JURISPRUDENCE AND LEGAL THEORY II

CONCEPT OF POSSESSION AND OWNERSHIP

Possession and ownership are two fundamental concepts in the field of property law, each
carrying distinct meanings and legal implications. While the terms are often used
interchangeably in everyday conversation, their legal definitions and consequences set them
apart in the eyes of the law due to which there are differences between ownership and possession
in jurisprudence.
Possession: A De Facto Relationship
Possession refers to the physical control and occupation of an object. In jurisprudence, it is
defined as the continuous exercise of a claim to possess and use a particular thing exclusively.
Possession is a de facto relationship, meaning it is based on actual control rather than legal
recognition. If a person has apparent control over an object and the power to exclude others from
using it, they are considered to be in possession.
One crucial aspect of possession is that it does not necessarily imply ownership. A person can
possess an object without being its legal owner. For example, someone leasing a property has
possession of it during the lease term, but the legal owner is the one who holds the title.
Possession is, therefore, a tangible and immediate connection to an object but does not
necessarily confer the broader rights associated with ownership.
Jurists have defined possession based on their personal beliefs. It is the most fundamental
interaction between man and things, according to Salmond. However, Henry Maine defined it as
“interaction with an object that includes the exclusion of other people from enjoying it.” A man
is considered to own a thing over which he has seeming control or over which he has apparent
authority to exclude others, according to Federick Pollock.
In B. Gangadhar v. Ramalingam (1995) 5 SCC 238, the Indian Supreme Court elaborated on the
notion of possession. The objective realization of ownership is possession. It is both the de facto
statement of a claim to a specific piece of property and the de facto counterpart of ownership.
Possession of a right, in contrast to the de jure connection of ownership, is the de facto
relationship of ongoing exercise and enjoyment. The actual exercise of a claim to a specific piece
of property is known as possession. It is the most typical form in which claims are made. It is the
outward form in which claims are most commonly manifested.
Elements of possession
Legal possession, according to Holland, comprises two fundamental elements:
1. Corpus
2. Animus
Corpus Possessionis
Corpus denotes two things:
1. a) The possessor’s physical relationship to the res or object; and
2. b) The possessor’s relationship to the rest of the world.
The first point highlights that a person must have some physical touch with whatever he owns to
have a reasonable expectation that others will not interfere with it, i.e. that others will not
interfere with the possessor’s right to use or enjoy that object. This guarantee of non-interference
can be obtained in a variety of ways:
The physical power of the possessor
The possessor’s physical power over the object in his possession works as an assurance that the
thing will be used. It is also a guarantee that others will not interfere with his rights. To prevent
others from interfering with his lawful ownership, the person in possession typically utilizes
walls, gates, doors, and locks.
Personal presence of the possessor
In many cases, the possessor’s sheer physical presence is enough to keep ownership, even if he
lacks the physical power to fight intervention. For example, a penny in a child’s hand suffices to
indicate his ownership of the currency, although that he lacks the physical capability to do so.
Secrecy
It is an efficient method of avoiding external influence and keeping an object in one’s possession
secure if a person maintains it in a hidden area.
Wrongful ownership is rarely seen favourably in modern cultures, thus respect for a legitimate
claim prevents others from interfering with the possessor’s lawful possession.
The protection afforded by the possession of other things
Possession of one object can sometimes lead to possession of additional items that are related to
or complementary to it. As a result, owning land entitles you to own everything is on or under it.
However, as in the case of South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44, the
situation in this regard is not entirely clear.
The appearance of the Animus Domini is another indicator of possession security. The claim’s
visibility is another factor in the factual security of its enjoyment. As a result, publicly utilizing
something implies a prima facie rightmindedness in its ownership.
Animus Possidendi
Possession does not imply mere juxtaposition. It must imply the possibility of bodily control, as
well as a desire to exert such power. Animism is the mental component of possession.
The Classical Roman jurists acknowledged two levels of authority over a possessed thing, the
lesser of which were referred to as detention and the highest as possession, properly so-called.
In the context of the factor of animus in legal possession, the following points should be taken
into account:
1. R v. Hudson (1943) The urge to acquire does not have to be righteous, and it might even
be deliberately wicked. The ownership of stolen goods by a criminal is no less genuine
than the possession of stolen goods by the rightful owner.
2. The possessor must have sole ownership of the object in his possession. That is, he must
intend to keep others from using and enjoying the item. However, the exclusion does not
have to be complete.
3. The animus does not have to be accompanied by a claim or an intention to utilize the
items as owner. In the event of a promise, the pledgee has ownership of the pledged
items, even if he simply wants to keep them in custody as a security to guarantee that his
obligation is paid.
4. The possessor’s animus does not have to be his or her own. A servant, agent, trustee, or
bailee, for example, does not maintain goods in his possession for his personal use, but
rather for the benefit of another person.
5. The animus could not be particular; instead, it could be broad. For example, a guy who
has caught fish in his net has ownership of all of them, even though he has no idea how
many there are. Similarly, a person is assumed to own all of the books in his library, even
if he is unaware of the existence of any of them.
6. The animus may not be specific instead it may be merely general. For instance, a person
who has caught fish in his net has possession of all of them although he does not know
their exact numbers. Likewise, a person is deemed to have owned all the books in his
library although he may not even know about the existence of some of them.
It is important to note that when a person owns a receptacle, such as a box, cabinet, or envelope,
he also owns the contents of that receptacle.
Savigny theory
Savigny based his idea of possession on the Roman Jurist Paul’s text, emphasizing that
possession consists of two essential elements:
1. Corpus Possession
2. Animus Domini
 By corpus, he meant effective physical control over the object, i.e., immediate physical
power to prevent the owner from being harmed by any outside agent.
 Animus Domini (mental element of possession)-Domini is derived from the word
dominium. It is the result of Roman jurisprudence that leads to the concept of ownership.
 According to Savigny, Animus Domini is a mental aspect of possession, which means
that the court will think that the item has a right of full ownership.
 We utilize Animus Domini with the deliberate goal of holding the thing as if we are the
owners, which includes excluding others’ influence.
 There can be no possession without the mental aspect of animus. With animus Domini,
Savigny has strengthened the right of possession.
 Animus Domini, which means “you are the complete owner of the item” according to
Savigny, should be held with this belief.
 In terms of possession, Animus Domini is more powerful than Animus Possidendi. For
example, a courier boy is in possession, even though he does not intend to keep it;
nonetheless, he is in possession for the time being.
 According to him, possession protection is a subset of personal protection, and just as any
act of violence against a person is illegal, so is any act that disrupts possession through
deception.
Criticism
1. Savigny was incorrect in his assumption that possession cannot be obtained without
corpus and animus, and that possession is lost when one or both of these parts are gone.
2. In practice, we find that possession persists even if one of the parts is gone, and in some
cases even when both elements are missing.
3. Savigny has overlooked the fact that, even if both conditions are present, the law does not
safeguard a possession obtained illegally. As a result, a thief of a stolen item is not
protected by the law.
Salmond
Salmond defines animus possidendi as the act of excluding others’ rights. He was primarily
concerned with two issues:
1. The desire to assert one’s legal rights
2. Ignore other people’s power.
 According to Salmond, Animus Possidendi must be employed to hold the item as owner,
and the right must be powerful such that we may exclude the authority of others.
 In modern jurisprudence, Salmond’s Animus Possidendi is a little weaker than Savigny’s
and more logical.
 The Savigny right is far stronger than the only right of possession.
 Animus possidendi is a modified form of Savigny’s thesis, but in this instance, he just
wants to enjoy his (owner’s) property, which is why he is excluding others.
 According to Salmond, there are two forms of possession:
1. Possession-in-fact: This refers to physical possession in which you are unsure whether or
not you are lawfully in possession.
2. Possession-in-law: If you have possession in fact-in-law, corpus possession, and animus
possidendi, which are Salmond’s aspects of possession, the people who are claiming have
the most.
According to Salmond, a corpus possessionist has two sorts of relationships:
1) The relationship with the object on which possession is claimed, and
2) Relationship with other people who are not included
Salmond defines possession as the continual exercise of a claim to exclusive use of it. The act of
asserting a claim entails two steps:
1. a) Corpus possessionis
2. b) Animus possidendi
Here he emphasized on intention to exclude others and use the property. In the case of Bridges v.
Hawkesworth (1851) 21 LJ QB 75, He referred it by saying that the court had correctly decided
that the shopkeeper had no intention of excluding other people from the bundle of notes because
he was unaware of its existence at his shop and thus had no amicus, and thus the finder of the
bundle had possession of it.
Ihering’s theory
 He is a scholar of sociological school.
 Ihering’s theory of possession looks to be more practical and realistic.
 He claims that the mental aspect he described isn’t as dominant as Savigny’s and isn’t as
well-established as Salmond’s.
 The most width mental element is of Ihering. He says that the purpose of the mental
element is only to support physical possession- he represents amicus as a supporting
element.
 According to Ihering, in the vast majority of situations, the person who possesses the
property is the owner, and possession is assigned to them as an event of ownership; there
are relatively few cases where the owner’s purpose is demonstrated.
 He employs intelligent awareness-amicus simply means “knowledge of the
circumstance”–and possession is the ingredient that demonstrates nine points of
ownership.
 He used a sociological method to describe the notion of possession in his theory, taking
an objective perspective.
 Ihering used a more pragmatic view, not requiring the presence of amicus as a condition
of possession. He didn’t think of amicus as anything more than a complement to
possession.
 Ihering contended that possession is ownership on the defensive. A person who is, in
reality exercising ownership must be protected and not have to prove title against
someone who is in unlawful possession.
Criticism
Although Ihering’s theory of possession is more acceptable than Savigny’s, it is not without
flaws.
1. Because Ihering examined the idea of possession solely in the context of Roman
possessory interdicts, he is unable to explain why the law refused to provide ‘possessory
rights’ to those who were ineffective bodily control of the possessed object.
2. The Ihering hypothesis fails to explain possession in cases where the possessor’s right to
possess an item is recognized and protected by law notwithstanding the absence of both
corpus and animus.
Ownership: A De Jure Recognition
Ownership, on the other hand, involves the absolute rights and legitimate claim to an object. It is
a legal relationship between a person and the property recognised and protected by the law. The
property owner holds the highest level of interest in it, entailing a bundle of rights that include
the right to possess, use, dispose of and even destroy the object.
Unlike possession, ownership is de jure recognition, meaning it is a legal acknowledgement of
the rights held by the owner. The legal system grants protection to the owner’s claims against the
world, allowing them to exercise control over the property in various ways. This recognition is
crucial because it provides the owner with a robust legal foundation to defend their rights and
interests in the property.
Ownership has been defined in a variety of ways by jurists. They all agree, however, that
ownership is the most comprehensive or highest right that can be exercised over something.
According to Hibbert, ownership encompasses four different types of rights: –
1. The right to utilize something
2. The right to prevent others from utilizing the item
3. The authority to destroy it
Ownership is described as a “set of rights to use and enjoy the property, including the right to
transmit it to others,” according to Black’s Law Dictionary.
As a result, ownership is the legal acknowledgement of a claim to a specific piece of property.
As a result, Hibbert proposes that no one can have absolute ownership of land since it cannot be
destroyed. It is only possible to have an estate in it. An estate is a person’s legal interest in
property that is measured in time and entitles the party to utilize the land indefinitely.
Austin’s definition of ownership
 According to Austin, ownership is a more powerful right than possession, and it is an
absolute right.
 Ownership consists of the following elements:
– If we possess a piece of property, we can certainly make use of it.
– We have complete freedom to dispose of the property.
– That property’s right is for an indefinite period.
– Available in rem against the right.
 According to Austin, ownership is “a right that exists against everyone subject to the law
granting the ability to put things to indefinite users.”
 He goes on to argue that ownership is a right that is limitless in terms of duration,
unfettered in terms of use, and unrestricted in terms of disposal.
 Being the owner also – you cannot dispose of the property in any way, it should be
disposed of properly.
 Unlimited duration: Privy Purse Case (1970)
When British India gained independence, we were given India in two parts: India and Pakistan,
with 562 Siyasats belonging to the state. Indira Gandhi in 1970 gave all the properties-purse
(Royal Wajeefa). Slowly, the entire zamindari idea vanished. As a result, it’s impossible to say
how long the property will belong to the true owner. As per acquisition law, the property is taken
in control of law and they give the compensation to the owners which end the ownership and this
is always done in the public interest (sociological theory can be applied as collective social
interest overrides an individual interest).
 Indefinite User: This implies that the owner of a thing is free to use or even misuse it in
any manner he likes. The use of the word ‘indefinite’ has a special significance because
the use of land by the owner can be restricted by agreements or the operation of law.
Criticism
Austin’s definition of ownership has been criticized by many writers. They argue that it is
fallacious to think that ownership is a single right, but it is a bundle of rights including the right
of use and enjoyment. Even if an owner relinquishes some of the rights that come with
ownership, he retains ownership of the remainder.
For example, in the event of a mortgage, the landowner retains ownership of the mortgaged
property even though he has surrendered a right.
Modern definition
All of the preceding, i.e. indefinite use, unrestricted disposal, and limitless duration, shall be
carried out in line with the law.
Case laws
Merry v. Green (1847) 7 M & W 623
Facts
In this case, the plaintiff purchased a table in an auction and found the purse in one of its
drawers. Subsequently, he discovered that there was some money in the secret drawer belonging
to the vendor but he appropriated the same.
Issue
Whose purse was it? Whether the plaintiff will take it or has the right to keep it?
It was believed that it was not of the plaintiff but the seller because during the process of transfer
the element of intention for that purse was missing. The intention to sell that purse was not of the
seller and the buying of that purse was not of the purchaser.
Held
The court held him guilty of larceny (theft) because the purchaser was ignorant about the
existence of money and the secret drawer hence he cannot be said to have possession concerning
that money and could not intend to possess the contents of the secret drawer until he found it.
South Staffordshire Waterworks Co. v. Sharman (1896) 2 QB 44 [GOLD RING CASE]
Facts
In this case, the plaintiff company owned a pond upon their land. The company employed the
defendant to clean the pond. During the cleaning operation, the defendant found gold rings at the
bottom of the pond.
Held
The court held that the company had the first possession of the rings by their being the owner of
the pond and hence the defendant acquired no title.
Bridges v. Hawkesworth (1851) 21 LJ QB 75 [BANK NOTE CASE]
The doctrine of finder and keeper was brought in this case.
Facts
A person found a bundle of notes from the stairs of a shop and gave it to the shopkeeper and says
to give it to the person to whom it belongs (all administrations were used but couldn’t found the
real owner) and the shopkeeper keeps it and the person who found it filed a case on the
shopkeeper.
Issue
To whom the bundle of notes belongs?
The doctrine of res nullis was applied- The doctrine of finder keeper the person who first found it
will keep it.
The County court applied this doctrine in South Stafford Shiri Water Case. This case was
appealed on the divisional bench and Rod Ressel reserved the judgment and said if you appoint a
carpenter to open the cupboard or box, the matter in the box will not be of the carpenter and
states that it will be of the plaintiff. Here the doctrine of finder keeper will not apply.
Hannah v. Peel (1945) 1 KB 509
In this case, the plaintiff was a soldier and he was asked to stay in a house and he found a brooch
from there. Defendant filed a suit against the soldier but the brooch was not given to the owner
as he did not take the house in physical possession and the brooch was found on the floor.
In this case, two things were considered:
1. Corpus element was never in favor of the owner of the house.
2. And the way the brooch was found the doctrine of res nullis was applicable.
Difference between possession and ownership
According to Ihering
Possession is a de-facto exercise of the claim and ownership is the de-jure recognition of the
claim.
According to Salmond
A person is the owner of a thing when his claim receives protection and recognition from the law
but possession may be exercised and realized without such recognition or protection from the
law.
The owner is the only one whose claim (right) is protected and recognized by law.
Sometimes there is illegal possession like mesne profit (the person has to pay it back with
interest). Possession may not be protected and recognized by law.
According to Dr. Asthana, ownership is the soul and possession are the body and the existence of
the body is necessary for the realization of the soul.
Conclusion
Most people conflate the phrases “ownership” and “possession” and use them interchangeably.
However, in the legal world, both of these words have unique legal meanings. De jure
acknowledgement of a claim to a particular property is known as ownership. The objective
realization of ownership is possession. It is the actual exercise of a claim to a specific piece of
property. In contrast to the de jure relationship of ownership, possession of a right is the de facto
relationship of continued exercise and enjoyment.
JUXTAPOSITION
Key Differences between Possession and Ownership in Jurisprudence
Nature of Control
Possession is about physical control and the actual use of an object, while ownership extends
beyond physical control to encompass a broader set of legal rights.
Legal Recognition
Possession is a de facto relationship and does not necessarily enjoy legal recognition. Ownership,
on the other hand, is a de jure relationship that comes with legal protection and
acknowledgement.
Transfer Process
Transferring ownership typically involves a complex and technical process, often requiring legal
documents and formalities. In contrast, possession can be transferred more informally and easily.
Bundle of Rights
Ownership includes a bundle of rights, such as the right to use, possess, dispose of and destroy
the object. Possession, while involving control, may not include these extensive rights.
Duration
Possession may be for a limited period and the right to possess is subject to change. Ownership,
in contrast, is often considered to be for an indeterminate duration.
Relation to Each Other
Possession can be a prima facie evidence of ownership, but the two are distinct concepts.
Possession may or may not lead to ownership, depending on the legal circumstances.
LEGAL PERSONALITY IN THE CONTEXT OF JURISPRUDENCE
Personality in the philosophic sense means the rational substratum of a human being. In law it
means a right and duty bearing unit. Personality should be distinguished from humanity.
Humanity means only the natural human beings but personality has a technical meaning and it
includes inanimate objects also. Thus personality is wider than humanity. Sometimes, humanity
and personality coincide and sometimes, they do not. In the same way there are legal persons
who are not human beings, such as an idol or a corporation.

