Law is primarily concerned with rights and duties. Exercise of right and performance of a duty presupposes capacity and personality. Persons are the substances of which rights and duties are the attributes. The term Person is derived from the Latin word ‘Persona’ it means those who are recognized by law as being capable of having legal rights and duties. In Greek, it was used for: a mask; the character behind the mask; a character in a play; and a representative in general. A representative of the church was called a person. In Roman law, the term was applied to any human being or to a human being with respect to the jural relations associated with him. A slave was not a person and those lacking reasons were treated as less than persons

Definition:

1) Salmond – “A person is any being whom the law regards as capable of rights and bound by legal duties.
2) Savigny defines the term person as the subject or bearer of a right.
3) According to Gray A person is an entity to which rights and duties may be attributed.
4) According to Austin the term ‘person’ includes physical or natural person including every
being which can be deemed human.
According to Section 11 of the Indian Penal Code, the word person includes any company or association, or body of Persons, whether Incorporated or not.

Kinds of Persons:

1. Natural Persons

A natural person is a human being capable of rights and duties. They are both persons in fact and in law.

The Legal Status of Animals, Slaves, Dead Men, and Unborn person

a. Animals and Inanimate Things

b. Slaves

c. Unborn Natural Persons.

d. Dead Persons or Dead Human Beings

1. Animals and Inanimate Things:

Modern Law does not recognize animals as bearers 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, even through a human trustee. There can be no transfer 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. 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.

Ancient Law – However, in ancient times animals were regarded as having legal rights and being bound by legal duties. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a man or woman resulting in his or her death, then the ox was to be stoned and its flesh was not to be eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs and even the trunk of trees which had fallen on human beings and killed him were tried for homicide.’

There are similar instances in India as well. In number of cases found that, animals were sued in courts in ancient India. There is popular story about the Mughal Emperor Jehangir in which the bullock was presented before the Emperor. However these instances are merely of historical interest and have no relevance in modern law.

Similarly, a bequest for the maintenance of the testator’s favourite black mare a bequest of an annual sum for the maintenance of testator’s horses and hounds for a period of 50 years if nay those animals should so long live a trust for the benefit of a parrot during the life of two trustees and survivor of them have all been held valid

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2. legal status of a Dead Person:

Dead persons have no legal personality and hence, cannot sue and be sued. Dead men are no longer persons in the eye of the law. The legal personality of a person dies with his person. They do not remain the owners of their property until their successors enter upon their inheritance. When a person dies leaving Will, his property is distributed according to the Will. Law
recognizes and takes account after the death of the person of his desires and interest when alive. There are three things in respect of which the anxieties of living men extend even after their death. Those are his body, his reputation, and his property.
1) His Body:
A living person is interested in the treatment to be given to his own body. A person is interested in a decent funeral and good burial. Criminal law secures a decent burial for all dead persons and the violation of a grave is a criminal offense. It is because to respect the feelings of the relatives of a dead person, not the protection of the dead person is right.
2) His reputation:
Everyone is interested in maintaining a reputation even after death. The reputation of a dead person receives some degree of protection from criminal law. A defamation suit can be filed for the loss of reputation of a dead person. If the publication is an attack on the internet of living persons, as a matter of fact, this right is in reality not that of the dead person but of his living
descendants.
3) His Property/ Estate:
A man is dead but his hand may continue to regulate and determine the enjoyment of the property he owned while he was alive. He can dispose of his property by WILL.

Indian Position – 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 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

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3.Legal Status of Unborn Person

Generally, an unborn person has no legal standing in the eyes of law. However, it has to be distinguished from the one who is living but not yet born, i.e., a child in the womb of its mother-in Utero and an unborn child in the sense of future generations.

Indian Position – 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.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

A child in the uterus is regarded as a person in law in accordance with the maxim
“Nascitures Pro Ham Nato Habetur i.e. One who is to be born is deemed to have been born”.
Contingent rights: The rights of an unborn person, whether personal or proprietary, are all contingent on his birth as a living human being.
Damages: damages can be claimed for injury to the fetus of a woman if the woman was known to be pregnant.
A posthumous child can claim compensation for the death of his father in a fatal accident.
In Hindu law unborn son acquires an interest in the joint family property from the time of its conception.
In English law a posthumous child inherits and if born alive though it may die moments later it affects the course of succession.
Women convicted cannot be executed if she is pregnant.

