JAMIA MILLIA ISLAMIA UNIVERSITY

LEGAL
PERSONALITY

SUBMITTED BY
JIJO RAJ P
B.A LL.B (V Semester)
SECTION B
JAMIA MILLIA ISLAMIA

Page | 1
 ACKNOWLEDGEMENT

The present work on the Legal Personality is an effort to throw some light on presentation skills.

My work would not have been possible to come to light without the able guidance, supervision
and help by a number of people. I convey my heartfelt affection to all those people who helped
and supported me during the course of completion of my project.

I convey my thanks to my Professor Eqbal Hussain for his guidance and supervision without
which I would not be able to complete this work.

I would also thank my institution, faculty members and my seniors without which the project
would have been a distant reality.

Page | 2
 TABLE OF CONTENTS

Acknowledgement. 2

Introduction. 4

Definition of Person. 5-6

Kinds of Personality. 6-7

Kinds of Legal Person. 7-9

Theories of Legal Personality. 9-11

Legal Status. 11-13

Limitations to Legal Personality. 13-14

Conclusion. 14

Page | 3
 INTRODUCTION

The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn by actors
playing different roles in a drama. In modern days it has been used in a sense of a living person
capable of having rights and duties. Now it has been used in different senses in different
disciplines. In the philosophical and moral sense, the term has been used to mean the rational
quality of human being. In law it has a wide meaning. It means not only human beings but also
associations as well. Law personifies some real thing and treats it as a legal person. This
personification both theoretically and practically clarifies thought and expression. There are
human beings who are not persons in legal sense such as outlaws and slaves (in early times). In
the same way there are legal persons who are not human beings such as corporations, companies,
trade unions; institutions like universities, hospitals are examples of artificial personality
recognized by law in the modern age. Hence, the person is an important category of concept in
legal theory, particularly business and corporate laws have extensively used the concept of
person for protection as well as imposing the liability.

Page | 4
The term ‘person’ and ‘personality’ has a historical evolution. Roman law, Greek law and Hindu
law, has used the concept too. In Roman law, the term had a specialized meaning, and it was
synonymous with ‘caput’ means status. Thus, a slave had an imperfect persona. In later period it
was denoting as a being or an entity capable of sustaining legal rights and duties. In ancient
Roman Society, there was no problem of personality as the ‘family’ was the basic unit of the
society and not the individual. The family consisted of a number of individuals, but all the
powers were concentrated with ‘pater familias’ means the head of the family. If a head of the
family dies, and there is an interval between his death and devolution of property on the heir who
accepted inheritance, the property will vest in a person during the interval. This was
called hereditas jacens which was developed by the Romans.1 The hereditas jacens is considered
by some scholars as similar to legal personality. Hereditas jacens means the inheritance during
the interval between death of the ancestor and the acceptance of the inheritance by the heir.
Some scholars are not ready to agree with the views that it has some connection with present
doctrine of legal personality, even if it is there, it may be in a very limited sense. There was a
provision in Roman law that other institutions or group who had certain rights and duties were
capable to exercise their legal rights through a representative.

Under Greek law, an animal or trees were tried in court for harm or death done to a human being.
It can be said on the basis of this practice that these objects were subject to duties even though
they may not possesses rights. This is an element of the attribution of personality.

Under early English law, there are some incidences in it had found that an animal or tress or
inanimate objects had been tried in Court under law. The trees and animals were subject to duty
but not rights. After 1846, this system has modified and it was made clear that animals or tresses
are capable of possessing rights and duties; therefore, there is no question of personality.2

DEFINITION OF PERSON

The term ‘person’ is derived from the Latin term ‘Persona’ which means those who are
recognized by law as being capable of having legal rights and being bound by legal duties. It
means both- a human being, a body of persons or a corporation or other legal entity that is
recognized by law as the subject of rights and duties.3
1
S.N.Dhyani, Jurisprudence (Indian Legal Theory), Central Law Agency, Allahabad, 2010, p. 245.
2
Vijay Ghormade, Jurisprudence & Legal Theory, Hindu Law House, Pune, 2008, p. 389-390.
3
S.N.Dhyani, Jurisprudence (Indian Legal Theory), Central Law Agency, Allahabad, 2010, p. 246.

Page | 5
 1. GRAY
Accordig to Gray “a person is an entity to which rights and duties may be
attributed.”
2. SALMOND
According to Salmond “A person is, any being to whom the law regards as
capable of rights or duties.” Any being that is so capable, is a person whether
human being or not and nothing that is not so capable is a person even though he
be a man.
3. PATON
According to Paton, “Legal personality is a medium through which some
such units are created in whom rights can be vested.”