Thus legal personality in law involves two questions. The first question is as to whom law
recognizes as persons and what are the principles or theories upon which the recognition is
based. The second question is as to what is the extent of rights and duties of these (legal)
persons.
Summary

Natural and legal persons: Natural persons mean human being. Legal persons mean beings and
things which are treated as persons by law. Thus ‘legal person' includes those things which are
treated in the same way as human beings for the legal purposes.

Natural persons: In ancient times, in some societies, the persons declared ‘outlaws' were not
considered as persons in the eye of law, and therefore, to kill them was not homicide. In ancient
Hindu law, persons having certain physical disabilities were considered as disqualified to inherit
property. (Impotent persons and outcastes blind and deaf: as well as mad men, idiots, the dumb,
and those who have lost a sense or a limb). Lunatics and infants have only a restricted legal
personality. The legal personality granted to human beings begins at birth and ends with the
death.

Personality starts with birth: When a child is born alive he is considered to be a person in the
eye of law. In Hindu law a child in womb is considered in existence and he inherits the property
if he is born alive. If a partition takes place among the co-parceners (co-heir) 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.

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. Killing of a child
amounts to murder only when the child is completely born alive. In England it was held that a
posthumous child is entitled to compensation under Lord Campbell's Act for the death of his
father.

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 desires and interests of the deceased. There are three rights in this respect, i.e., about
the deceased.

There are three rights in this respect, i.e., about the deceased's body, his reputation and his estate.
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 and provokes them to commit breach of
peace, it is a misdemeanor in English law. It may amount to defamation to impute anything to a
deceased person, if the imputation would harm the reputation of that person if living and is
intended to be hurtful to the feelings 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.

Animals: Animals are not persons in the eye of law and therefore, they are not subjects of legal
rights and duties.
Status: Personality should be distinguished from status and capacity. Status is a word which is
given various meanings. Salmond says that generally there are four meanings of the 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.
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 double
personality. His legal personality is only one.

Legal person: A legal person is any subject-matter other than a human being to which law
attributes personality. It includes an object, a mass of property, an institution, a group of human
beings etc. Law treats them as right and duty bearing units or entities like a natural person.
Though legal personality, first of all, requires personification, a personification in common
speech does not mean that the legal personality has been conferred upon it. We speak a bench (of
judges) or a cabinet (of ministers) as a person but they have no legal personality.

