JURISTIC PERSONALITY

 SALMOND: so far as legal theory is concerned, a

person is a being whom the law regards as capable of
rights and duties.
 Gray: an entity to which rights and duties may be
attributed.
 Kinds of persons:
 Natural persons
 Legal persons
 Though human beings are natural persons but in
ancient times, all human beings were not regarded as
persons. eg. A slave was not considered as a person.
Though being human; an insane, a child and infants
have restricted capacity. They don’t have all the
rights and benefits of a person.
 Legal personality

 Legal person is a fictitious creation of law.

 Paton: legal persons are all such entities which are
known as holding rights and duties.
 Salmond: legal person is any subject matter other
than a human being to which law attributes a
personality.
 For example an idol, a university, a corporation etc.
 Attributes of legal personality

 Capacity to sue and be sued

 Common seal
 Perpetual succession
 Kinds of legal personality

 Corporations
 Institutions
 Funds
 The idea of corporate personality has sufficiently
matured in all legal systems and the personality of a
corporation and of those constituting it are
considered as different.
 Corporations are of two kinds:
 Corporation sole
 Corporation aggregate

 Liability of corporations
 Institutions
 funds
 Theories of corporate personality

 Purpose theory: ie personality is accorded for certain

purposes. According to this theory, the property of a
corporation is res nullius and it is for a certain
purpose. Brinz propounded this theory and it was
developed by Barker.
 Fiction theory: main jurists are Savigny and
Salmond. Rights and liabilities of a corporation are
not of the constituent humans nor of their collection
as a whole. It’s a totally fictitious entity which holds
the rights and bears the liability
 Bracket or symbolist theory: Ihering observes that a
bracket is imposed over the members of a
corporation. In other words the legal personality is
like a bracket which symbolyzes the collective
personality of the constituent members.
 Hohfeld’s theory: this theory claims that only
humans are the beholders of rights and duties. A
legal personality is limited to the extent of
procedural rules.
 Concession theory: it is very similar to the fiction
theory. It considers that legal personality is a
concession granted in favour of the corporation.
State is free to grant or refuse such concession. Legal
personality is important only because it is recognized
by the state. It sees state and law as synonymous and
the source of legal personality is mercy of the state
 Realist theory: Gierke, and Maitland are the
propounders of this theory. They feel that legal
personality is not fictitious but a reality. In other
words legal person is a real personlike human
beings. It has its own will, acts, rights and liabilities.
It also thinks that legal personality is not created by
the state but is only recognized by the state.
 Personality of idols

 In Pramath Nath Malik Vs. Praduman Kuman Malik,

the privy council recognized the legal personality of
an idol.
 In Vidya Varuthi Vs. Balusami, the privy council held
that a priest or Mahanth, addressed by whatever
name, is the manager or custodian of the institution.
He is not the owner of the property, but only
manager of it. The property is vested in the
institution only.
 Legal position of unborn child

 For certain purposes, an unborn child has

personality.
 For certain purposes his capacity is accepted by law.
 All rights and incidents of his assumed capacity are
contingent upon his taking birth.
 Will can be written in favour of an unborn, subject to
the limitations of the Indian Succession Act.
 Legal status of a dead person

 A dead person is generally considered as non

existent and not having any personality.
 But in three circumstances in which a dead person’s
existence is accepted:
 His body
 Reputation
 Property
 Section 297 of IPC makes punishable the violation of
a grave.