 In ordinary parlance person means living men and women. In contrast to this a legal person is an
artificial creation of law. All human beings are not person in the eye of law. There are human
beings who are not persons. For Example; Slaves, conversely, there may be persons who are not
human beings, e.g., a Corporation, Institution, Idol etc. Likewise, infants, saints and lunatics are
awarded the status of restricted personality. Personality, therefore, has a wider signification than
humanity.

KINDS OF PERSONALITY

According to Salmond a person may be divided into two kinds. They are as follows;

1. NATURAL PERSON
2. LEGAL PERSON

NATURAL PERSON

A natural person is legally defined as a living human being. A natural person is a being, to whom
the law attributes personality in accordance with reality and truth. Natural person is a human
being who is regarded by law as having rights and being bound by duties. A human being must
satisfy two conditions in order to be a natural person in law, namely, he must be a living human
being and he must be recognized by the state as person so he must not be a slave in the absolute
control of his master or otherwise civilly dead as a monk who has renounced the world.

Page | 6
LEGAL PERSON

The word person is derived from the Latin word ‘persona’. Used in the context of
law, persona  came to signify the subject of legal rights and duties. It came to denote not an
individual litigant as a human being, but anybody or anything permitted to assert legal claims or
subjected to legal duties. From the legal perspective, the mask of personality does not, therefore,
necessarily have to be worn by human beings.

Legal personality may be said to refer to the particular device by which law creates, or
recognizes units to which it ascribes certain powers and capacities. Persons are the substances of
which the rights and duties are the attributes. It is in this respect that persons possess judicial
significance.

Legal persons are artificial or imaginary beings to whom law attributes personality by way of
fiction where it does not exist in fact e.g., Corporation, Institution, University, Club etc. They are
capable of rights and duties like natural persons.

KINDS OF LEGAL PERSON

A legal person may be divided into three kinds. They are as follows;

1. COPORATION
2. INSTITUTION
3. FUND OR ESTATE

CORPORATION

A corporation is a group or series of persons which by legal fiction is regarded and treated as a
person. The element of legal fiction involved here is that the law assumes that in addition to the
natural persons how actually occupy a particular official position, there is a mythical being who
is in law the real occupant of the office and who never dies and retires. The living officials are
merely the agents or representatives through whom the legal person performs its function. The
individuals forming the corpus of the corporation are called its members.

KINDS OF CORPORATION

Page | 7
Corporations are of two kinds. They are as follows;

A. CORPORATION AGGREGATE
B. CORPORATION SOLE

CORPORATION AGGREGATE

A corporation aggregate is a group of co-existing persons, “It is a collection of individuals united

into one body under a special denomination, having perpetual succession under an artificial
form, and vested by the policy of the law with the capacity of acting in several respects as an
individual, particularly of taking and granting property, of contracting obligations and of suing
and being sued, of enjoying privileges and immunities in common, and of expressing a variety of
political rights, more or less extensive, according to the design of its institution, or the powers
conferred upon it either at the time of its creation or at any subsequent period of its existence.” A
joint stock company, a municipal corporation, a railway corporation, a chartered university, etc.,
are examples of a corporation aggregate.

CORPORATION SOLE

A corporation sole is a series of successive persons. It is a body politic having perpetual

succession, constituted in a single person, who, in right of some office or function, has a capacity
to take, purchase, hold and demise land and hereditaments and now also to take and hold
personal property, to him and his successors in such office for ever, the succession being
perpetual, but not always uninterruptedly continuous; that is, there may be, and mostly are,
periods in the duration of a corporation sole, occurring irregularly, in which there is a vacancy,
or no one in existence in whom the corporation resides and is visibly represented. Ecclesiastical
Corporation (Bishop), Crown, the Post Master General, the Minister of Health, the Minister of
Agriculture, etc.„ are corporations sole.

A corporation sole does not require a seal, but a corporation aggregate can only act or express its
will by deed under its common seal. The power to possess and use a seal in incidental to a
corporation. The existence of a common seal is evidence of incorporation and the non-existence
of a common seal is evidence against incorporation. A corporation may change its seal at
pleasure, so long as the seal, which is actually used, is applied as the seal of the corporation for
the time being. An essential element in the legal conception of a corporation is that its identity is

Page | 8
continuous, i.e., the original member or members and his or their successors are one. Thus,
where a liability or obligation is once binding on a corporation, whether sole or aggregate, it will
bind the successors, even though they be not expressly named. A corporation is distinct from its
members. A corporation is a legal person just as much as an individual. The liability of an
individual member is not increased by the fact that he is the sole person beneficially interested in
the property of the corporation. After the dissolution of a corporation the members, in their
natural capacities, can .neither recover debts which are due to the late corporation nor be charged
with debts contracted by it.