Legal personality is attained which law recognizes a single entity over and above the group of
the individuals or the thing which though represents the group of the individuals or the thing, is
distinct from them. There is a clear distinction between the individuals who compose the group
(corporation); the group or corporation as a legal person. A company might go bankrupt but the
shareholders would retain their millions.

Idols and funds: Idol was considered to be 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 a legal person.
It had certain rights and received certain protection from law, such as the property dedicated to a
math.

State: State is a juristic person. It can sue and can be sued.

Idol is a juristic person and as such it can hold property. But it is treated as a minor and Pujari or
somebody else acts on its behalf as its guardian. Mosque is not a juristic person.

Companies, associations and many other kinds of groups are legal persons. They have been
expressly so recognized in a number of statuses. Companies incorporated in accordance with the
Indian Companies Act are juristic persons. Societies registered under Societies Registration Act,
1860 are also held to be legal persons. Sections 2, 5, 6, 8, 9, 10, 11 and 13 of the said Act make it
amply clear.

Groups such as registered trade unions and friendly societies also are legal entities. They own
properties, and suits can be brought in their names. Apart from these, there are associations,
institutions and many kinds of autonomous bodies upon whom legal personality has been
conferred by statutes.

Corporations are legal persons. It means that they have rights and liabilities. So far as rights are
concerned there is no difficulty in their enforcements. But the liabilities of corporations present
very complicated problems.

Prologue
Meaning of personality: Personality is a very vague and wide term and it has a variety of
meanings. It is derived from the Greek word persona. Persona meant the (Greek) actor's mask
through which his voice must be sounded. Later on, it came to be used for those who could play
part in the legal drama, those who could bear rights and duties.

But it did not remain so, and came to be used in other senses also. Personality in the philosophic
sense means the rational substratum of a human being. In law it means a right and duty bearing
unit. Personality should be distinguished from humanity. Humanity means only the natural
human beings but personality has a technical meaning and it includes inanimate objects also.

Thus personality is wider than humanity. Sometimes, humanity and personality coincide and,
sometimes, they do not. There are human beings who are not persons in the legal sense, such as
slaves (in early times). In the same way, there are legal persons who are not human beings, such
as an idol or a corporation. Thus, legal personality in law involves two questions.

The first question is as to whom law recognizes as persons and what are the principles or theories
upon which the recognition is based. The second question is as to what are the extent or rights
and duties of these (legal) persons.

Kinds of Person: Persons are of two kinds:

1. Natural and
2. Legal
. A natural person means human beings. Legal persons mean beings and things which are treated
as persons by law. Thus 'legal person' includes those things which are treated in the same way as
human beings for the legal purposes.

Natural Persons: All human beings are not legal persons. In olden days, the slaves were not
considered legal persons. They were treated as chattel of their masters. A person who takes
religious or holy order is, for some purposes, considered to be civilly dead in many societies.
For example, in Hindu society, when a person becomes as ascetic (sanyasi), his proprietary rights
extinguish and his property goes to his heirs as if he were dead. In ancient times, in some
societies, the persons declared ‘outlaws' were not considered as persons in the eye of law, and
therefore, to kill them was not homicide. In ancient Hindu law, persons having certain physical
disabilities were considered as disqualified to inherit property.

Manu said;
Impotent persons and outcastes are excluded from a share of the heritage and so are persons born
blind and deaf, as well as mad men, idiots, the dumb and those who have lost a sense or a limb.

Lunatics and infants have only a restricted legal personality. They do not have many of the civil
rights, for example, the right to vote. In some cases, they are immune from criminal liability also
(Indian Penal Code 1860, Section 82 to 84). In modern times, with very few exceptions legal
personality is granted to all the human beings. The legal personality granted to human beings
begins at birth and ends with the death.
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 nasciturus pro im nato habetur also applies.

In English law, it 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 form 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-partners (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 (The Code Of Criminal Procedure, 1973, Section 416).

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
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 child in the mother's womb is not homicide. But it may amount to
culpable homicide to cause the death of a living child if any part of that child has been brought
forth, though the child may not have breathed or be completely born.

Indian Penal Code 1860, Section 299). 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 which causes death of the child
is homicide. So far as the rights of an unborn 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 father.

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
desires and interests of the deceased.

There are three rights in this respect, i.e.

1. Deceased's body
2. His reputation.
3. 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 creation 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 the 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 to commit breach of peace, it is a misdemeanor in English law.

There are similar provisions in India law. It may amount to defamation to impute anything to a
deceased person, if the imputation would harm the reputation of that person if living and is
intended to be hurtful to the feelings of the family. Indian Penal Code, 1860, Section 499). 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.

Animals
Animals have no legal personality. Animals are not persons in the eye of law and therefore, they
are not subjects of legal right and duties. In ancient times, animals for some purposes were
treated as persons. In ancient Greek law, animals and trees were tried in courts for their wrongful
acts.

In Roman law also, in some cases, inanimate objects were considered as having rights and
subject to duties. For example, ‘hereditus jacens' was treated as a person. In Middle Ages also,
we find instances of the trial of the birds and animals.

Keeton, in his book has given some cases of this nature. In Germany, a cock was placed in the
prisoner's box and was accused of contumacious crowing and as the counsel of the bird could not
establish its innocence, so the bird was destroyed. There are a number of instances of this kind in
ancient Indian stories where animals were sued in courts.

There is a very popular story about the Mughal Emperor Jahangir where an animal was treated as
capable of owning rights. A chain which was got hung by the Emperor to be pulled by any
person who wanted justice from the Emperor, happened to be pulled, by chance, by the horns of
a bullock. The bullock was presented before the emperor. It was decided that the bullock might
have pulled the chain to complain against his master for making him carry heavy load. The
master of the bullock was summoned and he was ordered to reduce the load which he made his
bullock to carry.

In modern times, no legal system recognizes animals as persons. Therefore, they have no rights
and liabilities. The human acts which are considered by law as wrongs against animals are, really
speaking, not wrong against the animals, but are wrongs either against the person who owns that
animal or against the society. An animal cannot own property.

A trust made in favour of animals is a trust of imperfect obligation, it cannot be enforced.

However, a trust for the benefit or particular classes of animals as opposed to one for individual
animals is enforceable as a public trust in England.

In India, cruelty against animals (as defined in various statutes) is an offence but as observed
earlier, this duty is not a duty towards animals; it is a duty towards the society or the state. In our
country, a trust for the benefit of animals can be legally created (Jamanabai v. Khimji, 14 Bom.
And Lalla Pd. v. Brahmanand, AIR 1953 All. 499).

Status
Personality should be distinguished from status and capacity. Status is a word which is given
various meanings.
Definitions By Various Authors.
Salmond says that generally there are four meanings of the 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, capacities and incapacities which
specially affect a narrow class are termed 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
being a condition affecting generally though in a varying degree a member's claims and power.

In short,status is a 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 those rights
and liabilities which a person has 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 statuses at the same time. He might be a husband, a father, and
an officer 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 the case everywhere, all the world
over.

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 double
personality. His legal personality is only one. Therefore, a person in one capacity cannot enter
into a contract or any other alike legal transaction with himself in his other capacity. On the same
principle, where a creditor became 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.

Legal Person
A legal person says Salmond, is any subject matter other than a human being to which law
attributes personality. It includes an object, a mass of property, an institution, a group of human
beings etc. Law treats them as right and duty bearing units or entities likes a natural person. It is
by a fiction of law that they are treated as persons. The law in creating legal persons personifies
some real thing or object and then confers upon it a fictitious personality. The former can be
called the corpus and the latter the animus of the legal personality.

Though legal personality, first of all, requires personification, (the use of) a personification in
common speech does not mean that the legal personality has been conferred upon it. We speak of
a bench (of judges) or a cabinet (of ministers) as a person but they have no legal personality.

Legal personality is attained when law recognizes a single entity over and above the group of the
individuals or the thing which though represents the group of the individuals or the thing, is
distinct from them. There is a clear distinction between the individuals who compose the group
(corporation) and the group or corporation as a legal person. A company (it is a legal person)
might go bankrupt but the shareholders would retain their millions.

About legal person, the Supreme Court has expressed the view that a legal person is any entity
other than a human being to which the law attributes personality; it was stated:
Let us be clear that the jurisprudence bearing on corporations is not myth but reality. What we
mean is that corporate personality is reality and not an illusion or fictitious construction of the
law. It is a legal person. Indeed, a legal person is any subject matter other than a human being to
which the law attributes personality. This extension, for good and sufficient reasons, of the
conception of personality... is one of the most noteworthy feats of the legal imagination.
Corporations are one species of legal persons invented by the law and invested with a variety of
attributes so as to achieve certain purpose sanctioned by the law. (Som Prakash Rekhi v. Union
Of India, (1981) SCC 449)

In another case it was stated:

Thus, it is well settled and confirmed by the authorities on jurisprudence and courts of various
countries that for a bigger thrust of socio-political-scientific development, evolution of a fictional
personality to be juristic person became inevitable. This may be any entity, living, inanimate
object or thing.

It may be a religious institution or any such useful unit which may impel the courts to recognize
it. This recognition is for sub serving the needs and faith of the society. A juristic person, like
any other natural person is in law also conferred with right and obligations and is dealt with in
accordance with law. In other words, the entity acts like a natural person but only through a
designated person, whose acts are processed within the ambit of law (Shiromani Gurudwara
Prabandak Committee v. Som Nath Das, (2000) 4 SCC 146)

Evolution of Corporate Personality

Roman Laws, Pater familias; the idea of legal personality can be traced in Roman and ancient
Hindu law. The ancient Roman society was undeveloped and its organization was not very
complex, therefore the problem of legal personality did not bother them much. The family was
the unit of the society. Though family consisted of a number of individuals, all the powers were
centered in ‘pater familias'. He represented the whole family; therefore, there was no theoretical
difficulty about his position. Hereditas jacens; Fiscus, collegia, etc.

However, the hereditas jacens of Roman law is considered by many as having some
resemblance with the legal personality. The ‘hereditas jacens' was used by Romans to mean the
inheritance in between the death of the ancestor and the acceptance of inheritance by the heir. It
was a legal person or not is a controversial point.

