Of the twelve classical maxims, aequitas est quasi aequalitas — “equality is equity” — is the one that most directly explains why Chancery existed at all. The common law, with its rigid forms of action, frequently allowed one party to seize an undue advantage: a creditor could exhaust a single surety, a beneficiary could ruin one of several trustees, a senior mortgagee could defeat a junior by his mere choice of fund. Equity intervened not to abolish these rights but to redistribute their incidence so that, in Plato’s phrase, “equality is a sort of justice.” This article traces the maxim from its Roman root aequitas through the leading English authorities to its near-complete statutory absorption in India — in the Contract Act, the Transfer of Property Act, the Trusts Act, the Succession Act and the Civil Procedure Code.
Meaning: Proportionate, Not Arithmetical, Equality
The maxim “equality is equity” — sometimes rendered “equity delights in equality” and expressed in the Latin aequitas est quasi aequalitas — captures the object of both law and equity: to effectuate a distribution of property and of losses proportionate to the several claims and liabilities of the parties concerned. As far as possible, equity puts litigating parties on an equal footing so far as their rights and responsibilities are concerned, so that no party gains an undue advantage over another, and none is put to an unjustified loss. The maxim is at once descriptive — it tells us what equity is trying to do — and operative, for it has generated a cluster of concrete doctrines: contribution, marshalling, rateable distribution, abatement and the presumption of tenancy in common.
Crucially, the word “equality” here is not arithmetical but proportionate. Equity does not insist that every claimant receive an identical sum; it insists that each bear a burden, or take a benefit, in proportion to his stake. The term descends from the Roman aequitas, meaning equal or even, and equity in this sense means the equalisation or levelling down of arbitrary preferences and the levelling up of unjustified denials of justice. Plato had already defined equality as “a sort of justice,” and the maxim translates that philosophical insight into a rule of decision: in interpreting words and enforcing rules, equity acts so that no party gets an undue advantage over another.
The reason the maxim matters is historical. The common law operated through rigid forms of action that frequently produced lop-sided results — a creditor could exhaust one co-debtor, a senior encumbrancer could ruin a junior, a single legatee could be wiped out while another took in full. The common law had no machinery to even out these incidences once the strict legal right had spoken. The Court of Chancery, administering conscience, did. As discussed in our note on the twelve classical maxims, this is among the most fertile of all the maxims, because it is not merely a canon of construction but the engine of several free-standing equitable doctrines that survive, codified, in modern Indian statute.
The Original Mischief at Common Law
The classic illustration arises from joint and several liability. Where a creditor holds a simple claim against several debtors, he may realise the whole of it from any one of them. He is under no duty to pursue them rateably or even to give notice to the others; the law treats the obligation as enforceable in its entirety against each. The debtor thus compelled to pay the whole claim had, at common law, no remedy against his fellow debtors. The loss fastened wherever the creditor happened to point his finger, and the chosen debtor bore alone a burden that, in conscience, belonged to all of them collectively.
This was a manifest injustice. The debtor singled out for payment had assumed only a share of the common venture, yet found himself answerable for the whole, while the others escaped untouched by the mere accident of the creditor’s election. Equity could not, and did not, deny the creditor his legal right to recover in full from one — that right was vested and lawful. What equity did instead was to work upon the relationship between the co-debtors: it gave the paying debtor a right of contribution against the rest, compelling each to bear his rateable share, and so pressing the burden equally upon all.
The right of contribution is therefore not a creature of contract — the co-debtors may never have agreed among themselves to share — but a pure product of equity, resting on the principle that those who share a common obligation must share its incidence. The same impulse animates he who seeks equity must do equity: equity insists on mutuality and even-handedness as the price of its relief, and it will not allow one obligor to enjoy the windfall of escaping a liability that another has discharged on behalf of all.
