JURISPRUDENCE II
Definition of Legal Person:
Different jurists have defined legal person in different ways:
According to Gray, “a person is an entity towhich rights and duties may be attributed.”
According to Salmond, “A person is, any being to whom the law regards as capable of rights or duties.”
According to Paton, “Legal personality is a medium through which some such units are created in whom
rights can be vested.”
Kinds of Legal Persons:
According to Salmond a person may be divided into two kinds:
1. Natural Person: A natural person is a living human being e.g. men, women and impotents.
Natural persons are real human being to whom the law grants personality on the basis of reality.
2. Legal Person: Legal persons are artificial or imaginary beings to whom law attributes personality
by way of fiction where it does not exits in fact e.g., Corporation, Institution, University, club etc.
They are capable of rights and duties like natural persons.
Kinds of Legal Person: A legal person may be divided into three kinds:
1. Corporation : It is a group of co-exiting or series of successive person which by a legal fiction is
regarded as a real person. Corporation is either a corporation aggregate or a corporation sole. A
municipal corporation is an example of corporation aggregate, while the sovereign is a
corporation sole.
2. Institution : In some cases the corpus or object personified is not a group of co-exiting or series
of series of successive persons but the institution itself, e.g. a college, library, mosque ,
church ,etc.
3. Fund or Estate: In the case the corpus is some fund or estate reserved to particular uses. The
property of a dead man or estate of an insolvent , and a fund for charity are its examples.
Kinds of corporation :
corporation are of two kinds:
(i) Corporation Aggregate : A corporation aggregate is an group of co-existing persons. As : a
joint company, a municipal corporation, a railway corporation, a charted university, etc., are
examples of corporation aggregate, while the sovereign is a corporation sole.
(ii) Corporation Sole: A corporation sole is a series of successive persons. It is a body polite
having perpetual succession, constituted in a single person, who, in right of some office or
function, has a capacity to take, purchase, hold and demise land hereditaments.
Legal Status of Animal :
(ii) Legal Status of Dead Man :According to Salmond, the personality of a human being may be
said to commence with his birth and cease with his death. Therefore, dead men are no longer persons in
the eyes of the law. They cease to have rights since they cease to have any interest nor do they have any
duties. A dead man’s corpse is not ‘property’ in the eyes of law. It cannot be disposed of by an
instrument. Earlier, it was held that a person cannot, during his life-time, make a will disposing of any
part of organ of his body but now-a-days it is perfectly legal to donate eyes or any part of one’s body for
the progress of medical science and in the interest of humanity.
(iii) Legal Status of Unborn Person:A child in mother’s womb is by fiction treated as already born
and regarded as person for many purposes. Thus, a gift may be made to a child who is still in the
mother’s womb. The Hindu law of partition requires a share to be allotted to a child in mother’s womb
along with the other living heirs. However, if the child does not take birth alive, his share may be equally
partitioned between the surviving heirs. Thus, proprietary rights of an unborn child are fully recognized
by Indian law. Under Ss. 312, 313 & 316, I.P.C. injury to a child in womb is a punishable offence. Doing
something which prevents or obstructs the safe delivery of a child taking birth alive has also been
considered as an offence under the criminal law. Thus, a child in mother’s womb is entitled for legal
protection under the criminal law.
(iv) Legal Status of Idol:It has been judicially held that idol is a juristic person and as such it can
hold property. Its position is, however, like that of a minor and the priest,i.e., Pujari acts as a guardian to
look after its interests. The Privy Council, in Pramatha Nath Mulick Vs. Pradyumna Kumar Mulick. 1925
held than an idol is juristic person and its will as to its location must be duly respected. The court
directed that idol be represented by a disinterested next friend to be appointed by the Court to put up
its point of view.
Theories of Corporate Personality
There are various theories of corporate personality which have attempted to theories the nature and
authority of it. This might make one to gather that theoretically all the legal problems regarding persons
have been fully explored but this is not true. There is a great divergence between theory and practice.
Any one theory alone is not capable of solving the problems fully. Therefore, the courts have not
followed any one theory consistently. The reason of the gap between theory and practice is that the
theorists have kept themselves more occupie with either a philosophical explanation of legal
personality, or in making it to fit in some political ideology than with the practical problems. Following
are the principal theories of corporate personality:
1. Fiction Theory. - This theory says that only human being can properly be called ‘persons’. Some
kinds of groups 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 very popular because it is not based on any metaphysical notion or argument. It is
argued on the basis of this theory that as a juristic person has only a fictitious will, it cannot
commit crimes.
