Introduction:

Plato defines equality as “a sort of justice” and further points out that “equality is as sort of justice, if you cannot find any other, equality is the proper basis.”

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The idea aequitas or equality is the every basis of equity, not only in Rome but also in England.

This maxim is explained also 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, although strict rules of law may give one party an advantage over the other.

The fundamental principles of equality and immorality are the basis of the maxim “equality is equity”. The Roman legal system adopted principal of equity is equality. The equilibrium and stability of justice is basis of equity. Equality is the milestone of equity. It is well said principal of Petit vs Smith (1695) that equity delighteth in equality.

Case law

Midland bank vs Cooke (1995):

Husband and wife disputed over the ownership of their matrimonial home. Waite LJ “the Court must discover from the conducts of the party whether they have a common understanding as to the amount of the share. In the absence of which, the maxim applies. The beneficial interest belongs to the spouses in equal share.”

Presumption of tenancy in common:

The maxim has long been illustrated by equity´s dislike of a joint tenancy. On the death of one joint tenant, the whole estate belongs to the survivor, and the representatives of the deceased take nothing. There is here no equality except, perhaps, an equality of chance. Equity therefore leans in favour of a tenancy in common and will in three main classes of case treat persons who are joint tenants at law as tenants in common of the beneficial interest, so that although at law the survivor is entitled to the whole estate, he will hold in part as trustee for the representatives of the deceased.

Purchase in unequal shares:

First, if A and B purchase property with purchase-money provided in unequal shares, and take the conveyance to themselves jointly, on A´s death and B becomes entitled to the whole of the property at law, but in equity he is treated as trustee for A´s representatives proportionately to the share of the purchase-money advanced by A. had the purchase-money been advanced equally, B would have been entitled to the whole estate in equity as well as at law, for where two purchasers advance the money equally they may be presumed to have purchased with a view to the benefit of the survivorship.

Loan on mortgage:

Secondly, if mortgage is made to A and B jointly, it is immaterial whether the money is advanced equally or unequally, the mere circumstances of the transaction being a loan is sufficient to repel the presumption of an intention to hold the mortgage on a joint tendency, and the survivor is therefore a trustee for the representatives of the deceased mortgagee to the extent of his proportion of the loan. As between the mortgagees and the mortgagor the mortgage money is deemed to be money lent on a joint account, so that the survivor can give a good receipt. But this does not affect the rights of the mortgagees inter se, the survivor must account to the personal representatives of the deceased mortgagee for his share.

Partnership:

Thirdly, where partners acquire property, they are presumed to hold it as beneficial tenants in common. Jus accrescendi inter mercatores locum non habet.

Severance of joint tenancy:

Even when the property is vested in the parties as joint tenants in equity as well as at law, as in the case of a joint purchase where the money is advanced equally, equity will readily treat the joint tenancy as severed so as to exclude the incident of survivorship. Thus, not only will an actual alienation of his share by one tenant sever the joint tenancy in equity as regards that share, but also a mere agreement to alienate the share will have the same effect, provided it is entered into for value e.g., in consideration of marriage.

• Equal division:
• The principal:

In addition to equity´s ancient dislike of a joint tenancy, the maxim equality is equity may be illustrated by a number of more modern instances. In general, the maxim will be applied whenever property is to be distributed between rival claimants and there is no other basis for division. The principle which applies here is Plato´s definition of equality as a `sort of justice : if you cannot find any other, equality is the proper basis.`

Husband and wife:

Thus where a husband and wife operated a joint bank account into which they both paid their income and upon which they both drew, the court, after there had been a divorce, declined to dissect the amount meticulously, but divided the balance equally between them. The same principal was applied where a husband, his wife and the wife´s mother had all contributed towards the purchase and equipment of a house. But even between husband and wife the principal does not apply while they are still living together, for then their rights in a joint bank account are not meant to be attended by legal consequences and each will be sole beneficial owner of any property which he or she buys with money drawn from the joint bank account, subject to any contrary intention. The principal, too, has been rejected as between a man and his mistress.

An interesting example by Snell:

A very interesting example is cited by Snell in connection with the copyright of Charles Dickens´s work (Life of Christ) in which this maxim is applied. In this case the author bequeathed the manuscript of a work to A and the copy right to B. the publication was possible only by using the manuscript. Prima facie, the proceeds of the sale of the copyright will be divided equally between A and B.

Contribution between Co-trustees, Co-sureties and Co-contractors:

Where a creditor has a simple claim against several debtors, he may realize his claim from any one of them. The debtor who was compelled to pay the whole of the claim had no remedy against the others at common law.

Equity in order to set right the injustice and in order to treat all the debtors on the basis of equality, gave the debtor a right to contribution from the rest, thus pressing the burden equally on all. With co-sureties and co-contractors, the same rule is applied.

Recognition of maxim in Pakistan:

The maxim has also been recognized in Pakistan. Following are the Acts in which this maxim equality is equity has been applied.

• Contract Act (section 146):

Where two or more persons are co-sureties for the same debt or duty, either jointly or severally and whether under the same or different contracts and whether with or without the knowledge of each other, the co-sureties in the absence of any contract to the contrary, are liable, as between themselves to pay each an equal share of the whole debt or of that part of it which remains unpaid by the principal debtor.

• Constitution of Pakistan 1973 ( article 25):

All citizens are equal before the law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex alone. Nothing in this article shall prevent the state from making any special provision for the protection of women and children.

• Partnership Act (section 13):

According to section 13 (b) of the partnership Act, all the partners are entitled to the equal distribution of profits earned by the firm and they are bound to contribute equally in the event of the loss sustained by the firm. The section 13(b) of the partnership act is based on this maxim of equity. The provision of Partnership Act section 13(b) in respect of the contribution of losses and distribution of profits among the partners shall have a superior force over the partnership deed.

Conclusion:

It has long been a principal of equity that in the absence of sufficient reasons for any other basis of division, those who are entitled to property should have the certainty and fairness of equal division, for “equity did delight in equality”.