ACKNOWLEDGEMENT

I would like to thanks my faculty Dr. Manoranjan kumar whose guidance

helped me a lot with structuring my project.
I owe the present accomplishment of my project to my friends, who helped
me immensely with materials throughout the project and without whom I
couldn’t have completed it in the present way.
I would also like to extend my gratitude to my parents and all those unseen
hands that helped me out at every stage of my project.

THANK YOU,
Name: Aditya Bhardwaj
B.A. LL.B.
6 th sem
ROLL NO: 1705

1
 DECLARATION PAGE

I Aditya Bhardwaj student of B.A. LL.B. (3rd year) in Chanakya National

Law University declare that the research project entitled “LEGAL
THEORIES OF PERSONALITY” submitted by me for the fulfilment of
Jurisprudence law course is my own work. This project has not been
submitted for any other Degree / Certificate / Course in any Institution /
University.

2
 TABLE OF CONTENT

ACKNOWLEDGMENT 01

DECLARATION 02

1. INTRODUCTION 04
• AIMS AND OBJECTIVES
• HYPOTHESIS
• RESEARCH METHODOLOGY
• SOURCES OF DATA
2. PERSON: MEANING, DEFINITION AND KINDS 06
3. THEORIES OF PERSONALITY 17
• FICTIONAL THEORY
• REALISTIC THEORY
• BRACKET OR SYMBOLISTIC THEORY
• CONCESSION THEORY
• PURPOSE THEORY
4. CONCLUSION 24
5. BIBLIOGRAPHY 25

3
 Introduction:
The main object of law is to regulate the relationship between individuals in the society.
The validity of the acts and omissions of persons is determined on the basis of their
reasonableness. All these acts which do not adversely affect the interest of others are held
to be lawful whereas the acts which interfere with for the protection of interests of
mankind. Therefore rights and duties form the basis for judging legality of man’s acts. The
law imposes liability for unreasonable and unlawful acts1, the enforcement of which is
ensured through legal sanctions. The law being concerned with regulating the human
conduct, the concept of legal personality constitutes an important subject mater of
jurisprudence for there cannot be rights and duties without a person.

ORIGIN OF THE CONCEPT OF JURISTIC PERSONALITY

The word “person ” is derived from the Latin word "persona ” which meant a mask worn
by actors playing different roles in a drama. Until sixty century the word was used to
denote the part played by a man in life. Thereafter, it began to used in the sense of a living
being capable of having rights and duties.
Many writers have restricted the use of the term “personality ” to human beings alone
bcause it is only thy who can be subject-matter of rights and duties, and therefore of juristic
personality. But it must be stated that the term has a far wider connotation in law and
includes gods, angles, idols2, corporation3, etc. though they are not human beings.
Conversely, there may be living persons such as slaves, who are not treated as “person” law
because they are not capable of having rights and duties. Likewise, in Hindu law an ascetic
"sanyasi ” who has renounced the world ceases to have any proprietary rights and his entire
estate is passed on his heirs and successors and his legal personality is completely lost.
All modem times relating to personality resemble one another in one way to the other
because they are derived form the same origin.
The term "personality” in English "personalite" in French, “personlichkeit”, in German are
all derived form the classic Latin word "persona” which originally meant the theatrical
mask put on by the Greek actors on stage while acting in a drama. But this concrete noun
says ALLPORT, got converted and transformed itself into one that is abstract and multiple
in meaning. This gave rise to as many as fifty interpretations of the term “personality”
which have been discussed in detail by G.W.ALLPORT.
The theologist used the term "personality" to designate “the members of the trinity” and
later on the trinity were designate as "personae.
The philosophers made in equal to true essence of life laying more emphasis upon
nationality. Some of the philosophers twisted it to the side of ethics and maintained that
"personality" may be regarded as an ethical rather than a metaphysical conception. There
are still thinkers who-consider personality as "the ideal and perfect attribute of 'being’ –
never fully attained by human kind".
To LOTZE personality was "the dieal of perfection”. The conception of personality as an
ideal is exalted still further in Ramaticism.
GOETHE regarded personality as the "supreme value Jurists did not lag behind. They

1
Legally speaking "acts" also include opinion
2
In India idoels are legal persons as decided by the privy council in Pramatha Nath Mulick V. Pradyuma Kumar Mulick,
1925, LR 52, Ind. App. 252
3
SALOMAN V. SALOMAN (1897) A1 22

4
 interpreted it as "any individual enjoying legal status", And consequently individuals
material possessions with which the law like wise had concerned came to be known as his
“personality”.
The sociologists made it equal to the individual himself. For them “personality” is the
integration of all traits which determine the role and status of the person in society.
Personality, therefore, was interpreted as social effectiveness. The psychologists put it
equal to the assemblage of personal qualities.

AIMS AND OBJECTIVE

• To study about the legal theories of personality.
• To understand the concept of personality.
• To understand the relevance of legal personality.

RESEARCH METHODOLOGY
The research work will be based on the doctrinal method of research. The segments are structured and
written actively. The writing style will be descriptive as well as analytical. The doctrinal method in this
research paper refers to various books, articles. In this research paper the researcher will only use Doctrinal
method.

5
 DEFINITION OF PERSON
The word "person" is derived form the Latin word “persona”. This term has a long history.
To begin with, it simply meant a mask. Later on, it was used to denote the part played by a
man in life. After that, it was used in the sense of the man who played the part. In later
Roman law, the term persona. Last of all the term is used in the sense of a being who is
capable of sustaining rights and duties.
Many definitions of persons have been given by various jurists, they have defined
“persons” in different ways.
The German jurist LITELMANA considers “mil” as the essence of legal personality. To
quote him “personality is the legal capacity of will, the bodiliness of men for their
personality a wholly irrelevant attribute”.
SALMOND defines a “person ” as, “any being to whom the law regards as capable of
rights or duties Any being that is so capable, is a person whether human being or not and
nothing that is no so capable is a person even though he be a man”4.
According to PATON, a legal personality is a particular device by which law creates units
to which it ascribes certain powers. It is merely a convenient juristic device by which the
problem of organizing rights and duties is arised out. He also defines legal personality is a
medium through which some such units are created in whom rights can be vested.
According to GRAY, a person is “an entity to which rights and duties may be attributed”.
According to the German writers: “will is the essence of a personality. A legal person is
one who is capable of will”.
According to MEURER, ‘The jurists conception of the juristic person exhausts itself in the
will and the so called physical persons are for the law only juristic persons with a physical
'super fluim’.
According to KARLOWA, “the body is not merely the house in which the human
personality dwells, it is together with the soul which now for his life is inseparably bound -
with it, the personality. So, not only as a being which has the possibility of willing but as a
being which can have manifold bodily and spiritual needs and interests as a human center
of interests, is a man, a person”.
According to the English and American jurists, a person must have not only a “corpus” but
also “an animus ”. Mere “animus ” or will is not enough. A person is one who has rights
and duties. It is something which can own rights and is capable of doing acts which affect
the rights of others.
SAVIGNY has defined the term "person” as the “subject or bearer of a right" but, as
pointed out by HOLLAND, this definition is not exhaustive. Rights avail against persons as
much as they are reposed in them.
A person is not necessarily a human being. There may be human beings who are not
persons. Slaves are not person sin the legal sense as they cannot have rights. In the same
way, there may be persons who are not human beings. This is particularly so in the case of
corporations.
According to the Hindu law, idols are legal person. Although they have a personality in the
eye of law, they are not human beings. The term “personality ” has a wider significance
than humanity.
Under the Indian penal code the word person includes any company or association, or body
of persons, whether incorporated or not.
4
SALMOND : Jurisprudence (12l1' Ed) P.229

