LEGAL

PERSONALITY

SUBMITTED TO: SUBMITTED BY:

DR. VINAY SHARMA. NAME- KAVYA KAPOOR
ROLL NO.-19128
CLASS-B.A.LL.B. (HONS.)
SEMESTER-2

S.NO TOPIC PAGE NO.

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.
1 INTRODUCTION 3

2 ORIGIN 4

3 NATURE 5

4 DEFINITIONS 6

5 KINDS OF PERSONS 7-8

6 LEGAL STATUS OF UNBORN PERSONS 9-10

7 LEGAL STATUS OF DEAD MAN 11

8 PERSONALITY STARTS WITH BIRTH 12

9 PERSONALITY ENDS WITH DEATH 13

10 LEGAL STATUS OF ANIMALS 14-15

11 LEGAL PERSONALITY OF ANIMALS 16

12 STATUS 17

13 CAPACITY 18

14 CORPORATION 19

15 THEORIES OF CORPORATE PERSONALITY 20-22

16 BIBLIOGRAPHY 23

INDEX

INTRODUCTION
The main object of law is to regulate the relationship between
individuals in the society. The validity of the acts and omissions of

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persons is determined on the basis of their reasonableness. All these
acts which do not adversely affect the interest of others are held to be
lawful whereas the acts which interfere with for the protection of
interests of mankind. Therefore, rights and duties form the basis for
judging legality of man’s acts. The law imposes liability for
unreasonable and unlawful acts1, the enforcement of which is ensured
through legal sanctions. The law being concerned with regulating the
human conduct, the concept of legal personality constitutes an
important subject matter of jurisprudence for there cannot be rights
and duties without a person.

ORIGIN
The word “PERSON” is derived from the LATIN word “persona” which
meant a mask worn by actors playing different roles in a drama. Until sixty
century the word was used to denote the part played by a man in life.
Thereafter, it began to be used in the sense of a living being capable of having
rights and duties.
1
Legally speaking “acts” also include opinion.

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Many writers have restricted the use of term “personality” to human beings
alone because it is only, they who can be subject matter of rights and duties and
therefore of juristic personality. But it must be stated that the term has a far
wider connotation in law and includes gods, angels, idols, corporations, etc.
though they are not human beings. Conversely there may be living persons such
as slaves, who are not treated as “person” in law because they are not capable of
having rights and duties. Likewise, in Hindu law as ascetic “sanyasi” who has
renounce the world ceases to have any proprietary rights and his entire estate is
passed on his heirs and successors and his legal personality is completely lost.

The theologist used the “personality” to designate “the members of the

trinity” and later on the trinity were designate as “personae.”

Some of the philosophers twisted it to the side of ethics and maintained that
“personality” may be regarded as an ethical rather than a metaphysical
conception. There are still thinkers who consider personality as “the ideal and
perfect attribute of ‘being’- never fully attained by human kind.”

According to LOTZE personality was “the diel of perfection.” GOETHE

regarded personality as the “supreme value.” JURISTS interpreted it as “any
individual enjoying legal status.” And consequently, individual’s possession
with which the law likewise had concerned came to be known as his
“personality”. The SOCIOLOGISTS made it equal to the individual himself.
For them “personality” is the integration of all traits which determine the role
and status of person in society.

Personality, therefore, was interpreted as social effectiveness. The

psychologists put it equal to the assemblage of personal qualities.

NATURE
“Personality” is a very vague and wide term and it has a variety of
meanings. Personality in the philosophical sense means “the rational
substratum of human being.” In law, it means a “right and duty
bearing unit.”

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Personality should be distinguished from Humanity. Humanity means
only the natural human beings, but personality has a technical
meaning and it includes inanimate objects also. Thus, personality is
wider than humanity. Sometimes, humanity and personality coincide
and sometimes, they do not.

DEFINITIONS
 The German Jurist LITELMANA considers “will” as the essence of legal
personality. To quote him “personality is the legal capacity of will, the
bodylines of man for their personality a wholly irrelevant attribute.”
 SALMOND defines a “person” as, “any being to whom the law regards as
capable of rights or duties. Any being that is so capable, is a person