Whether it represented the persona of the ancestor (deceased) or of the heir (taking effect
retrospectively after his acceptance of the inheritance) is a question about which there is
disagreement among the jurists. According to Ihering, the original doctrine was that the title of
the heir related back to the death of the ancestor but, later on there came a change and a theory
that the hereditas jacens' represented the ancestor developed. However, there is no direct
evidence to establish that it was a legal person. On the basis that hereditas jacens never appears
to have been made party to any proceeding nor to have been called in action. Savigny and Sohm
say that it was not a juristic person.

From the opinion expressed by ancient Roman jurists, it is gathered that ‘hereditas jacens' had
certain rights such as the right to receive protection. Therefore, it may be considered as a legal
person in a very limited sense. Other objects and institutions or groups who had certain rights
and duties were fiscus (pious foundations), collegia, sociatates publicanorum etc. Their rights
were exercised through a representative. From the above discussion we can conclude that in
Roman law there arose no occasion or necessity to theorize and develop the concept of legal
personality, but the germs of the idea were, undoubtedly present in Roman law.

English Law
In England, there are two main types of juristic persons:
1. Corporation Sole.
2. Corporation Aggregate.
Corporation sole: Corporation sole is defined as an ‘incorporated series or successive persons'.
The concept of corporation sole seems to have come into existence somewhat accidentally, and
comparatively late. It came into being to solve the problem of the devolution of land held by
ecclesiastics in right of their ecclesiastical office.

Later on, the same theory was applied on certain public offices. In some cases this was done
through special statutes. A very popular example of corporation sole, in England, is the King.
He is so by common law. There is a distinction between the King as an individual and the King
as the head of the state. In the later capacity, he is corporation sole. The King never dies and the
Kind is dead, long live the King are based upon the King's position as corporation sole.

The distinction between the two capacities of the King is drawn in the Crown Proceedings Act,
1947, Section 40, Common wealth has created another peculiarity in the personality of the King.
The Crown is considered as the symbol of the unity of the Commonwealth nations. It means that
for some purposes the Crown is regarded not as one person, but as unity or combination of many
personalities, each representing one part of the Commonwealth (except the countries which are
republics). Other examples of Corporation Sole are the Post Master General of England, the
Solicitor of the Treasury etc. They have been made Corporation Sole by special statutes. In
Continental law, there is no such concept as Corporation Sole.

Corporation aggregate: corporation aggregate means an incorporated group of co-existing

persons.

The personality is conferred upon groups by law. In the thirteenth and the fourteenth centuries, in
England, there were various kinds of groups such as ‘boroughs' and ‘merchant guilds'. Though
they possessed corporate characteristics, they had no legal personality. Even in the time of
Bracton the concept of the corporate personality had not occurred to jurists. It was in the
sixteenth century that the idea of incorporation took birth and it developed very rapidly.

By the time of Coke it was established that the corporations cannot arise at their own initiative.
There must be some constitutive act or authority to create a corporation. They could be created
either under common law, or by a Royal Charter, or by a statute, or by prescription. Thus, in
every case there must be some lawful authority for their incorporation.

A large number of corporations were made in Britain during this time and afterwards. These
corporations played a very important part in the development of British Empire. They received
some setback due to South Sea Bubble. The stupendous growth of commerce and industry in
19th century again caused growth and development of corporations.

The first Companies Act was passed in 1862. According to this Act, persons could combine
together for the purposes of commerce etc. by fulfilling the conditions given in the Act. In this
way incorporation takes place. These corporations are legal persons. The Interpretation Act,
1889, Section 19 says; the expression ‘persons' shall unless the contrary intention appears
include any body of persons corporate or unincorporated.

Now a corporation can be created by:

1. A Royal Charter.
2. By some special statute.
3. By registration under the Companies Act.
The last is the most prevalent and popular method of creating a corporation.

Personality on objects and things: Apart from the corporation's (corporation sole and corporation
aggregate) the legal personality has been conferred upon certain objects and things also. A fund
dedicated for a special purpose, such as a trust, or a charitable fund is a legal person. Certain
objects or institutions, such as a church or a university are also legal persons.

Trade Unions and friendly societies: Trade unions and friendly societies are not expressly
recognised as legal persons. However, some protection to the members is given by law on some
other principles. The law of contract, the law of agency and the law of co-ownership come to the
rescue of the members. For example, if subscriptions are paid by the members and the parties
intend to enter into a legal relation, the rules of society are treated as the terms of the contract
between them, and the members can get them enforced against the society.

The second principle which comes to help the members is that where a right of property is
involved (it is involved in these societies because the members pay subscriptions) equity grants
injunction to restrain the society if it prevents any member from enjoying the society life.
Sometimes, the members vest the property (of society) in trustees on such terms as they deem fit
and behind this device they get the benefit of corporate life. Keeping in view these things,
Salmond observes about the position of the trade unions and friendly societies that the better
view is that registered trade unions and friendly societies are also legal persons though not
verbally regarded as corporations.

Concept of Legal Personality In India

In ancient India, like Roman law, the concept of legal personality was not clearly understood nor
was there any necessity for it. The coparcenary system of Hindu law may be considered to be
more or less, a corporation. The head or the karta of the family acted in a representative capacity
and in this capacity he sued and could be sued. There were many kinds of groups also where
some members of it acted in a representative capacity. But they cannot be said to be legal
persons in the modern sense of the term.

Corporations: However, in ancient Hindu system some form of corporation was recognised.

We find its evidence in certain text, as:

(Among heretical sects, trading corporations, trade guilds, unions, troops, tribes and other
associations-the King should maintain the conventions, as also in regard to fortified towns and
the open country-Narada, 10, 2).
(Whatever is obtained by a member of the corporations shall belong to all in common-
Bhrihaspati).

Idols and Funds: Idol 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 a legal person.
It has certain right 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 modern times shall be given.

State: state is a juristic person. It can sue and can be sued. Article 300 of the Indian Constitution
provides;

The Government of India may sue or be sued by the name of the Union of India and the
Government of State may sue or be sued by the name of the State ..... In Civil Procedure Code,
1908, provision has been made for making parties n suits by and against the State.

Idol: idol is a juristic person and as such it can hold property (Pramatha Nath v. Pradyumn,
(1925) L.R. 52). But it is treated as a minor and Pujari or somebody else acts on its behalf as its
guardian.

Mosque: mosque is not a juristic person. In a Lahore decision (Maula Buksh v. Hafiz-ud-din,
AIR 1926 Lah. 372) it was held that a mosque was a juristic person and could sue and be sued,
but in the Masjid Shahid Ganj Case (1940, 67 I.A. 251) it was decided by the Privy Council
that suits cannot be brought by or against mosques, for they are not ‘artificial' persons in the eye
of the law. However, they left the question open whether a mosque could for any purpose be
regarded as ‘juristic' person. 'In Masjid Shahid Ganj v. Shiromani Gurudwara Prabandhak
Committee, (AIR 1938 Lah. 369) a Full bench of the High Court held that a mosque was juristic
person. This decision was taken in appeal to the Privy Council which confirmed the said
judgment.

Sir George Rankin observed:

In one of these cases was a mosque party to the suit and in one except perhaps the last is the
fictitious personality attributed to the mosque as a matter of decision. But so far as they go these
cases support the recognition as a fictitious person of a mosque as an institution-apparently
hypostatizing an abstraction. This, as the learned chief justice in the present case has pointed out,
is very different from conferring personality upon a building so as to deprive it of its character as
immovable property.
Guru Granth Sahib
In Gurudwara Prabandhak Committee v. Somnath Das, (2000) 4 SC 146, the Supreme Court
stating the historical background and sanctity of Guru Sahib held it to be a juristic person. It was
stated:
The last living Guru, Guru Gobind Singh, expressed in no uncertain terms that henceforth there
would not be any living Guru. The Guru Granth Sahib would be the vibrating Guru. He declared
that henceforth it would be your Guru from which you will get all your guidance and answer. It
is with this faith that it is worshipped like a living Guru. It is with this faith and conviction, when
it is installed in any gurudwara it becomes a sacred place of worship.

Sacredness of the gurudwara is only because of placement of Guru Granth Sahib in it. This
reverential recognition of Guru Granth Sahib also opens the hearts of its followers to pour their
money and wealth for it. It is not that it needs it, but when it is installed, it grows for its
followers, who through their obeisance to it, sanctity themselves and also for running the (anger
which is an inherent part of a Gurudwara.

Companies, associations and groups: Companies, associations and many other kinds of groups
are legal persons. They have been expressly so recognised in a number of statutes. For example,
Transfer of Property Act, 1882 (Sec. 5, para II) says; in this section living person includes a
Company or association or body of individuals, whether incorporated or not.

Companies and Registered Societies: Companies incorporated in accordance with the Indian
Companies Act are juristic persons. An incorporated company has a separate existence and the
law recognises it as the legal person separate and distinct from its members.

This new legal personality emerges from the moment of incorporation and from that date the
persons subscribing to the memorandum of association and other persons joining as members are
regarded as a body corporate or a corporation aggregate and this new person begins to function
as an entity. Societies registered under Societies Registration Act, 1860 are also held to be legal
person.

Sections 2, 5, 6, 8, 9, 10, 11 and 13 of the said Act make it amply clear. Such a society has a
separate name and can hold property through trustees, it can sue and be sued and any person
having a claim against it must look to its property and not that of its members for satisfaction of
his dues (Ganga Sahai v. Bharat Bhan & Others, AIR 1950 All. 480).

Thus, a society registered there under even if not a corporation in the full sense is certainly a
legal person. However, all kinds of societies cannot be registered under the Societies
Registration Act 1869 Section 20.

The societies that can be registered are charitable societies the military orphan funds or societies
established at the several Presidencies of India, societies established for the promotion of the
science, literature or the fine arts, for instruction, the diffusion of useful knowledge, the political
education, the foundation or maintenance of laborers or reading rooms for general use among the
members or open to the public, or public museums and galleries or paintings and other works or
arts, collections of natural history, mechanical and philosophical inventions, instruments, or
designs.