Contribution Among Co-Sureties: Dering v Earl of Winchelsea
The foundational authority is Dering v Earl of Winchelsea (1787) 1 Cox 318, decided in the Court of Exchequer with Eyre CB delivering the opinion. The facts are worth knowing precisely. Three persons — Sir Edward Dering, the Earl of Winchelsea and a third surety — stood bound, under separate bonds and not by any single joint instrument, for the due performance by Thomas Dering (the Earl’s brother) of the office of Collector of Customs. Thomas defaulted, and the Crown enforced its judgment against Sir Edward alone, recovering from him the whole of the loss occasioned by his brother’s default. Sir Edward then sought contribution from the other two sureties.
The reasoning is the very heart of the maxim. The doctrine of contribution amongst sureties, Eyre CB explained, “is not founded in contract, but is the result of general equity on the ground of equality of burden and benefit.” Three features of this holding deserve emphasis for the examiner. First, contribution was decreed even though the sureties were bound by different instruments: the absence of a common bond was no obstacle, because equity looked to the substance of the shared engagement, not the form of the documents. Second, it was immaterial that the sureties might have been unaware of one another’s existence; the right to contribution does not depend on any mutual agreement or even mutual knowledge. Third, what mattered was that all three answered for the same principal and the same default — that shared exposure to a common burden is what triggers equity’s levelling instinct.
The decision is also famous as an early statement of the clean-hands principle, Eyre CB observing that a court of equity will withhold relief from a party who has acted improperly. But for the law of equality the case stands as the cornerstone of contribution and the leading judicial articulation of “equality is equity” — that those who share a common benefit and a common risk must, when loss falls, share the burden rateably. The principle was carried wholesale into Indian statute, as the next section shows.
Statutory Reception: The Indian Contract Act, 1872
A preliminary point of constitutional significance: Indian law recognises no formal distinction between law and equity as the English system did under the divided jurisdictions of King’s Bench and Chancery. There is in India no separate body of “equity” administered by a separate court. Yet, as our note on the introduction to equity explains, this does not mean equity is absent — rather, the great equitable principles have been absorbed, distilled and codified into the general statute law. The maxim of equality is among those most thoroughly received, and it surfaces repeatedly in the Indian Contract Act, 1872.
Section 42 governs the devolution of joint liabilities. It reflects, in the field of liability, the equitable preference for treating co-obligors as having distinct, several stakes rather than as a single undifferentiated mass — the liability passing on death to representatives, so that the burden does not arbitrarily concentrate on the survivors. Section 43 is the direct statutory embodiment of contribution. When two or more persons make a joint promise, the promisee may, absent a contrary agreement, compel any one or more of them to perform the whole of the promise. But the section then equalises the burden inter se: each joint promisor may “compel every other joint promisor to contribute equally with himself to the performance of the promise,” unless a contrary intention appears from the contract; and if any one of them makes default in such contribution, the remaining joint promisors must bear the resulting loss in equal shares. This is Dering in statutory dress.
Sections 146 and 147 carry the same idea expressly into suretyship. Section 146 declares that where two or more persons are co-sureties for the same debt, whether under the same or different contracts, and whether with or without the knowledge of each other, they are — in the absence of any contrary contract — liable to contribute equally to the extent of the default. Section 147 extends this to co-sureties bound in different sums, who are liable to contribute equally subject to the limit of their respective penal sums. Both provisions reproduce, almost verbatim, the principle that the absence of a common instrument or mutual knowledge is no bar to contribution. Finally, Sections 69 and 70 — reimbursement of a person who pays money that another is legally bound to pay, and compensation for a lawful non-gratuitous act — illustrate the cognate equitable doctrine of restitution and the broader instinct against unjust enrichment that underlies marshalling. The maxim, in short, runs as a continuous thread through the entire Indian law of plural obligation.
Contribution Between Co-Trustees: Section 27, Indian Trusts Act
The maxim governs the internal relations of trustees with equal force, and here the structure of the rule mirrors exactly the surety cases. Under Section 27 of the Indian Trusts Act, 1882, where co-trustees jointly commit a breach of trust, or where one of them by his neglect enables another to commit a breach, each is liable to the beneficiary for the whole of the loss occasioned by the breach. This is a rule of joint and several liability designed to protect the beneficiary: the beneficiary need not apportion blame or sue each trustee for his share, but may obtain a single decree and execute it against any one trustee for the entire loss — even one who was only negligent in failing to prevent the active wrongdoing of his fellow.