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 whether a human being or not and nothing that is no so capable is a
person even though he be a man.”
 According to PATON, “a legal personality is a particular device by which
law creates units to which it ascribes certain powers. It is merely a
convenient juristic device by which the problem of organizing rights and
duties is arised out. He also defines legal personality is a medium through
which some such units are created in whom rights can be vested.”
 According to GRAY, a person is “an entity to which rights and duties may
be attributed.”
 According to the GERMAN WRITERS, “will is the essence of a
personality. A legal person is one who is capable of will.”
 According to MEURER, “the jurist’s conception of the juristic person
exhausts itself in the will and the so-called physical persons are for the
law only juristic persons with a physical ‘super fluim’.”
 According to HINDU LAW, “idols are legal persons. Although they have a
personality in the eye of law, they are not human beings.” The term
‘personality’ has a wider significance than humanity.
 Under the INDIAN PENAL CODE, the word “person includes any
company or association, or body of persons, whether incorporated or
not.
 SAVIGNY has defined the term ‘person’ as the “subject or bearer of right”
but, as pointed out by HOLLAND, this definition is not exhaustive. Rights
avail against persons as much as they are reposed in them.

KINDS OF PERSONS
Law recognizes only two kinds of persons namely:-
1. NATURAL PERSONS
2. LEGAL PERSONS who are artificial creation of law. Also known as
ARTIFICIAL, JURISTIC, or FICTITIOUS persons.

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 NATURAL PERSONS
A natural person is a living human being. But all living human beings
need not necessarily be recognised as persons in law.
According to HOLLAND, a ‘natural person’ is “such a human being
as is regarded by the law as capable of rights and duties.”
A natural person is a being to whom the law attributes personality in
accordance with reality and truth and also who is regarded by law as
having rights and duties. In order to be a natural person in law, a
human being must satisfy two conditions namely:
1. He must be a living human being, and
2. He must be recognized by the state as a person and he must not be a
slave in the absolute control of his boss or master or otherwise
civilly dead as a monk who has renounced the world.

LEGAL PERSONS
Legal persons are real or imaginary beings to whom personality is
attributed by law by way of ‘fiction’ whereas it does not exist in fact.
Juristic persons are also defined as these things, mass or property,
group of human beings or an institution upon whom the law has

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conferred a legal status and who are in the eye of law capable of having
rights and duties as natural persons.
There are two essential of a legal person and these are: -
1. The CORPUS
2. The ANIMUS
The CORPUS is the body into which the law infuses the ANIMUS,
will or intention of a fictitious personality.
Juristic persons come into existence when there is in existence a
thing, a mass of property an institution or a group of persons and the
law attributes to them the character of person. This may be done as a
result of an act of the sovereign or by a general rule prescribed by
government.
A legal person has a real existence but its personality is fictitious.
Personification is essential for all legal personality but personification
does not create personality. Personification is a mere metaphor. It is
used merely because it simplifies thought and expression.
According to SALMOND, a legal person is any subject matter
other than a human being to which the law attributes personality.
This extension for good and sufficient reasons of the concept of
personality beyond the class of human beings is one of the most
noteworthy feats of legal imagination.
In law idiots, dead man, corporations, companies, idols, etc. are
treated as legal person

There are some natural persons who do not enjoy the status of
legal persons or person and vice-versa.

LEGAL STATUS OF UNBORN PERSON

A child in the mother’s womb has for many purposes been regarded
by a legal fiction as already born, in accordance with the maxim
“NASCITURUS PRO JAM NATO BAETOR”. The maxim was
intended that in all matters affecting its interests the unborn child in
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“utero” should be treated as already born, but in English Law, this
fiction has been applied only for the purposes of enabling the child if
it is born to take a benefit2. It has been thought reasonable that a
posthumous child who has lost his father should not be deprived of
his benefit under Lord Campbell’s act for the death of his father3.
The rights of an unborn child, whether proprietary or personal, are
also contingent on his birth as a living human being. The legal
personality attributed to him by way of anticipation facts away “ab
initio” if he has never taken his place among the living.
Abortion and child destruction are crimes, but such acts do not
amount to murder or manslaughter unless the child is born alive
before he dies. Similarly, a posthumous child may inherit, but if he
dies in the womb, or is still born, his inheritance fails to make effect,
and more can claim through him, though it would be otherwise if he
lived for an hour after his birth. Again, though the law attributes no
right to a person not yet even conceived, it may protect their interests.
In India, too the principle laid down in TAGORE V. TAGORE
(1872)4, that a person to be entitled to take under a must in fact or in
contemplation of law be in existence at time of the testator’s death,
has apparently been attired by three acts vis.
1. The Hindu Transfers and Bequests Act, 1914
2. Hindu Disposition of Property Act, 1916
3. The Hindu Transfers and Bequests, “city of Madras” Act, 1921
Briefly, unborn children are persons in the eye of law. Property can be
transferred in favour of unborn children. Unborn children become
contingent owners. The ownership becomes vested in them at time of
their birth. A child “en ventre sa mere” or in the other words a child
in the mother’s womb is indisputable a legal person. An injury to a
child in the womb is an offence under the criminal law. The interests

