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Mod-Iii Juris

The document discusses the concept of legal personality in jurisprudence. It provides definitions of a "person" from various legal scholars such as Salmond who defined a person as "any being whom the law regards as capable of rights and duties." The document also discusses the classification of persons into natural persons and legal/artificial persons. Finally, it notes that an unborn child is considered a legal person under both criminal and tort law if born alive, allowing for the transfer of property rights before birth.
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0% found this document useful (0 votes)
72 views26 pages

Mod-Iii Juris

The document discusses the concept of legal personality in jurisprudence. It provides definitions of a "person" from various legal scholars such as Salmond who defined a person as "any being whom the law regards as capable of rights and duties." The document also discusses the classification of persons into natural persons and legal/artificial persons. Finally, it notes that an unborn child is considered a legal person under both criminal and tort law if born alive, allowing for the transfer of property rights before birth.
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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MOD-III-JURIS

Introduction:-

                             The main purpose of the law is to govern the relationship between individuals
in the society. The law is concerned with regulating human conduct, the concept of legal
personality constitutes an important subject matter of jurisprudence for there cannot be rights and
duties without a person.  

                    Personality of a human being means the possession of certain feature particularly


belonging to mankind, e.g. power of thought, power of speech, etc. Hence, there are certain
attributes which make a human being a person having the personality recognized by law. If any
human being has no attributes provided by the law than he is not a person at all, e.g. Slaves have
no right they are like chattels (things) and therefore they are not persons. But, in law, there are
persons who are not human being, like a corporation, company, university, etc.

Origin of the concept of legal personality (person):

 The word “person” is derived from the Latin word “persona” which means a mask worn by
actors while playing different roles in a drama. Until sixty century the word was used to show the
part played by a man in life. After this, it started to be used in the sense of a living being capable
of having rights and duties. Now it is used in different senses in different disciplines. In modern
time the word has been used in the wider sense it includes not only human being but also
associations, gods, idols, corporations, etc. as well. But there may be living persons, who are not
treated as “person” in law because they are not capable of having rights and duties such as slaves
and in Hindu law an ascetic ‘sanyasi’ who has renounced the world leave far from the home.

Definition of Person:-

 Many definitions of Persons, in different ways have been given by the various jurists, as
follows;

Salmond:-    According to Salmond  “A person is any being whom the law regards as capable of
rights and duties. Any being that is so capable is a person, whether a human being or not, and no
being that is not so capable is a person even though he be a man.”
Savigny-    He defines the person as the subject or bearer of right.

Gray:- According to Gray, a person is an entity to which rights and duties may be attributed.

Austin:-  According to Austin, the term “person” includes physical or natural person including
every being which can be deemed human.

Section 11 of IPC:- According to Section 11 of the IPC the term ‘person’ includes any company
or association, or body of persons, whether incorporated or not.

Classification of Person:-   Persons can be defined into two categories

(a) Natural Persons (human being), and

(b) Legal or Artificial or Juristic Person.

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

Meaning and Kind of Person

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.

Historical Background of the Concept of ‘Person’


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 jacenswhich was developed by the Romans. 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.

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. Savingy has defined person as the subject
or bearer of right. But Holland has criticised this definition on the ground that persons are not
subject to right alone but also duties. He says: the right not only resides in, but is also available
against persons. There are persons of incidence as well as of inherence. Kelson rejected the
definition of personality as an entity which has rights and duties. He has also rejected the
distinction between human beings as natural persons and juristic persons. He says the totality of
rights and duties is the personality; there is no entity distinct from them. However, Kelson’s view
has been criticised for the reason that in law natural person is different from legal persons who
are also capable of having rights and duties and constitute a distinct entity. Salmond’s definition
seems to be more correct than the earlier definitions. In the words of Salmond: “So far as legal
theory is concerned, a person is any being whom the law regards as capable of rights and duties.
Any being that is so capable is a person, whether a human being or not, and no being that is not
so capable is a person even though he be a man.” Salmond further explains that the extension of
the conception of personality beyond the class of human beings is one of the most noteworthy
achievements of the legal imagination.