6
 In the philosophical sense, personality is the basis of human being. In the legal sense, it is
the capacity of being a “right and duly hearing unity”. Legal personality is a device by
which law creates units to which it attributes certain legal rights and duties. Legal
personality is an artificial custom of law.
Thus “person” in juristic term are of two kinds namely natural and legal. The former are
human beings capable of rights and duties. Legal persons are beings who may be real
“natural” or imaginary “artificial” in whom law vests rights and duties and thus attributes
personality by way of fiction.

STATUS
Personality should be distinguished from status and capacity. “Status” is a word which is
given various meanings. SALMOND5 says that generally there are four meanings ofthe
word:
1) Legal condition of any kind, whether personal or proprietary.
2) Personal legal conditions, excluding proprietary relations.
3) Personal capacities and incapacities as opposed to other elements of personal status.
4) Compulsory as opposed to conventional legal position.
According to AUSTIN, the complex of rights and duties, or capacities and incapacities
which especially affect a narrow class are term as “status”.
Dr. ALLEN says that “status may be described as the fact or condition of membership of a
group of which the powers are determined extrinsically by law status affecting not merely
one particular relationship, but merely one particular relationship, but being a condition
affecting generally through in a varying degree a member’s claims and power”6.
In short, "status " is condition which arises due to the membership of a class or group and
affects the rights and duties of the members of that class. In other words status indicates the
rights and liabilities which a person ash by virtue of his being a member of a particular
class or group. There are number of grounds which lead to the creation of a status such as
minority, marriage, office and profession, etc. a person can have a number of status at the
same time. He might be a husband, a father, and an office at the same time. The general
principle of status is that when created by the law of one country, it is or ought to be
judicially recognized as being he case everywhere, all the world over”7

CAPACITY:
Capacity means the rights and powers of a person by virtue of his being at a particular
position. A person can have many capacities. If a person is a judge he has the capacity of a
judge as well as the capacity of a citizen at the same time. But the double capacity does not
mean personality. His legal personality is only one. Therefore, a person in one capacity
cannot enter into a contract or an other alike legal transaction with himself in his other
capacity. On the same principle where a creditor become his debtor’s executor, he could
not sue himself. But, later on this hardship was mitigated by giving the creditor a right of
retainer. Similarly in many other cases this rule has been relaxed.

5
SALMOND : Jurisprudence
6
DR.ALLEN . Legal Duties
7
Re Luck’s statement Trust (940) 1 Ch.864

7
 LEGAL POSITION OF AN UNBORN CHILD
“LEGAL STATUS OF UNBORN PERSONS” A child in the mother’s womb has for many
purposes been regarded by a legal fiction as already born, in accordance with the maxim.....
Nasciturus Pro Jam nato baelor.
The fiction was intended that in all matters affecting its interests the unborn child in “utero”
should be treated as already born, but in English law, this fiction has been applied only for
the purposes of enabling the child if it is born to take a benefit8. It has been thought
reasonable that a posthumous child who has lost his father should not be deprived of his
benefits under Lord CAMPBELL’s act for the death of his father9.
In criminal law, too, an unborn child has been recognized in a number of offences. By the
time of COKE, it was well settled law that killing a child in mother’s womb was a crime
but not a felony and if the child was born alive and thereafter died of the pre-natal injuries,
it was murder. Thus, where the head of the child was extruded from its mother’s womb and
the surgeon in charge of the delivery was so grossly incompetent that he crushed the skull
of the child resulting him to death, the surgeon was held guilty of manslaughter10.
In English law, however, it has been doubted whether an infant bom alive is entitled to
recover from injuries inflicted upon before birth11.
In an Irish case, where a claim was advanced by a female infant against a railway company
for injuries inflicted upon her while in her mother’s womb through an accident due to the
defendants negligence, it was hold by the Irish courts that no cause of action was disclosed.
The two of the four judges proceeded upon the ground that the company owed no duty of
care towards a person whose existence was unknown to them, and not upon the ground that
an unborn child possesses, in no case, any right of immunity from personal harm.
But in a Canadian case12, a seven months pregnant woman, who while descending from the
term, was injured by the negligence of Montreal Tramways servants and with the result she
gave birth to a child with deformed feet, was allowed, in an action on behalf of the child, to
recover for the pre-natal injuries.
The rights of an unborn child, whether proprietary or personal, are also contingent on his
birth as a living human being. The legal personality attributed to him by way of
anticipation facts away “ab initio ” if he has never taken his place among the living.
Abortion and child destruction are crimes, but such acts do not amount to murder or
manslaughter unless the child is born alive before he dies. Similarly, a posthumous child
may inherit, but if he dies in the womb, or is still born, his inheritance fails to take effect,
and none can claim through him, though it would be otherwise if he lived for an hour after
his birth. Again, though the law attributes no right to a person not yet even conceived, it
may protect their interests.
In India, too the principle laid down in Tagore V. Tagore13, that a person to be entitled to
take under a will must in fact or in contemplation of law be in existence at the time of the
testator’s death, has apparently been attired by the tree acts, viz.
1) The Hindu transfers and bequests act, 1914;

8
ELLIOT V. JOICEY (1935) A.C. 209 at P.238
9
The Goerge and Richard (1871) L.R.3ad & Ecc 466
10
R.V.Senior, (1832), Mood CC 344, R.V.West, (1948), Car & Kir 784
11
WINFIELD : Text book ofthe Law ofTort, (4th Ed.) PP 596; University ofToronto Law Jour. (1942) P.278
12
Montreal Tramways Co. V. Leveilie, (1943) 4 DLR 337, See also Pinchin N.O. V Santam Ins Co. Ltd
13
Tagore V. Tagore, (1872) Beng L.R. 377