2
ELLIOT V. JOICEY (1935) A.C. 209 at P.238
3
THE GEORGE AND RICHARD (1871) L.R. 3 ad & Ecc 466
4
Beng L.R. 377

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of the unborn in the womb are thus recognised and protected by the
law. They can sustain a legal personality.
An unborn person has contingent or qualified kind of legal
personality. A child in its mother’s womb is for certain purposes,
regarded, by a legal fiction, as already born. These purposes are:-
1. The acquisition of property by the child itself, or
2. Being a life chosen to form part of the period in the rule against
perpetuities
The recognition of the legal personality of a child in the womb can be
illustrated in the case wherein a pregnant woman condemned to death
is not executed till the time she has delivered the child. Similarly, it
has been held that a posthumous child id entitled to compensation for
the death of his father.
But the personality of an unborn person is contingent on his being
born a living being.

LEGAL STATUS OF DEAD MAN

The testaments of the dead are respected and enforced by the law. This does not
mean that the dead have a right to have their will enforced. The will is enforced
in the interest of the living legates to whom property is bequeathed. If the will
does not contain any disposition of property in favour of any human legatee, it

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will not be enforceable. This shows that right to have a will enforced is not that
of the testator but only that of living legates.
The reputation of the dead is also protected by the law. A libel on the dead may
be actionable in a court of law. The living relations of the deceased would be
harmed by defamatory statements against him. That is why such defamation is
made actionable.
In law, the dead are things, not persons. Nut in cases involving Right of
Reputation, Right of Will, Right of Decent Burial the dead have been given
some rights. Though the dead man’s corpse is the property of no one, the law,
seeks to ensure its decent burial5 or cremation6. The criminal law provides that
any imputation against a deceased person, if it harms the reputation of that
person if living, and is intended to hurt the feelings of his family or other near
relatives, shall be an offence of defamation under SECTION 499 of INDIAN
PENAL CODE.7
The reputation of dead man is to some extent protected by the law. The
defamation against a dead person is punishable under the criminal law but only
when it affects the interests of his relatives and near ones who are living. The
right so protected is in reality not that of the dead man but that of his living
descendants.8
The testamentary dispositions of the dead are carried out by law. The law of
succession permits the desires9 of the dead man to regulate the action of his
successors. Whatever gifted by the deceased for a charitable purpose, shall be
enforceable by law and the testament to that extent shall be valid.

PERSONALITY STARTS WITH BIRTH

When a child is born alive, he is considered to be a person in the eye.
For some purpose, the maxim “NASCITURUS PRO IAM NATO
HABETUR” (law that grants or protects the rights of a foetus to
inherit property) also applies. In English law it is applied to enable the
5
R. V. STEWART (1840) 12 AD and EL 773
6
R. V. PRINCE (1884) 12 QBD 247
7
Explanation 1 of the SECTION 499,366
8
R. V. ENSOR (1887) ILR 366
9
DRAIVIASUNDARAM V. SUBRAMANIA, 145 MLJ, 210 (Mad.)

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child only if he is to take a benefit. Such child “in the womb” is
considered as a life chosen to for part of the period in the rule against
perpetuities. In Hindu law a child in womb is considered in existence
“in case of partition” and he inherits the property if he is born alive
and if the share is not reserved then he partition would reopen and the
new born boy would take the same share which he would have taken
if he was born before the partition. Apart from these rights he is
considered to be capable of owning personal rights also. Abortion and
child destruction are crimes. In English Law, killing of a child
amounts to murder only when the child is completely born alive. In
India, the causing of the death of a child in the mother’s womb is not
homicide. But it may amount to culpable homicide to cause the death
of a living child, if any part of that child has been brought forth,
though the child may not have breathed or completely born.

PERSONALITY ENDS WITH DEATH

The rights are generally created at birth and they extinguish at death.
But the law, in certain matters, recognises and protects the duties and
interests of the deceased. There are three rights in this respect i.e.
about the deceased’s body, his reputation and his estate.

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Law secures decent burial for all dead men and the violations of a
grave is criminal offence. The reputation of the deceased receives
protection from law in certain cases. According to maxim DE MO
TIUS NIL NISI BONUM (dead have no rights and can suffer no
wrong), the libel to the dead is not an offence in the eye of law, but if
the publication of a defamatory matter about the deceased brings
shame on his family “on living persons” and provokes them to
commit breach of peace it is misdemeanour to English Law. In India
“it may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person f
living and is intended to be hurtful to the feeling of the family.” The
law respects the desires of the dead person regarding his estate and his
estate dissolves according to his will if he has left any.

