PAPER IV : LEGAL
THEORY
I) LEGAL
PERSONALITY (UNIT – IV) :
Jurisprudence
studies legal rights & duties. It is necessary that there should be a
person to whom legal rights & duties may be ascribed. The term ‘person’
or ‘personality’ has been the object
of legal & philosophical controversy from times immemorial. A
person in law is not confined to any human being, but is given an extended
meaning which includes entities / associations other than h/beings.
(i) The term ‘person’ covers under its legal
shadows not only natural persons, but
also the artificial persons. Natural
persons mean human beings or those who r born by nature. Legal persons mean beings & things which r
treated as persons by law. They r created
by law only.
(ii) In
modern times, with very few exceptions,
legal personality is granted to all the human
beings. However, sometimes, human
beings are not legal persons – minors, lunatics, etc. The
legal personality granted to human beings begins at birth and ends with the
death.
(iii) Legal theory assumes a person an entity capable
of suing & being sued.
The word ‘person’ is derived from the Latin
term ‘persona’, which meant the actor’s mask through which his voice must be
sounded. Later on, it came to be used for those who could bear rights &
duties. But at present, it has
acquired the meaning of denoting a being which is capable of sustaining legal
rights & duties. Thus, any
person, whether natural or artificial, capable of rights & duties would be
a legal person irrespective of the fact that he is a human being.
Salmond observes,
“A person is any being, whether a human being
or not, whom the law regards as capable of rights & duties”. Gray defines ‘person’ as an entity to which
rights & duties may be attributed.
It, therefore,
means human being or a body of persons or a corporation or a legal entity that
is recognised by law as the subject of rights & duties. In other words, the term ‘legal person’ has
immediate relationship with legal rights & duties as without that, there can’t
be a legal person.
The Legal
Status of Animals : In ancient times, animals were regarded as
persons. In middle age also, there r instances
of the trial of birds & animals. In modern times, no legal system recognises
animals as bearer of rights & duties.
Animals do not have rights &
duties and, thus, they can’t be person or legal person.
They r merely things & no animal can be the owner of property. A trust made in favour of animals is a trust
of imperfect obligation & can’t be enforced. However, there r two cases in which beasts
may be thought to possess legal rights – (i) cruelty to animals is an offence; & (ii) a trust for the benefit of a particular class of animals is valid &
enforceable as a public charitable trust in England. Similarly, in India, a charitable trust can
be created for the maintenance of stray cattle, broken horses & other
animals.
The Legal
Status of Dead Men : Generally speaking, the personality of a human being
may be said to commence existence on birth & cease to exist at death. Dead
men are no longer persons in the eyes of law.
Dead men don’t remain as bearers of rights & duties as the action
dies with the death of a man (actio
personalis mortiur cum persona).
But the law, in
certain matters, recognises & protects the desires & interests of the
deceased. There are three rights in this respect – (i) about the deceased’s body;
(ii) his reputation; & (iii) his estate. So far as dead man’s body is concerned, the criminal law secures burial to all dead
men. The reputation of a dead man is also to some extent protected by the
criminal law. A libel upon dead man
is punished as misdemeanour – but only when its publication is in effect an
attack upon the interests of the living persons. Similarly, the law recognises the right of
the deceased to regulate & control his property according to his desire
even when he is not living. But here,
deceased has no right over property and only the person in whose favour Will is
made has the legal rights in it after the death of the testator.
The Legal
Status of Unborn Persons : Though the
dead possesses no legal personality,
it is otherwise with the unborn.
There is nothing in law to prevent a man from owning property before he
is born. Law recognises legal personality to unborn persons. The
unborn person has a legal personality & possesses legal rights & duties. A child
in mother’s womb is by fiction treated as already born & regarded as person
for many purposes. Thus, a gift may be made to a child, who is
still in the mother’s womb.
In Hindu law, a child in womb is considered in existence & entitled to inherit
property if he is born alive. If a partition takes place among the
coparceners while the child is in womb, a
share is to be reserved for him. If
the share is not reserved, then the partition would re-open & the new born
boy would take the same share which he would have taken if he was born before
partition.
Under IPC, injury to a child in womb is a punishable offence. Further, doing something which prevents the
safe delivery of a child taking birth alive has also been considered as an
offence under the criminal law.
