Maxims of Equity

Module I

1
Working Principles of Equity
 Maxims are short, pithy formulations of broad and general
principles of common sense and justice.
 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.
 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.

2
 Salmond:
 “Maxims are the proverbs of the law. They have the same
merits and defects as other proverbs, being brief and pithy
statements of partial truths.
 They express general principles without the necessary
qualifications and exceptions and they are therefore much
too absolute to be taken as trustworthy guides to the law.
Yet they are not without their uses.
 False and misleading when literally read, these established
formulae provide useful means for the expression of
leading doctrines of the law in a form which is at the same
time brief and intelligible”.

3
 Municipal Corporation of Delhi v Nirmal Sachdeva,
(2001) 10 SCC 364
 Held- the general principles upon which the court of
chancery exercised its jurisdiction have been embodied as
maxims of equity. They however, are not to be treated as
positive laws to be applied literally and to their widest
possible amplitude since equity does not demand that its
suitors shall have to lay themselves as blameless.
 It lends assistance to the cause of justice and avoids
inequities.
 Ethics and good conduct sub-serve the need of justice and
equitable maxims denote the same.

4
 Nalakath Sainuddin v Koorikadan Sulaiman, (2002)
6SCC 1
 Held- the Transfer of Property Act embodies mostly
principles of equity, justice and good conscience in
view of codification in India. And these principles
stand modified to the extent of provisions otherwise in
Transfer of Property Act.
 K.C.Joshi v Union of India (1992) SCC 272
 The maxims give a clue to just and reasonable
interpretation. Equity is an integral part of Article 14.
Interpretation of service law should be made in such a
way that justice is done to the parties.

5
THE TWELVE MAXIMS OF EQUITY
 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. Delay Defeats Equities
 6. Equality Is Equity
6
 7. Equity Looks To The Intent Rather Than The Form
 8. Equity Looks On That As Done Which Ought To Be
Done
 9. Equity Imputes An Intention To Fulfill An
Obligation
 10- Where There Is Equal Equity, The Law Shall
Prevail
 11- Where The Equalities Are Equal, The First In
Time Shall Prevail
 12- Equality Acts In Personam
7
Maxim 1
Equity will not suffer a wrong to be without a remedy
 Meaning
 Latin term “Ubi jus ibi remedium”. Where there is a right,
there is remedy. It means that no wrong should go
undressed if it is capable of being remedied by courts.
Where there is a wrong. There is a remedy. Where there is
right there is a remedy. A right without a remedy is a vex
thing.
 This maxim indicates that equity will not allow the
technical defects of the common law to prevent worthy
plaintiffs from obtaining redress. It could be seen,
therefore, as the opposite of the maxim that equity follows
the law.
8
 The ‘wrongs’ which equity was prepared to invent
new remedies to redress were those subject to judicial
enforcement in the first place. If an adequate remedy
exists at common law, then equity will be denied - the
superior remedy will not been ordered when the
inferior one would suffice.
 In Cohen v. Roche, specific performance was not
granted for a contract for some Hepplewhite chairs
(damages were granted instead) since they were not
rare or unique enough.

9
 Application
 There are numerous examples of the development of
equitable doctrines and remedies intended to override the
unjust result arising from the enforcement of legal rights.
 Perhaps the most obvious is the trust itself: the
enforcement of the rights of the legal owner as against the
person for whose benefit he had agreed to hold the
property would clearly lead to injustice and so equity
recognised the rights of that beneficial owner.
 Other examples include the use of specific performance to
enforce contracts not enforceable at law and the use of
injunctions to restrain threatened wrongs or to protect the
plaintiff’s interests pending trial.

10
Limitation
 a)  It did not provide remedy for all wrongs. It applied
only to rights or wrongs which, although capable of
being judicially enforced, were left unredressed at
common law owing to some technical defect. The
maxim clearly left out of its purview moral rights or
wrongs incapable of enforcement, for equity did not
give any relief where there was no invasion of any
legal or equitable right.