LEGAL STATUS OF ANIMALS

Law does not recognise beasts or animals because they are merely
things and have no natural or legal rights. SALMOND regards them
as merely objects of legal rights and duties, but never the subject of
them.

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Beasts being incapable of legal rights and duties, their interests are
not recognized by law. Though, legal history reveals that archaic
codes contained provisions regarding punishment to animals if they
were found guilty to homicide. (Sutherland refers to certain
instances when beasts were punished. If an ox gores a man or a
woman to death, then he was stoned and his flesh was not eaten.
In Germany, a cock was charged and accused of contumacious
crowing. It was brought in the witness box and tried. But the
counsel failed to prove the innocence of his feathered client hence
it was killed. In ancient Greek law also there are evidences of
animals and trees being punished like human beings-
SUTHERLAND PRINCIPLES OF CRIMINOLOGY, P.44). Even
under the modern law trespassing beast may be detrained “damage
pheasant,” and detained until its owner or someone else interested in
the beast pays compensation to the person wronged.
The modern law, however, holds the master liable for the wrong
caused by their pets, beasts and animals. The liability so imposed on
the master does not arise out of the principle of vicarious liability but
because of his negligence in keeping the animal well within control.
Likewise, a wrong done to a beast may be a wrong to its owner or to
the society of mankind, but not to the beast. The law however seeks to
extend protection to animals in two ways namely: -
1. Cruelty to animals is an offence,10
2. A trust for the benefit of a particular class of animals as opposed to
one for individual animals is valid and enforceable as public and
charitable trust.

In Re Dean, COOPER DEAN V. STEVENS11, a testator vested his

property in trustees for maintenance of his horses and hounds. North
J. held that it was not a valid trust enforceable in any way on behalf of
these non-human beneficiaries. Therefore, the trustees were free to
10
The Prevention of Cruelty to Animals Act, 1960 ( Act No.- 59 of 1960)
11
(1889) 41 Ch.D. 55

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spend money in the manner indicated by the testator, if they so
pleased, but even if they did not apply the money for this purpose, it
would not amount to a breach of trust. It is thus clear those animals
and beasts neither have rights nor duties and are, therefore, incapable
of sustaining a legal personality.

LEGAL PERSONALITY OF ANIMALS

Animals has no legal personality. Animals are not persons in the eye
of law and, therefore they are not subjects of legal rights and duties.
In modern times, no legal system recognizes animals as persons.
Therefore, they have no rights and liabilities. The human acts which
are considered by law as wrongs against animals are really speaking,
not wrong against the animals, but are wrong either against the person
who owns that animal or against the society. An animal cannot own
property. A trust made in favour of animals is a trust of imperfect

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obligation-it cannot be enforced. However, “a trust for the benefit of
particular classes of animals as opposed to one for individual animals,
is enforceable as a public trust” in ENGLAND.

In INDIA, cruelty against animals “as defined in various statuses” is

an offence, but this duty is not a duty towards the animals, it is a duty
towards the society or the state. In our country a trust for the benefit
of animals can be legally created.

STATUS

Status is a condition which arises due to the membership of a class or

group and affects the rights and duties of the members of that class.
Status indicates the rights and liabilities which a person has by virtue
of his being a member of a particular class or group. There are
number of grounds which lead to the creation of a status such as
minority, marriage, office and profession, etc., a person can have a
number of status at the same time. He might be a husband, a father,
and an officer at the same time. The general principle of status is that
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when created by the law of one country, it is or ought to be judicially
recognized as being the case everywhere, all over the world.
According to SALMOND, there are four meaning of the word status:
-
1. Legal condition of any kind, whether personal or proprietary
2. Personal legal conditions, excluding proprietary relations
3. Personal capacities and incapacities as opposed to other
elements of physical status
4. Compulsory as opposed to conventional legal position
According to AUSTIN, “the complex of rights and duties, or
capacities and incapacities which especially affect a narrow class
are termed as ‘statuses.”

CAPACITY
Capacity means the rights and powers of a person by virtue of his
being at a particular position. A person can have many capacities.
If a person is a judge, he has the capacity of a judge as well as the
capacity of a citizen at the same time.
But double capacity does not mean double personality. His legal
personality is only one. Therefore, a person in one capacity cannot
enter into a contract or another alike legal transaction with himself in
his other capacity. On the same, principle where a creditor become his
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debtor’s executor, he could not sue himself. But, later on thus
hardship was mitigated by giving the creditor a right of retainer.
Similarly, in many other cases this rule has been relaxed.

