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This article is written by Aamina Rafeek of 10th Semester of B.Com LLB (Hons.) of Government Law College, Ernakulam, an intern under Legal Vidhiya


The jurisprudence theories on juristic person had been established since the early Roman law to justify the existence of legal person other than the human. The State, religious bodies and education institutions had long been recognized as having legal entity distinct from the members[1]. this article explores the personality attributed to various institutions apart from human beings, thus holding them accountable for their acts and also realize their rights under various subject matters.


Legal personality, individuality, rights, duties, liability, accountability, corporation, unborn person, dead person, state, idols, natural person.


Laws are laid down in a society to regulate the conduct of individuals in the society.  When individuals live together in a community, they have certain rights and duties towards each other, which are controlled by the law prevalent in the society. Acts which interfere adversely with the rights of others are termed unlawful and law imposes liability on such acts, the enforcement of which is ensured through legal sanctions[2]. At the outset, rights and duties look the same for everyone but when we take a closer look, we notice that rights and duties differ at various levels based on the entities they are dealing with[3]. The concept of legal personality becomes important in jurisprudence because there cannot be rights and duties without a person.

In general terms, ‘person’ is the bearer or carrier of rights. He is also obliged to perform certain duties in a society. Individuals are subject matters of rights and duties, but law also recognises certain groups of persons or of property which are also capable of being subject matter of rights and duties by conferring artificial personality to them.

In the legal scenario therefore, there are two types of persons which law recognises- natural and artificial. The first category refers to human beings whereas latter refers to non-human entities.


This term has been defined by jurists in different ways. The use of term personality is often limited to human beings alone as they are considered to be the only subject matter of rights and duties. However, it is to be noted that the term has a much wider ambit and includes within it gods, angels, idols[4], corporations[5] etc.

The German jurist Zitelmana defined legal person in the following words, ‘personality is the legal capacity of will, the bodiliness of men for their personality a wholly irrelevant attribute’.

 According to Salmond – “A person is any being whom the law regards as capable of rights and bound by legal duties.Any being that is so capable is a person whether human being or not and nothing that is not capable is a person even though he be a man[6]”.

Gray defines a person as entity to which rights and duties may be attributed.

According to G.W.Paton, legal personality is a medium through which some such units are created in whom rights can be vested[7].

A juristic person is therefore not constrained to human beings alone. It may be any other subject matter to which rights, liabilities and duties can be attached. Law confers them the capacity of a person and hence they are called ‘legal persons’. a legal personality is a prerequisite to legal capacity, it is a prerequisite for international organizations to be able to sign international treaties in its own name[8].


A legal person has two essential elements

– Corpus- it is the body into which law infuses a personality i.e., rights, liabilities and obligations.

– Animus- It is the personality or will of the person.

Legal personality is a creation of the law. Such recognized entities are capable of entering into legal relationships. While a natural person acquires legal personality naturally by being born, legal persons are artificial creations. Law attributes such creations a human persona which makes them dutiful and accountable. They are treated in the same way as human beings for legal purposes. A legal person has a real existence but its personality is fictitious, because such a thing does not exist in fact but which deemed to exist in the eyes of law[9].

In general notion a person is a human being who is or was in existence out in the physical world. They are inferred to have rights, liabilities and duties. However, over a period of time laws around the world have recognized the rights, liabilities and duties of non-human entities as they perform functions that raise questions of accountability.

But what perplexed the legal system was the status of unborn children. They are humans, but not present in the outer world and hence technically not a person. Questions regarding their rights stirred discussions.

Law now attributes legal status to unborn children. By legal fiction, a child in the mother’s womb is treated as already born and can be treated as a person for a number of purposes. Pre-natal existence of a child as a legal person is also recognized for the purposes of civil action. This means a child is entitled to recover damages for injuries caused to him while he was a foetus inside the womb of mother, after he is born. In the landmark case of Montreal Tramways Co. V. Leveille[10], the Canadian Court granted damages to a female infant for the deformity caused to her while in mother’s womb.

The notions on this matter differ across various legal systems. In a similar circumstance as mentioned above, in the case of Walker v. Great North Railway Company[11], an Irish Court denied damages to an infant for injuries suffered at pre-natal stages by holding that the company is not duty bound to person whose existence was unknown to them.

In the case of Eliot v. Lord Joicey (1935) AC 209[12], it was held that ownership may be vested in a child in mother’s womb (en ventre sa mere) and such a child constitutes life for the purpose of the rule against perpetuity. For example- Sec 99(i) of the Indian Succession Act 1925 provides: All words expressive of relationship apply to child in the womb who is afterwards born alive[13].

