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PERSON: LEGAL STATUS OF ANIMALS,

UNBORN PERSONS & DEAD MAN

JURISPRUDENCE

Name of the Student ... Niraj Bidawatka

Roll No. ........................ 184
Division ........................ D
Class ............................. S. Y. LL.B. (Batch of 2018-21)
College Name ............... Jitendra Chauhan College of Law
Faculty In charge .......... Prof. Dr. Sharmila Ghughe; and
Prof. Sneha Anil Kumar
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ACKNOWLEDGEMENT
I would like to express my deep-felt gratitude to my faculty-in-charge Prof.
Dr. Sharmila Ghughe and Prof. Sneha Anil Kumar, who explained the entire
syllabus of “Jurisprudence” very lucidly in their scholarly and interesting
lectures. This helped me in understanding the finer points along with the entire
framework of the subject. I was able to finish this assignment only due to their
timely and efficient guidance.

It is also essential to mention that this assignment would not have been possible
without the blessings and encouragement of our Learned Principal Prof. Mrs.
Priya J. Shah, who ensured that the students get proper infrastructure such as
access to the professional version of the Manupatra website and such other
websites, for conducting their research work.

This assignment helped me in doing a lot of research and helped me in gaining

and assimilating a lot of knowledge and skill about the subject. The entire
exercise of creating and submitting this assignment was very satisfying and at
the same time very productive.

July 25, 2021

Mumbai Niraj Bidawatka
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TABLE OF CONTENTS

1. Introduction 4

2. Definition Of “Person” In Legal Terms 4

3. Types Of Persons – Real And Juristic 5

Natural Or Real Person 5
Juristic Or Artificial or Legal Person 6

4. Legal Status of Animals 6

Not considered as Persons 6
Owner to be held liable for the wrong committed by the animal 6
No animal can own property 7
Two instances wherein animals can be said to possess legal rights 7

5. Legal Status of Unborn Persons 8

English Law 8
French Law 8
Indian Law 8

6. Legal Status of a Dead Man 10

Right Relating to his Burial 10
Right Relating to Reputation 11
Right Related to his Estate 11

7. Conclusion 12

8. Bibliography 12
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PERSON
LEGAL STATUS OF ANIMALS,
UNBORN PERSONS & DEAD MAN

INTRODUCTION
The term ‘person’ is derived from Latin word ‘persona’ which means a mask worn by
actors playing different roles in a drama. In modern days it has been used in a sense of a living
person capable of having rights and duties. Until the sixteenth century the word was used to
show the part played by a man in life. After this, it started to be used in the sense of a living
being capable of having rights and duties. Now it has been used in different senses in different
disciplines. In modern time the word has been used in the wider sense it includes not only
human being but also associations, gods, idols, corporations, etc. as well. In the philosophical
and moral sense the term has been used to mean the rational quality of human being. In law it
has a wide meaning, wherein it not only means human beings but associations as well.
Similarly, there may be living persons, who are not treated as “persons” in law because they
are not capable of having rights and duties such as slaves and in Hindu law an ascetic
‘sannyasi’, who has renounced the world and lives far from the home.

DEFINITION OF “PERSON” IN LEGAL TERMS

According to Salmond

“A person is any being whom the law regards as capable of rights and duties.
Any being that is so capable is a person, whether a human being or not, and
no being that is not so capable is a person even though he be a man.”

According to Savigny

“A Person is the subject or bearer of right”

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According to Gray

“A person is an entity to which rights and duties may be attributed.”

According to Austin

“Person includes physical or natural person including every

being which can be deemed human.”

According to Indian Penal Code

According to Section 11 of the IPC, the term ‘person’ includes

any company or association, or body of persons, whether
incorporated or not.

TYPES OF PERSONS – REAL AND JURISTIC

Basically, two types of people are recognized under law: one is natural and other is
legal or juristic. The natural person is one who is capable of deciding what is right and wrong
and capable of bearing rights and duties. A legal person is nothing but an artificial creation of
law. Legal personalities are those to whom the law vests certain rights and duties. Hence, the
person is an important category of concept in legal theory, particularly business and corporate
laws have extensively used the concept of person for protection as well as imposing the
liability.

