Equity sees that as done what ought to be done
1. Introduction:
The court of equity ignores the formalism of the events and tries to see the depth of realities where a personal obligation arises from a contract that which out have been done is considered as have been done in favor of the person entitled to enforce the contract as against the person liable to perform it.
2. Meaning:
It means that equity will treat the subject matter, as to collateral consequences and incidents, in the same manner as if the final act contemplated by the parties has been executed exactly as they ought to have been not as the parties might have executed them.
3. Explanation:
According to Snell
A person who enters into possession of land under an agreement for a lease, which has jurisdiction to enforce the agreement as being in the same position as if the lease had been granted to him.
4. Cases or illustrations:
I. Agreement to sell land:
The intention of the parties in an ordinary contract for the sale and purchase of the real property is that the purchaser shall pay the money and that the property shall be conveyed by a duly executed deed to the purchaser. equity considers the vendor as a trustee for the purchaser of the estate sold and the purchaser as a trust of the purchase money for the vendor.
II. Conversion:
The notional change like the property whereby reality is considered to be personality and personality as reality is called the doctrine of conversion.
III. Contract for lease of land:
Case Law
Walsh Vs. Lons Dale
A person who enters into possession of land under an agreement for lease which is specifically enforceable is regarded as between himself and the other party as being in the same position as if the lease had been granted to him.
IV. Executory contract:
The leading examples are as under.
Where land has been directed by settlement or will to be turned into money, and vice vers and
Where a contract remains executory on one side, but has been executed on the other side.
Illustration:
X contracts to sell his land to Y. The land thereafter should be transferred to Y and Y should pay the purchase money to X. Equity regards these as done Y having become the owner of the land, may sell lease, or gift away the property.
5. Exception:
The following are exceptions to this maxim.
(i) An heir at law.
(ii) A volunteer.
6. Position in Pakistan:
Sec 17 contract act
Order 8 rule 6 C.P. C
Sec 62 trust act
Sec 51 T. P. A
7. Limitations of maxim:
To take advantage of this maxim demand must be in the same suit.
The demand must be for equitable relief.
8. Position in Pakistan:
In Pakistan, no equitable estate is recognized but a transfer of future property operates as a contract to be performed in the future. the court may specifically enforce as soon as the property comes into existence. however, the principle of maxim has been recognized in Sec. 18 (a) of Specific Relief Act 1877.
9. Conclusion:
To conclude I can say that, where obligation arises from a contract, which ought to have been done is considered as done, if against the person liable to perform it. this maxim applies in favour of those who had a right to pray, that the thing should be done. the obligation must be like a must. it will not apply when the obligation is like a "might have been done" or "would have done".
Ikyan Shah (Advocate High Court)
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