INSTITUTION

In some cases, the corpus or object personified is not a group of co-existing or series of
successive persons but the institution itself, e.g., a college, library, mosque, church, etc.

FUND OR ESTATAE

In this case the corpus is some fund or estate reserved to particular uses. The property of a dead
man or estate of an insolvent, and a fund for charity are its examples. Under the Roman Law the
estate of a deceased person was regarded as having a legal personality by the notion of hereditas
jacens till it was vested in the legal heirs. In the same way the German stiftung, which was an
unincorporated fund for charitable purposes, was vested with rights and duties and was itself
personified although the property was vested in nobody else.

THEORIES OF LEGAL PERSONALITY

1. THE FICTION THEORY

The Fiction theory is supported by many famous jurists, particularly, Von Savigny, Coke,
Blackstone and Salmond. According to this theory, the legal personality of entities other
than human beings is the result of a fiction. The famous case of Salomon v A Salomon
Co Ltd is a proof of the English court adoption of the fiction theory. In this case, Lord
Halsbury stated that the important question to decide was whether in truth an artificial
creation of the legislature had been validly constituted. It was held that as the company
had fulfilled the requirements of the Companies Act, the company becomes a person at
law, independent and distinct from its members.
2. THE CONCESSION THEORY

Page | 9
 Under this theory the state is considered to be in the same level as the human being and
as such, it can bestow on or withdraw legal personality from other groups and
associations within its jurisdictions as an attribute of its sovereignty. Hence, a juristic
person is merely a concession or creation of the state. Concession theory is often
regarded as the offspring of the fiction theory as it has similar assertion that the
corporations within the state have no legal personality except as it is conceded by the
state. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are
found to support this theory. Nonetheless, it is obvious that while the fiction theory is
ultimately a philosophical theory that a corporation is merely a name and a thing of the
intellect, the concession theory is indifferent as regards to the question of the reality of a
corporation in that it focus on the sources of which the legal power is derived
3. THE PURPOSE THEORY
The advocates who are associated with this theory are E.I Bekker, Aloys Brinz and
Demilius. Similar to the fiction and concession theories, it declares that only human
beings can be a person and have rights. Under this theory, juristic person is no person at
all but merely as a “subject less” property destined for a particular purpose and that there
is ownership but no owner. The juristic person is not constructed round a group of
persons but based on the object and purpose. The property of the juristic person does not
belong to anybody but it may be dedicated and legally bound by certain objects.
4. THE SYMBOLIST THEORY
This theory is also known as the “bracket” theory. It was set up by Ihering and later
developed particularly by Marquis de Vareilles-Sommiéres. Basically, this theory is
similar to the fiction theory in that it recognizes that only human beings have interests
and rights of a legal person. According to Ihering, the conception of corporate personality
is indispensable and merely an economic device by which simplify the task of
coordinating legal relations. Hence, when it is necessary, it is emphasized that the law
should look behind the entity to discover the real state of affairs.

5. THE REALIST THEORY

Page | 10
 This theory was founded by German jurist, Johannes Althusius has been most
prominently advocated by Otto von Gierke. According to this theory, a legal person is a
real personality in an extra juridical and pre-juridical sense of the word. It also assumes
that the subjects of rights need not belong merely to human beings but to every being
which possesses a will and life of its own. As such, being a juristic person and as ‘alive'
as the human being, a corporation is also subjected to rights. Under the realist theory, a
corporation exists as an objectively real entity and the law merely recognizes and gives
effect to its existence. The realist jurist also contended that the law has no power to create
an entity but merely having the right to recognize or not to recognize an entity. A
corporation from the realist perspective is a social organism while a human is regarded as
a physical organism. 
6. HOHFELD’S THEORY
Hohfeld drew a distinction between human beings and juristic persons. The latter, he
said, are the creation of arbitrary rules of procedure. Only human beings have claims,
duties, powers and liabilities. The 'corporate person; is merely a procedural form, which
is used to work out in a convenient way a mass of jural relations of a large number of
individuals, and to postpone the detailed working out of these relations among the
individuals inter se for a later and more appropriate occasion. The theory closely
resembles the bracket theory.
7. KELSON’S THEORY
Kelson makes an analytical and formal approach to the concept of personality. He
rejected, for purposes of law, any contrast between human beings as ‘natural persons’ and
‘Juristic Persons’. He also rejected the definition of person as an entity which has claims
and duties. According to him the totality of claims and duties is the person in law; there is
no entity distinct from them. Turning to corporations, he pointed out that it is the conduct
of human beings that is the subject matter of claims and duties.

LEGAL STATUS

Law of status is the law concerning the natural, the domestic and the extra domestic status of
man in civilized society. The law of extra domestic status is the law that is concerned with
matters and relations apart from those concerning the family. Thus this department of the law of

Page | 11
status deals with the status of persons such as lunatics, aliens, deceased persons, lower animals
etc.