1. Natural or Real Person

A natural person is a person who is an individual living human being. A natural person is a
being to whom the law attributes personality in accordance with reality and truth, and who is
regarded by law as having rights and duties. In order to be a natural person in law, a human
being must satisfy two conditions namely,

(a) He must be living human being and

(b) He must be recognized by the state as a person and he must not be a slave in the absolute
control of his boss or master or otherwise civilly dead as a monk who has renounced the world.
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2. Juristic or Artificial or Legal Person

The word ‘person’ is derived from the Latin word ‘persona’. It denotes not only human being
but anybody or anything which permitted to assert legal claims or subjected to legal duties.
From the legal aspect, the mask of personality does not necessarily have to be worn by human
beings. Legal persons are created artificially and law recognizes them as a legal person. They
are persons only in the eyes of law and not in general. Since they are created by legal fiction,
they are called as ‘fictitious persons’ also. They are called by various names like fictitious,
juristic, artificial, legal, etc. For example, in law idiots, dead man, corporations, companies,
idols, etc. are treated as legal persons.

Legal Status of Animals

NOT CONSIDERED AS PERSONS

The legal system of modern law does not consider animals as a person. Therefore, they do not
possess legal rights and duties. According to law they are merely regarded as things and have
no natural or legal rights. Salmond regards them mere objects of legal rights and duties but
never subjects of them. Animals are not capable of having rights and duties and hence they are
not legal persons like a human being because they are merely things and have no natural or
legal rights.

OWNER TO BE HELD LIABLE FOR THE WRONG

COMMITTED BY THE ANIMAL
But in the ancient law and some of the other provisions the animal were held liable for their
wrongful acts. Under the ancient Jewish Code ‘if an ox gore (wound with a horn) a man or
woman resulting in his or her death, then the ox was to be stoned and its flesh was not to be
eaten. There are many examples in ancient Hebrew Codes where cock, bulls, dogs and even
the trunk of trees which had fallen on human beings and killed them, were tried for homicide.
But modern law 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 due to the negligence in keeping the animal well within the control. This can be explained
by an example: A man, who was the owner of a ferocious dog, was well known due to the
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ferocity of his dog but still he did not care to take any precautions. One day the dog was
unleashed and bit a man. In this case, the master or the owner of the dog is liable as he is
negligent.

NO ANIMAL CAN OWN PROPERTY

An animal cannot be the owner of any property, even through the medium of a human trustee,
though a person may make a valid bequest to trustees in favour of a particular animal like a
dog, a parrot or a cat.

TWO INSTANCES WHEREIN ANIMALS CAN BE SAID TO

POSSESS LEGAL RIGHTS
Law seeks to extend protection to animals in two ways, as follows;

• Cruelty to animals is an offence (The Prevention of Cruelty to Animals Act, 1960); and
• A trust for the benefit of a particular class of animals as opposed to one for individual
animals is valid and enforceable as a public and charitable trust.

Section 11 of Prevention of Cruelty to Animals Act,1960 made it punishable that whoever

causes cruelty to anyone’s animal either by beating, causing pain, kicking, torturing or forcing
them to overload. Any of the acts done will be punishable under this act. The rights and freedom
are guaranteed to the animals by the Constitution of India under Article 51 A (g)(h) which is
the Magna Carta of animal rights.

In the case of Animal Welfare Board of India v. Nagaraja, (2014) 7 SCC 547, the Supreme
Court had recognised five freedoms as inherent in all animals, and had treated the said freedoms
as akin to the rights guaranteed to the citizens of our country under Part III of the Constitution.
In this case, the definition of the word ‘life’ under Article 21 was expanded and explained that
it included all forms of life including animal lives and all animals have honour or dignity. Every
species has an inherent right to live and is required to be protected by the law.

The cases where the animals are poached either for their skin, bones, teeth and flesh or for the
purpose of hunting is strictly banned. The implementation of such laws is still in question and
there is still the need to increase the strictness for the laws regarding the protection of rights of
animals.
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In ancient Hindu Jurisprudence also, the killing or molestation of harmless animals like bulls,
cows, oxen, swans, squirrels and pigeons was made punishable with fine.

A bequest in favour of animals must be in the nature of a charitable trust and not a private
bequest, and is valid only it is does not offend against the rule of perpetuity. A bequest in favour
of a particular animal is void, if perpetual, because only a charitable bequest may be made in
perpetuity. But in the case of Pettingall v. Pettingall, (11 L.J. Ch. 176) it was held that the trust
for the benefit of the animal’s maintenance can be made. In this case, the testator gave £50 per
annum to trustees for the maintenance for his favourite mare, to last until the mare’s death.