The rights conferred on unborn children are contingent upon his taking birth alive, when they are transformed into vested rights. The Transfer of Property Act 1882 grants protection to property made in favour of unborn persons. Its object is to protect the property for too long a period from the possibility of alienation by their owners being unborn persons[14].

In Criminal Procedure Code 1973, Sec 416 states that in case any woman who is sentenced to death is found pregnant, an order to postpone the execution must be passed by the High Court, or it deems it fit, the execution can be reduced to life imprisonment. This is because our legal system recognises the right to full development of a child. Similar provisions exist in English law under the Sentence of Death (Expectant Mothers) Act 1931.


The general theory is that the personality of person commences with his birth and concludes with his death. Hence dead people are not technically ‘persons’ in the eyes of law as they no longer hold any duties or rights.

Salmond points out three things in respect of which anxieties of living men extend beyond the period their death[15]. The law ensures protection to the following-

A dead man’s body

Dead man’s reputation

Dead man’s estate.

Although the dead man’s corpse is the property of no one, the law seeks to ensure a proper burial[16] or cremation[17]. article 130 of the fourth Geneva Convention (International Humanitarian Law) is titled as “Burial Cremation” and it states that the dead bodies must be honourably buried, if possible according to their religion and that their graves are always respected, properly maintained and marked in a way that they can always be recognized[18].

The Supreme Court of India in the case of Ashray Adhikar Abhiyan v. Union of India held that even a homeless person is entitled to a decent burial as per his religious faith. Maintenance of basic human dignity must be extended even at the event of death.

The Indian Penal Code, 1860, through its provisions grants protection to the rights and dignity of corpses. Sec.297 criminalizes trespassing on burial place with the intention of hurting any person or religion.

Sec. 404 provides punishment to any person who dishonestly misappropriates property possessed by deceased person at the time of his death.

In India, the criminal law under Sec.499 of IPC, has held that any imputation that damages the reputation of a deceased person, had he been alive during that time, or is intended to injure the feelings of his family or near relatives, shall be an offence of defamation.

A will made by a person is enforceable after his death, provided that the will has to be made in favour of a living legatee. The dispositions made in his will are carried out as per his will, which is specifically true in case of charitable purposes. Gifts made by deceased for charitable purposes would be maintainable under law but not otherwise.


In common sense, animals are considered as the objects of rights and duties and never a subject of them. But looking back into legal history, it  reveals that several laws existed which contained punishments for animals if they were found guilty of causing death of a man. Sutherland refers to instances where bulls were punished for killing a man, whereby the bulls are stoned to death and their flesh not eaten[19].

In modern sense animals cannot be punished. If they are extremely dangerous, they can be shot down only  under certain laws according to the procedures prescribed.

An animal is incapable of possessing legal rights and duties. It is considered to be the rights and duties of its owners, which means the owner will be held liable for the damages caused by his animal. A legal duty falls upon owners of animals, especially ferocious animals, to train and control them, any departure from which will be considered as negligence from the part of the owner.

The instances where animals possess some legal rights are as follows-

  • Cruelty to animals is a criminal offence. In india, Sec.11 of Prevention of Cruelty to Animals Act 1960 prescribes punishment for cruelty caused to animals by beating, kicking, torturing, mutilating etc.
  • A trust for the benefit of a particular class of animals, as opposed to one for individual animals, is valid and enforceable as public and charitable trust[20]


In the landmark judgement of Pramatha Nath Mullick v. Pradyumna Kumar Mullick[21], the Privy Council held that an idol is a juristic person and its will as to its location must be duly respected. A similar view was upheld by the Supreme Court of India in Yogendra Nath Naskar v. Commissioner of Income Tax[22], wherein it was held that an idol is a juristic person capable of holding property and of being taxed through its shebaits whom is entrusted with the possession and management of its property.


Courts have conflicting views in this matter. In the case of Maula Bux v. Hafizudeen[23], the high Court of Lahore held that a mosque was a juristic person capable of being sued. But the privy council held a contrary view in Masjid Shahi Ganj[24] case and observed that mosques are not artificial persons in the eyes of law and therefore no suit can be brought by or against them.


The legal systems of both England and India recognizes the legal personality of a corporation. A corporation is an artificial person. There are three conditions that are inferred from the juristic personality attributed to a corporation. These are-

  • There must be a group of human beings coming together for certain purpose.
  • There must be organs through which corporation functions
  • The corporation is attributed will (animus) by legal fiction.

The characteristics of a corporation are as follows

– A corporation has a legal personality of its own distinct from that of its members.

– In a limited liability company no member is bound to contribute anything more than the nominal value of shares held by them[25].

– An incorporated company has perpetual succession which means a company will continue to exist even after its members change or die. In short, members may come and go but company will remain forever[26].