2. Concession Theory. – This theory is allied to the ‘fiction theory’ . The supporters of both
theories are almost the same jurists. This theory says that corporate bodies have legal
personality only to the extent granted by law. Here law means the state. In other words, 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 room for mischief.
3. Realist Theory.- This theory has another name also, i.e., ‘organic theory’. The main exponent of
this theory is Gierke. Maitland also supports it. 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. Therefore, juristic person are real in the same sense in which human being are. Legal
personality is not fictitious, nor it depends upon state’s recognition. The emphasis, in this theory
on corporate life contains elements of reality (at least in the modern age), but to attribute real
will to the corporation and to compare it with biological organism leads the theory to absurdity.
4. Bracket Theory or Symbolist Theory – This theory says that the members of the corporation are
the only persons who have rights and duties. The granting of juristic personality means putting a
bracket round the members in order to treat them as a unit. This is done for purposes of
convenience. In other words, juristic personality is only a symbol which helps in effectuating the
interest or the purpose of the group. The theory speaks great truth when it says that the groups
are only to effectuate the interest of its members, but it has certain weaknesses also. The
contention of the theory that only human being have personality and not the group is far from
the truth.
5. Purpose Theory – ‘Purpose Theory’ says only human beings have personality. Juristic persons
are no persons at all. They are simply ‘subjectless properties’ meant for certain purposes. This
theory was formulated mainly to explain the ‘stifung’ (foundations) of German law and
hereditas jacens of Roman law. The theory has no application to English or Indian law where
judges have repeatedly held that corporation are persons.
Legal Wrongs
Salmond defines ‘wrong’ as “an act contrary to the rule of right and justice. A synonym of it is injury,
in its true and primary sense of”. In its legal sense, it is known as legal injury which is against law or
jus.
Wrongs may be of two kinds, namely,
1. Moral wrongs
2. Legal wrongs.
A moral wrong is an act which is morally or naturally wrong, being contrary to the rule of natural
justice, whereas a legal wrong is an act which is legally wrong, being contrary to the rule of legal
justice and a violation of the law. In simpler words, a wrong is a violation of legal right (injuria).
A legal wrong may not be a moral wrong and conversely a moral wrong may or may not be a legal
wrong. For instance, non-payment of a time- barred debt is a moral wrong but it is not a legal wrong
since the same is not enforceable by law. Generally, recognition of an act as a legal wrong entails
punishment or suppression by the physical force of the State.
Duties
A duty is an obligatory act i.e., it is an act the opposite of which would be wrong. Thus duties and
wrong are generally co- related. The commission of a wrong is the breach of duty and the
performance of a duty is avoidance of wrong.
1. Legal 2. Moral
A duty may be moral but not legal or it may be legal but not moral or it may be both moral and legal
at once.
The law enforces the performance of a legal duty or punishes the disregards of it.
Classification of Legal Duties : The duties which the law recognizes may be of different kinds. They
may be classified under the following heads :
1. Positive and negative Duties : A duty may either be positive or negative. When law obliges a
person to do an act, the duty is called positive. When the law obliges him/her to refrain from
doing an act, it is a negative duty.
2. Primary and Secondary Duties : Again, a duty may be either primary or secondary. A primary
duty is one which exists per se and is independent of any other duty. For instance, to forbear from
causing personal injury to another is a primary duty. A secondary duty, on the other hand, is one
which has no independent existence but exists only for the enforcement of other duties.
3. Absolute and Relative Duties : According to Keeton, a duty is an act or forbearance compelled
by the State in respect of a right vested in another and the breach of which is a wrong.
Absolute duties are owed only to the State, breach of which is generally called a crime and the
remedy for it is punishment. Relative duties are owed to any person other than the one who is
imposing them, the breach of which is called a civil injury which is redressible by compensation
or restitution to the injured party.
Legal Rights
Salmond defines right as an interest recognized and protected by a rule or justice. It is in interest
in respect of which there is duty and the disregards of which is wrong. A man has varied interests
but all of them are not recognized by law. Many interest exist de facto and not de jure; they
receive no recognition or protection from any rule of right. The violation of them is no wrong,
and respect for them is no duty. Interests are things which are to man’s advantage, e.g., a man has
interest in his freedom or reputation.
