object of legal and philosophical controversy. •The term has been used in the philosophical and moral sense which means rational substratum or quality of a human being. •It has also been used in the anthropological or biological sense in which person means as one of the species. •In law the person is not only a human being but it also includes entitles or associations. Legal person --- meaning •The term person is derived from the Latin term ‘persona’ - means those who are recognized by law as being bound by legal duties. •legal person has immediate relationship with legal rights and duties -without them there cannot be a legal person. they are the only features of legal persons. •Sec-5 of the TPA 1882 defines the term ‘person’ a juristic person such as corporation. •Legal person may be a citizen or non-citizen. Kinds of persons-- There are two kinds of a persons— 1) Natural person—who is regarded by law as having rights and being bound by duties. Conditions to satisfy in order to be a natural person— a) He must be a living human being. b) He Must be recognized by the state as a living person. 2) Legal person—other than natural persons. legal persons are those which are the creation of law. Eg—company, corporation. etc Legal status of animals-- Animal is any creature except man. Animals are not capable of having rights and duties. So they are not legal person. In ancient times animals were regarded as legal persons. Germany –cock ,Greeks –dog were hang Jahangir-bull rang the bell animals-- Modern law does not recognize animals as bearers of rights and duties. Law is made for human beings. No animal can be the owner of property. Damage to animal- damage /loss to or tort against master/society animals-- • Prakash mukherji V Harve 1901 dog bite a boy –damage • Makara V M.M. Nayer-1911 ---02 elephants compensation • Cruelty against animal is a crime • Trust in favour of class of animals not for individual. • Art 48 –DP cow milk giving animals .. • Art 48Aprotection of wild animals . • No Legal personality Legal status of dead man-- •Actio personalis moritur cum persona—action dies with the death of a man. As soon as man dies he ceases his legal personality. Salmond—there are three things in respect of which the anxieties of the living men extend beyond their lives i.e, after death. These are— I. His Body II. Reputation III. Estate. Hence all are protected by law. I. His Body- R v Price /R v steward cristian IPC 297 dead body Transplantation of Human organs Act 1995-donate during life . II. Reputation-Rose v Daily mirror-libel against dead is not crime; a)criminal- social interest –state v haifer-1917- writer punished libel against George Washington b) civil- living heirs Ex. Parmanand Katara v Union of India-----reputation and fair behaviour are also available to dead person. After execution of death penalty, body should not be neglected. • III.Estate--- • Will—use and deposition of property but body of death person can’t be treated as property. Williams v. williams (1882)– person’s body or organs cannot be given to museum or medical college through will. Now it is valid. To maintain personal tomb is also illegal and non- enforceable .Sundarum v. subharmanium (1945)-- will was considered illegal. Jamshedji v. sunabai– trust established for mukted ceremonies of parsis is legal. as it is for religious and philonthrophical purposes. j Legal status of unborn child-- The unborn has a legal personality and possess legal rights and duties. His legal status is contingent—subject to his being born alive. In sec—13 of TPA property can be transfer for the benefit of unborn person by way of trust. sec-114 of Indian succession act, 1925- the creation of prior interest before the unborn person take the interest over the property. both in Hindu and Muslim law—a child in the womb of the mother is in existence. Other Legal person • Gurugranth sahib –guru dwara prabandhak v. somnath das committee (2000)—held it is also a juristic personality. • Mosque—masjid shahid maula bakhs v. Hafizuddin ---(1926)--Held– mosque was juristic person can be sue or be sued but in masjid shah ganj case (1940) privy council held that masjid is not legal person as murti pooja is not permitted– no personification. • Idol—pramath nath v. pradudmn(1925) idol is a juristic person – rule against perpetuity is not applicable against endowment in favour of idol. • Chitradasi Trust v. Income Tax commissioner wb. (1974)—Hindu idol owes property so suit for income tax can be filed. State— • Crown of England– crown proceedings act 1947 sec 40(1) the king is dead, long live the king • President and Prime minister –suit cant be fined. (S.p gupta v. President of India (1882)– Reporting was wrong it must be union of India • UIO &state –CPC 79 . State has a juristic personality –art-300 of the constitution. State can be sue or be sued by the name of the state. Kinds of legal persons-- The common variety of legal persons is the corporations which are concerned with trade, business, or service to the community. Salmond corporations are of two types— 1) Corporation aggregate—is an incorporated group of co-existing persons, it consists of several members at a time. Eg. company ,not firm 2) Corporation sole—is an incorporated series of successive persons. It consists of only 1 member. Eg King; president of India Corporation sole a)crown as corporation sole (common law ) b)statutory corporation sole statutory corporation sole-administration of Estate act 1925 &1975 s 3(5).estate of SCS- succession Corporation aggregate • Great eastern railway v. turner (1872) – property debt and liabilities of company are separate from share holders. Share holder can contract with company. • Corporations can be established under Royal charter or special statues or can be registered under company act. • Creation Through customs– corporation of the city of London, Cambridge University. • Proff. Gawa stated – all the members are dead due to bomb barding still company succeed. Merits of Corporations-- 1) convenient for legal proceedings. 2) Limited liability– no one is liable for his own share. (in case of firm—members has its absolute liability. Solemen v. solemen(1897)- the leather business . 3) perpetuity --- the corporation never dies. Only winding up. Liabilities of corporations-- 1) liability of corporation in contract— corporation act through its agent’s. its seal is its assent. 2) liability of corporation in torts—principle of vicarious liability. 3)liability of corporation in criminal act.— impossibility of mensrea. Now corporation have been held liable. In India statue has provision eg-sec-140 of customs act discuss offence by company. Theories of corporate personality-- 1) Fiction theory 2) Concession theory 3) Bracket theory 4) Realist theory 5) Purpose theory Fiction theory—(savigny, salmond, dicey) •considers the only human beings can called be a person. •For certain purpose by a fiction of law no real person can be consider a person. •Juristic person has only a fiction -will can not commit crime. •Prevailed in England – no hard and fast reorganization of juristic person. Concession theory—( savigny, Salmond, Dicey)
• Legal person is a corporate body –
concession given by state. • Exclusive source of personality – state/law. • Origin of Nation state after declining of Roman--- supremacy of state— discreation of state. • It is like fiction theory. Realistic or organic theory—(gierke) • Legal person has a real will, real mind and real power of action. Same as human being. •A) organic—for holder of rights, human beings are not necessary. Every being who has will can be holder of rights. •B) realist theory– association is a social reality. •C) institutional theory—emphasis on social Bracket or symbolists theory-(Hohfeld) • Only human beings are capable of rights and duties. Company is a formula to understand the relation. Corporation is a procedural form to limited the liability. • Personality means putting a bracket round a member to treat them as a unit. • It is a symbol for purpose of convenience. A,B,C –[A,B,C] Purpose theory— (Brinz, Bekker) • Only human beings have personality. • Juristic person are simply meant for certain purposes not applicable in India. • Duguit – purposes social solidarity. Practical problems-- • Theory of lifting or piercing of veil of corporate personality. • In case of legal liability /public policy/ cheating • Demler co. Ltd v. continental tyre and rubber co. Ltd---- 1st world war ---whether particular company is a enemy or not ? Company corporate in England except one shareholders , all directors are German– enemy nature. Can a corporation claim fundamental rights ? • In some cases yes art. 5,6,7,8,21, 22, 25 –only natural person. • For 14—both ---chiranjeet lal chaudry v. uoi (1951)—sholapur spinning and weaving company was considered as person. • State of Gujrat v. Ambika mills—corporation cannot be termed as citizen. But state of Bombay v. RMDC (1955) for the purpose of art. 19 company is citizen.