11
 Limitations:
 b)   Ifthe 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.

12
 Recognition in India:
 The Trust Act 1882, Section 9 of the Civil Procedure Code
& the Specific Relief Act in India has incorporated the
above principle.
 The Specific Relief Act provides for equitable remedies
like specific performance of contracts, ratification of
instruments, injunction & declaratory suits.
 The Civil Procedure Code entitles a civil court to entertain
all kinds of suits unless they are prohibited. Sec-9 and
Sec-151 of CPC – CIVIL courts have jurisdictions to try
all suits of civil nature unless there barred.

13
Maxim 2
Equity follows the law

 Meaning-
 Latin term “Acquits sequitur legem”. This maxim indicates the
discipline which The chancery courts observed while
administering justice according to conscience.
 Maitland says that, "We ought not to think of common law &
equity as of two rival systems. Equity has come not to destroy
the law but to fulfil it, to supplement it, to explain it.”
 Equity respected every word of law & every right at law but
where the law was defective, in those cases, equity provides
equitable right & remedies. According to Snell, "If some
important point is disregarded by common law court, then
equity interferes.” Thus, Equity follows the law but not always.
14
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.

15
 Recognition in India:
 India has not recognized the distinction between equitable
and legal interest. Equity rules therefore in India can not
override the specific provisions of law. As for example,
every suit in India has to be brought within the limitation
period and no judge can create can exception to this or can
prolong the time – limit. Similarly no court can confer
rights, which can be acquired only by registration of a
document, on a party, without getting the document
registered.

16
Maxim 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. The plaintiff must
recognize & submit to the right of his adversary; you must do unto
your neighbors what you wish him to do unto you.
This maxim looks into the conduct of the plaintiff in court and
after the judgment.
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.
It should not be supposed that the discretion is entirely unfettered

17
 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.

18
Limitation

 i) The demand for an equitable relief must arise from a

suit that is pending.
 ii) This maxim is applicable to a party who seeks an
equitable relief.

19
 Recognition in India:
 (1) The Contract Act, Under section 19-A of The Contract
Act contracts entered into under undue influence are voidable
and therefore a party to a contract who has the position of
getting the contract declared void will have to return the
benefits so obtained to the party from whom he obtained it
under such contract. This is but proper, because one cannot
benefit twice. One cannot opt out the liabilities form such
contract.
 (2) Under the Transfer of Property Act, Section 35 embodies
the principle of election which rests on the principle of
“approbate & reprobate” as is known in Scotland, meaning
thereby that a men shall not be allowed to approbate &
reprobate. Section 51 of the Transfer of Property Act. Section
30 of the Specific Relief Act 1877.
20
Maxim 4
He who comes into equity must come with clean hands
 Meaning:
 Equity, as it was based on good faith and conscience,
demanded fairness, uprightness and good faith not
only form the defendant but also from the plaintiff.
 This maxim looks into the conduct of plaintiff before
he comes to the court.

21
 It is well known that ex turpi causa non oritur action, no
cause of action form a base cause. While applying this
maxim the court believed that the behaviour of the
plaintiff was that not against conscience before he came
to the court for its assistance.
 It appears, however, that the ‘uncleanness’ must relate
directly to the matter in hand, otherwise anyone might be
denied a remedy simply because he was of bad character.
 Cleaver v Mutual Reserve Fund Life Assoc.[1892]
 A woman who had murdered her husband was denied the
right to claim the payout under a life insurance written in
her favour, on the basis that she should not profit from her
crime.

22
D & C Builders v Rees [1966] 2 WLR
 Claimant did construction works for Rees,
amounting to £732 – Rees only paid £250 and
when the claimant asked for the balance, the
former claimed that the construction work was
defective – Rees offered to pay at a discounted
price – The claimant who was financially troubled,
agreed and accepted the discounted payment “in
completion of the account”. Lord Denning : Rees
had taken unfair advantage of the claimant’s
financial situation, Rees to pay balance.

23
 Limitation
 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.”
  
 Exception
 i) If the transaction is against public policy and the plaintiff’s
hands are tainted, still, however, for the sake of the public,
justice has to be given to uphold the policy or the moral
values.
 ii) if the party repents for his conduct before his unjust plans
are carried out.
24
 Recognition in India:
 (1) Section 23 of the Trust Act 1882 -An infant can not setup a
defence of the invalidity of the receipt given by him.