Theories of Legal Rights
1. Will Theory of Legal Rights: The Will theory of legal rights has been supported by Hegel,
Kant, Hume and others. According to this theory, a right is an inherent attribute of the human
will. The subject- matter of right is derived from human will. The theory suggests that it is
through a right that a man expresses his will over an object. The theory has also been
accepted by historical jurists of Germany Puchta observed that a legal right is a power over
an object which by means of his right can be subjected to the will of the person enjoying the
right. Vinogradoff considers that psychology of asserting claim is the basis of legal right.
2. Interest Theory of Legal Right: Another popular theory regarding the nature of legal right is
called the Interest Theory which was mainly propounded by the German Jurist Ihring.
According to this theory, “a legal right is a legally protected interest.” Ihring does not
emphasis on the element of will in a legal right. He asserted that the basis of legal right is
‘interest’ and not will. The main object of law is protection of human interests and to avert a
conflict between their individual interests. But Salmond has criticized Ihring’s theory on the
ground that it is incomplete since it completely overlooks the element of recognition by State.
A legal right should not only be protected by the State but should also be legally recognized
by it.
Essential Elements of a Legal Right
According to Salmond every legal right has the following five elements or characteristics:
1. The Person of inherence: He is also called the subject of right. A legal right is always vested in
a person who maybe distinguished as the owner of the right, the subject of it or the person of
inherence. Thus there cannot be a legal right without a subject or a person who owns it.
2. The Person of incidence: A legal right avails against a person upon whom lies the co-relative
duty. He is distinguished as the “person of incidence”. He is a person bound by the duty and so
maybe described as ‘subject of the duty’.
3. Contents of the right : The act or omission which is obligatory on the person bound in favour of
the person entitled. This is called the content or substance of right.
4. Subject matter of right : It is something to which the act or omission relates, that is, the thing
over which a right is exercised. This maybe called the object or subject-matter of the right.
5. Title of the right : Every legal right has a title, that is, certain facts or events which are events by
reason of which the right has become vested in its owner.
Legal Right and other Related Concepts
1. Right and Duty : It has been generally accepted that every legal right is attended with a co-
relative duty. Therefore, there is no disagreement on the point that rights and duties are co-
existent. As already stated a duty is roughly speaking an act which one ought to do, an act the
opposite of which would be a wrong. The authorities, however, differ in their opinion whether
with each duty there must be a co-relative right.
There are, however, certain duties which are absolute. That is, those duties do not have a
corresponding right. The breach of an absolute duty is generally treated as an offence for which
wrongdoer is punished.
2. Right and Liberty : Right in another sense may mean the benefit which a person derives from
the absence of legal duty. In this sense it maybe called liberty. Liberty or privilege denotes the
absence of restraint. Liberty of a person consists in his freedom to do or not to do an act as he
pleases. Liberty or privilege is freedom of a person to act or refrain from acting in a manner he
likes without being prevented by law, but he has no right and he is not at liberty to interfere with
the rights of others. Thus a person is at liberty to express his opinion freely on public affairs but
he is not at liberty to defame others.
Kinds of Legal Rights
Legal rights can mainly be divided into the following categories:
1. Perfect and Imperfect Legal Rights: The first category of legal rights is that either they are
perfect or imperfect. In some cases rights and duties, both, are recognized by the law, but their
enforcement is not possible due to certain shortcomings within them. For example, a claim in
respect of a foreign land or a claim against a time barred debt is covered I the category of
imperfect rights.
2. Positive and Negative Rights: A positive right is that right which corresponds to positive duty,
Positive duty obliges a person to do some positive act. As such, positive right contemplates some
positive benefits.
3. Rights in rem and rights in personam: There are two divisions of ‘action’ in Roman Law. On is
‘action in personam’ and other is ‘action in rem’. The legal rights are also based on this division.
A ‘right in rem’ is a right available against all mankind, while ‘in personam’, a right to claim
against a specific person. The ‘rights in rem’ are normally negative. The reason is that the hole
community cannot be asked to do some positive act in favour of an individual.
4. Proprietary and Personal Rights: The rights relating to one’s property are called proprietary
rights, for example, money, land, house and valuable contacts etc. Those rights belong to a man
and constitute his estate and as such, they are called proprietary rights, In other words, such rights
have a reference to the estate and they contain the element of man’s wealth.