Groups, Personalities by statutes: Groups, such as registered trade unions and friendly societies
also are legal entities. They own properties, and suits can be brought in their names. Apart from
these there are associations, institutions and many kinds of autonomous bodies upon whom legal
personality has been conferred by statutes.

Company not a citizen: However, an incorporated company or a group recognised as juristic

entity is not necessarily a citizen of India though all the members constituting it may be Indian
citizens. It has been held in S.T. corp. of India v. Commercial Tax Officers, AIR 1963 SC
1811,

But the members who form the incorporated company do not pool their status or personality. If
all of them are citizens of India, the company does not become a citizen of India any more than if
all are married the company would be a married person. The personality of the members has
little to do with the personality of the incorporated company.

The person that comes into being is not the aggregate of the persons either in law or in metaphor.
The corporation really has no physical existence, it is a mere abstraction of law.

Accordingly it has been held that the State Trading Corporation case, a company registered
under the Indian Companies Act, 1956, is not a citizen within the meaning of Art.19 of the
Constitution and cannot ask for the enforcement of fundamental rights granted to citizens under
the said article.

Advantages of Incorporation
The vast growth of corporations in recent years is an evidence of its usefulness.
Incorporation has a number of advantages:
1. The first great advantage of incorporation is that it simplifies and cheapens the legal
proceedings (by or against it). In any dispute with a corporation, a person proceeds
against one person only i.e., the corporation, and not against a number of persons who
compose the corporation. Similarly, the corporation also sues as a single person. The
‘corporation sole' (in England) has also its uses. It maintains the continuity of a particular
office irrespective of the fact that the individuals who hold the office remain changing.
Many claims and liabilities, which might have lapsed at the vacation of office by a
holder, do not lapse due to this device.
2. Secondly, incorporation has greatly helped development of commerce and industry. A
member (shareholder) is liable only to the extent of his share, or to the extent of the
amount guaranteed by him if it is a company limited by a guarantee. Under these
conditions, members have little risk and they do not hesitate in taking enterprises.
3. Thirdly, the death of, or withdrawal or transfer of share by a member does not affect the
functioning or the existence of the corporation as it causes in a partnership. The coming
going changing increasing and decreasing of members in no way affects the life of the
corporation. It has its own life and existence which can come to an end only by certain
specific defined methods.
4. Fourthly, it facilitates the functioning and management of the corporation. Due to
incorporation, it is possible that the whole management is done by one skilled person.
This not only keeps the members free from the botheration but helps in increasing
production also. In short, modern commerce would be impossible without incorporation.
Theories of Corporate Personality
There are various theories of corporate personality which have attempted to theories the nature
and authority of it. This might make one to gather that theoretically all the legal problems
regarding persons have been fully explored but this is not true. There is a great divergence
between theory and practice. Any one theory alone is not capable of solving the problems fully.
Therefore, the courts have not followed any one 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.

Following are the principal theories of corporate personality:

1. Fiction Theory: This theory says that only human beings can properly be called
‘persons'. Some kinds of groups etc., are regarded as persons, for certain purposes only
by a fiction of law and they have no real personality. Main supporters of this theory are
Savigny, Salmond and Dicey. This theory is most applicable to English law where the
courts have not proceeded on any hard and fast principle in their recognition of juristic
persons. There is much flexibility in the theory and it can accommodate the various
decisions (Which are sometimes divergent also) on 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.
2. Concession Theory: This theory is allied to the fiction theory. The supporters of both
theories are almost the same jurists. 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 confers 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.
3. Realist Theory: This theory has another name also i.e., organic theory. The main
exponent of this theory is Gierke. Maitland also supports it. This 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 person are real in the same
sense in which human beings are. Legal personality is not fictitious, nor does it depend
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 with biological organism leads the theory to absurdity. Closely linked with
‘realistic 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 purpose. Pluralist interpretation is that there
can be independent institutions within the institution of state (they consider state only as a
supreme institution). Fascist interpretation is that the state is the only institution and other
institutions within it are parts of it, and therefore, they must function according to the
direction of the state. By putting interpretation they used the theory to suppress other
institutions.
4. Bracket Theory or Symbolist Theory: This theory says that the members of the
corporation are the only persons who have rights 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 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 weaknesses also.

The contention of the theory that only human beings have personality and not the group
is far from the truth. In modern times, it is agreed on 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
contract and other legal transactions with others. How can a person enter into contract
with a bracket? This question hits at the very root of the theory. An important implication
of the theory is that law can remove the bracket at any time and can look behind the
entity to discover the real state of affairs.

Certain other theories

There are many other theories of corporate personality.
Purpose theory: Purpose theory says that only human beings have personality. Juristic persons
are no persons at all. They are simply subject less properties' meant for certain purposes. This
theory was formulated mainly to explain the stifung (foundations) of German law and hereditas
jacens of Roman law. The theory has no application to English or Indian law where judges have
repeatedly held that corporation is persons.

Hohfeld's theory: Hohfeld has also given a theory about corporate personality. His theory is
closely related to the Bracket theory. He says that only human beings have rights and duties and
corporate personality is merely a procedural form, which is used to work out in a convenient way
for immediate purpose, a complex class of jural relation.

Kelsen's theory: Kelsen 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. This device is for procedural facility and it is the rights of (human) individuals
that are real. Kelsen's theory does not throw any light on the nature of the group personality nor
does it help in solving practical problems. It is submitted that to do this is not in the province of
the ‘pure theory of law', therefore, Kelsen did not bother himself with actual working or practical
problems.

Problems of Corporate Personality

A corporation is, in law, quite distinct and separate from the members who compose it. Its rights
and liabilities are different for those of the members. A shareholder of a company can legally
enter into a contract with the company as such. Shares holders might be entirely changed, or their
number might greatly reduce, but it would make, in no way, any change in the identity of the
company. The company might go bankrupt but the shareholders would retain their millions.

The real position of a company can be understood only if we make a comparison of it with an
unincorporated firm. In an unincorporated firm, there is not much difference between the rights
and obligations of the firm and its partners. Even the separate property of the partners is liable
for the debts of the firm. Change of any one partner causes the reconstitution of the firm. There
can be no firm of only one partner, whereas a company may be of only one member. This special
position of the company is due to the fact that a company is a juristic person, therefore, it is
distinct and separate from its shareholders but the unincorporated firm is not a juristic person,
therefore, it does not have the above-mentioned advantages.

Salomon v. Salomon and Farrar v. Farrar: In short, the essential character of the corporation is
that it has a distinct personality from its members. In Salomon v. Salomon and Co. Ltd, 1897
A.C 22) the House of Lords refused to identify the company with its shareholder. It was held that
‘he could Claim the preferential rights of a bondholder against the company which was in reality
he hirnself, to the detriment of genuine creditors'.

Again, in (Farrar v. Farrar Ltd. 14 (1889) 40 Ch. D. 395) it was held A sale by a person to
corporation of which he is member is not either in form, or in substance as sale by a person to
himself, the idea is that the corporate body is distinct from the persons composing it. A sale by a
member of a corporation to the corporation itself is in every sense, valid in equality as well as in
law.

People's Pleasure Park Co. v. Rohleder: An important American case in which the same
principle was laid down is (People's Pleasure Part Co. v. Rohleder, 61 S.E.R. 794). In this case
the question was as to whether a restrictive covenant that title to land should never pass to a
coloured person operated to prevent transfer to corporation of which all the members were
Negroes. It was held that the transfer to the corporation was valid, because a corporation is
distinct from its members as mentioned in In re Europe (1932 V.L.R. 443).

Principle not consistently followed And Lifting the veil:

The principle given has, however,, not been consistently followed:
Greater familiarity with the problems implicit in the incorporations of groups has compelled the
courts to retract from the simplicity of the doctrine ..... and in some cases to ‘pierce the veil' of
legal personality in order to lay bare the realities behind it.

This has made the law about legal personality considerably complicated. There have been cases
in USA, England and other countries where courts lifted the veil of legal personality and
examined the reality behind it.

The veil can be lifted when it becomes necessary to know the character of a corporate person; or
when a corporation has been created to avoid some legal obligation; or when the device of
corporate personality is used to perpetuate fraud, as to evade tax; or when it is used to evade a
statute or to delay creditors; or when it is necessary to promote justice or to obviate inequitable
results.

Daimler Co. v. Continental Tyre Co.: In Daimler Co. v. Continental lyre Co:, ((1916) 2 A.C.
307) the House of Lords lifted the veil of legal personality of a company as all its shareholders
(with an insignificant exception) and directors were enemies (Germans, during the World War
1).

U.S. v. Lehigh Valley Road Co.: In U.S.A. in 1.1.8. v. Lehigh Valley Rail Road Co., (220
N.S. 257) the court pierced the veil of legal personality where a railway Company attempted to
evade a statute which forbade the transporting of C081 by the person who was mining it by
acquiring all the shares of a coal company whose coal it was transporting.

In England, a number of statutes have been passed to disregard the corporate entity where it has
been created as a device to evade tax. Convenience and policy is the basis. It is thus clear that
courts have not followed any theory consistently and have preceded mostly according personality
to convenience and on the basis of policy.

They have disregarded legal personality in a number of cases, where law had conferred one, and
on occasions they attributed legal personality to groups where it was not so provided by law
(statute). In modern times, the law is very lenient in conferring legal personality upon groups, but
at the same time, it does not hesitate in lifting the veil if it is necessary in the interest of justice or
as a matter of policy.

Liability of Corporation
Corporations are legal persons. It means that they have rights and liabilities. So far as rights are
concerned, there is no difficulty in their enforcements. But the liabilities of corporations present
very complicated problems. How are the liabilities of an entity which is treated as person only by
a fiction of law to be enforced against it? This problem shall be discussed under three headings:
1. Liability of corporations in contract;
2. Liability of corporations for torts;
3. Liability of corporations for criminal acts.
1. Liability of Corporations in Contract
For entering into a contract two things are of vital importance, i.e., the form of the contract and
the capacity of the parties. A corporation has no material existence; therefore, it always acts
through its agents. It signifies its assent through its seal. Therefore, the presence of the seal is
considered as the evidence of the assent of the body corporate. Subject to certain exceptions, this
is the general rule.