8
2) Hindu disposition of property, act, 1916;
3) The Hindu transfers and bequests “city of Madras ” act, 1921...
With the result that the bequest can be made to unborn persons, subject to the limitations
and provisions contained in section-113, 114, 115 and 116 of the Indian suggestion act,
1925. The limitations and the provisions with respect to gifts "inter vivos” on behalf of
unborn persons were contained in Chapter II of the transfer of property act, 1882, which
did not originally apply to the Hindus,"' but has now been extended by the transfer of
property “amendment ” act XX of 1929. Sections 13 to 16 of the transfer of property act
deal with the limitations and provisions concerning gifts made in favour of unborn persons
and they correspond to sections-113 to 116 of the Indian succession act concerning wills.
All these sections which are similar in substance assume that gifts and wills made in favour
of unborn children are valid under certain limitations and provisions contained in these
sections. From this what can be inferred is that the interests and benefits of an unborn are
well protected under Indian law.
In briefly, unborn children are persons in the eye of law. Property can be transferred in
favour of unborn children. Unborn children become contingent owners. The ownership
become vested in them of their birth. A child “en venire sa mere ” or in other words a child
in the mothers womb is indisputable a legal person. An injury to a child in the womb is an
offence under the criminal law. The interests of the unborn in the womb are thus
recognized and protected by the law. They can sustain a legal personality.
An unborn person has contingent or qualified kind of legal personality. In this connection it
may be noted that a child in its mother’s womb is, for certain purposes, regarded, by a legal
fiction, as already born. These purposes are:
1) The acquisition of property by the child itself, or
2) Being a life chosen to form part of the period in the rule against perpetuities.
The recognition of the legal personality of a child in the womb’s illustrated in the case of
procedure that a pregnant woman condemned to death is not execute unless she has been
delivered of her body. Similarly it has been hold that a posthumous child is entitled to
compensation for the death of his father.
But the personality of an unborn person is contingent on his being born as living being.

LEGAL STATUS OF DEAD MAN :

The question whether the deceased continues to have legal personality requires careful
consideration. Let us see whether the dead have any legal rights. The testaments of the dead
are respected and enforced by the law. This does not mean that the dead have a right to
have their wills enforced. The will is enforced in the interest of the living legates to whom
property is bequeathed. If the will does not contain any disposition of property in favour of
any human legatee, it will not be enforceable. This shows that right to have a will enforced
is not that of the testator but only that of the living legates.
The reputation of the dead is also protected by the law. A libel on dead persons may be
actionable in a court of law. This is, however, not a recognition of any right in favour of
tire dead. The living relations of the deceased would be harmed by defamatory statements
against him.
That is why such defamation is made actionable. It is obvious that the dead have no rights.
That they have no duties clear enough, for they are beyond the reach of the sanctions of
law. So deceased persons lose their personality with their lives.

9
 In law, the dead are things, not persons. Being not punished after their death, they is not
entitled to any rights, though in following cases they have been given some rights.
1) Right of reputation.
2) Right of will
3) Right of decent burial.
SALMOND observes that generally speaking, 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 having rights since they cease to any
interests nor do they have any duties. A dead man’s corpse is not "property” in the eye 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 or organ of his body but there has
been a change in trend in modern times and today 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.
SALMOND points out three things in respect of which anxieties of living men extend
beyond the period of their deaths, of which law will take notice. They are men’s body; her
reputation and his estate14.
Though the dead man’s corpse is the property of no one the law, however, seeks to ensure
its decent burial15 or cremation16. The criminal law provides that any imputation against a
deceased person, ifit harms the reputation ofthat person of living, and is intended to hurt the
feelings of his family or other near relatives, shall be an offence of defamation under
Section-499 ofthe Indian penal code17.
The reputation of dead man is to some extent protected by the law. The defamation against
a dead person is no doubt punishable under the criminal law but only when it affects the
interests of his relatives and near-ones who are living. The right so protected is in really not
that of the dead man but that of his living descendants18.
It is true that dead persons are not recognized as legal persons but the testamentary
dispositions of the dead are carried out by law. A person, can by his will make a valid trust
for repairs and maintenance of the graveyard because it amounts to a charitable or public
trust but he cannot, by a direction in his will provide that certain parts of his estate shall be
permanently used for the maintenance of his own grave or tomb. Such a direction would be
void and unenforceable being against the rule of perpetuity. The law of succession permits
the desires19 of the dead man to regulate the action of his successors. Whatever gifted by
the deceased for a charitable purpose, shall be enforceable by law and the testament to that
extent shall be valid.

LEGAL STATUS OF ANIMALS:

Law does not recognize beasts or lower animals as persons because they are merely things
and have no natural or legal rights. SALMOND regards them as merely objects of legal
rights and duties, but never the subjects of them.
Beasts being incapable of legal rights and duties, their interests are not recognized by law.
Though, legal history reveals that archaic codes contained provisions regarding punishment

14
SALMOND . Jurisprudence (12th Ed.) P.301
15
R.V.STEWART : (1840) 12 AD and El 773
16
R.V. Prince, (1884) 12 QBD 247
17
Explanation 1 of the Sec.499, 366
18
R V.ENSOR, (1887) ILR 366
19
DRAIVIASUNDARAM V. SUBRAMANIA, 145 MLJ, 210 (Mad.)

10
 to animals if they were found guilty to homicide20. Even under the modem law the
trespassing beast may be detrained “damage feasant", and detained until its owner or some
one else interested in the beast pays compensation to the person wronged.
SUTHERLAND, in his principles of criminology, has referred to an interesting trial of
some rats in 1519. They were charged and tried for ravaging the fields of a farmer. The
counsel for the defendant rats pleaded that no doubt their clients had caused severe damage
to the plaintiff but at the same time the numerous holes made by their clients made the soil
of the plaintiff more fertile. The court rejected the defence and awarded the sentence of
punishment. The court, however, ordered that while executing the sentence, care should be
taken that the rats are duly protected from dogs, cats, howls, etc. so much so that taking a
lenient view towards pregnant female -rats, the court ordered to stay the execution of their
sentence until they delivered the offsprings.
The modem law, however, holds the master liable for the wrong caused by their pets,
beasts and animals. The liability so imposed on the master does not arise out of the
principle of vicarious liability but because of his negligence in keeping the animal well
within control. Likewise, a wrong done to a beast may be a wrong to its owner or to the
society of mankind, but not to the beastr The law, however seeks to extend protection to
animals in two ways, namely,
1) Cruelty to animals is an offence and
2) 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.
For example, a trust for the maintenance of a home for stray-dogs and broken-down horses
was held to be a valid and enforceable trust being charitable in nature.
In Re Dean, Cooper Dean V.Stevens a testator vested his property in trustees for
maintenance of his horses and hounds. North J. held that it was not a valid trust enforceable
in any way on behalf of these non-human beneficiaries. Therefore the trustees were free to
spend money in the manner indicated by the testator if they so pleased, but even if they did
not apply the money for this purpose, it would not amount to a breach of trust. It is thus
clear than animals and beasts neither have rights nor duties and are, therefore, incapable of
sustaining a legal personality.
As SALMOND rightly suggest, the duties towards animals are in fact duties towards the
society itself. The society does have an interest in the protection and well-being of the
animals.
A reference may be made about the police-dog used for detection of crime and criminals.
Despite the fact that they play a crucial role in apprehending offenders, it must be stated
that a conviction cannot be based solely on the evidence of a poice-dog unless it is
corroborated by other supporting evidence. The reason being that the police-dogs cannot be
subjected to cross examination like human beings. This again supports the contention that
animals do not have legal personality.
Briefly, "the legal status of lower animals". Beasts are not persons either natural or legal.
They are merely things. They are often the objects of legal rights and duties, but never the
subject of them. In ancient codes, animals were however punished for their wrongs.

