Jurisdiction of Equity in Bangladesh

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Offline Talukdar Rasel Mahmud

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Jurisdiction of Equity in Bangladesh
« on: May 11, 2015, 08:43:19 PM »
As we know that principles of equity were created by the hands of the chancellors of chancery court as compliment of natural justice. In England there was a separate court for the administration of equity. In India and Bangladesh there was never separate court for the administration of equity. But in the absence of specific law or usage in any matter, the court has to act according to principles of equity, justice and good conscience interpreted to mean only those rules of English equity which are applicable to India and Bangladeshi societies and circumstances.
Application of Equity in Muslim law:
-   In Mohammedan law the principles of equity are clearly noticeable. Imam abu Hanifa ,the founder of the Hanafi sect of Sunnis , expounded the principle that the rule of law based on analogy could be set aside at the  option of the judge on a liberal construction or judicial preference to meet the requirements of a particular case. The principles of Mohammedan law are known as Istihsan, or justice equity. With regard to the Mohammedan law their Lordships of the Privy Council in Hamira Bibi vs. Zubaida Bibi.

Equity in Hindu law:
-   It has been laid down that in case of a conflict between the rules of “smritis” either may be followed, as reasoning of the principles of equity. Yuktivichar shall decide the solutions. Jayaswal has also collected authorities to the same effect. He says ‘we may recall “kautilya’s provisions that in the dharma text is found opposed to judiciary reason the dharma text fails and the authority of reason prevails. Yajnavalkya says, where there is a conflict between two smritis texts reason (Equity) is there stronger. He limitis superiority of reason or Equity to a conflict between the sastras themselves.”

The specific Relief Act, 1877:
The doctrine of equity is admitted in Specific Relief Act, 1877. For example-
-   Discretion as to decreeing specific performance
-   Contracts to sell property by one who has no title, or who is a voluntary settler
-   Specific performance of a contract, etc.
Equity in the Trust Act 1882:
The rules contained in the Indian Trust Act 1882 are substantially the same which were administrated at that time by English court of Equity under the name of justice, equity, good conscience. For Example:
-   Liability for breach of trust
-   Wrongful purchase by trustee, etc.

Principles of equity in the Contract Act 1872:
-   There are certain equitable doctrines which have been important in the contract, and some of the important doctrine relating generally to the law of contract is doctrine of penalties and forfeitures, stipulation as to time in a contract, equitable relief on the ground of misrepresentation, fraud and undue influence.
Principles of Equity in the Transfer of property Act 1882:
The transfer of property Act has also included many doctrines of equity originated in the court of chancery in England. For Example:
-   Fraudulent transfer
-   Improvements made by bona fide holders under defective titles, etc.

Equity in the Civil Procedure Code:

-   Section-9 o C.P.C may be mentioned as an example of the application of the maxim “Equity will not suffer a wrong to be without remedy.
-   Section-43 of this code is also the example the maxim “Equality is Equity”. According to this section where assets are held by a court and more persons then one have (before the receipt of such assets) made application to court for the execution of decrees for the payment of money passed against the same judgment – debtor and have not obtained satisfaction thereof, the assets, after deducting the costs realization will be ratably distributed among all such persons.
Talukdar Rasel Mahmud
Lecturer, Department of Law
Daffodil International University (DIU)
Contact No:+88 01719 479603.