Apart from these
rights, he is considered to be capable of owning personal rights also. If a
pregnant woman is awarded death sentence, the execution of sentence shall be postponed till she delivers the
child.
In short, an unborn person is endowed with legal personality. However,
the rights conferred on unborn person are
contingent upon his taking birth alive when they are transformed into vested
rights.
To reiterate, a
legal person is any subject-matter other than a human being to which the law
attributes personality such as institutions, groups of human beings,
corporations, etc. It is by a fiction of
law that they are treated persons.
In State Trading Corporation of India v.
Commercial Tax Officer, Hidayatullah,
J. dealt at length with the effect of incorporation of a company or
corporation & held that the
idea of legal personality emerges from the moment of incorporation. The incorporation has no physical existence. It is merely an abstraction of law.
There are two
kinds of corporations – corporation aggregate & corporation sole.
·
Corporation
Aggregate :
1.
A
corporation aggregate is an association of h/beings united for the purpose of
forwarding their certain interests, e.g. Ltd. Cos.
2.
Such a
company is formed by a number of persons, who as shareholders of the company
contribute or promise to contribute to the capital of the company, for furtherance of a common object.
3.
Their
liability is limited to the extent of their share-holding in the company. A limited company is thus formed by the
personification of the shareholders.
4.
The
property of the company is not that of the shareholders, but its own property. Its assets & liabilities r different from
that of its members. The shareholders have
a right to receive dividends from the profits of company but not the property
of the company.
5.
For
certain purposes, company has an independent existence from those of its
members & it is for this reason that the co. may become insolvent but its
members may still be rich & wealthy.
6.
Conversely
also, the insolvency of the members does not adversely affect the co. &
it may continue to have a flourishing business.
7.
The death
of members doesn’t finish the existence of the co., e.g., in the AGM of a co., all the members died
due to a bomb-explosion, but it didn’t affect the existence of the co. & it
continued to function as before.
8.
It can sue
& be sued in its own name.
·
Corporation
Sole :
1.
Corporation
sole is an incorporated series of successive persons. It
consists of a single person who is personified & regarded by law as a legal
person. In other words, a single person, who in exercise of some
office or function, deals in the legal capacity & has rights & duties.
2.
Generally, corporation sole r the holders of a
public office which r recognised by law as corporation.
3.
Its chief characteristic is "continuous entity endowed with a capacity
for endless duration". A corporation sole is perpetual, e.g., the
President of India, the Governor, the British Crown.
4.
The UOI
and the States have also been recognised as corporate entities u/Art. 300. The
Ministers of the Union or State Govt. r not legal or constitutional entity,
therefore, they r not corporation sole as they r appointed by the President or the Governors and are 'Officers'
within the meaning of Art. 53 & 154. They r not personally liable for their acts or
omissions nor r they directly liable in a Court of Law for their official acts.
It is the State or the Centre which is
liable for tort or breach of contract committed by a Minister in his official
capacity.
5.
A Corporation sole is distinguishable from
"a mere succession of officers or persons exercising the same
rights." If a corporation sole
exists, an occupant of an office can generally acquire property for the benefit
of his successors as well as himself, he can generally recover for injury
inflicted on property pertaining to the office while such property was in the
hands of his predecessor and he can sometimes enter into a contract which will
bind or endure to the advantage of his successors."
6.
Corp. sole
is an illustration of double capacity. The King of England exercises the function of
the Crown & in his capacity as the constitutional head, he can confer
rights & duties upon himself as an individual. The natural person may owe a duty to himself
as a legal person. Same is the position of the President
of India. As regards the British
Crown, it is generally said, "The king is dead, long live the king."
This proverb indicates the double
capacity of the Crown as a corp. sole, the first part refers to the Crown as a natural
person, i.e., individual, while the latter part expresses his position as a
legal personality. It means that
even after the death of the king, his legal capacity as a Crown remains in
existence as a corp. sole.
7.
The object of corpn. sole is similar to that of
corpn. aggregate. In it a single person
holding a public office holds the office in a series of succession, meaning
thereby that with his death, his property, right & liabilities etc., do not
extinguish but they r vested in the person who succeeds him. Thus on the death of a corporation sole, his
natural personality is destroyed but legal personality continues to be
represented by the successive person. In
consequence, the death of a corpn. sole does not adversely affect the interests
of the public in general.