20
' SUTHERLAND refers to certain instances when beasts were punished. If an ox gores a man or a woman to death,
then he was stoned and his flesh was not eaten. In Germany, a cock was charged and accused of contumacious crowing.
It was brought in the witness box and tried. But the counsel failed to prove the innocence of his feathered client hence it
was killed. In ancient Greek law also there are evidences of animals and trees being punished like human beings -
SUTHERLAND • Principles ofCriminology, P.44

11
 The modem law does not recognize this but shows a relic of it in the rule that a trespassing
beast may be distrained damage feasant and kept until the owner pays compensation.
That which is hurt to beast is in law a wrong to its owner, it is no wrong to the basic. Beasts
can be no owner of property. In two cases beasts possess legal rights:-
1) Cruelty to animals is a criminal offence.
2) A trust for the benefit of particular class of animals “as opposed to one for individual
animal ”
The beast otherwise has no rights and liabilities at law and wherever the interests of
animals conflict with that of human beings, tire latter are preferred.

LEGAL STATUS OF IDOL AND MOSQUE :

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 historic case of... Pramatha Nath Mullick V.
Pradymumna Kumar Mullic held that 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.
Similar view was reiterated by the supreme court of India in.. .Yogendra Nath Naaskar V.
Commissioner of income tax21 where in it was held that an idol is a juristic person capable
of holding property and of being taxed through its "shebaits ” who are entrusted with the
possession and management of its property. An idol can be treated as a unit of assessment
for assessing its liability under the income tax act. The court further observed that if the
idol “deity” is allowed in law to own property, there is no reason why it should not be
liable to be taxed under the law of-taxation. It is because of the legal personality of idols
that the rule against perpetuity does not apply in case of religious endowments .

Idols and funds... was considered to be a juristic person. It owned property. It could sue and
could be sued. A fund dedicated for a religious purpose was also of the nature of legal
person. It has certain rights and received certain protection from law, such as the property
dedicated to a “math".
Now a brief account of the position of legal personality in modem times shall be given.
As regards the legal personality of a Mosque, the courts have expressed conflicting views.
In Maula Bux V. Hafizudding22the 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 Shahid
Ganj23 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. However the privy council left the
question open whether for any purpose a mosque can be regarded as juristic person.

DOUBLE CAPACITY DISTINGUISHED FROM DOUBLE

PERSONALITY:
According to SALMOND, English law recognizes many different capacities in which a
persons may act. At times he has power to do an act in an official or representative capacity

21
(1969)3 SCR 742
22
IAR 1925 Lah 372
23
(1940) 67 1A -251

12
 which he has no power to do in his private or individual capacity. Thus a man may have
two or more capacities but he has no power to enter into a legal transaction with himself.
Therefore double capacity does not mean double personality. For example a director of a
company may also be a trustee of a trust, thus he may have two distinct capacities
nevertheless his personality remaining single. The English law did not recognize double
personality and therefore, a person could not sue himself24, or contract with himself or
convey properly to himself in the guise of double capacity.

SALMOND contemplates certain hardship25 on account of non-recognition of double

personality in English law but the exceptions being far and few, the rule that no one can
enter into a legal transaction with himself still subsists.
In briefly, English law recognized many different capacities in which a man may act. Often
he has power to do an act in an official or representative capacity when he would have no
power to do the act in the private capacity or on his own account.
A man may have more capacities but this does not give him the pweor to enter into legal
transaction with himself. “Double capacity does not connote double double personality.
This rule worked hardship in many cases and this had to be mitigated e.g. when a creditor
became his debtor’s executor, the rule that he could not sue himself for the debt was
mitigated by giving him a right of retainer.
In short, the English law generally does not recognize double personality though it
recognizes double capacity.

KINDS OF PERSONS:
Law recognizes only two kinds of persons, namely...
1) Natural persons, and
2) Legal persons
Who are artificial creations of law. Legal persons are also known as artificial,juristic or
fictious person.

Natural Persons:
A natural person is a living human being. But all living human beings need not necessarily
be recognized as persons in law.
According to HOLLAND, “ a natural" persons is “such a human being as is regarded by the
law as capable of rights and duties in the language of Roman law, as having a status
According to another writer, natural persons are “living human beings recognized as
persons by the state The first requisite of a moral human being is that he must be
recognized as possessing a sufficient status to enable him to possessing a sufficient status
to enable him to possess rights and duties. A slave in Roman law did not possess a
personality sufficient to sustain legal rights and duties. Inspite of that, he existed in law
because he could make contracts which under certain circumstances were binding on his
master. Certain natural rights possessed by him could have legal consequences if he was
manumitted. Likewise, in Roman law, an exile or a captive imprisoned by the enemy
forfeited his rights. However, if he was pardoned or freed his personality returned to him.
24
Per Beast C.J. in Neale V. Turton (1827) 4 Bing 149 (151)
25
for example where a creditor became his debtor’s executor, the rule that he could not sue himselffor debt created
hardship, but it was mitigated by giving him right of retainer

