious behavior. This distinction helped preserve a separation of powers between the two courts. Nevertheless, courts of equity also developed a doctrine that an applicant must assert a "property interest". This was a limitation on their own power to issue relief. This does not mean that the courts of equity had taken jurisdiction over property. Rather, it means that they came to require that the applicant assert a right of some significant substance as opposed to a claim for relief based on an injury to mere emotional or dignitary interests.

Application and cases This maxim was applied by equity Courts in the follwing matters affecting land outside England- i)for the redemption and foreclosure of a mortgage of it, ii)for specific performance of an agreement to create a motgage of it, iii)for sale and rent, iv)for the appointment of a receiver there of if necessary. Limitation of the maxim The doctrine is, however, subject to the following limitations- i)	The defendant himself must be within the jurisdiction, or should be capable of being served with process outside the jurisdiction. ii)	The remedy sought in such cases must be an equitable remedy. Recognition i)	The Code of Civil Procedure,1909.    ii)  The Letter Patent Act. Other maxims In most cases, equity will follow recognised legal rules. However, if there is a conflict between law and equity, equity will usually prevail. ‘Equity is imaginative’ refers to the flexible nature of equity as opposed to the rigidity of the common law. ‘Equity protects the vulnerable and weak’ is illustrated by the doctrine of undue influence. This doctrine can be used to set aside a contract where one party unduly influenced the other. The final maxim, ‘equity is cynical’ is not formally recognised by the courts. However, it underpins a number of equitable rules. It can be demonstrated by equity’s view on gifts. It will presume the donor did not intend to make an outright gift. All of the above maxims are important to understand before delving into trust law.

References: i) Equity ,Trust And Mortgage (Aqil Ahmad)      ii) Equity and Trust (B.M.Gandi)