Persons can be classified into (a) natural person, and (b) legal or artificial or juristic person.
There are some natural persons who do not enjoy the status of legal persons and vice versa.

Law of 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
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.

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.
Under English Law, a child in the womb of the mother is treated as in existence and property can
be vested in its name. Article 906 of the French Civil Code permits the transfer of property in
favour of an unborn person. But, according to Mohammedan Law a gift to a person not in
existence is void. A child in the womb of the mother is considered to be a person both under the
law of crimes and law of torts.

- 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. It has been
held that in a Canadian case that a child could succeed in tort after it was born on account of a
deformity which was held to have been caused by a negligent pre natal injury to mother.

Though there is no Indian case on this point but it is expected that a liberal view would be taken
on this line and a child would be getting the right to sue. In an African case it was held that a
child can succeed in tort after it is born on account of a deformity caused by pre injury to his
mother.

In India as well in England, under the law of tort an infant cannot maintain an action for injuries
sustained while on ventre sa mere. However, in England damages can be recovered under Fatal
Accidents Act, 1846 for the benefit of a posthumous child. In short, it can be concluded that an
unborn person is endowed with legal personality for certain purposes.

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 of his property, protects his reputation and in some cases
continues pending action instituted by or against a person who is now deceased.

- 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. 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 India 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.

In English Law as well as in Muslim Law the violation of a grave is a criminal offence. As
regards reputation of a dead man, it is to some extent protected by criminal law. Under Roman
law any insult to the body of the deceased at the timing of funeral, gave the deceased’s heir a
right to sue for the injury as it is treated as insult to the heir. Under the law of France the relative
of the defamed deceased can successfully sue for damages, if they can prove that some injury it
suited from the defamation. Thus, it is not the rights and the hence the personality of the
deceased that the law recognises and protects but it is the right and interest of living descendants
that it is protected.

So far trust is concerned English Law provides the rule that permanent trust for the maintenance
of a dead man’s tomb is illegal and void and property cannot be tied up for this purpose. This
rule has been laid down in the leading case of Williams v. Williams where it was said that a
corpse is the property of no one. It cannot be disposed of by will or any other instrument. It was
further held in this case that even temporary trusts are neither valid nor enforceable. Its
fulfilment is lawful and not obligatory. It was held in Mathii Khan v. Veda Leiwai that worship
at the tomb of a person is charitable and religious purposes amongst Muslims- hence trust is
possible. In Saraswati v. Raja Gopal it was held that worship at the Samadhi of a person, except
in a community in which there is a widespread practice of raising tombs and worshipping there
at, is not a religious or charitable purpose according to Hindu Law and would not constitute a
valid trust or endowment.

Regarding the property of the dead man the law carries out the wishes of the deceased example, a
will made by him regarding the disposal of his property. This is done to protect the interest of
those who are living and who would get the benefit under the will. This is subject to the rule
against perpetuity as well as law of testamentary succession. Indian Transfer of Property Act,
section 14 incorporates the rule against perpetuities, which forbids transfer of property for an
indefinite time thereby making it alienable. Section 14 of the TPA restrains the power of creating
future interests by providing in the rule against perpetuities that such interest must arise within
certain limits. The rule of perpetuity looks to the date at which the contingent interest will vest, if
it vests at all, and hold it to be void as “perpetuity if this date is too remote”.

Similarly, section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will
whereby vesting of property is postponed beyond the lifetime of one or more persons and the
minority period of the unborn person.

Legal Status of Lower Animals

Law does not recognise 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.

Ancient Law - However, in ancient times animals were regarded as having legal rights and
being bound by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a
man or woman resulting in his or her death, then the ox was to be stoned and its flesh was not to
be eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs and even
the trunk of trees which had fallen on human beings and killed him were tried for homicide.’
There are similar instances in India as well. In number of cases found that, animals were sued in
courts in ancient India. There is popular story about the Mughal Emperor Jehangir in which the
bullock was presented before the Emperor. However these instances are merely of historical
interest and have no relevance in modern law.