– Shares of the company are transferable in the manner provided by the articles of the company[27].

– As a juristic legal person, a company can sue in its own name and also can be sued in its name[28].

– A company as a separate legal entity is capable of owning its own property. The property of a company is not equated as the property of its shareholders[29].

Lifting of corporate veil

This is a legally recognized doctrine where a court, based on circumstances of the case, alters its perspective and view a corporate and its members in a different light, and hold the members personally liable for the acts committed in the name of corporation, instead of suing the corporation.

The instances where modern company law disregards corporate personality are-

  • Where companies are in the relationship of holding and subsidiary or sub-subsidiary companies, as held in the case of Freewheels (India) Ltd. V. Dr. Ved Mitra[30].
  • When the limited liability of a company ceases to exist due to defying the statutory provision which calls for minimum number of shareholders in a company. For example- if the number of shareholders in a private limited company falls below 2 or fall below 7 in case of public limited company, in such case each shareholder is personally liable to  an unlimited extent, to the creditor for any debt or liability contracted by the company after the expiration of six months from the date the numbers fall below legal minimum, if the member concerned knowingly continued as member.
  • In certain matters concerning law of taxes, debts, duties and stamps, where the question of controlling interest is in issue[31].
  • Under law relating to foreign exchange and controls[32].
  • Under regulations relating to trading with enemy, where the test of control is adopted.
  • Under express provisions of the statute[33].
  • In any other case where it is necessary to lift the corporate veil in the interest of justice and truth.

Liabilities of a corporation

– Civil Liability:

As per the vicarious liability principle, a corporation is liable for the acts committed by its employees or agents during the course of their employment. However, a perplexing question before the courts where whether corporations be held accountable for the acts of its servants that involve malice.

In Stevens v. Midland Countries Railway Ltd[34] and Abrath v. North Eastern Railway Company[35], it was held that corporation being merely a fiction does not possess a mind of its own. Therefore, it is incapable of conceiving any malice and cannot be held liable in an action involving malice.

The decision in Abrath case was overruled in Citizen’s Life Assurance Co. v. Brown[36]. it was told that a company can be held liable for torts involving malice such as defamation. It is now settled that a corporation may be sued for malicious prosecution or deceit or defamation which involves malice as a requirement. However, corporation will not be accountable for acts of its servants which are not authorized by the articles of association of the company.

– Criminal Liability

Previously, companies were not held liable criminally for the acts of its servants. But in the modern view, a corporation may incur criminal liability in cases involving malice, fraud, or other wrongful motives. In India also criminal liability may be imposed upon corporations under the Companies Act and other statutes.


  1. Fiction Theory

Savigny, Kelson, Salmond and Holland are the exponents of this theory. According to them, corporation is merely a fiction. It is a group of persons which by legal fiction are regarded as a real person.

According to Professor Gray, by fiction an abstract entity called the corporation is created and by a second fiction the wills of individuals are attributed to it[37]

A company in law is different from its shareholders or members. The company may become bankrupt, but its members may remain rich[38].

2. Concession Theory

According to this theory, juristic personality is a concession granted by the state. It is entirely the discretion of a state whether to grant juristic personality to a corporation or not. It differs from fiction theory on the ground that the concession theory emphasizes on the State’s power to recognize a corporation.

This over emphasize has been criticized by many jurists as it can open doors to State dictatorship.

3. Group personality theory

This theory supposes that every collective group has a real mind, a real will and a real power of action[39]. this theory was mainly contended by Johannes Althusius and carried forward by Otto Van Gierke. Gierke stated that the existence of a corporation is real and not based on any fiction.  It is a psychological and not a physical actuality. He further stated that the law has no power to create an entity but solely has the right to identify or not to identify an entity.

4. Bracket theory

Ihering, a German jurist is the key propounder of this theory. According to this a juristic personality is only a symbol to facilitate the working of the corporation. Only the members of the corporation are ‘persons’ in true sense and around them a bracket is put to indicate that they are to be treated as one unit when they have formed themselves into a corporation[40].

The main criticism against this theory is that it nowhere prescribes the instance of lifting the corporate veil and holding individual members accountable for their acts.

5. Purpose theory

Here, corporations are treated as persons for certain specific purposes. In Germany foundations are treated as juristic person. A foundation is a trust like setup for charitable purposes. These foundations are treated as juristic personality in order to facilitate legal transactions.

6. Kelson’s theory of legal personality

Kelsons theory tells that personality is only a technical personification of a complex of norms, a focal point of imputation which gives unity to certain complexes of rights and duties[41]. Kelson shows that there is no difference between the legal personality of an individual and that of a corporation[42].