2. Legal or Artificial Persons

A legal person is a subject matter, other than a human being, to which the law attributes personality. As distinguished from a legal person, a human being is called a “natural person.” The law assigns legal personality when certain basic conditions have been met. These conditions are:

a. The law requires that there must be some corpus (a body) of the person so created.

b. Legal personality is not attained unless the law recognizes legal personality for the corpus.

c. The law does not assign legal personality separated from the body of persons or a person who administers the legal person.

d. There must be a mind administering the affairs of the legal person.

According to Salmond, ‘legal persons are being, real or imaginary, who for the purpose of legal reasoning is treated in greater or less degree in the same way as human beings.’ They are the person in law, not in fact. Legal persons are termed fictitious, juristic, artificial, or moral. Legal persons may be divided into three types, with reference to different kinds of things, which the law selects for personification.

a) Corporations

b) Institutions

c) Funds or Estate

Corporations: A corporation is a group or series of persons that by legal fiction, is regarded and treated as persons. The individuals who form the corpus of the legal person are termed its members.

Institution: In this class, the object selected for personification is not a group or series of persons, but an institution, for example, a church or university. The law may attribute personality, not to any group of persons connected with the institution, but to the institution itself.

Funds or Estate: in the third class, the corpus is some fund or estate devoted to special use, for example, a charitable fund or a trust estate, or the property of a dead man or of a bankrupt.

Kinds of Corporations: Corporations are of two kinds:

a) Corporation Aggregate

A corporation aggregate is an incorporated group of co-existing persons. A corporation aggregate is a group that has been granted legal personality by the law and it has several members at a time. The first corporations aggregated were companies.

b) Corporation Sole

A corporation sole is an incorporated series of successive persons. A corporation sole is a single person at a time. Corporations sole are founded only when successive holders of some public office are incorporated to constitute a single, permanent and legal person. The corporation sole is created to meet the following needs:

a. Continuity of office

b. Acts to bind successors

c. Ownership of official property distinct from personal property

In the case of corporation sole, the same name is borne by the natural person (for the time being the sole member), and also by the office. This is misleading, as each of them is distinct from the other; under each name are two different persons. One is a human being administering for the time being the duties and affairs of the office.

He is visible to the eye of a layman. The other is a mythical being known to the law, he never dies or retires. The person in flesh and blood is his agent or representative. Agents, Beneficiaries, and Members of Corporation: A corporation being a legal entity only, neither possessing soul nor body, must necessarily act through some agency, some representative in the world of real men. The representatives of a corporation may also be beneficiaries in the case of a corporation established for charitable purposes. The representatives and beneficiaries must not be confounded by its members. Members of the individuals who form the group or series personified by the law, and who so constitute the corpus or body of the legal person thus created.

Difference between a Firm and a corporation

A firm is not a person in the eye of the law, it is nothing else than the sum of its individual members. A corporation is a legal person in the eye of the law; it is separate from its shareholders. The property and the debts of the firm are nothing else than those of its partners. There can be no firm with one member; a company may consist of one member only.

Theories of Juristic Personality

1. Fiction Theory – This theory was put forward by Von Savigny, Salmond, Coke, Blackstone, and Holland etc. According to this theory, the personality of a corporation is different from that of its members. Savigny regarded corporation as an exclusive creation of law having no existence apart from its individual members who form the corporate group and whose acts are attributed to the corporate entity. As a result of this, any change in the membership does not affect the existence of the corporation. It is essential to recognize clearly the element of legal fiction involved in this process. A company is in law something different from its shareholders or members. The property of the company is not in law the property of the shareholders. The company may become insolvent, while its members remain rich. Gray supported this theory by saying that it is only human beings that are capable of thinking, therefore it is by way of fiction that we attribute ‘will’ to non-human beings through human beings who are capable of thinking and assign them legal personality. Wolf said that there are three advantages of this theory. It is analytical, more elastic and it makes easier to disregard juristic personality where it is desirable

2. Concession Theory – This theory is concerned with the Sovereignty of a State. It pre-supposes that corporation as a legal person has great importance because it is recognized by the State or the law. According to this theory, a juristic person is merely a concession or creation of the state. Concession Theory is often regarded an offspring of the Fiction Theory as both the theories assert that the corporation within the state have no legal personality except as is conceded by the State. Exponents of the fiction theory, for example, Savigny, Dicey and Salmond are found to support this theory.

