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Ch. 4 Personality:
- The personality of a human being means the possession of certain characteristics particularly belonging to E.g.; Power of thought, of speech etc.
Hence, there are certain attributes which make a human being a person having the personality recgnised by law. If these attributes are absent then that human being is not a person at all. E.g. Slaves are like chattels (things) and therefore not persons at all. Conversely, in law there are persons who are not men; e.g., a municipal corporation, A joint stock company etc. are ‘persons’ though they are not human beings. Similarly an idol is a person.
According to jurisprudential theory a person is any being who is capable of rights and duties. Hence any being who is capable of rights and duties is a person. Persons are the substances. The rights and duties are attributes. This is the juridical significance of personality which has gained legal recognition capable of rights and duties is a person.
- Persons are of two kinds:
A human being is a natural person. Legal persons are beings who are treated for purposes of law as human beings.
In olden days if an ox gored a person to death, the ox was guilty of homicide and it was stoned to death and its flesh not eaten. This is no longer the law to-day. A beast is incapable of legal rights and legal duties. Its interests have no recognition in law. Today if an animal causes hurt to a person, there is no wrong. But the responsibility is no the owner of the animal. However, cruelty to animals is a criminal offence and to that extent the animal has a legal right. A ‘Trust’ may be created to benefit a particular class of animals. Eg. Race horses, tigers etc. as beneficiaries. They are entitled to treatment according to the trust dead. However, if the interests of the animal conflict with the interest of human beings, the interest of the human being will prevail.
- Dead Man:
In so far as dead human beings are concerned, the principle is that personality commences on birth and ceases to exist at death. Therefore dead men are not persons in the eye of law. Actually they have laid down their legal personality with their lives. They are destitute of rights and liabilities. They have no rights because they have no interests. A dead man will not continue to be the owner of his property after death. In fact, he is not a owner in the interval between his death and the entry of an executor or an administrator or a successor. But this does not mean that law will ignore the desires and interest of the dead man.
There are three spheres where a man has anxieties after his death.
These are the dead man’s body, his reputation and his estate.
Hence law wants to protect such interests.
In respect of the dead body the corpse is the property of nobody. It cannot be disposed of by will; and, wrongful dealing with it will not amount to theft or hurt. But criminal law, secures a dead man, a decent burial and the violation of the dead body or the grave amounts to a criminal offence. Hence the dead man is protected in respect of his body.
A trust for maintenance of a tomb is void. The property is for the use of the living, not of the dead.
Similarly the reputation of the dead is protected under the criminal law of defamation. Libel or slander of the dead is punishable.
In respect of the estate of a dead man, he is allowed to regulate the action of the successors under a will.
iv) En vetre as mere:
In respect of unborn persons law does not prevent a man from owning property before he is born. Of course his ownership is contingent because he may not be born at all! Hence, a man may settle property on his wife and unborn persons. Of course, restrictions have been imposed on such powers so as not to arrest property for generations ( Transfer of Property Act , Refer Unborn person, perpetuities etc).
A child in the mother’s womb is already born for purposes of law. As Justice Coke pointed out, law has conferred certain consideration on the apparent expectation of birth. Thus in respect of property, an unborn child is considered as a child born for the purposes of:
- Acquisition of
- Acquisitions, subject to the law against perpetuities
The problem is not solved whether an unborn person can have a personal and proprietary right. It has been held that a posthumous child is entitled to damages for the-death caused by the defendant. Wilful or negligent injury inflicted on the child which dies after being born alive amounts to murder.
A pregnant woman cannot be condemned and executed to death until the mother is delivered of the child. There is a conflicting decision of the English Court.
Due to the negligence of a Railway company there was a collision. There was a child in a mother’s womb which received certain injuries. The court held: That the company was not liable. •
The unborn child has a contingent right and it must be born as a living human being. If the child is born dead the legal personality falls away ab initio. If the child dies in the womb or is still-born, his inheritance fails but he gets all the rights even if he is alive for an hour after birth. Law wants to protect the interests of unborn person.