5. Rights in re-propria and right in re-aliena: Rights in aliena as per Salmond, are those rights
which limit or derogate from some more general rights belonging to some other person in respect
of the same subject-matter. All others are ‘jura in re-propria’. A right to use land of other person
for way (as an easement) is the example of a ‘right in aliiea’.
6. Principle and Accessory Rights: When a right is added to a right which is capable of being
affected by the existence of another right and which is vested in the same owner, it is called
principle right. For accessory right is one which is appurtenant to a principle right, for example,
ownership of a land is a principle right while ‘servitude’ annexed to it is an accessory right.
7. Legal and Equitable Rights: There is a vast difference between ‘legal rights’ and ‘ equitable
rights’. The legal rights are recognized by strict laws while equitable rights are recognized by
equity.
Meaning of Possession
Possession is a ‘prime facie’ evidence of ownership. It is a most difficult concept of law. It is,
generally, presumed that one who possesses a thing must be the owner of it. Possession if ‘defecto’
counterpart of ownership. The title of possessor is always considered superior than the title of other
persons over a disputed thing.
The Constituent Elements of Possession
The following two elements constitute possession:
a. Physical, b. Mental.
These elements in technical terms can be called as follows:
1. Corpus : It is established principle that possession comes into existence only when ‘corpus’ and
‘animus’ coincide with each other. ‘Corpus’ means actual power over a thing which a person
possesses.
a. The relation of possessor to other persons: The main characteristic of possession is that it
gives security of its enjoyment to its possessor. It means that a possessor has as full right over
a thing. Such right is not interferabale without the consent of the possessor. The right of a
possessor is possible only in the following circumstances -
i. The physical power of the possessor
ii. Security
iii. Custom
iv. Respect to rightful claim
v. Manifestation of animus domini
vi. The personal presence of the possessor
vii. The protection afforded by possession over the other things
b. Relation of possessor to the things possessed : There is a direct relation between
‘possessor’ and a ‘thing possessed’. The degree of such relation may vary according to time
and situation.
2. Animus: Animus is another important factor which constitutes possession. It is a conscious
intention of a person to get possession over a thing or to enjoy it. Therefore, only the physical
control over a thing or to enjoy it. Therefore, only the physical control over a thing is not merely
necessary for a possessor but also a ‘wish’ or intentions possess, is also necessary. A possession
without ‘animus’ is called ‘possession asinna.
Animus possession has the following two aspects:
i. Positive Aspect: Positive aspect of animus possession is the exclusion of others. It is not
necessary that others may interfere in the physical possession of a person.
ii. Negative Aspect : Negative aspect of the animus possession is that nobody can interfere
in the peaceful possession of a person.
Mode of Acquisition of Possession:
A possession is complete when it contain corpus, i.e. physical control and animus, i.e., conscious-
intention. There are the following two ways through which possession can be acquired:
A. Talking
B. Delivery
Constructive Delivery:
When a thing is given from one hand to the other, it is a transfer of immediate possession. It is called
constructive delivery. Constructive delivery is of the following three kinds:
i. Tradition Brevi Munu
ii. Constitunum Possessorium
iii. Attornment
Ownership:
Ownership is a complicated juristic concept. It denotes a right of a person over a thing.
Ownership created relation between ‘person’ and ‘thing’. In the modern age, it is an important
concept because there is hardly anything,with the few exception,in the world, on which
ownership may not be established.
According to Salmond, ownership, firstly in its widest sense means the relation between a man
and any right that is vested in him. That which a man owns in this sense is in all cases a right.
Secondly, it denotes one particular kind of rights which I may have so vested and this kind of
right is further described as a kind of rights which can be held over material objects.
Elements of ownership: the following are the elements of crime:
(i) Possendi- Power to possess a thing.
(ii) Utendi- Capacity to use or utilize.
(iii) Dispondendi – Power of disposition.
Characteristics of Ownership
1. Ownership contains a right of the owner to exclude others
2. Ownership provides a power to alienate a thing or property ‘intervivos’ or the charge as security.
3. Ownership gives power to a person (owner) to leave such property etc., by will.
4. An owner can exercise the power of ejectment as he please.
5. Ownership can be divided into a. absolute, or b. restricted on the basis of its classification.
6. A right of ownership can be curtailed or restricted during war or emergency.
7. The right or ownership is protected by state.
8. It can be exercised in such a way that the rights of other persons may not be disturbed or violated.
9. The right of ownership is a permanent right.
10. The right of ownership of the minors, id