Nonetheless, it is obvious that while the fiction theory is ultimately a philosophical theory that a corporation is merely a name and a thing of the intellect, the concession theory is indifferent to the question of the reality of a corporation in as much as it focuses only on the source (State) from which the legal power of the corporation is derived.

3. Group Personality Theory or Realist Sociological Theory – This theory was propounded by Johannes Althusius and carried forward by Otto Van Gierke. This group of theorists believed that every collective group has a real mind, a real will and a real power of action. A corporation therefore, has a real existence, irrespective of the fact whether it is recognized by the State or not. Gierke believed that the existence of a corporation is real and not based on any fiction. It is a psychological reality and not a physical reality. He further said that law has no power to create an entity but merely has the right to recognize or not to recognize an entity

A corporation from the realist perspective is a social organism while a human is regarded as a physical organism. This theory was favored more by the sociologists rather than by the lawyers. While discussing the realism of the corporate personality, most of the realist jurists claimed that the fiction theory failed to identify the relationship of law with the society in general. The main defect of the fiction theory according to the realist jurists was the ignorance of sociological facts that evolved around the law making process.

Horace Gray, however, denied the existence of collective will.He called it a figment. He said that to get rid of the fiction of an attributed by saying that corporation has a real general will, is to derive out one fiction by another.

4. The Bracket Theory or the Symbolist Theory – This theory was propounded by Rudolph Ritter von Jhering (also Ihering). According to Ihering, the conception of corporate personality is essential and is merely an economic device by which we can simplify the task of coordinating legal relations. Hence, when necessary, it is emphasized that the law should look behind the entity to discover the real state of affairs. This is also similar to the concept of lifting of the corporate veil. This group believed that the juristic personality is only a symbol to facilitate the working of the corporate bodies. Only the members of the corporation are ‘persons’ in real sense of the term and a bracket is put around them to indicate that they are to be treated as one single unit when they form themselves into a corporation.

5. Purpose Theory or the theory of Zweck Vermogen – The advocates of this theory are Ernst Immanuel Bekker and Alois von Brinz. This theory is also quite similar to the fiction theory. It declared that only human beings can be a person and have rights. This theory also said that a juristic person is no person at all but merely a “subjectless” property destined for a particular purpose. There is ownership but no owner. Thus a juristic person is not constructed round agroup of persons but based on an object and purpose. The assumption that only living persons can be the subject-matter of rights and duties would havedeprived imposition of rights and duties on corporations which are non-living entities. It therefore, became necessary to attribute ‘personality’ to corporations for the purpose of being capable of having rights and duties.

6. Hohfeld’s Theory– He said that juristic persons are creations of arbitrary rules of procedure. According to him, human beings alone are capable of having rights and duties and any group towhich the law ascribes juristic personality is merely a procedure for working out the legal rights and jural relations and making them as human beings.

7. Kelsen’s Theory of Legal Personality – He said that there is no difference between legal personality of a company and that of an individual. Personality

Conclusion

The foregoing analysis makes it abundantly clear that incorporation had great importance because it attributes legal personality to non living entities such as companies, institutions etc. which help in determining their rights and duties. Clothed with legal personality, these non living personalities can own, use and dispose of property in their own names. Unincorporated institutions are denied this advantage because their existence is not different from the members.

Ordinarily, only an incorporated body can sue or be sued and an unincorporated body cannot sue or be sued in its own name. This rule was very useful for trade union organizations which were usually not incorporated associations. persons and legal persons for the purposes of law. In law personality implies conferment of rights and duties. Therefore, for the convenient attribution of rights and duties, the conception of juristic personality should be used in its procedural form. There are a number of theories of corporate personality but none could interpret the phenomenon fo juristic personality adequately.