These are persons who do not enjoy the status of legal personality but the society has some
duties towards them.

1. LEGAL STATUS OF UNBORN PERSON

A child in mother’s womb is by legal fiction regarded as already born. If he is born alive,
he will have a legal status. Though law normally takes cognizance of living human
beings yet the law makes an exception in case of an infant in ventre sa mere.
In India, under section 13 of the Transfer of Property Act, property can be transferred for
the benefit of an unborn person by way of trust. Similarly, section 114 of the Indian
Succession Act, 1925 provides for the creation of prior interest before the unborn person
may be made the owner of property – corporeal or incorporeal, but no property will be
deemed to be vested in the unborn person unless and until he is born alive. In Hindu Law
also, a child in the womb of the mother is deemed to be in existence for certain purposes.
Under Mitakshara law, such a child has interest in coparcenary property.
Under section 315 of the Indian Penal Code, the infliction of pre-natal injury on a child,
which is capable of being born alive and which prevents it from being so could amount to
an offence of child destruction. Section 416 of Criminal Procedure Code provides that if
a woman sentenced to death is found to be pregnant, the High Court shall order the
execution of the sentence to be postponed, and may if it thinks fit, commute the sentence
to imprisonment for life.
2. LEGAL STATUS OF DEAD MAN
Dead man is not a legal person. As soon as a man dies he ceases to have a legal
personality. Dead men do not remain as bearers of rights and duties it is said that they
have laid down their rights and duties with their death. Action personalis moritur cum
persona- action dies with the death of a man. With death personality comes to an end. A
dead man ceases to have any legal right or bound by any legal duty. Yet, law to some
extent, recognises and takes account of the desires or intentions of a deceased person.
Law ensures a decent burial, it respects the wishes of the deceased regarding the disposal

Page | 12
 of his property, protects his reputation and in some cases continues pending action
instituted by or against a person who is now deceased.
In India, as far as a dead man’s body is concerned, criminal law secures a decent burial to
all dead men. Section 297 of Indian Penal Code also provides punishment for committing
crime which amounts to indignity to any human corpse.4 The criminal law provides that
any imputation aganist a deceased person, if it harms the reputation of that person if
living and is intended to hurt the feeling of his family or other near relatives, shall be
offence of defamation under sec 499 of the Indian Penal Code.
The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India5 has held
that even a homeless person when found dead on the road, has a right of a decent burial
or cremation as per his religious faith.
3. LEGAL STATUS OF LOWER ANIMALS
Law does not recognize beasts or lower animals as persons because they are merely
things and have no natural or legal rights. Salmond regards them mere objects of legal
rights and duties but never subjects of them. Animals are not capable of having rights and
duties and hence they are not legal persons.

LIMITATIONS TO LEGAL PERSONALITY

Since the Industrial Revolution, when corporations rose to power, the limitations of a legal
corporate personality have been an issue of constant debate. While the granting of personhood
can help make corporations legally responsible for their actions, it also opens the door to many
more intricate questions. For example, if a corporation has a personality separate from its
shareholders or owners, some argue that it must also have individual rights, such as the right to
vote. If granted the right to vote, however, then shareholders will in effect have the right to vote
twice: once as private individuals, and once in the personality of the corporation. As this conflict
with most voting systems, it remains a controversial issue throughout legal circles.

There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they
usually cannot vote or hold public office, and in most jurisdictions, there are certain positions
which they cannot occupy. The extent to which a legal entity can commit a crime varies from
country to country. Certain countries prohibit a legal entity from holding human rights; other
4
Section 297 of IPC.
5
AIR 2002 SC 554

Page | 13
countries permit artificial persons to enjoy certain protections from the state that are traditionally
described as human rights.

Special rules apply to legal persons in relation to the law of defamation. Defamation is the area
of law in which a person's reputation has been unlawfully damaged. This is considered an ill in
itself in regard to natural person, but a legal person is required to show actual or likely monetary
loss before a suit for defamation will succeed.

CONCLUSION

The foregoing analysis makes it abundantly clear that incorporation had great importance
because it attributes legal personality to non-living entities such as companies, institutions etc.
which help in determining their rights and duties. Clothed with legal personality, these non-
living personalities can own, use and dispose of property in their own names. Unincorporated
institutions are denied this advantage because their existence is not different from the members.

Keelson through his analytical approach to legal personality has concluded that there is no
divergence between natural persons and legal persons for the purposes of law. In law personality
implies conferment of rights and duties. Therefore, for the convenient attribution of rights and
duties, the conception of juristic personality should be used in its procedural form.

Page | 14