Legal Status of Unborn Persons

A child in the womb of the mother is presumed as already born by legal fiction. If he is born
alive, he will get legal status. The child in the mother’s womb has the same rights as that the
child will possess after the birth. The maxim ‘Nasciturus Pro Jam nato bachelor’ explains the
legal status of the unborn child. The legal fiction regard the unborn child as an already born
child. The Latin maxim states that law protects and guards the rights of the foetus which can
be right related to property, shares of the undivided family, inheritance etc. It says that the
unborn is deemed to have been born to the extent that his own benefits are concerned. The term
Nasciturus means “the one who is about to be born or a conceived foetus”. This concept was
first found in Roman laws and after that European and American law as well in respect of
inheritance. In the case of Elliott v. Joicey, it is stated that the legal fiction is only applied for
the benefit of the child who is yet to be born.

English law –
Under English law, in case of Re Wilmers Trusts Moore vs. Wingfield, (1903) 1Ch S 38 it was
held that a child in mother’s womb is treated as in existence and property can be vested in its
name.
French law -
Article 906 of the French Civil Code permits the transfer of property in favour of an unborn
person.
Indian law -
Under sec.13 of the Transfer of Property Act, 1882, the property can be transferred for the
benefit of an unborn person by way of trust.
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Thus, we can observe that under English Law, a child in the womb of the mother is
treated as in existence and property can be vested in its name and Article 906 of the French
Civil Code also permits the transfer of property in favour of an unborn person. But, according
to Mohammedan Law a gift to a person not in existence is void. Similarly section 114 of the
Indian Succession Act, 1925 provides for the creation of prior interest before the unborn person
may be made the owner of property – corporeal or incorporeal, but no property will be deemed
to be vested in the unborn person unless and until he is born alive. In Hindu Law also a child
in the womb of the mother is deemed to be in existence for certain purposes. Under Mitakshara
law, such a child has interest in coparcenary property.

Injury to a child in the womb is a punishable offence under sections 312, 313, and 316
of the Indian Penal Code, 1860. And the punishment for it is provided under section 315 of the
IPC,1860.

In criminal law also if any harm is caused to an unborn child in the womb of the mother
it will be considered as an offence. Under Section 315 of Indian Penal Code, 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. This can be explained by a case R v. Senior in this case
the child’s head was extruded from the mother’s womb and the surgeon intentionally crushed
the skull of the child. The surgeon is liable for the offence of manslaughter. Thus is liable for
imprisonment. In Criminal Procedure Code under Section 416 It is stated that a woman who is
sentenced to death is found pregnant, then execution of the sentence will be postponed until
the child is born and also after the birth of the child attains a particular age.

The rights of an unborn child whether it is proprietary or personal are contingent on his
birth as a living being. The legal personality of the dead person is not present but this not the
case with the unborn child. The law presumes the child is yet to be born and there is nothing in
law to prevent the person from owning property before he is born. In the case of inheritance,
the man can settle his property to his wife and child to be born, stated in his will or may die
intestate and his unborn child will inherit his estate. The provisions for the same are provided
in Family Law. The Hindu undivided family also has the provision for the same. If the Karta
dies and his wife is pregnant, the shares of the Hindu family will be divided considering the
child to be born as living and the unborn child will also get the shares in the property. Even the
posthumous child also has the right to property and may inherit, but if he dies in the womb of
stillborn, his right to inheritance fails and is not in effect. The legal exception of this is that it
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is exclusively applied for the purpose of inheritance and the conditions must satisfy for its
validity is that the child is unborn and is yet to be born.

A child in the womb of the mother is considered to be a person both under the law of
crimes and law of torts. It has been held that in a Canadian case that a child could succeed in
tort after it was born on account of a deformity which was held to have been caused by a
negligent pre-natal injury to mother. Though there is no Indian case on this point but it is
expected that a liberal view would be taken on this line and a child would be getting the right
to sue. In an African case it was held that a child can succeed in tort after it is born on account
of a deformity caused by pre injury to his mother. In India as well in England, under the law of
tort an infant cannot maintain an action for injuries sustained while on ventre sa mere.
However, in England damages can be recovered under Fatal Accidents Act, 1846 for the benefit
of a posthumous child.