13
In the case of English law, if a person became an outlaw he lost his personality and thereby
became incapable of having rights and duties.
The second requisite over, he must possess essentially human characteristics.
For example, before the abolition of slavery, the slaves were considered as ‘res’’ and were
devoid of any legal personality for they could have no rights and duties. Again lunatics and
infants have truly a restricted legal personality. They do not have civil rights such as right
to vote, etc.
In other words, a natural person is a human being. But all human beings are not legal
persons. In olden days tire slaves were not considered legal persons. Tire case of the slave
is well known that they were treated no more than the mere chattels. Similarly, a person
who takes a religious or holy order or enters a monastery has in certain system been treated
as civilly dead.
In Hindu society, too, when a person becomes a “sanyasi" his proprietary rights extinguish
and his property goes to his heirs as if he were dead.
At one time, human beings who had been declared "outlaws " were not regarded as persons
in the eyes of the law and killing them was not homicide.
Lunatics, new born babies and infants, have, however, been said to have limited and
restricted rights. They do not possess as many civil rights as nor mal human beings do
have. Though in modern times, it has been the tendency to grant legal personality to all
living within the territory of the state, the most systems, however provide a rule that
wheresoever legal personality is granted it begins at birth and ends with death.
Important persons and outcastes are excluded from a share of the heritage; and so are
persons born blind and deaf; as well as mad men, idols, the dumb and those 1 who have
lost a sense of a limb.
According to HOLLAND, ‘natural person” is "such a human being as is regarded by the
law as capable of rights and duties - in the language of Roman law, as having a status
According to another writer, natural persons are “living human beings recognized as
persons by the state”. The first requisite of a normal human being is that he must be
recognized as possessing a sufficient status to enable him to possess rights and duties.
A slave in Roman law did not possess a personality sufficient to sustain legal rights and
duties. Inspite of that, he existed in law because he could make contracts which under
certain circumstances wer binding on his master. Certain natural rights possessed by him
could have legal consequences if he was manumitted. Likewise, in Roman law, an exile or
a captive imprisoned by the enemy forfeited his rights. However, if he was pardoned or
freed, his personality returned to him.

Legal Persons:
Legal persons are real or imaginary beings to whom personality is attributed by law by
way of ‘'fiction ” whereas it does not exist in fact.
Juristic persons are also defined as these things, mass or property, group of human beings
or an institution upon whom the law has conferred a legal status and who are in the eye of
law capable of having rights and duties as natural persons.
Law attributes by legal fiction a personality o some real thing. A fictitious thing is that
which does not exist in fact but which is deemed to exist in the eye of law.
There are two essentials of a legal person and these are :

14
i) The corpus. And
ii) The animus.
The corpus in the body into which the law infuses the animus, will or intention of a
fictitious personality.
The animus is the personality or the will of the person. There is a "double fiction ” in a
juristic person is created or made an entity. By the second fiction, it is claimed with the
will of a living being.
Juristic persons come into existence when there is in existence a thing, a mass of property
an institution or a group of persons and the law attributes to them the character of person.
This may be done as a result of an act of the sovereign or by a general rule prescribed by
the government.
A legal person has a real existence but its personality is fictitious. Personification is
essential for all legal personality but personification does not create personality.
Personification is a mere metaphor. It is used merely because it simplifies thought and
expression.
A firm, a jury, a bench of judges or a public meeting is not recognized as having a legal
personality. The animus is lacking in their case.
According to SALMOND, a legal person is any subject mater other than a human being to
which the law attributes personality. This extension for good and sufficient reasons of the
concept of personality beyond the class of human .beings is one of the most noteworthy
feats of the legal imagination.
The law in creating legal persons, always does so by personifying some legal thing.
Personification, however, conduces go greatly to simplicity of thought and speech that its
aid is invariably accepted. The thing personified may be termed the corpus of the legal
person so created; it is the body into which the law infuses the animus of a fictitious
personality.
Therefore, SALMOND rightly remarked that although all legal personality involves
personification, the converse is not true. It simply mean that personality is a definite legal
devised for compnendour expression. It is for the law only to recognize an entity as a legal
person by devolving personality upon that entity. This devolving of personality is known
as personification but this does not mean that all types of personification mean legal
personality.

PERSONALITY STARTS WITH BIRTH

When a child is born alive he is considered to be a person in the eye of law. For some
purpose, the maxim "naxciturus pro im nato habelur” also applies. In English law is
applied to enable the child only if he is to take a benefit. Such child “in the womb ” is
considered as a life chosen to for part of the period in the rule against perpetuities. In
Hindu law a child in womb is considered in existence “in case of partition" and he inherits
the property if he is born alive. If a partition takes place among the co-parceners “while the
child is in womb ” a share is to be reserved for him. If the share is not reserved then the
partition would reopen and the new born boy would take the same share which he would
have taken if he was born before the partition. Apart from these rights he is considered to
be capable of owning personal rights also. If a pregnant woman is awarded death sentence,
the execution of the sentence shall be postponed till she is delivered of the child. Abortion
and child destruction are crimes. In English law killing of a child amounts to murder only
when the child is completely born alive. The offence is the same “murder" where the

15
 injuries are inflicted while the child is in the womb but he is born alive and dies afterwards
due to the injuries so inflicted. In India the law is different. "The causing of the death of a
child in the mother’s womb is not homicide. But is may amount to culpable homicide to
cause the death of a living child, if any part of that child ahs been brought forth, though the
child may not have breathed or completely born26 It means that if any part of the body of
the child has emerged from the mother’s body, to cause any injury to the child to sue for
torts are concerned, the law is still unsettled on this point. In England it was held that a
posthumous child is entitled to compensation under Lord CAMPBELL’s act for the death
of his father27.
PERSONALITY ENDS WITH DEATH: CERTAIN RIGHTS PROTECTED AFTER
DEATH
The rights are generally created at birth and they extinguish at death. But the law, in
certain matters, recognizes and protects the duties and interests of the deceased. There are
three rights in this respect i.e..about the deceased’s body, his reputation and his estate. Law
secures decent burial for all dead men and the violation of a grave is criminal offence. In
certain societies law permits the certain of trusts for worship at the tomb of the deceased
and it enforces such trust. The reputation of the deceased receives protection from law in
certain cases. According to maxim “de mo tius nil nisi bonum ” (dead have no rights and
can suffer no wrong), the libel to the dead is not an offence in the eye of law, but if the
publication of a defamatory matter about the deceased brings scandal on his family “on
living persons ” and provokes them to commit breach of peace, it is misdemeanor to
English law. There are similar provisions in Indian law, “it may amount lo defamation to
impute anything to a deceased person, if he imputation 'would harm the reputation of that
person if living and is intended to be hurtful to the feeling of the family”. The law respects
the desires of the dead person regarding his estate, and his estate devolves according to his
will if he has left any. Subject to these expectations the general theory is that the
personality begins at birth and ends at death.

