Vol. 12 · pages 236–240

215COMMON LAW (4) If property was given to a married woman by words which indicated either expressly or by implication that she was to enjoy it “for her sole and separate use”. Equity removed that property from the control of the husband by regarding him as a trustee, and conferred upon the wife full powers of enjoyment and disposition. But equity went even further than this. Perceiving the danger that a husband might persuade his wife to sell her separate property and hand the proceeds to him, it permitted the insertion in marriage settlements of what is known as “restraint upon anticipation”. The effect of such restraint, which is still usual, was that a woman while possessing full enjoyment of the income was prevented during her coverture from alienating or charging the corpus of the property. She could devise but could not sell or mortgage it. This was in complete contravention of the Common Law. At Common Law, not only marriage became a vestitive fact giving the husband a title to the property of his wife but no agreement either with the wife or any other person could take away his right to hold and to alienate her property. This is an illustration which shows that an Equitable right arises in a manner very different from that in which a legal right arises. (3) Second distinction between a legal right and an equitable right may be formulated thus : 1. A legal right vested in one owner destroys either partially or completely the right vested in its previous owner. The destruction may be complete or may be partial. If it is a lease, it is a partial destruction. If it is a sale, it is a complete destruction. But whether complete or partial, it is destruction. This is what is meant when it is said that a vestitive fact is also divestive fact. 2. This is not true when there is a competition between a legal right and an equitable right. An equitable right does not destroy a legal right even when it prevails as against the owner of a legal right. In a conflict between a legal and an equitable right, the equitable right does not destroy the legal right, as one legal right does another legal right.

216 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES 3. Why is this so ? For this it is necessary to know how an equitable right came to be recognized at the very start by the Court of Chancery. The historical setting may be presented briefly as follows :— (i) It was a common practice in England before the Norman conquest for one person to do something ad opus—on behalf of another. For instance the Sheriff seized lands and held them ad opus domini Regis or where a knight went about to go to the crusades, conveyed his property to a friend to hold it on behalf of his wife and children. The word opus became gradually transformed into use and the land transferred came to be spoken of as land put in use. (ii) Now if in certain circumstances some persons could deal with land on behalf of or to the use of another, the question that inevitably occured to men, why one person should not in a general way be allowed to hold land to the use of another. This as a matter of fact was exactly what was done in course of time. The tenant A would transfer his land by a Common Law conveyance to B, who undertook to hold it on behalf of, or adopting the correct expression, to the use of A. In such cases B was called the feoffee to use, that is, the person to whom the feoffment had on certain conditions been made, while A went by the name of the Astin que use. which being interpreted, meant the person on whose behalf the land was held. (iii) Reasons why this practice grew, are many. There were altogether six reasons why people liked to follow this practice of putting land in use. Of these two are of importance :— (1) It enabled a party to escape the fuedual burdens to which was liable at Common Law. At Common Law the following burdens were placed upon the tenant— (i) Relief—paid by a new tenant upon the death of an old tenant, (ii) Aids—payable in three cases— (a) to ransom the Lord when imprisoned; (b) when the Lord desired to make his Lord a knight; (c) when the Lord was obliged to supply his eldest daughter with a dowry. (iii) Escheat—The commission by a tenant of a crime serious enough to amount to felony caused the land to escheat. (iv) Wardship. —If an existing tenant died leaving as his heir a male under 21 or a female under 14, the Lord was entitled to the wardship of the heir and as a consequence was free to make any use he liked of the lands during the minority without any liability to render accounts.

