He who comes to equity must comes with clean hands

He who comes to equity must comes with clean hands

Introduction:

This is a fundamental maxim of equity that requires; that he who seeks intervention of a court of equity in a matter must ensure that he does nothing to tarnish its application. This maxim is differentiated from “He who seeks equity must do equity” in that the former looks at an applicant’s past conduct while the latter focuses on their future conduct.

Meaning:

It means that the plaintiff not only must be prepared to do what is right and fair, but also must show that his past record in the transaction is clear.

Case Law:

Highwaymen case:

In highwaymen case, two robbers were partner in their own way. Due to a disagreement in shares one of them filed a case against other for accounts of the profits of robbery. The Court 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 refuse to help them.

Application:

This maxim has application on following cases.

1)   Specific performance:

If the plaintiff has been guilty of undue advantage the court of equity will refuse the specific performance of a contract.

2)   Illegality:

Where parties to an illegal agreement appear before the court of equity for division of their respective shares towards the property obtained. The Court of equity will refuse to give any relief to any of the parties because the cause of action has been arisen from an illegal agreement.

3)   Fraud:

In case of fraud, equity will not grant relief to a party who has committed fraud.

4)   Benami transaction:

Real owner is not allowed to recover property.

5)   Infant’s Misrepresentation:

Where a minor fraudulently concealing his age and has obtained a sum from his trustee to which he was entitled to only at the age of majority. He was refused to get assistance from the court of equity.

Exception to maxim:

There are two exceptions to above stated maxim such as:

(i)                  For the sake of public relief is granted even the transaction is against public policy. Parties may be relieved on grounds of moral values.

(ii)                Where party admits his wrongdoing before his unjust plans are carried out, the court will not stick to the letter of the maxim and will extend its assistance for doing justice.

Position in Pakistan:

The maxim who comes to equity must come with clean hands is applicable in the Courts of law in Pakistan as follows;

(i)                  Transfer Of Property Act Sections 48, 73 and 78.

(ii)                Qanoon-e-Shahadat Order 1984 Article 114.

(iii)               The Contract Act 1872 Section 23.

(iv)              The Trust Act Section 23.

(v)                Specific Relief Act Section 17&18.

He who seeks equity must do equity

He who seeks equity must do equity

Introduction:

Law of equity is law of conscience, when anyone comes to the court of equity in order to get relief he is considered to ready and willing to recognize equitable right of other party against plaintiff himself.

Meaning of Maxim:

The maxim “he who seeks equity must do equity” explains that law of equity requires everyone who comes to get relief to be willing to concede, recognize and admit equitable right of defendant.

Purpose:

The purpose of this maxim is to prevent multiplicity of legal proceedings.

Case Law:

Lodge Vs National Union Investment Company (Ltd).

 Facts of the case:

Lodge borrowed money from National Union Investment Company (Ltd) by mortgaging certain securities to company. The said company was unregistered moneylender under the Moneylenders Act of !900, the contract was illegal and therefore void. Lodge sued company for return of securities.

Decision:

The court refused to make an order except upon the terms that Lodge should repay the money, which had been advanced to him. This decision was based on the principle of above stated maxim.

Application:

This maxim has application on the following cases.

1)     Illegal loans:

If one has taken illegal loan he must pay back the loan before relief is given in favor of him.

2)      Doctrine of Election:

According to this doctrine who accepts a benefit under an instrument must adopt the whole of it, confirming to all its provisions and renouncing every right inconsistent with it.

Illustration:

Where a donor gives his own property by way of gift deed to “E” and in the same instrument purports to give “E’s“property to “B” . “E” cannot claim his part of the gifted property if he is not willing to give his own property to “B” as mentioned in the same instrument.

3)     Consolidation of mortgage:

If a person becomes entitled to more than one mortgages against the same person: he may consolidate these mortgages and refused to permit the exercise of the equitable right to redeem one mortgage without the others.

4)    Doctrine of notice:

According to this doctrine if a mortgagor whishes to exercise his right to redeem his mortgaged property he must give a reasonable notice of his intention to the mortgagee.

5)    Principle of set-off:

Where the mutual debt is due from the litigating parties against each other. The amount so due shall set-off that much due from other party and only the residuary amount shall be claimed.

6)    Wife’s equity to a settlement:

Before the enactment of Married Woman and Tort Feasor Act of 1935 the woman could not hold her own property, on getting married her property was to be merged in her husband’s property. At that time the court of equity prescribed that if a husband wants to get the possession of the property to which he was entitled in right of his wife he then has to make a fair settlement of part of the property on his wife and children.

7)    Equitable estoppels:

Where any person by his act or intention or by negligence makes to believe another person of what is not true he cannot afterwards take plea of innocence if that person takes some legal steps under that misrepresentation.

8)    Restitution:

Under law of contract if the contract is rescindable at the option of the one party and it rescinded the same; it shall have to restore all benefits it took out of such contract.

Application in Pakistan:

(i)                  Section 19-A of Contract Act 18772.

(ii)                Section 35 of Transfer of Property Act 1882.

(iii)               Order 8 Rule 6 of Code of Civil Procedure 1908.

(iv)              Article 114 of Qanoon-e-Shahadat Ordinance !984.

(v)                Section 56 of Specific Relief Act.