Modern Law - Modern Law does not recognise animals as bearer of rights and duties. Law is
made for human beings and all things including animals are for men. No animal can be the
owner of property from a person to an animal. Animals are merely the object of transfer and are
a kind of property, which are owned and possessed by persons. Of course, for the wrongs done
by animals the master is held liable. This duty or liability of the master arises due to public
policy and public expediency. The liability of the master is strict and not a vicarious liability.
The animal could be said to have a legal personality only if the liability of the master is
considered vicarious.
In certain cases, the law assumes the liability of the master for an animal as direct while in other
cases, liability is not direct. Thus, for keeping animals that are not of dangerous nature the master
is not liable for the damage it may do, unless he knows that it was dangerous. The knowledge of
the defendant must be shown as to their propensity to do the act in question. However, if the
animal is of ferocious nature, the master is responsible for the wrong if he shows negligence in
handling it. The owner of animals of this class is also responsible for their trespasses and
consequent damage. If a man’s cattle, sheep or poultry, stray into his neighbour’s land or garden,
and do such damage as might ordinarily be expected to be done by things of that sort, the owner
is liable to his neighbour for the consequences. A charitable trust can be created for the
maintenance of stray cattle, broken horses and other animals. Such a trust is created with a view
to promote public welfare and advancement of religion. However, if the charitable trust is
created only for the benefit of a single horse or a dog, it cannot be regarded as public charitable
trust for instance in Re Dean Cooper Dean v. Stevens a test of charged his property with the
payment of annual sum of trustees for the maintenance of his horses and dogs. The court held
that it is not valid trust enforceable in any way on behalf of these animals. It was observed that
the trustee could/spend the money if they pleased in the manner desired by the testator. But if
they did not spend the money it would not be considered a breach of trust and in such a situation
the money so spent will be of the representatives of the testator.
Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an
annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay
those animals should so long live a trust for the benefit of a parrot during the life of two trustees
and survivor of them have all been held valid.

The legal status of environmental resources

Section 2(a) of the Environment (Protection) Act, 1986 states that the term ‘environment’ covers
air, water, and land. It also extends to the relationship among and between water, air, land,
human beings, flora, fauna and micro-organisms, and property. This definition gives us an idea
of how wide the concept of the environment is. Human beings are just a part of the environment.
Now, when only human beings have so many rights and privileges, then it is obvious that the
environment and its resources must also have certain rights and privileges for protection. There
are various Indian laws that provide protection to the environment. Indian Judiciary has played
an active role in establishing certain doctrines and principles for safeguarding the environment.
Let us understand the legal status of the environment and its resources through the following
case laws, principles and doctrines.

Union Carbide Corporation v Union Of India (Bhopal Gas Tragedy Case)

The Supreme Court, in this case, held that an enterprise that carries out any inherently dangerous
or hazardous activity and such activity or it’s happening, in the form of a mishap such as the
escape of poisonous gas, causes any kind of harm to any person, then the enterprise will be
strictly compelled to repay such individuals who are harmed by the accident. Such escapes or
risks are not excusable and no exemption will be given. As a result, the Supreme Court
established the ‘Doctrine of Absolute Liability’ through this case, where the party at fault will be
awarded no exemption at any cost.

Indian Council for Enviro-Legal Action v Union of India (Bicchri Case)

In this case, the Court opined that once an act that is inherently dangerous or hazardous is carried
out, the person carrying out such an activity shall be liable to compensate for loss or harm caused
to any other person by virtue of such activity. The Court further opined that liability shall be
imposed irrespective of the fact whether the person exercised reasonable care while carrying out
such activity or not. This concept of ‘making the loss good’ has been moulded into the Polluter
Pays Principle (PPP) by the court. The PPP imposes liability on an individual who pollutes or
harms the environment to compensate for the harm caused and revive the environment to its
original form irrespective of his intention.

Vellore Citizens Welfare Forum v Union of India

The Supreme Court in this case laid down the following rules concerning the Precautionary
Principle –  

 The State Governments and local authorities are supposed to foresee and prevent the
causes of environmental degradation. They must effectively and regularly conduct
checks on the activities that are damaging the environment.