State is the greatest form of social organizations. State is a juristic person who can sue and be sued. Article 300 of the Indian Constitution states that “The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State”[43].

Modern writers attribute sovereignty to state. The state is the sovereign, laws are the state laws, the revenues are state revenue and the public liabilities are state liabilities[44].

 In England the state is not a recognized legal personality. Salmond suggest that existence of monarchy has rendered the attribution of legal personality to the State superfluous[45]. The rights and duties of the state are always regarded as that of the King who is the head of the state. So, there is no independent legal personality for a State.


The concept of legal personality is fundamental in a legal system as it form the basis of the objective of law in a society. Laws are made to govern human conduct in such a manner that the acts of members of society does not cause damages to each other or infringe another individual’s right. It brings in the principle of accountability which is necessary to strike harmony in the society. This concept is not merely constrained to living human beings alone. It extends to unborn persons, dead persons, animals, corporations, idols, mosques, environment and even the state as they all form part and parcel of society and interferes in everyday lives at various levels.


  3. Romit Bhatacharjee, Concept of Legal Personality in Jurisprudence, MEDIUM BLOG,  https://medium.com/the-thinking-press/concept-of-legal-personality-in-jurisprudence-532ae30c3952
  4. R.Sai Gayatri, Legal rights and status of a person, unborn child and environmental resources, IPLEADERS BLOG, https://blog.ipleaders.in/legal-rights-status-person-unborn-child-environmental-resources/
  5. Legal Person , Wikipedia, (Oct 19,2023, 3:08 PM) https://en.wikipedia.org/wiki/Legal_person#:~:text=As%20legal%20personality%20is%20a,treaties%20in%20its%20own%20name.
  6. Persons- Nature of personality ,TOPPR BLOG,(Oct 19,2023, 6:15AM)


[1]Romit Bhatacharjee, Concept of Legal Personality in Jurisprudence, MEDIUM BLOG (Oct 16,2023, 7:12AM) https://medium.com/the-thinking-press/concept-of-legal-personality-in-jurisprudence-532ae30c3952 


[3]R.Sai Gayatri, Legal rights and status of a person, unborn child and environmental resources, IPLEADERS BLOG, (Oct 17, 2023, 7:20AM) https://blog.ipleaders.in/legal-rights-status-person-unborn-child-environmental-resources/

[4] Pramatha Nath Mullick v. Pradyuma Kumar Mullick, 1925 LR 52: Ind. App. 245

[5] Saloman v. Saloman (1987) AC 22

[6] Id at 1

[7] Id at 1

[8] Legal Person , Wikipedia, (Oct 19,2023, 3:08 PM) https://en.wikipedia.org/wiki/Legal_person#:~:text=As%20legal%20personality%20is%20a,treaties%20in%20its%20own%20name.

[9] Persons- Nature of personality ,TOPPR BLOG,(Oct 19,2023, 6:15AM)


[10] (1933) 4 DLR 337 (Canada)

[11] (a890),28 LR 699

[12] Eliot v. Lord Joicey (1935) AC 209

[13] Sec 99(i), Indian Succession Act 1925

[14] Venkata Subbarao: Jurisprudence & legal Theory, 222, (9th ed. 1991)

[15] Id at 1

[16] R. v. Stewart (1840) 12 AD

[17] R. v. Prince (1884) 12 QBD 247

[18] Geneva Convention IV, Art.130


[20] Pettingall v. Pettingall, 11 LJ Ch 176

[21] (1925) 52 IA 245

[22] AIR 1969 SC 1089

[23] AIR 1925 Lah 372

[24] (1940) 67 IA 251


[26] Id at 25

[27] Id at 25

[28] Id at 25

[29] Id at 25

[30] AIR 1969 Del 258

[31] Id at 25

[32] Id at 25

[33] Id at 25

[34] (1854)10 Ex 352

[35] (1886) 11AC 247

[36] (1904 )AC 423


[38] Persons- Dimensions of Modern Legal Personality, TOPPR BLOG (Oct 18, 2023, 11:41 AM) ,https://www.toppr.com/guides/legal-aptitude/jurisprudence/persons-dimensions-of-modern-legal-personality/#:~:text=7.-,Kelsen’s%20Theory%20of%20Legal%20Personality%3A,complexes%20of%20rights%20and%20duties.

[39] Id at 36

[40] Aditi Pande, Theories of Legal Personality, NEXT ADVISOR BLOG, (Oct 19 , 2023, 4:16PM) https://www.thenextadvisor.com/theories-of-legal-personalities/

[41] Id at 25

[42] Id at 25

[43] INDIA CONST. art.300

[44] Id at 25

[45] Id at 25


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