 (2) Section 17, 18 & 20 of the Specific Relief Act.

 Where the plaintiffs is guilty of sharp practice, fraud & undue
influence as detailed under Section 18 or where there is a contract
to sell or let property by a plaintiff who has no title as specified
under Section 17, specific performance will not be granted to the
plaintiff.
 The jurisdiction to specific performance under Section 20 is
discretionary and the court is not bound to grant such a relief
merely because it is lawful to do so. The courts discretion is not
arbitrary but sound and reasonable, guided by judicial principle and
capable of correction, by a court of appeal.

25
 Maxim 3  Maxim 4
 He who seeks equity must do  He who comes into equity
equity must come with clean hands
 i) It is applicable when both the plaintiff  i) It is applicable when the defendant
and the defendant have claims of has no separate claim to relief and
equitable relief against each other. the plaintiff’s conduct is unfair.
 ii) It exposes the condition subsequent to  ii) It is a condition precedent to
the relief sought. seeking equitable relief.
 iii) It refers to the plaintiff’s conduct as  iii) It refers to the plaitiff’s conduct
the court thinks it ought to be, after he before he  approaches the court.
comes to the court.  iv) If the plaintiff’s conduct is unfair, it
 iv) The plaintiff has to mould his behavior would not entitle him to the relief
according to the impositions by the court. sought.
 v) The plaintiff has an option or a choice  v) The conduct of the plaintiff
before him either to submit to the
snatched his choice from him. His
conditions put by the court, or to get out
equitable right therefore neither be
of the court.
recognized nor enforced.
 vi) This maxim looks to the future.  vi) This maxim looks at the past.

26
Maxim 5
Delay defeats equities
 Meaning:
 Latin term “Vigilanibus, non dormentibus, jura
subvenient”. It means “ Equity aids the vigilant & not the
indolent”. It is an undisputed axiom that eternal vigilance
is the price of liberty, if one sleeps upon his right, his right
will slip away form him.
 Where an injured party has been slow to demand a remedy
for a wrong, which he has for a long time regarded with
apparent indifference, the court will decline to give him
that remedy.

27
 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.
28
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.

29
 Recognition in India:
 Article 113 of The Limitation Act 1908, which fixes a
period of three years within which a suit for specific
performance should be brought.
 Section 51 of The Transfer of Property Act in India
embodies this doctrine.
 Section 56 of the Specific Relief Act, under this section,
injunction cannot be granted

30
Maxim 6
Equality is equity
 Meaning:
 This maxim is explained as equity delighted in equality”, which
means that as far as possible equity would put the litigating parties
on an equal level so far as their responsibility are concerned.
 In the absence of any evidence to the contrary, equity will tend
towards the adoption of equal division of any fund to which
several persons are entitled.
 The maxim expresses the object of both law and equity in order to
effectuate a distribution of property and losses, proportionate to
several claims & liabilities of the parties concerned. Equity
therefore means proportionate equality. Justice Fry said ,“When I
said equality, I don’t mean necessarily equality in it simplest form,
but which has been something called proportionate equity”.

31
 Burrough v Philcox,
 The testator having left his estate to certain relatives
or such of them as his child should nominate, and the
child having failed to nominate, the court held that the
funds were held on trust for all the relatives in equal
shares. There is even some authority for the
proposition that, upon failure of an express trust for
uncertainty of beneficial share, the property is to be
held on trust for all the beneficiaries equally.