The form of the contract is same in every case, whether the parties are the natural persons or one
or both parties are corporations. So far as the capacity of a corporation to enter into a contract is
concerned, in England, it depends upon the source of the creation of the corporation. They are
created either by a character, or by a statute. In common law a corporation created by a Royal
Charter can bind itself and can deal with its property in the same manner as a natural person.

The power of a corporation, created by a statute to enter into a contract is limited to what the
statute grants. Thus a company incorporated under the Companies Act is limited in its capacity to
the objects set out in its memorandum of association. Any contract made beyond memorandum
is ultra vires and void, although it is agreed upon by all the members unanimously. Such act
(contract) is incapable of ratification (Ashbury Railway Carriage and Iron Co. v. Rich, L.R,
(1875), 7 H.L. 563).

Such a limitation upon a corporation's power to contract has been criticised by the jurists.
However, in modern times, the rule is not working as a great impediment upon corporation's
power because memorandum is drafted very comprehensively. In India, there is no common law;
therefore, the power of corporation to enter into a contract depends upon the statute.

2. Liability of corporations of Torts

A corporation acts always through its agents. Therefore, liability of a corporation for the torts is
based on, the principle of vicarious liability. A corporation is liable for the acts of its servants
done in course of employment. But this rule applies only for those acts which are intra vires the
corporation. The difficulty arises in determining the liability for the acts which are ultra vires.

The strict view of English law is that if a tram company has no power to run buses, then
any bus' drivers engaged are not in law the servants of the Company, and therefore the
company is not liable for their torts.

Such acts (ultra vires acts) are divided into two classes, the acts done under the express authority
of the corporation .and acts done without any authority. As far as the acts done without any
authority from the corporation are concerned, the corporation is not liable for these acts.

About the liability for acts done with the authority of the corporation, there is a difference of
opinion. Good hart's view is that the corporation is liable. In America, this view has been
rejected. Winfield says that the corporation is liable as a joint tort feasor. A decided case on the
point is Campbell v. Paddington Corp., ((1911) 1 K.B. 869) in which it has been held that the
corporation is liable.

3. Liability of Corporation for Criminal Acts

The earlier view was that a corporation cannot be made liable for a crime. There are theoretical
as well as procedural difficulties. How can mens rea are attributed to a body corporate and how
can it be punished? Were the questions which created difficulties in holding a corporation liable
for criminal acts?

In England, the Procedural difficulties have been removed by statutes and theoretical difficulties
have been overcome partly by statutes and partly by court decisions on the point.
Now, in recent years, corporations have been held criminally liable (even in cases where mens
rea is involved) for the criminal acts done by the persons acting on behalf of the corporation. In
any case, there is no difficulty in holding them liable for the offences for which a fine is an
alternative punishment.

In D.P.P. v. Kent and Sussex Contractors Ltd, ((1944) K.B. 146) the manager of the company
had sent in false returns for the purpose of obtaining petrol coupons. The Court held the
company liable and said that through its manager the company committed the offence.

In R. v. C.R. Haulage Ltd., ((1994) K.B. 551) a company was held liable for conspiracy to
defraud. Its managing directors and some others had conspired to practice fraud upon another
company.

In Moor v. Bresler Ltd, ((1994) 2 All E.R. 515) the company was held guilty for the criminal
act of its secretary.

In India, in statutes containing penal provisions, specific provisions have been made with respect
to offences by the companies.

For example, Section 140 of the Customs Act provides as follow:

Offences by companies:
1. If the person committing an offence under this Chapter is a company, every person who,
at the time the offence was committed was in charge of and was responsible to the'
company for the conduct of business of the company, as well as the company shall be
deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly: Provided that nothing contained in this sub-section shall render
any such person liable to such punishment provided in this Chapter, if he proves that the
offence was committed without his knowledge or that he exercised all due diligence to
prevent the commission of such offence.
2. Notwithstanding anything contained in sub-section (1) where an offence under this
Chapter has been committed by a company and it is proved that the offence has been
committed with the consent or connivance of, or is attributable to any negligence on the
part of, any director, manager, secretary or other officer of the company, such director,
manager, secretary or other officer shall also be deemed to be guilty of that offence and
shall be liable to be proceeded against and punished accordingly.

Explanation-For the purposes of this section,

(a) company means a body corporate and includes a firm or other association of
individuals; and
(b) director , in relation to firm, means a partner in the firm.
Thus, though some of the problems regarding the criminal liability of corporations have
been solved and some principles have been established, how far this evolution will go is
still uncertain.
3. Corporation and Fundamental Rights Any company or society, if it is a Government
company or society, is subject to Fundamental Rights in Part III of the Indian
Constitution. It has been observed:
Corporations are one species of legal persons invented by the law and invested with
varieties of attributes so as to achieve certain purposes sanctioned by the law. The
characteristics of corporations, their rights and liabilities, functional autonomy and
juristic status are jurisprudentially recognized as of a distinct entity even where such
corporations are State agencies or instrumentalities.

But merely because a company or other legal person has functional and jural individuality for
certain purposes and in certain areas of law, it does not necessarily follow that for the effective
enforcement of fundamental rights under our constitutional scheme, the court should not scan the
real character of the entity; and if it is found to be controlled by the State and in effect an
incarnation of the State, constitutional lawyers must not blink at these facts and frustrate the
enforcement of fundamental rights despite the inclusive definition of Article 112 that any
authority controlled by the Government of India is itself a State (Som Praksah Rekhi v. Union
Of India, (1981) SCC 449).

Suit or complaint by Corporation

There is no doubt about the capacity of a juristic person to file a civil suit. This can be filed by a
person authorized by it. So far as the question of filing criminal complaint by a juristic
(corporation) person is concerned, the Supreme Court has stated that:
the complainant must be a corporeal person who is capable of making physical presence in the
court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like
a company or corporation) it is necessary that a natural person presents such juristic person in the
court and it is that natural person who is looked upon, for all practical purposes, to be the
complainant in the case. In other words, when the complainant is a body corporate it is the de
jure complainant, and it must necessarily associate a human being as de facto complainant to
represent the former in court proceedings.

The person representing the juristic person can be changed also. In the said case (Associated
Cement Co. Ltd. V. Keshwan, (1998) 1 SCC 68) the Supreme Court further said:
No magistrate shall insist that the particular person, whose statement was taken on oath at the
first instance, alone, can continue to represent the company till the end of the proceedings.

There may be occasions when a different person can represent the company e.g. the particular
person who represents the company at the first instance may either retire from the company's
services or may otherwise cease to associate therewith or he would be transferred to a distant
place. In such cases it would be practically difficult for the company to continue to make the
same person represent the company in the court. In any such eventuality it is open to the de jure
complainant company to seek permission of the court for sending any other person to represent
the company in the court.

Reference:
1. Cooke, C.A. (1950). Corporation, Trust and Company: A Legal History.
2. Watson, A. (1967). The Law of Persons in the Later Roman Republic.
3. Guterman, S. (1990). The Principle of the Personality of Law in the Germanic Kingdoms
of Western Europe from the Fifth to the Eleventh Century.
4. Dewey, J. (1926). The Historic Background of Corporate Legal Personality. Yale Law
Journal. 35 (6): 655. doi:10.2307/788782. JSTOR 788782.
5. Machen, A.W. (1910). Corporate Personality. Harvard Law Review.
6. https://en.wikipedia.org/wiki/Legal_person.
7. Gary J. Dernelle. Direct Foreign Investment And Contractual Relations In The People's
Republic Of China. DePaul Business Law Journal, Spring/Summer 1994. (6 DePaul Bus.
L.J. 331).
8. Dr. B.N.Tripathi, Jurisprudence Legal theory (Allahabad Law Agency, Haryana, 7th
Edn., 2010)