217COMMON LAW (v) Marriage :—To find a suitable match for an infant ward was the right of the Lord, and if the infant ward refused, the Lord was entitled to compensation. The feoffor became free by putting his land in use. The burden fell on the person who acquired Scisin, namely, the feofee to uses. (2) The second advantage was avoidance of forfeiture and escheat. Land held by tenure at Common Law was forfeited to the Crown if the tenant committed high treason, and upon his conviction or on slavery for felony, it escheated to the Lord. These unpleasant consequences were avoided, if a tenant, before embarking upon some doubtful enterprise, had the prescience to vest his lands in a few confidential friends. The deliquent might possibly suffer the extreme penalty, but at least his family would not be destitute. 4. Legal effect of putting lands in use :— (i) The legal consequence of this practice of putting lands in use is an important point to note. It was to cut off the cestui que use in the eyes of the Common Law from all connection with the land. By a conveyance operative at Common Law, he had conveyed his estate to the feofee to uses and was, therefore, deprived of all Common Law rights over the land. He was nothing, the feofee was every thing. Instead of keeping scisin, he chooses to rely upon the confidence which he reposed in the feofee. (ii) If the feofee failed or refused to carry out the directions imposed upon him or if he deliberately alienated the land for his own purposes, there was no Common Law action by which he could be rendered liable. (iii) If a cestui que use was let into possession of the land by the feofee to uses, he was regarded as a mere tenant at will of the feofee to uses and could be turned out any moment, and in the event of contumacy could be sued in trespass by the feoffee. 5. The nature of the remedy provided by the Court of Chaucery to protect the feofor must be clearly understood :— (i) The Chancellor could not interfere with the jurisdiction of the Common Law Courts by proceeding directly against the land itself because the absolute title to the land was vested in the feofee by the conveyance. The Chancelllor could not disregard the fact that a feoffee was absolute owner at Common Law by virtue of the Common Law conveyance called feoffment whereby the land had been transferred to him.

218 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES (ii) The Chancellor distinctly recognized the fact that the feoffee was the owner of the land and had a legal right but what he said to the feoffee was this :— “You have the legal right, I do not take it away from you but I will not permit you to exercise that legal right in such a way as to infringe the understanding on which the feoffor made the feoffment.” (iii) The Chancery in assuming jurisdiction over the use left untouched and inviolate the legal right of owner at Common Law. It exercised no direct control over the land. It only regulated the mode and manner of the legal right by imposing upon the owner of the legal right an obligation to observe the condition. The legal owner retained his legal right to own and to possess the land. The Chancellor gave the feoffor an equitable right to demand observance of the conditions of feoffment. 6. This is the explanation of that difference between a legal right and an equitable right according to which while one legal right destroys another legal, either partially or wholly, an equitable right does not destroy a legal right. 7. This is also the explanation of the proposition enunciated by Strahan in Article 11, namely, that a legal right or interest issues outflows out of the property itself while equitable right or interest issues or flows out of the legal interest and not out of the property. This is so because the Chancellor did not recognize the right of the equitable owner to obtain possession of property. That right he retained in the legal owner. What he gave to the equitable owner was the right to impose a duty upon the conduct of the legal owner and he did not give him the right to claim the property itself. Illustration: (1918). 2K.B. (Ir.) 353—Graham vs. Mcllwaine. 8. The consequences that follow from this fact may be noted :— (1) Because an equitable right issues out of a legal right and not out of the property : (i) It cannot be greater than the legal estate out of which it issues. Illustration : Land conveyed to A for the use of B and his heirs. A is the legal owner of the land. B is the equitable owner.

219COMMON LAW But land is conveyed to A and not to A and his heirs. Consequently the legal right of A vanishes at his death. As A’s legal right vanishes so does B’s equitable right. An equitable interest cannot survive the legal interest out of which it flows, (1914) i Ch. 300 (ii) Equitable right will be affected by all the infirmities attaching to the legal right. A died intestate leaving B and C as his sons, B being the eldest. B being away C takes possession and transfers it to D for the use of his wife E. B returns and claims the property. The legal tide of D comes to an end by reason of the flaw in C’s title. The equitable estate of E, the wife of C, also comes to an end. III. The third difference between a Legal Right and an Equitable Right is that, a legal right may be a right in rem or may be a right in personam. But an equitable right is always a right in personam. Who is bound to respect the right of an Equitable owner ? Not the world but the legal owner and no one else. It is true, the legal owner, who is bound, is not the legal owner against whom the equitable right first arose but includes also every legal owner to whom the right is transferred. All the same the proposition stands that an Equitable Right is a right in personam which binds only the legal owner. Explain, “Equitable rights have a resemblance to rights in rem.” (i) It is true that Equitable Rights have a resemblance to rights in rem. (ii) How does this resemblance arise ? (i) An equitable right will be enforced not only against the owner of legal right but it will be enforced against :— (a) his representatives and volunteers claiming through or under him, (b) persons who acquire the legal right (i) with the knowledge of the legal right, (ii) against those who could have had knowledge. (iii) The standard of knowledge set up by the Court of Chancery was so high that no one could escape and every purchaser was bound.