32
 Recognition in India:
 All these four doctrine resulting form the application of the
maxim is “equality is equity” have been recognized in India
under various enactments:
 (1) The Contract Act, Section 42, illustrates tenancy in
common as regards devolution of liabilities.
 (2)Section 43 illustrates that one of a number of promisors
who has performed the promise is entailed to compel the other
promisors to contribute equally with him.
 (3)Section 69 & 70 illustrate the doctrine of marshalling.
 (4)Transfer of Property Act, Section 56 illustrates the doctrine
of marshalling.
 (5)The Trust Act, Section 27, there is contribution also as
between co-trustee.
33
Maxim 7
Equity looks to the intent rather than the form
 Meaning:
 As is seen before, Common Law was very rigid and inflexible. It
could not respond favourably to the demands of time. In respect
of acquisition and transfer of property, it regarded the form of a
transaction to be more important than its substance. Moreover it
expected the contracting parties to rigidly observe their
agreements and to perform their stipulation to the very letter of
every promise or agreement.
 Courts of Equity make a distinction in all cases between that
which is matter of substance and that which is matter of form;
and if it finds that by insisting on the form, the substance will be
defeated, it holds it inequitable to allow a person to insist on
such form, and thereby defeat the substance.

34
 Street v Mountford [1985] 1 AC 809
 Concerning license to occupy land –
 The agreement between the parties was given the
heading ‘license’ as the landlord wanted to avoid the
tenant from remaining in the property in accordance
with the statutory provisions of leases.
 Held: It was nonetheless a lease, regardless of what
the parties term the agreement as, thus the tenant was
entitled to full protection of the law.

35
Application and cases
 In case of sale of land, if a party fails to complete it within
the time 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.

36
 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.
37
 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”.

38
Recognition in India:
 The principle contained in the maxim has been recognized under
Indian Law in-
 Section 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.
 Section 74 of the contract Act- only a reasonable compensation
can be claimed.
 Section, 114 and 114-A of The Transfer of Property Act
(Forfeiture clauses in a lease.).
 Section 91- The Transfer of Property Act- clog on right of
redemption is not allowed.
39
Maxim 8
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.

40
 E.g. Purchase of a house
 Seller and buyer enter into a contract of sale, the buyer
acquires an equitable interest in the house although he will
not become the legal owner until the formal legal transfer of
the house is completed. Thus, if either party fails to proceed
with the contract, the injured party has the option to claim
for damages or specific performance.
 Walsh v Lonsdale (1882)
 Lord Jessel: “ There is only one court, and the equity rules
prevail in it. The tenant holds under an agreement for a lease.
He holds, therefore, under the same terms in equity as if a
lease had been granted. That being so, he cannot complain of
the exercise of distress by the landlord of the same rights as
the landlord would have had if a lease had been granted.
41
 Application and cases
 If A makes T trustee leaving 50,000 Rs. to purchase a land
for the use of B. T 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 50,000
Rs.? 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

42
 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 part
performance. Maddison v. Alderson is a leading case on this point.
43
 Recognition in India:
 Many of the doctrines of English equity have taken
statutory form in India. In so far as equitable
assignments are concerned no equitable estate is
recognized in India. A transfer of future property for
consideration operates as a contract to be performed in
future.
 i) Section 53-A of the Transfer of Property Act illustrates
the doctrine of part-performance as based on this maxim.
 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.

44
 Section 12 of The Specific Relief Act relating to the
specific performances of part of a contract also
illustrates of the maxim.
 Section 91 of The Trust Act 1882 dealing with
property acquired with notice of existing contract is
also illustrative of the application of this maxim.
 [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.]

45
Maxim 9
Equity imputes an intention to fulfil an obligation
 Meaning:
 Equity considered 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, the latter will be so regarded,
because it is right to put the most favourable construction
on a man’s acts and to presume that he be generous.
 In other words, a person is presumed to do what he is
bound to do.

46
In 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.

47
Application and cases
 i) Doctrine of performance and satisfaction
 ii) Ademption
 iii) Doctrine of presumption of advancement.

 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.

48
 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 Rs. X dies. 20,000 Rs. 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.
49
 Recognition in India:
 In India, the English rule of presumption relation to
satisfaction and ad-emption has been discarded. If a testator
wants to satisfy his obligation by a subsequent gift, he must
do so by express words.
 Section 177,178 and 179 of the India Succession Act make a
deliberate departure from the English doctrine of
satisfaction.
 Section 177 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 the debt the creditor shall be
entitled to the legacy as well as the debt.” The reason for this
departure is that presumption recognized in England was
objectionable in them or specifically inapplicable to India.

50
 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.