In short, it can be concluded that an unborn person is endowed with legal personality
for certain purposes.

Legal Status of a Dead Man

A dead person is not a legal person. As soon as a man dies, he ceases to have a legal personality.
Dead men do not remain as bearers of rights and duties anymore. Actio personalis moritur cum
persona- which means action dies with the death of the man. Personality comes to an end with
the death of a person. Yet, law to some extent recognizes and takes account of the desires or
intentions of a deceased person. Law ensures a decent burial, it respects the wishes of the
deceased regarding the disposal of his property, protects his reputation and in some cases
continues pending action instituted by or against a person who is now deceased. Basically, the
dead person gets three types of rights:

(i) Right relating to his Burial

As far as a dead man’s body is concerned criminal law secures a decent burial to all dead men.
Section 297 of Indian Penal Code also provides punishment for committing crime which
amounts to indignity to any human corpse. In English Law as well as in Muslim Law the violation
of a grave is a criminal offence.
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The Supreme Court in the case of Ashray Adhikar Abhiyan v Union of India, has held
that even a homeless person when found dead on the road, has a right of a decent burial or
cremation as per his religious faith.
In the case of R v. Price, it is said that any violation of the grave is a crime. Every man’s
corpse is entitled to a decent burial.
Per contra, in the case of Williams v. Williams, it is said that the testamentary directions
of a man as to the disposal of his body are without any binding force.

(ii) Right relating to Reputation

The reputation of a dead person is protected by the law. The defamatory statement made
on a dead person will affect the living members of the family. When someone defames a dead
person, then it is actionable in the court as it will affect the family of the dead person
emotionally and mentally.
As regards reputation of a dead man, it is to some extent protected by criminal law.
Under Section 499 of the Indian Penal code, it is a punishable offence. If the sentiments of the
living member of the deceased person’s family get hurt, then the person defaming will be held
liable. Thus, defamation is actionable in this case. Under Roman law any insult to the body of
the deceased at the timing of funeral, gave the deceased’s heir a right to sue for the injury as it
is treated as insult to the heir. Under the law of France, the relative of the defamed deceased
can successfully sue for damages, if they can prove that some injury it suited from the
defamation. Thus, it is not the rights and the personality of the deceased that the law recognises
and protects, but it is the right and interest of living descendants that it is protected.

(iii) Right related to his Estate

The dead person loses their personality with their life. But the legal testaments, will or any kind
of deed made by a dead person while alive, will be obeyed by the law even after his death.
These testaments will not be changed or barged by anyone in any condition. This means that if
a person has a will after death, then his property will be inherited by his legal legatees. And if
the will does not include any kind of disposition of property in favour of legal legatees, then in
that case the will is not enforceable.
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Conclusion

Legal status is given in order to protect the interests of such people who either do not have the
ability to do so or are not in a position to protect their own rights. The animals cannot speak
and fight for their rights. Therefore, there are various provisions for the protection and
safeguard of animals from cruelty. An unborn child cannot exercise its rights or protect them.
So, there are certain legal provisions where the rights of an unborn are protected. Similarly,
certain rights of dead man are also recognized. Thus law recognizes and protects certain rights
of animals, unborn persons and dead men.

***

BIBLIOGRAPHY

Statutes Juvenile Justice (Care and Protection of Children) Act, 2015

Juvenile Justice (Care and Protection of Children) Act, 2000
Juvenile Justice Act, 1986
Code of Criminal Procedure, 1973

Books T.D. Sethi, "The Juvenile Court: Its Genesis, Philosophy and Characteristics",
S. R. Myneni – “Offences against Child and Juvenile Justice”
Ratanlal & Dhirajlal – “The Code of Criminal Procedure”

Articles: Journal of the Indian Law Institute: Precursors of Juvenile Courts in India

Caselaws: Animal Welfare Board of India v. Nagaraja, (2014) 7 SCC 547

Grove-Grady, In re, Plowden v. Lawrence. [1929] 1 Ch. 557
Pettingall v. Pettingall, 11 L.J. Ch. 176
Elliott v. Joicey
Re Wilmers Trusts Moore vs. Wingfield, (1903) 1Ch S 38
Ashray Adhikar Abhiyan v Union of India
R v. Price
Williams v. Williams