SOURCES OF LAW
LEGISLATION
INTRODUCTION
The term 'legislation' is derived from Latin words, "Legis" meaning law and "Latum" which
means "to make" or "set". Thus the word 'legislation' means 'making of law'. Legislation is that
source of law which consists in the declaration of legal rules by a competent authority1. The most
powerful and independent method of enacting laws is through legislation. It is the only source
with the authority to pass new laws, repeal old ones, and amend existing laws2. However, the
term "legislation" is only used to refer to a specific type of law-making, i.e., when a competent
authority declares legal principles in statutory form. It means that the State's legislature has
passed/promulgated a law. The law that has its source in legislation is called the enacted law or
statute law.
Gray pointed out that legislation includes "formal utterances of the legislative organs of the
society"3. According to Salmond: "Legislation is that source of law which consists in the
declaration of legal rules by a competent authority"4. Salmond noted that legislation is the type of
source of law that entails the proclamation of legal rules by an appropriate and competent body 5.
He claims that there are three different meanings associated with the term "legislation" as a
source of law. In its strict sense, it is that source from where the rules of law declared by
competent authority are framed. In its widest sense, legislation includes all methods of law-
making. In this sense, legislation may either be (i) direct, or (ii) indirect. The law declared by
legislature is called direct legislation whereas all other actions through which law is made are
species of indirect legislation. In this third sense, legislation encompasses every expression of the
will of the legislature whether making law or not. According to Austin: "There can be no law
without a legislative act".
LEGISLATION AS A SOURCE OF LAW
As per the analytical school, 'typical law' is a 'statute' and 'legislation' is the normal process of
law-making6. The historical school holds that among all the sources of law, legislation is the least
creative. According to James Carter "It is not possible to make law by legislative action". Its
utmost power is provide a further incentive to influence behaviour by promising a reward or
threatening a punishment in response to a certain action. The historical school and the analytical
school both go to extremes. The analytical school makes the error of seeing legislation as the
exclusive source of law and it gives precedent and custom little weight. The historical school
makes the error of not seeing legislation as a source of new law. Mr. J.S. Khehar observed in the
case of Nidhi Kaim v. State of Madhya Pradesh7 that the legislation is enacted, only with the
object of social good, and only in support of societal causes. Legislation flows from reason and
logic.
CLASSIFICATION OF LEGISLATION
Salmond divides legislation into two types:
1. Supreme Legislation - When a law is passed by a supreme authority or a sovereign law-
making body, such as the legislature of an independent and sovereign state, it is referred
to as supreme legislation. It is supreme because no other authority has the power to
revoke, alter, or regulate it. Such laws cannot be revoked or overturned by another
legislative body8.
2. Subordinate legislation: Subordinate legislation on the other hand, is that which comes
from any authority other than the sovereign power. It is dependent on a higher power in
order to remain valid and to continue its existence. India's Parliament is endowed with
supreme legislative authority. But, there are other organs which have powers of
subordinate legislation.
Validity of Subordinate Legislation
Certain requirements must be met for the delegation of legislative authority to be valid. These
prerequisites are as follows:
i. The parent Act, i.e., the Act under which the power to make subordinate legislation is
exercised, must be valid.
ii. The Parent Act's delegation clause must be valid.
iii. The statutory instrument must not violate certain general norms laid down by judicial
decisions, e.g., norms regarding ouster of court jurisdiction, imposing a penalty or tax,
giving retrospective effect etc.
iv. The statutory instrument must not violate any provisions of the Constitution9.
The different kinds of Subordinate Legislation include:
1. Colonial Legislation - The Imperial legislature, namely the British Parliament granted
varied degrees of limited autonomy to the British colonies. With the use of this power,
the colonies had some degree of legislative authority. But, the Imperial legislature had the
authority to repeal, amend, or replace the laws created by the colonial administrations.
However, after the passing of the Statute of Westminster of 1931, the self-governing
Dominions under the Crown have been given power to make law independently subject
to nominal supremacy of the British Crown.
2. Executive Legislation - The Legislature may delegate its rule-making power to certain
departments of the Executive. The rules made in pursuance of this delegated power have
the force of law. They may, however, be repealed or superseded by the legislature as and
when deemed necessary to do so. In India, the Executive has powers to make bye-laws on
matters such as deciding the suitable place for market10, fixing of prices, etc.
3. Judicial Legislation - In certain cases, rule-making power is delegated to the judiciary and
the superior courts are allowed to make rules for the regulation of their own procedure.
This is also known as judicial legislation and it should not be mistaken with judicial
precedents where the Court formulates a new principle of law via its judicial decision.
The Constitution of India has conferred the power of rule-making to the Supreme Court
and the High Court under Articles 145 and 227 respectively. Article 145 empowers the
Supreme Court to make rules relating to the following matters :
1. for setting up norms for practicing lawyers
2. for the procedure of appeals and time-limit for such appeals
3. for making rules relating to costs and fees, etc.
4. Municipal Legislation - The municipal authorities have the power to make rules for the
areas under their jurisdiction concerning water, land, urban cess, house tax, etc. Such
bye-law making power of municipal authorities is another form of subordinate
legislation.
5. Autonomous Legislation - The State may occasionally allow private entities or bodies,
such as universities, companies, corporations, etc. to make bye-laws for controlling the
conduct of their business. These bye-laws are formulated in exercise of the rule-making
power granted to these bodies by the State. For example, Railways have their own rules
for the conduct of their business.
DELEGATED LEGISLATION
Although the executive's main duty is to enforce the laws enacted by the Legislation, still, its
departments have the authority to make rules for itself. Subordinate law includes legislation
passed by the executive branch. Delegated legislation is, strictly speaking, any law passed by an
authority other than the legislature. It means the rules, orders or bye-laws made by the executive
authorities under the law passed by the Parliament11. In simple words, when Legislature bestows
the law-making power on some other body, then the legislative power is said to be delegated and
this is known as delegated legislation.
Reasons for Delegated Legislation are:
1. Want of Time: Parliament is a busy body. If it devotes its time on entertaining minor and
subsidiary issues and attempts to lay down all rules itself, all of its time will be consumed
in preparing only a few Acts. Thus, it has to confer rule making power to the executive12.
2. Technicality of the Matters: Many rules are technical in nature and require consultations
with the experts. It is, therefore, more convenient to delegate such rule-making power to
the experts who are none else than the executive itself.
3. Local Matters: There are matters which concern only a particular locality or particular
group or profession. Any legislation on these matters needs consultation with the people
of that particular locality, group or profession. Thus, some departments are given powers
to make changes and rules in consultation with the people acquired with and interested in
it.
Delegated legislation should not to be mistaken with the executive legislation. The former refers
to the laws made by the authorities other than those to whom the Legislature has delegated its
legislative authority. The latter refers to the legislation passed by the President and the Governor
under Articles 123 and 213, respectively, of the Indian Constitution. These laws are in the form
of Ordinances which have the force of law. Such Ordinances are issued by the respective
executive heads on the ground of urgency when Legislature is not in session and they cease to
have effect if not ratified within six weeks after the assembly of the Legislature. The source of
delegated legislation is always the Act of the Parliament but the source of the executive
legislation is a constitutional provision.
Control of Delegated Legislation
The following safeguards have been applied to delegated legislation to make sure that it is not
abused:
1. Procedural control - Certain procedural safeguards are necessary to keep a constant watch
over the exercise of power by the executive or administrative authorities13. These may
include:-
a. Prior consultation of interests which are likely to be affected by the proposed
delegated legislation;
b. Prior publicity of proposed rules and regulations; and
c. Publication of delegated legislation being made mandatory.
2. Parliamentary control - This control is exercised through the committee on subordinate
legislation of both the Houses of Parliament which maintains vigilance on Government's
rule-making power and scrutinise the rules framed by the executive. Its goal is to keep an
eye on the rule-making authorities and provide with a chance to criticise them if they
abuse their authority.
3. Judicial control - Whenever a law made by the executive is found to be inconsistent with
the Constitution or ultra vires the parent Act from which the law-making power has been
derived, it is declared null and void by the court. The Supreme Court and the High Courts
have the authority to determine whether delegated legislation is lawful or not. In the land-
mark case of Air India v. Nargesh Meerza14, the Supreme Court struck down the
delegated legislation on the ground of non-conformity with the provisions of Article 14
of the Constitution.
SUB-DELEGATION
It is common for a person or a body to get delegated powers and authority, indirectly from a
statute. The legislation created in this manner is recognised as sub-delegated legislation. This
state of affairs would appear to be in conflict with the general principle that a delegate is not able
to delegate further, i.e., the maxim "delegatus non potest delegare ". In other words, the general
rule is that where Parliament gives a power to make law for some specified purpose to a body or
person, it can be exercised only by that body or person alone. Therefore, it would be unlawful to
sub-delegate a legislative power without specific and express authority15. The Parent Act
occasionally allows sub-delegation to authorities or officials who are not below a certain rank.
Only those officers or authorities are eligible to receive the delegated power in this situation.
CONDITIONAL LEGISLATION
A conditional delegation occurs when the Legislature creates the law and transfers to another
entity, merely the authority to decide when it should come into effect or when it should apply to
a certain region or territory of the State. The Supreme Court observed in the case of Hamdard
Dawakhana v. Union of India16 that "In conditional legislation, the delegate's power is that of
determining when a legislative declared rule of conduct shall become effective, and the delegated
legislation involves delegation of rule-making power to an administrative agent. That means the
Legislature after having laid down the broad principles of its policy in the legislation, can leave
details to be supplied by the administrative authority".
COMPARISON OF LEGISLATION WITH OTHER SOURCES OF LAW
Legislation is today the most important instrument of legal evolution and in the opinion of many,
it is the exclusive material source of law. In countries where there is common law, precedent or
case law takes rank as a material source of law. It is therefore, desirable to compare legislation
with other sources of law, namely, precedent and custom.
Comparison between Legislation and Precedent
Difference between Legislation and Precedent are as follows17:
1. The legislation has its source in the law-making will of the State whereas precedent has
its source in judicial decisions.
2. The Legislature imposes laws on the courts, but the courts themselves set precedents.
3. Legislation denotes formal declaration of law by the Legislature whereas precedents are
recognition and application of new principles of law by courts in the administration of
justice.
4. Legislation is passed prior to a case actually coming up, but the precedent is only
established once the matter has been brought up and is being heard by the court.
5. Legislation is declared or published before it is brought into force but precedent comes
into force at once, i.e., as soon as decision is pronounced.
Advantages of Legislation Over Precedent
1. Abrogative Power - Legislation in both constitutive and abrogative whereas precedent
merely possesses constitutive efficacy. Legislation not only acts a source of law, but it
also has the power to create new laws and change or repeal already existing ones.
Contrarily, precedent cannot override the current laws, even though it sometimes results
in laws that are in some respect better than legislation.
2. Efficiency - The essential functions of formulating and enforcing laws are divided by
legislation, thereby enabling a beneficial division of labour. As a result, efficiency is
increased. Contrarily, precedent unites the job of creating the law and that of enforcing it
in the same hands18.
3. Provision for future cases - Legislation can make rules in anticipation for cases that have
not as yet arisen, whereas precedent must wait for the occurrence of some dispute before
the court can create any definite rule of law.
Comparison between Legislation and Custom
Pointing out the importance of enacted law over customary law, Keeton observed that in earlier
times legislation was supplemental to customary law but in modern time the position has
reversed and customary law is treated supplementary to the enacted law. Laws passed by the
legislature are clear, well-written, and comprehensive, thereby making them simple to
comprehend. Enacted law is a product of the legislative branch; as a result, it reflects the general
will of the populace19. Only after being followed for a considerable amount of time can a custom
be recognised as a customary law. Legislation differs from custom in the following aspects 20:
1. The existence of legislation is essentially de jure whereas customary law exists de facto.
2. Legislation develops from theoretical concepts, whereas customary law develops from
usage and a long existence.
3. Legislation as a source is historically much latter as compared with custom which is the
oldest form of law.
4. In contrast to customary law, which is largely unwritten (jus non scriptum) and difficult
to trace, legislation is comprehensive, precise, written in form, and easily accessible.
CODIFICATION OF LAWS
Codification means the reduction of the whole corpus juris so far as practicable, in the form of
enacted law. A Code denotes "a systematic collection of statutes, body of laws so arranged as to
avoid inconsistency and overlapping". Thus codification implies collection, compilation,
methodical arrangement and systematisation of whole body of laws so that they are reduced in
the form of general principles and rules.
INTERPRETATION OF STATUTES
The law which comes into being through legislation is called enacted or statute law. The words
of enacted law - the "litera scripta" - constitute a part of law itself. The courts have to ascertain
the intention of the legislature and expressions of the enactment for its application. The process
of ascertaining the meaning of the letters and expressions by the court is called either
'interpretation' or 'construction'.
Interpretation is a very important function of the court. It is through this function that judiciary
evolves the law and brings changes in it, and, thus, keeps the law abreast of time. Interpretation
changes with the time and place. It is of two kinds: (1) literal or grammatical; and (2) logical or
liberal or functional or equitable or free.
Literal or Grammatical Interpretation or Plain Meaning Rule; Grammatical interpretation is the
interpretation of statute by looking to the very letter of its expression. When the words of the
statute are clear, they must be given effect to. The ordinary meaning of words may be determined
by looking into dictionaries, or into such scientific and other technical works where that
particular words have been employed21.
Logical interpretation is that which departs from the letter of the law and seeks elsewhere or
some other or more satisfactory evidence of the intention of the legislature. This is known as
"sententia legis" or the functional interpretation22.
Interpretation varies from construction as the former is the art of finding out the true sense of any
form of words, that is the sense in which the author intended to express and enable others to
derive from them the same idea that the author intended to convey. Whereas, Construction is the
drawing of conclusions, respecting subjects that lie beyond the direct expression of the text from
elements known from and given in the text, conclusions which are in the spirit, though not within
the latter of the text23.
Harmonious Construction : When two provisions of the same statute become applicable in a
given case, a harmonious construction should be given so as to avoid futility of the statute24 and
they should be so interpreted that effect be possibly given to both.
IMPORTANT RULES OF INTERPRETATION
Golden Rule: Though the literal interpretation must be accepted, it must be applied very
cautiously, and it should not be followed if the statute is apparently defective. Therefore, in
difficult cases the court may go beyond the words of the statute, and may take help from other
sources. For example, there may be some obvious clerical errors in the text, such as a reference
to a section by the wrong number, or the omission of a negative in some passage in which it is
clearly required. The court should rectify the error so as to avoid the absurdity and to restore the
true intent of the legislature or give the correct meaning. The court mends formal defects and
restores the true intent of the legislature. This is the so-called 'golden rule' of interpretation 25.
Mischief Rule: When judges encounter problems with literal interpretation, they may refer to this
rule as another guide. As per this rule, judges look into the policy of the statute. Additionally, it
has been noted that words have an inner core of accepted applications encircled by an outside
periphery of unresolved uses. The former points to the general direction of development,
whereas manipulation takes place in the periphery. The canon of interpretation that is best suited
to give effect to this approach is known as the Mischief Rule which was propounded as long ago
as 1584 in Heydon's case26. It was stated in that case that four things are to be discussed and
considered. First, what was the common law before the making of the Act; Second, what was
mischief and defect for which the common law did not provide; Third, what remedy both
Parliament resolved and appointed to cure the disease of the common law; and Fourth, the true
reason of the remedy.
In Heydon's case it was stated that all judges should make such construction as shall suppress the
mischief and advance the remedy and to suppress subtle inventions and evasion for continuance
of the mischief, and to add force and life to the cure and remedy according to the true intent of
the makers of the Act.
CONCLUSION
In the modern world, legislation is one of the primary and most significant sources of law.
Several nations in the modern world regard this method of law-making and view legislation as a
crucial source of law. Legislation as a source of law attempts to create consistency by
eliminating ambiguity, therefore even though it has some flaws and gaps, these problems are still
much less severe than those associated with custom and precedent, the other sources of law.
It can be concluded that Legislation is recognised as one of the most effective sources of law for
two main reasons. Firstly, it involves laying down of legal rules by the legislature which the
State recognises as law. Secondly, it has the force and authority of the State. It is for this reason
that Dias has rightly said that deliberate law-making by an authoritative power, i.e., the State is
called 'legislation' provided that authority is duly recognised as the supreme power by the
courts27.