So far this is the common-law mischief reproduced: one trustee may be made to bear the whole of a burden that several created. Equity’s answer, again, is contribution between the trustees themselves. Section 27 accordingly provides that where one trustee is less guilty than another and has had to refund the loss, he may compel the more guilty trustee (or that trustee’s legal representative, to the extent of the assets received) to make good the loss; and where all are equally guilty, any one or more who has refunded may compel the others to contribute rateably. The burden is thus redistributed in proportion to culpability — proportionate equality, not blind arithmetic.
There is, however, a vital limit drawn directly from a sister maxim, he who comes to equity must come with clean hands: nothing in Section 27 authorises a trustee who has himself been guilty of fraud to institute a suit to compel contribution. The fraudulent trustee is left to bear what he has paid, however much his co-trustees may also be liable to the beneficiary. Equality is extended only to those who come to ask for it untainted — a striking demonstration that the maxims of equity operate as a connected system rather than in isolation. The reciprocal duties of loyalty, care and even-handedness among trustees that surround this contribution right form part of the wider scheme of trustees’ liabilities under Chapter III of the Act.
Marshalling: Aldrich v Cooper and the Two-Fund Rule
Marshalling is the maxim’s application to competing security interests, and its locus classicus is Aldrich v Cooper (1803) 8 Ves Jr 382, decided by Lord Eldon LC in the Court of Chancery. The doctrine, as Eldon famously stated it, is that “a person having two funds shall not by his election disappoint the party having only one fund; and equity, to satisfy both, will throw him who has two funds upon that which can be affected to him, to the intent that the only fund to which the other has access may remain clear to him.” Put differently, where one creditor’s security is confined to two funds and another’s to only one of those two, the court will arrange — marshal — the assets so that the doubly secured creditor is thrown first upon the fund the singly secured creditor cannot reach.
The mischief addressed is the same arbitrary-election problem already seen in the surety and trustee contexts, now transposed into the geometry of securities. Suppose a debtor owns Blackacre and Whiteacre. Creditor A holds a charge over both; Creditor B holds a later charge over Blackacre alone. If A, exercising his undoubted legal right, chooses to satisfy himself wholly out of Blackacre, he may exhaust the only fund available to B and leave B with nothing, while Whiteacre stands untouched. Nothing in A’s strict legal right compels him to spare Blackacre. Equity will not permit A’s capricious choice to disappoint B when both can in fact be satisfied: it directs that A resort first to Whiteacre, preserving Blackacre for B. A loses nothing — he is paid in full — but B is no longer at the mercy of A’s election.
Two limits, stressed by Lord Eldon and by the Indian courts that have followed him, are essential. First, marshalling requires a common debtor: the two funds must belong to the same mortgagor, for equity is rearranging the order in which one debtor’s assets answer the claims against him, not seizing a stranger’s property. Second, the right cannot be exercised to the prejudice of the prior secured creditor himself, nor to the prejudice of any third party who has acquired an interest. Marshalling reorders incidence; it never enlarges or defeats a senior right. So confined, it is “equality is equity” worked out through the arrangement of competing charges.
Marshalling and Contribution Under the Transfer of Property Act
The Transfer of Property Act, 1882 codifies both branches of this doctrine. Section 81 enacts marshalling of securities: where an owner mortgages two or more properties to one person and afterwards mortgages one or more of them to another, the subsequent mortgagee is entitled, in the absence of a contrary contract, to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him — the direct statutory descendant of Aldrich v Cooper. Section 56 provides the parallel rule of marshalling by a subsequent purchaser, operating in the context of sale rather than mortgage.
Section 82 supplies the complementary principle of contribution to a mortgage-debt: where several properties, whether of one owner or of several, are mortgaged to secure one debt, the properties are, as between the owners, liable to contribute rateably to the debt in proportion to their respective values. Section 45 likewise applies the equality principle to co-owners, presuming that property bought with funds belonging to several persons in distinct shares is held by them in shares proportionate to their respective contributions — again, proportionate equality rather than arbitrary preference. Both marshalling and contribution thus flow from a single source: equity’s refusal to let one party throw a disproportionate burden on another.
