Person: A Legal Concept

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. The term ‘person’ and ‘personality’ has a historical evolution. Roman law, Greek law and Hindu law, has used the concept too.

The law earlier was treating only human beings as person but as the society developed and advanced, it was realized that this will lead to more chaos. This can be avoided by conferring legal personality on certain jural relations applicable to other than human beings for the purpose of law. Thus, emerged the concept of artificial or legal personality in the realm of jurisprudence. In this chapter the legal status of different persons will be dealt as follows:

Unborn Child

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. 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[1] 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.

Dead Person

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 against 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 (2002) 2 SCC 27, it was 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.

Animal

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. 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. The law seeks to extend protection to animals in two ways:

(1) Cruelty to Animals[2] is an offence and the wrongdoer is punishable

(2) A trust for the class of animal can be created as it is a charitable and public trust but no such trust can be created for individual animal.

Idol and Mosque

Judicially is it recognized that an idol is a juristic person and it can hold property. It is also stated that the position of the idol is like a minor as the priest acts as guardian to look after the interest of the idol. The privy council in the case of Pramatha Nath Mullick vs. Pradyuman Kumar Mullick (1925) 52 IA 245, it was held that an idol is a juristic person and its wish regarding the location should be respected. It can be represented through its next friend appointed by court. Yogender Nath Naskar v. Commissioner of Income Tax AIR 1969 SC 1089, it was held that an idol is a juristic person capable of holding property and being taxed through its Shebait who is entrusted with possession and management of its property.

As regarding the legal status of Mosque, there are conflicting views. In Maula Bux v. Hafizuddin AIR 1925 Lah 372, the Lahore High Court held that mosque is a juristic person and can be sued. But later in the case of Masjid Shahid Ganj (1940) 67 IA 251, case it was observed that they are not artificial person and cannot be sued. However, the Court left the question open. Talking about the “Guru Granth Sahib” the Supreme Court in Siromani Gurudwara Prabhandak Committee v. Somnath Das (2000) 4 SCC 186, the holy granth is considered as juristic person. Reasoning being that it is prayed as Guru by members of Sikh Community. But other holy books like Bible, Quran, Ramayana and Bhagwat Gita is not considered as legal person.

Corporation

A Corporate personality is creation of law. Legal personality of corporation is recognized in both English and Indian law. It is an artificial person having rights and duties and holding property. It has a legal personality of its own it can be sued and it can sue in its own name. A corporation pre supposes the existence of following conditions:

(1) There must be group or body of persons associated with certain purpose.

(2) There must be organs through which the corporation functions.

(3) It is attributed with will by legal fiction.

Corporation are of two types:

(1) Corporation Aggregate: It is an association of individuals united for the purpose of forwarding their certain interests. Limited companies are best example of this as they are formed by the shareholders who contribute capital for a common object.

(2) Corporation Sole: It is an incorporated series of successive persons. It consists of a single person who is personified and regarded by law as a legal person. It is perpetual. The main purpose of it is to ensure continuity of an office so that the occupant occupies the property for the benefit of successors. Example The President of India, Auditor General of India etc.

Conclusion

Persons are those who are recognized by law as being capable of having legal rights and being bound by legal duties. Two kinds of persons are recognized by law: natural persons and legal persons. Natural persons are “living human beings recognised as persons by the state. Legal persons are also known as artificial, juristic or fictitious persons. Law attributes by legal fiction a personality of some real thing. A fictitious thing is that which does not exist in fact but which is deemed to exist in the eye of law. 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.


[1] Montreat Tramways Co. v. Leveille (1933) 4 DLR 337 ( Canada).

[2] The Prevention of Cruelty to Animals Act, 1960 (Act No. 59 of 1960).

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