*
Second Year B.A. LL.B. (Hons) Student at Dr. B. R. Ambedkar National Law University,
Sonepat, Haryana
1
DR. N.V. PRANJAPE, STUDIES IN JURISPRUDENCE & LEGAL THEORY 329 (Central
Law Agency, 9th Edn., 2022)
2
DR. S.R. MYNENI, JURISPRUDENCE 179 (Asia Law House, Hyderabad, 3rd Edn., 2021)
3
DR. N.V. PRANJAPE, STUDIES IN JURISPRUDENCE & LEGAL THEORY 329 (Central
Law Agency, 9th Edn., 2022)
4
V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY 159 (EBC Publishing Ltd., 5th
Edn, 2021)
5
SALMOND, JURISPRUDENCE 115 (12th Edn.)
6
V.D. MAHAJAN, JURISPRUDENCE & LEGAL THEORY 160 (EBC Publishing Ltd., 5th
Edn, 2021)
7
Nidhi Kaim v. State of Madhya Pradesh, MANU/SC/0150/2017
8
DR. S.R. MYNENI, JURISPRUDENCE 179 (Asia Law House, Hyderabad, 3rd Edn., 2021)
9
Harman Singh v. Regional Transport Authority, MANU/SC/0015/1953
10
Ramesh Chandra Kachardas Porwal v. State of Maharashtra MANU/SC/0033/1981
11
DR. N.V. PRANJAPE, STUDIES IN JURISPRUDENCE & LEGAL THEORY 333 (Central
Law Agency, 9th Edn., 2022)
12
DR. S.R. MYNENI, JURISPRUDENCE 183 (Asia Law House, Hyderabad, 3rd Edn., 2021)
13
Aditi Prabhune, Understanding The Control Mechanism Over Delegated Legislation In India
And Critically Analysing The Judicial Control Of Delegated Legislation With Relevant Case
Laws, LEGAL SERVICE INDIA, (Nov 22, 2022),
https://www.legalserviceindia.com/legal/article-4944-understanding-the-control-mechanism-
over-delegated-legislation-in-india-and-critically-analyzing-the-judicial-control-of-delegated-
legislation-with-relevant-case-laws.html
14
Air India v. Nargesh Meerza, MANU/SC/0688/1981
15
State of Punjab v. Amir Chand, MANU/PH/0001/1953
16
Hamdard Dawakhana v. Union of India, MANU/SC/0016/1959
17
Mayank Shekhar, A Comparison between Legislation and Precedent, LEGAL BITES, (Nov
23, 2022), https://www.legalbites.in/law-notes-administrative-law-comparison-legislation-
precedent-case-laws/?infinitescroll=1
18
Legislation: Meaning, Definition and merits of Legislation over Precedent, SRD LAW
NOTES, (Nov 22, 2022) https://www.legalbites.in/law-notes-administrative-law-comparison-
legislation-precedent-case-laws/?infinitescroll=1
19
KEETON C.G., THE ELEMENTARY PRINCIPLES OF JURISPRUDENCE 82, (A&C Black
Ltd.)
20
Subodh Asthana, Legislation as a Source of Law, iPleaders, (Nov 20, 2022)
https://blog.ipleaders.in/legislation-source-law/
21
DR. S.R. MYNENI, JURISPRUDENCE 194 (Asia Law House, Hyderabad, 3rd Edn., 2021)
22
Changing Dynamics in Constitutional Interpretation, LEGAL SERVICE INDIA, (NOV. 19,
2022), https://www.legalserviceindia.com/legal/article-532-changing-dynamics-in-constitutional-
interpretation.html
23
DR. N.V. PRANJAPE, STUDIES IN JURISPRUDENCE & LEGAL Theory 350 (Central Law
Agency, 9th Edn., 2022)
24
A.N. Roy v. Suresh Shayam Singh, AIR 2006 SC2677
25
DR. S.R. MYNENI, JURISPRUDENCE 195 (Asia Law House, Hyderabad, 3rd Edn., 2021)
26
(1584) 3 Co. Rep at 7b
27
DIAS & HUGHES, JURISPRUDENCE 94 (1957)

SOURCES OF LAW – CUSTOMS

Customary law or unofficial law or consuetudinary subsists in the following situations:
1. Where a certain legal practice is observed
2. When the relevant actors consider it to be a law.
Most of the customary laws address the standards of community that has been prevalent for a
long time in society. However, customary laws can also deal with some areas of international
law in a case where certain standards have universal acceptance. For example, laws against
slavery, piracy, terrorism, etc.
Usually, the customary laws have supportive court rulings and case laws that give additional
weight to their rule as law.
Law is necessarily rule-governed
According to Hund, the concept of custom generally denotes merging behavior. However, he
says that not all customs have the force of law. Whereas in the opinion of Hart, social rules
amount to the custom that has legal force.
Customary law and codification
The modern codification of civil law has evolved over a period of time from the traditions of
medieval custumals. These were slowly pieced together from the case laws and the local jurists
wrote them down later. When the members of a community regulated certain rights, entitlements,
and obligations, the custumals acquired the force of law and became undisputed rules.
Customs within a contemporary legal system
Customary law may be subordinate to statutes and regulations. It is a recognized source of law
which falls in the purview of Civil law tradition. In many countries, usually, one or more types of
customary law exist side by side with official law. We refer to this situation as legal pluralism.
In India, the law accepts many customs. For example, the Hindu Marriage Act recognizes the
Hindu marriage ceremonies.
The Common law of England states that ‘long usage’ should be established. Here, the principle
of property states that if something has been going on for a long time without any objection, the
law shall finally recognize this fact and shall give the person doing it a legal right to continue.
We refer to this as Customary Rights.
Customs in Torts
In Tort law customs determine negligence. Following or disregarding a custom is an indication
of best possible practices for a particular action. Thus, it is not determinative of negligence.
Solved Example on Customs
Explain customs with reference to International law?
Ans. In the context of international law, customary law denotes the Law of Nations or the legal
norms that evolved due to the customary exchanges between states. As per a popular belief, the
legal obligations arise between states in order to carry out their affairs consistently with the
acceptance of past conduct. However, these can change on the basis of the acceptance or
rejection by the states of particular acts. We need to distinguish the customary international law
from treaty law. However, many treaties attempt to codify pre-existing customary law.