26
See Indian penal code, I860, Sec.299, Explanation, 3
27
The Gorge and Richard (1871), LR 3 Ad. Ed466

16
THEORIES OF PERSONALITY:

DIVERGENCE BETWEEN THEORY AND PRACTICE

There are various theories of corporation personality which have attempted to theory, the nature
and authority of it. This might make one to gather that theoretically all the legal problems
regarding juristic persons have been fully explored but this is not true. There is a great
divergence between theory and practice. Anyone theory alone is not capable of solving the
problems fully. Therefore, the courts have not followed anyone theory consistently. The reason
of the gap between theory and practice is that the theorists have kept themselves more occupied
with either a philosophical explanation of legal personality, or in making it to fit in some
political ideology than with the practical problems.
Writers have expressed conflicting views regarding the exact nature of corporate personality.
These vies find expression through different theories of corporate personality which are as
follows:
1) Fiction theory;
2) Realistic theory;
3) Bracket theory;
4) Concession theory
5) Purpose theory

Fiction Theory
This theory is expounded mainly by SAVIGNY, SALMOND, KELSON and HOLLAND.
According to this theory, a corporation is clothed with a legal personality. The personality of a
corporations is different from its members. The theory says that only human beings can property
be called "persons”. Same kids of groups, etc. are regarded as persons for certain purposes only
by a fiction of law and they have no real personality. This theory is most applicable to English
law where the courts have not proceeded on any hard and a fast principle in this recognition of
juristic persons. There is much flexibility in the theory and it can accommodate the various
decisions “which are sometimes divergent also” or legal personality. 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.
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 by fiction, are attributed
to the corporate entity28. As a result of this, change in the membership does not affect the
existence of corporation or its unity. SAVIGNY further pointed out that there is double fiction n
case of a corporation. By one fiction, the corporation is given a legal entity, by another it is
clothed with the will of an individual. Thus fictitious personality of a corporation has also a will
of its own which is different from that of its members.
Sir JOHN SALMOND also supports the view that a corporation has a fictitious existence. It is
distinct from its members and capable of surviving even after all the members have ceased to
exist. A company incorporated by an act of / parliament can only be dissolved by another such
act.
KELSON also regards legal personality as a fiction. To quote his words, "it is the convenient
peg upon which to hang legal rights and duties. Thus, a group of persons or a successive series

28
SAVIGNY : Systems of Modem Roman Law (Translated by Ratingon) P.181

17
of persons is a legal person because it has an imaginary personality by the fiction of law”.

Professor GRAY justifies fiction theory on the ground that the main object of incorporating is to
protect the interests of person having common objectives. Like fictitious personality, the will of
the corporation is also an imaginary creating of law29.
Sir FREDERICK POLLOCK in a. learned essay on the fiction theory of corporation "30 has
shown that the English common law has given no countenance to the fiction theory of corporate
personality. The fact, however, remains that in English law neither collective liabilities nor
collective powers can be incurred or claimed by a body of individuals. Unless it can satisfy the
requirements of incorporation. Unincorporated bodies are not treated as legal persons in English
law. Before a body of persons can have rights and duties in their corporate • character they have
to produce an authoritative document having the approval of the state which defines the purpose
for which it exists, the means by which tis will is manifested, the extent of the liability
undertaken by each of its members and so forth. An ordinary social club, for instance, though it
plays a large part in English life has no recognition as a legal person in its collective capacity.
The club can neither sue nor be sued in its own name unless it has formally submitted to an act
of incorporation as prescribed by the law. It is therefore clear that English law favours the rigid
theory that corporate personality is a mere pretence of he law and entirely dependent upon the
fiat of the state.
Dr.JENKS observes: “There would it may be suggested be little practical difficulty in the
working out of a more liberal view of the collective person than that adopted hitherto by English
law”31.
As matters stand at present, however the classical fiction theory thus holds, the field in English
though, as will presently be seen, it is being seriously assailed by the exponents of the realist
theory.
The fiction theory thus believes that incorporation is a fictitious extension of personality
resorted to for the purpose of facilitating dealings with property owned by a large body of
natural persons. The fiction theory, however, fails to answer satisfactorily the civil and criminal
liability of corporations. It is assumed that the will of the corporation is attributed to it by the
fiction of law, then it leads one to infer that it must always be lawful as the will conferred by
law can be never be for unlawful or illegal ends. It, therefore follows that the corporation would
always do “intra vires” acts and never indulge into acts which are “ultra vires”. Thus, it can
never have "mensrea ” which is an essentials ingredient for a criminal act.
The fiction theory has been criticized by Sir FEDRICK POLLOCK who refutes the acceptance
of the theory in the common law of England. He maintains that under the English law neither
collective liabilities nor collective power can be claimed by a body of individuals unless they
are duly incorporated under the existing law. In other words unincorporated bodies are not
treated as legal persons in English law. So also is the position in Indian law. An ordinary law
cannot be treated as legal person in its collective capacity. It can neither sue nor be sued unless
it is duly restricted under the relevant law. Thus, corporate personality is a mere creation of law.

Realistic Theory
This theory has another name also i.e. “organic theory”. The main exponent of this theory is
GIEREK, the great German jurist. He has been followed by MAITLAND, BESELER,

29
GRAY : Nature and Source of Law, P.55
30
POLLOCK : Essays in the Law, (suv voce)
31
JENKS : The New Jurisprudence, P.156

18
LASSON, BLUNTSCHULI, ZITELMANN, MIRAGLIA, Sir FREDERICK POLLOCK,
GELDARI, POLLOCK, JETHROW BROWN, etc.
Realist 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 persons are
real in the same sense in which human beings 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 will biological organism leads with the theory to absurdity. Closely linked with
“realist theory is “institutional theory” It has been propounded by a French jurist HAURIOU.
This theory is based on collectivist outlook. It says that the individual is integrated into the
institution and becomes a part of it. Different interpretations have been given to the theory and
have been used to serve divergent purposes. Pluralists interpretation is that there can be
independent institutions within the institution of state "they consider state only as a supreme
institutions”. Fascist interpretation is that the state is the only institutions and other institutions
within it are parts of it, and, therefore, they must function according to the direction of the state.
By putting this interpretation they used the theory to suppress other individuals.
It is a real person possessed of a real will of its won and capable of actions and responsibilities.
It is a personality that is recognized and not created by law.
GIERKE the great German jurist, he 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. The corporate will of the corporation finds
expression through the acts of its directors, employees or agents/The existence of a corporation
is real and not based on any fiction. It is a psychological reality and not a physical reality.
Professor GRAY, however, denies the existence of collective will. He calls it a figment to quote
his own words, “to get rid of the fiction of an attributed will by saying that corporation has a
real general will is to drive out one fiction by another”32. Psychological research has shown that
the association of many persons produces a "will” distinguishable from that of the separate
members of the group. From the interpretation of many wills there arise a single group or
corporate will which is distinct from the totality of the wills of its members and which inspires
the action taken by the group just as an individual will of a man inspires the man’s own action.
As DICEY observed "when a body of twenty, or two thousand, or two hundred thousand men
bind themselves together to act in a particular way for some common purpose, they create a
bond which by no fiction of law, but by the very nature of things differs from the individuals of
whom it is constituted”. If individual consciousness and individual will invests an individual
with personality, group consciousness and group will invest the group with a personality of the
individual. MIRAGLIA observes : “the corporation is in a certain aspect more real than the
individuals, because it possesses greater complexity of parts and represents a higher form of
evolution ”33. When it is said that corporate personality is a reality it is not suggested that a
corporation is an actual person. All that is meant is that a corporation is a representation of
physical realities that exist independently of the flat of the state and are recognized rather than
created by it. The conception of group personality belongs thus to the world not of material but
of psychical realities. Prof. GRAY denies the reality of a collective will. He observes, “a
collective will is a figment to get rid of the fiction of an attributed will by saying that
corporation has a real general will is to drive out one fiction by another’’34. Sir JOHN
SALMOND is of the view that even if the group will is a reality, it is not possible to concede,