51
 Section 92 of the Indian Trust Act puts into
practices the principle of this maxim.
 It explains that, “where a person contract to
buy property to be held on trust for certain
beneficiary 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
fulfil an obligation.
 Doctrine of Advancement does not apply in
India.
52
Maxim 10
Where there is equal equity, the law shall prevail
 Meaning: It means that where the claims of the two
persons are equally equitable, he who owns the legal
estate in addition will be preferred.
 The plain meaning of the maxim, thus, is that the person
in possession of the legal estate will get priority over any
prior or subsequent equitable interests.
 Thus, when both the parties are equally entitled to obtain
help from courts of equity because their equities are equal,
the party who has law in his favour will succeed. Thus
equitable interest is not as strong as legal interest and so,
according to the maxim, the law shall prevail.

53
 Recognition of India:
 Doctrine of election, Marshalling and set-off are based on
this maxim.
 In India, sec.35, 48 and 81 of the T.P. Act and Order 8,
Rule 6 of the CPC. Illustrate the maxim. As there is no
distinction between legal and equitable interest in India,
no conflict exists between the two whatever exists in
England.
 The general rule of priority, which is enacted in sec.48 of
the T.P. Act, is that when successive transfer of the same
property has been affected, the first in time shall get
priority subject to the doctrine of notice.

54
Maxim 11
Where the Equalities are equal, the first in time shall prevail
 Meaning: This maxim is sometimes quoted in its Latin
form, Qui prior est tempore, potior est jure. It deals with the
priority of competing interests.
 Priority means the right to enforce a claim in preference to
others. The question of priority arises when two or more
persons have interest in the same property.
 As expressed in Rice vs. Rice 1853, priority is the right of a
party to satisfy its own claim of interest in comparison to
others.
 This maxim lays down that as between persons having only
equitable interests, if their equities are in all other respects
55
equal, priority of time gives the better equity.
 In, Abigail v Lapin(1934) AC 491.
 The Privy Council states that; “In the case of a contest
between two equitable claimants the first in time, all other
things being equal, is entitled to priority. But all other
things must be equal, and the claimant who is first in time
may lose his priority by any act or omission which has, or
might have had, the effect of inducing a claimant later in
time to act to his prejudice.
 Recognition in India: Section 48 of the Transfer of
Property Act (priority of right created by transfer)
incorporates this principle. Section 78 of the same Act
explains an exception to the maxim when a prior
mortgage is postponed.

56
Maxim 12
Equity acts in personam
 Meaning:
 Equity court is a court of conscience. It operates in
personam. Thus it brings an individual’s conscience under
its sway. Its decision is merely not concerning the right
and liabilities but it also address to the parties. Thus, on
the one hand, it bind the conscience of an individual, on
the other hand, the Chancellor exercised its jurisdiction
according to its conscience.
 The maxim describes the procedure of equity courts. It
covers a large portion of procedural and remedial action.
Describing the extent of its application.

57
 It is the nature of equitable remedies that they generally operate
against the person of the defendant.• Judgment is made against
individual. This maxim comes in handy with regard to properties held
abroad.
 “ This maxim embodies the principle distinguishing the process and
decrees of the Court of Chancery. It was originally the pride of the
chancellors and the terror of the law judges that chancery acted
directly upon the person or, as the phrase went, upon his conscience.
It dealt with property but indirectly, by compelling the parties to act
with relation to it.“
 In Penn v Lord Baltimore
 An order of specific performance was granted to the plaintiff who
brought a boundary dispute case to an English court, yet the land was
in Maryland, in the USA. The parties to the dispute were English and
both lived in England. Equity can make orders affecting property
outside its jurisdiction by making orders against the person of the
defendant in the jurisdiction.
58
 Limitations:
 1.The defendant has to be within the jurisdiction of
the court.
 2.The order must not violate the legal rules of another
country.
 3.The order given must be capable of being executed
without intervention of a foreign court.

59
 Recognition in India:
 Some learned text writers say that no such jurisdiction
is applied here. Some other says that courts of India
have not much but limited power of making a decree
in personam.
 The Civil procedure code, Section 16 does not deal
with the problem. It simply explains the division of
jurisdiction of the municipal courts only.

60