 Just because there is insufficient scientific knowledge concerning whether certain


activity is harming the environment or not, the government must not avoid its
inspection process and prevention.

 It is the duty of the party carrying out an activity to prove that whatever activity is
being carried out by him is environmentally friendly. In short, the onus of proof lies
on the party carrying out an activity that is suspicious in the eyes of the government or
other authorities.

MC Mehta v Kamal Nath

The Doctrine of Public Trust states that environmental resources such as air, water, forests, and
sea are of great significance in the eyes of people who as a whole can be called public.
Therefore, it would be an unjustifiable act to provide private ownership over such environmental
resources. The Court in this case opined that the Public Trust Doctrine is a part of the Indian law.
This doctrine helps the States to manage their resources effectively. It bestows power in the
hands of the citizens to question the inefficient management of environmental resources. Further,
the Public Trust Doctrine is employed by the courts as a mechanism to protect the environment
from being degraded.

Rural Litigation and Entitlement Kendra v State of Uttar Pradesh

In this case, the court stated that the environment is a perpetual asset of mankind and it shall not
be exhausted by one generation. This case brought the focus of Indian environmental law upon
the concept of sustainable development. Inter-generational equity refers to the right of every
generation to be benefitted from environmental resources. Principle 3 of the Rio
Declaration mentions that the current generation must not abuse and exploit the non-renewable
resources which might deprive future generations of environmental benefits.

Indian Constitution and the environment

The Constitution of India pays high regard to the environment and its resources. Thus, it has
played a significant role in protecting the environment in various ways. The Indian Constitution
contains exclusive provisions for safeguarding the environment. By the virtue of
the 42nd Amendment Act, 1946, the Constitution laid responsibility on the States to protect and
develop the environment.

Article 21- This Article states that except according to the process prescribed by the law, no
individual will be deprived of his life or personal liberty. The Indian courts interpreted this
article in various cases for environmental protection. In Maneka Gandhi v Union of India, the
Apex court opined that Article 21 i.e, the right to life also provides the right to a safe
environment, this is because, when the environment is unhealthy and unsafe it affects the lives of
people as well. 

Article 48- This Article comes under the Directive Principle of State Policy. It mentions that the
State shall thrive to safeguard and improve the environment, forests, and wildlife of the country.
This article expressly imposes a duty on the State to protect the environment from degradation
such as pollution by employing different measures.
Article 51A(g)- This Article states that it is the fundamental duty of the citizens of India to
safeguard and improve the environment including lakes, rivers, wildlife, and forests. It also
imposes the duty to have compassion for other living creatures. In its most basic sense, this
article states that when we receive a clean environment, it is our responsibility to protect and
maintain it that way.

Following are the differences between natural person and legal person:
Natural Person

1. A natural person is a human being and is a real and living person.

2. He has characteristics of the power of thought speech and choice.

3. Unborn, dead man and lower animals are not considered as natural persons.

4. The layman does not recognize idiot, company, corporation, idol etc. as persons.

5. He is also a legal person and accordingly performs their functions

6. Natural person can live for a limited period i.e. he cannot live more than 100 years.

Legal Person

1. Legal person is being, real or imaginary whom the law regards as capable of rights or duties.

2. Legal persons are also termed “fictitious”, “juristic”, “artificial” or “moral”.

3. In law, idiots, dead men, unborn persons, corporations, companies, idols, etc. are treated as
legal persons.

4. The legal persons perform their functions through natural persons only.

5. There are different varieties of legal persons, viz. Corporations, Companies, Universities,
President, Societies, Municipalities, Gram panchayats, etc.

6. Legal person can live more than 100 years. Example: (a) the post of “American President” is a
corporation, which was created some three hundred years ago, and still it is continuing. (b) “East
India Company” was established in sixteenth century in London, and now still is in existence.
Legal personality is a fictitious attribution of personality by law, a sort of personification of law.
Legal persons being artificial creations of law can be of as many kinds as the law devises.
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