32
GRAY . Nature & Sources of Law, P 55
33
MIRAGLIA : Comparative Legal Philosophy, P.371
34
GRAY : Nature and Sources of Law, P.55

19
“the reality of the unitary national entity which may in law survive the last of its members"35.
He further points out that the realist theory is inapplicable to a “corporation sole”. The
attribution of personality to the succession of the holders of certain offices where there can be
no pretence to psychological unity, is regarded by him as destructive of the realist theory of
corporate personality. It may, however, be observed that as pointed out by GRAY, “a
corporation sole is not a fiction or juristic person, it is simply a series of natural persons some of
whose rights are different and devolve in a different way from those of natural persons in
general"36 .
Even English law is now tending in the attention of according recognition to collective persons
as real persons.
In Willmott V. London Road Car Company37 a lessee covenanted not to assign or underlet
without the consent of the lessor, which was not to be withheld in respect of “a respectable and
responsible person ’. It was held that the word “person ’ in the covenant included a corporation.
That group of collective personality is a reality cannot now be seriously disputed in the light of
the present day knowledge of mass psychology. Once it is realized that for the real existence of
incorporeal persons physical perception to the senses in unnecessary, it would be easy to see
that moral entities are real organisms, endowed with a real will can sustain legal personality
since they are efficient subjects of rights. Fascists have made use of the realistic theory of
corporate personality to support the omnipotence of the state. The realistic theory opposes the
contention of the concession theory that personality is attributed by the state. Some other
continental jurists such as BLUNTSCHLI, BESELER MIRAGLIA have also supported the
realistic theory.
In England it was supported by POLLOCK, MAILAND and Dr.JETHRO BROWN. DICEY
also contends that the personality of a group is a reflection of its consciousness and will. Thus,
group personality is as real as the personality of an individual.38.
J.C.GRAY, has criticized the realistic theory pointed out that collective will can have no reality,
’t is nothing but a mere fiction. SALMOND also holds that even if it is assumed that the group
will is a reality, the reality of the unitary national entity which may in law survive the last of its
members cannot be conceded to39. He further argues that the realistic theory cannot be applied
in case of corporation sole because it is simply a series of natural persons whose rights are
different from those of natural persons in general.
The main different between fiction theory and realistic theory lies in the fact that the former
denies that corporate personality has any existence beyond what the state chose to give it, the
latter holds that a corporation is a representation of physical realities which the law recognizes.

Bracket Theory-Or Symbolist Theory

This theory says that he members of the corporation are the only persons who have lights 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 the 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 weakness also. The contention of the theory that only human
beings have personality and the group is so far from the truth. In modem times, it is agreed on
35
SALMOND : Jurisprudence, P.432
36
GRAY • Nature and Sources ofthe Law, P.58
37
(1910)2 Ch 525
38
MIRAGLIA • Comparative Legal Philosophy, P.371
39
SALMOND : Jurisprudence (12lh Ed.) P.328-29

20
all heads and is fully established that corporation has a legal personality which is separate and
distinct from its members and it has entirely different rights and duties. It is the separate
personality that enters into the contract and other legal transaction with others. How a person
can enter into contract with a bracket? This question hits at the very not of the theory. An
important implication of theory is that law can remove the bracket at anytime and can look
behind the entity to discover the real state of affairs.
Simply says that, bracket theory means the members of a corporation are the bearers of the
rights and duties which are given to corporation for the sake of convenience. It is not always
practicable or convenient to refer all the innumerable members of a corporation. A bracket is
placed around them to which a name is given. That bracket is the corporation.
The bracket theory is associated with the well-known German jurist IHRING. According to this
theory juristic personality is only a symbol to facilitate the working of the corporation bodies.
Only the members of the corporation are “persons" in real sense 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.
The supporters of Bracket theory argue that just as a synonymous word is put within brackets to
give an equivalent meaning, so also collective form of a group of different individuals is
expressed through a corporation and their separate identifies are given a unified form. Thus
incorporation is done merely for the sake of convenience. The American juristic HOHFELD has
advocated this theory in a different form. In his view corporate personality is the creation of
arbitrary legal rules designed to facilitate proceedings by and against an incorporated body in
law-court.
SALMOND criticizes the theory of group person on two grounds. It is not applicable to a
corporation sole as we cannot have any group-mind or group personality. Moreover, a
corporation aggregate can exist even there is only one surviving member or there is no member
at all. Collective will is considered to be a fiction and it is pointed out that to replace the fiction
theory, by realist theory, is to drive out, one fiction by another fiction.
According to KEETON, “if corporations exist independently of state recognition, there must be
a number of corporate personalities which have not yet received legal recognition. The state
may concede legal existence but which are united simply to achieve together limited ends”.
According to KELSON, legal personality is itself nothing but a fiction. Legal order can attribute
legal personality at will. If it wishes to do so, it can personify things, institutions or groups;
"juristic and physical persons ” are essentially on the same plane. The physical person is the
personification of the sum total of legal rules applicable to one person. The juristic persons is
the personification of the sum total of legal rules applicable to a plurality of persons.

Concession Theory
This theory quite close to the Yiction theory . The supporters of one are thee supporters of the
others-. The man characteristic of this theory is that it treats the dignity of being a “juristic
person as having to be conceded by the state, that is, the law. The identification of law with state
is a "sne qua non ” for this theory, where as no such condition is necessary in the case of fiction
theory.
It is, thus, by grace or concession alone that legal personality is granted created or recognized.
So far as this theory maintains that grace of law or of the state is the only source form which
legal personality may flow, the theory states a truism. It states truism is the sense only that all
rights whether human or corporate, emanate from what the law gives, and where the law does
not provide anything, at least, its recognition is essential to validate, maintain or perpetuate what
already exists or is conferred by nature or what man has taken or created for himself. The

21
concession theory, is thus, the necessary concomitant of any theory of unfettered state
sovereignty. One value of the theory is that it has been used for political purposes to strengthen
the state and to suppress the autonomous bodies within the state40. No such body has any claim
to recognized as a person. Since this theory is regarded as laying down the sociological truth
that all group life, "as apart form the mere grant of legal personality" is created by the state, it is
then both mischievous and erroneous41.
In other words, 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. This theory has been used in many cases to suppress autonomous institutions. It
differs from the fiction theory in one important respect. It is that the former identifies law with
the state which the latter does not.