CORPORATION

A corporation is a group or series of persons which by a legal fiction

is regarded and treated as itself. A corporation is an artificial or
fictitious person constituted by the personification of a group or a
source of individuals. The individuals forming the “corpus” of the
corporation are called its members. A corporation is either a
corporation aggregate or a corporation sole. Three conditions are
necessary for the existence of a corporation: -

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 1. There must be a group of body of human beings associated for
certain purposes
2. There must be organs through which the body or group acts
3. A will is attributed to a corporation by a legal fiction
The corporation is distinguished from the individuals who constitute
the corporation. A corporation has a personality of the individuals. A
corporation can sue and be sued. A corporation is recognized by law
as a permanent and continuous legal entity. A corporation can enter
into contracts with its members as it has a personality distinct from
that of the members. A corporation can have property rights and
duties. A corporation can act only through its agents.

THEORIES OF CORPORATE
PERSONALITY
 FICTION THEORY
This theory says that only human beings can properly be called
‘persons’. Some kinds of group, etc. are regarded as persons for
certain purposes only by a fiction of law and they have no real
personality. Main supporters of this theory are SAVIGNY,
SALMOND and DICEY. This theory is most applicable to
ENGLISH LAW where the courts have not proceeded on any hard
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and fast principle their recognition of juristic persons. This theory is
very popular because it is not based on any metaphysical notion or
argument. It is argued on the basis of thus theory that as a juristic
person has only a fictitious will, it cannot commit crimes.

 CONCESSION THEORY
This theory says that corporate bodies have legal personality only to
the extent granted by law. Here law means the state. The law is the
exclusive source or authority which can confer juristic personality.
Though this theory states a truism, by leaving the creation of juristic
personality absolutely at the discretion of state, it leaves s room for
mischief. This theory has been used in many cases to suppress
autonomous institutions.

THE FICTION THEORY IDENTIFIES LAW WITH THE

STATE WHILE THE CONCESSION THEORY DOES NOT

 REALIST THEORY or ORGANIC THEORY

Main supporters of this theory are GIERKE and MAITLAND. This
theory says that a group has a real will, real mind and a real power of
action. A corporation has all the characteristics which a natural person
has. Juristic persons are real in the same sense in which human beings
are. Legal personality is not fictitious, nor does it depend upon state’s
personality. The emphasis of this theory or corporate life contains
elements of reality but to attribute real will to the corporation and to
compare it with biological organism leads the theory to absurdity.
Closely linked with ‘realistic theory’ is ‘institutional theory’
propounded by French Jurist HAURIOU. This theory is based on the
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collectivist outlook. It says that the individual is integrated into the
institutions and becomes a part of it. Pluralist interpretation to the
theory is that there can be independent institution of state while
Fascist interpretation is that state is the only institution and other
institutions within it are parts of it and therefore, they must function
according to the discretion of the state.

 BRACKET THEORY or SYMBOLIST

THEORY
This theory says that the members of the corporations are the only
persons who have rights and duties. The granting of juristic
personality means putting a bracket around the members in order to
treat them as a unit. Juristic personality is only a symbol which helps
in effectuating the interest or the purpose of the group. The contention
of the theory that only human beings have personality and not the
group is far from the truth because in modern times, it is agreed on all
heads and is fully established that corporation has a legal personality
which is separate and distinct from its members and it has entirely
different rights and duties. An important implication of the theory is
that law can remove bracket at any time and can look behind the
entity to discover the real state of affairs.
 PURPOSE THEORY
This theory says that only human beings have personality. Juristic
persons are no persons at all. They are simply “subject less
properties” meant for certain purposes. The theory has no application
to ENGLISH or INDIAN LAW where judges have repeatedly held
that corporation are persons.

 HOHFELD’S THEORY
According, to this theory only human beings have rights and duties
and “corporate personality is merely a procedural form which is used

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to work out in a convenient way for immediate purpose, a complex
class of jural relation.”

 KELSEN’S THEORY
Kelsen makes an analytical and formal approach to the concept of
personality. He says that for legal personality there is no contrast
between natural and juristic persons. In law, personality means the
totality of rights and duties. Law individualises certain parts of the
legal order and establishes unity in the rights and duties pertaining to
it.
Kelsen’s Theory does not throw any light on the nature of the group
personality nor does it help in solving practical problems.

BIBLIOGRAPHY
1. JURISPRUDENCE THE LEGAL THEORY- By B.N. MANI
TRIPATHI
Published by ALLAHABAD LAW AGENCY

2. www.legalservicesindia.com

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