Rateable Distribution: Section 73 CPC and Abatement of Legacies
Where the available assets are insufficient to satisfy all claimants in full, equality demands that they share the shortfall proportionately rather than letting the swiftest or most aggressive claimant take everything and leave the rest empty-handed. The common law tended to reward diligence with priority — first in execution, first paid. Equity preferred to spread an inevitable loss evenly, and Indian statute has adopted the equitable preference in two important settings.
The first is execution. Section 73 of the Code of Civil Procedure, 1908 provides that where assets are held by a court and more persons than one have, before the receipt of those assets, applied for execution of money-decrees against the same judgment-debtor and have not obtained satisfaction, the assets — after deducting the costs of realisation — shall be rateably distributed among all such decree-holders. “Rateably” means in proportion to the amounts due under the respective decrees. The provision deliberately neutralises the race to the court-house: a decree-holder who has been quicker to attach does not thereby gobble the whole fund; he shares it proportionately with every other decree-holder who came in before the assets were received. This is proportionate equality enforced as a statutory command, and it is one of the purest illustrations of the maxim in Indian procedural law.
The second setting is the administration of a deceased person’s estate. Section 330 of the Indian Succession Act, 1925 provides that where the assets are not sufficient to answer the debts together with the specific legacies, an abatement shall be made from the legacies rateably, in proportion to their respective amounts. The legatees do not jostle for priority among themselves; equity abates each by the same proportion, so that the disappointment of a deficient estate falls evenly across all of them rather than annihilating one while sparing another. The principle of rateable abatement is the testamentary cousin of rateable distribution under Section 73 — both are the maxim of equality translated into the arithmetic of shortfall.
Equity’s Aversion to Joint Tenancy
A further classical application is equity’s settled dislike of joint tenancy with its incident of survivorship (jus accrescendi). At common law, where two or more persons held as joint tenants, on the death of one the whole estate accrued automatically to the survivors, so that the deceased joint tenant’s family and creditors took nothing. The estate could not be devised by will, for survivorship operated the instant before death deprived the deceased of any transmissible interest. Equity regarded this as capricious and unequal — fortune, not desert, decided who ultimately took the property, and the longest-lived joint tenant scooped the entire estate.
Equity therefore leant firmly against survivorship. Wherever the circumstances permitted, it presumed a tenancy in common — a form of co-ownership in which each owner holds a distinct, separate, devisable and inheritable share — rather than a joint tenancy. The presumption was applied with particular readiness in three situations: between partners (partnership property being held for the firm, survivorship was inappropriate); between joint mortgagees who had lent money (equity treating the loan as held in shares, so that a deceased mortgagee’s estate retained its portion of the debt); and wherever two or more persons had advanced purchase-money in unequal shares, where the inference of a tenancy in common proportionate to contribution was almost irresistible.
The principle that “equity leans against joint tenancy” is simply equality is equity applied to co-ownership: it prefers the form of holding that gives each owner a proportionate, transmissible interest over the form that lets the accident of mortality determine who takes the whole. Section 45 of the Transfer of Property Act statutorily enacts this presumption for India, providing that where immovable property is transferred for consideration to two or more persons and that consideration is paid out of a common fund, they are entitled to interests in the property in proportion to the shares in which they respectively contributed to the fund — and where they paid in unequal shares, that proportion governs their interests. Survivorship is thus displaced by proportionate equality.
Limits: Equity Follows the Law and Express Intention
The maxim is powerful but not unlimited. First, it yields to clearly expressed intention. The Contract Act’s contribution provisions operate only “unless a contrary intention appears,” and the marshalling and contribution sections of the Transfer of Property Act are subject to contrary contract. Where the parties have themselves apportioned their burdens unequally, equity respects that bargain; the maxim supplies a default of fairness, not an overriding mandate.