Purpose Theory
The main exponent of this theory was BRINZ, the noted German jurist. The theory is founded
on the view that corporations are treated as “persons" for certain specific purposes. The
assumption that only living persons can be the subject-matter of rights and duties; would have
deprived imposition of rights and duties on corporations which are non-living entities. It,
therefore, became necessary to attribute “personality" to corporation for the purpose of being
capable of having rights and duties.
The origin of purpose theory is to be traced back to “stiftung", i.e. “foundations" which were
treated as juristic persons. A foundation is analogous to a trust for specific charitable purpose
such as propagation of education, grant of scholarships, etc. Those foundations were attributed
juristic personality in Germany in order to facilitate legal transactions. The “stiftung” being a
kind of charitable fund, was not a real person, therefore, it was personified for the specific
purpose for which it was created.
Dr. FRIEDMANN analysed these different theories of juristic personality and concluded that
almost all of them had a political significance and their role in attending to the legal problems
has only been rather secondary42. The fiction theory of juristic personality is founded on
psychology of man which is inevitable part of human nature. In its purest form, this theory is
completely, free from any political influences but the concession theory which is derived from
fiction theory, necessarily has as political inkling which aims at strengthening the power of the
state thus enabling it to keep the collective groups fully under control. The concession theory
was extensively used to tae over the property of church during the French revolution. Likewise,
the realistic theory is also predominantly political rather than legal, in its objectives. It is based
on organic theory of the state which are supported by fascists to uphold supremacy of the state.
Though jurists like GIERKE and JELLINEK tried to reconcile the sovereign power of the state
with the rights of independent collective groups or associations by self imposed limitations on
the state, but their efforts failed to achieve the desired results.
Expressing their views about the theories of legal personality, DIAS and HUGHES observed
that there is no single theory which takes into account all the aspects of the problem of
personality. The theories that have been propounded are philosophical, political or analytical.
But it must be borne in mind that functional basis of the law cannot be ignored. It is for this
reason that English law has not committed itself to any particular theory. There is undoubtedly a

40
See, FRIEDMANN, W. op.cit., P.512, Also, DIAS, cit. P.362
41
PATON : Op. Cit., P412
42
FRIEDMANM : Legal Theory, (5'" Ed.) P.557

22
great deal of theoretical sense in each theory, but it is not easy to say how much of its affects a
particular decision.

KELSON’S Theory
KELSON makes an analytical and formal approach to the concept of personality. He says that
for legal purposes there is no contrast between natural and juristic persons. Personality is always
a matter of law. In law personality means the totality of rights and duties. Any entity which
bears the totality is a person in the eye of law. To make a distinction between natural and legal
persons is meaningless. Law individualizes certain parts of the legal order and establishes a
unity in the rights and duties pertaining to it. The device is for procedural facility and it is the
rights of “human” individuals that are real. KELSON’s theory does not throw any light on the
nature of the group personality nor it helps in solving practical problems. It is submitted that to
do this is not in the province of the “pure thing of law”, therefore, KELSON did not bother
himself with actual working or practical problems.
In other words, the most important theory worth noting is KELSON’s theory of corporate
personality43. KELSON who adopts a purely formal approach recognizes no distinction between
human beings as “natural persons” and “juristic persons". Any such distinction, for him is
irrelevant, since all legal personality is artificial and derives its validity from superior norm44.
“Personality” according to him, “is only a technical personification of a complex of norms a
focal point of imputation which gives a unity to certain complexes of rights and duties". The
totality of rights and duties is person in law’ there is no entity distinct form them. The concept
of person, therefore, for him, is always a matter of law. The biological character of human
beings fall out of its domain.
According to the organism theory of personality, corporations are social organisms, whereas
human beings are physical organisms. Corporations are distinct from those who are their
members. Their wills are also different from the wills of their members. For it is not what the
individual members decide at corporation memetin while passing resolutions, it is rather what
the corporation as a body deciedes. The will of each individual member of the corporation gets
submerged into the will of the corporation.
The organism theory has however, been subjected to a seven criticism from the view point of a
corporate sole. Because in a corporate sole, there is single individual as a trustee, fiduciary or
office-holder. How could organism theory then apply to it? A reply advanced to this objection
by the supporters of the organism theory is that in case of a corporate sole, the single individual
holding the office does not function individually with his or her own will; it is rather the will of
that individual modified or determined by the will also of the advisers of that individual
representing the corporate sale.

43
For KELSON’s Theory of Corporate Personality see his General Theory of Law and State, PP93-109
44
FRIEDMANN, W op.cit., P.233

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 CONCLUSION

For the foregoing analysis it may be concluded that incorporation has great importance because
it attributes legal personality to non-living entities such as companies, institutions and group of
individuals which helps in determining their rights and duties. Clothed with legal personality,
these non-living entities can own, use and dispose of property in their own names.
Unincorporated institutions are denied this advantage because their existence is not
distinguished form the members.
Professor KELSON, through his analytical approach to legal personality, has concluded that
there is no divergence between natural 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.
Expressing his views about the theories of legal personality.
Dr.Sethna remarked that the existence of corporation is neither wholly fictitious nor wholly real,
instead, it is partly fictitious and partly real. However, this assertion of Dr.Sethna hardly serves
any useful purpose m the determination of rights and duties of corporate entities.

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 Bibliography

• Mahajan, V.D., Jurisprudence and legal theory, 5th edt. Eastern Book Company Lucknow.
• Fitzgerald, P.J. Salmond on jurisprudence, 12th Ed. Universal law publishing company pvt. Ltd. Delhi.
• Dias, R.W.M. Jurisprudence, 5th ed. Aditya Books pvt. Ltd Delhi.
• Holland, Sir Thomas Erksine, The Elements on Jurisprudence 13th ed. Universal law publishing New
Delhi.
• Jaykumar, N.K., Letters in jurisprudence, Wadhwa and company, Nagpur 2004.
• Paton, G.W, A textbook of jurisprudence, 4th ed. Oxford university press London 1972.
• Pillai, Atchuthen, P.S. Jurisprudence and legal theory 3rd ed. Eastern Book publications Lucknow.

Websites:
• https://scholarship.law.upenn.edu/
• https://www.lawteacher.net/
• https://www.legalbites.in/
• https://www.lawnn.com/
• https://www.studocu.com/
• https://www.lawnotes4u.in/
• https://www.lawnotes4u.in/

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