Second, the maxim operates within the discipline that equity follows the law. Equality does not entitle a court to rewrite vested legal rights or to ignore an established statutory priority; it equalises only where the law has left the incidence of a burden to chance or to one party’s arbitrary election. Third, the relief is personal and conscience-based, which is why a fraudulent co-trustee is denied contribution under Section 27: equality is extended to those who themselves act equitably, a point that ties the maxim back to the broader insistence that equity acts on the conscience of the party.
Relationship With the Other Maxims
Equality is equity does not stand alone. It works in tandem with equity will not suffer a wrong to be without a remedy: contribution and marshalling are precisely the remedies equity supplied where the common law left the over-burdened party remediless. It is enforced through equity acts in personam, for a decree of contribution or marshalling operates as a personal command against the conscience of the party who would otherwise take an unfair advantage. And it is qualified by clean hands and by the rule that equity follows the law.
Read together, these maxims show equality not as an isolated slogan but as a structural commitment: across suretyship, trusts, mortgages, succession and execution, equity’s consistent instinct is to spread shared burdens proportionately and to deny any party an advantage that rests on nothing more than the rigidity of legal form or the accident of the creditor’s choice. For the full doctrinal landscape, see our Equity & Trust Law hub.
Exam Summary and Key Takeaways
For judiciary and CLAT-PG purposes, anchor the maxim to its statutory and case-law pillars. Meaning: proportionate, not arithmetical, equality; from Roman aequitas; “equity delights in equality.” Contribution among co-sureties: Dering v Earl of Winchelsea (1787) — founded on general equity of equality of burden and benefit, not on contract; ICA ss. 146–147 and s. 43. Contribution among co-trustees: Indian Trusts Act s. 27 — joint and several to the beneficiary, but rateable contribution inter se, save for a fraudulent trustee. Marshalling: Aldrich v Cooper (1803), Lord Eldon’s two-fund rule; TPA ss. 81 and 56. Contribution to mortgage-debt: TPA s. 82; co-ownership presumption s. 45. Rateable distribution: CPC s. 73 (decree-holders) and Indian Succession Act s. 330 (abatement of legacies). Limits: yields to contrary intention, follows the law, and denies relief to the unclean party.
Frequently asked questions
What does the maxim "equality is equity" actually mean?
It means equity strives to put litigating parties on an equal footing as to their rights and liabilities, distributing benefits and burdens proportionately so that no party gains an undue advantage. The "equality" intended is proportionate, not arithmetically identical, equality — hence it is also phrased "equity delights in equality."
Why is Dering v Earl of Winchelsea the leading case?
In Dering v Earl of Winchelsea (1787), Eyre CB held that contribution among co-sureties "is not founded in contract, but is the result of general equity on the ground of equality of burden and benefit." It established that co-sureties bound by separate instruments, even unaware of each other, must contribute rateably — the clearest judicial statement of the maxim.
How does the maxim apply to co-trustees under Indian law?
Section 27 of the Indian Trusts Act, 1882 makes co-trustees jointly and severally liable to the beneficiary for the whole loss from a breach, but allows contribution between themselves — the less guilty may recover from the more guilty, and equally guilty trustees contribute equally. A trustee guilty of fraud, however, cannot sue for contribution.
What is the doctrine of marshalling and where is it codified?
Marshalling, from Aldrich v Cooper (1803), prevents a creditor with access to two funds from defeating a creditor who can reach only one, by throwing the former onto the fund the latter cannot touch. In India it is codified as marshalling of securities in Section 81 and marshalling by a subsequent purchaser in Section 56 of the Transfer of Property Act, 1882.
How does Section 73 CPC reflect "equality is equity"?
Section 73 of the Code of Civil Procedure, 1908 requires that where a court holds a judgment-debtor's assets and several decree-holders have applied for execution, the assets be distributed rateably — proportionately to the sums due — rather than letting the first applicant take everything. It is a pure statutory expression of proportionate equality.
Are there limits to the maxim?
Yes. It yields to a clearly expressed contrary intention (the Contract Act and Transfer of Property Act provisions all operate subject to contrary agreement), it operates only within the rule that equity follows the law and cannot override vested legal rights or statutory priorities, and it denies relief to a party who lacks clean hands, such as a fraudulent co-trustee under Section 27.