View Full Version : Q 16. What is the legal status of dead person?

09-07-2011, 12:02 AM
) Dead person
(d) Animals (1999), (1999), (1997)
Q . Ordinarily, the personality of human being may be said to commence on birth and ceases to exist on death. Discuss what are the rights of dead person. )1994)
1. Introduction:
The word “Person” is derived form the Latin word “Persona” . to begin with, it simply meant a mask, than it was used to denote the part played by a man in life and then in the sense of a man who played the part. But now under a legal theory, a person is any being who is capable of sustaining rights and duties. Any being that is so capable is a person whether he is a human being or not.
2. Definition Of Person:
I. According To Prof. salmond:
“A person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not and no being capable is a person, even though he is a man.”
II. According To Gray:
“Person is an entity to which rights and duties may be attributed.”
3. Legal Status Of Dead Person:
The personality of human being commences its existence on birth and ceases to exist at death. Dead men are no longer persons in the eye of law. They have no rights because they have no interests. All that the law does is, it to some degree recognizes and takes into account after a man, s death his desires and interests when alive.
I. Rights Of Dead Person:
There are three things in respect of which the anxieties of living men extend even after their death. Those are his body his reputation and his estate.
(i) Body:
A living men is interested in the treatment to be given to his own dead-body. A corpse is the property of on one. It cannot be disposed of by will or any other instrument criminal law secures a decent burial for all dead men and the violation of a grave is a criminal offence.
(ii) Reputation:
The reputation of a person receives some degree of protection form criminal law. A libel upon a dead man is punished as a misdemeanor when its publication is an attack on the interests of living person. As a matter of fact this right is in reality not that of the dead person but of his living descendents.
(iii) Property:
A dead man continue to determine the enjoyment of the property, which he owned, while he was alive. The law of succession permits the desires of the dead person to regulate the actions of the living persons. In addition to this, whatever he has left behind to distributed as gifts or given in charity will be respect by law and enforced according to his wishes laid down is a proper document i.e., will deed.
4. Legal Status Of Unborn Person:
Before discussing the status of unborn person, we must distinguish a child who is living in womb of its mother and an unborn child in the sense of future generations i.e., who is not conceived in the womb of its mother. The law given a statue of person to a child who is not yet been born but conceived in its mother’ s womb.
According to coke:
“The law in many cases hath consideration of him in respect of the apparent expectation of his birth,:
I. Contingency Of Rights Of Unborn Person:
The rights of unborn person whether proprietary or personal are all contingent on his birth as a living human being.
II. Rights Of Unborn Person:
Following are the rights of a unborn person.
(i) Rights to Compensation:
An unborn child is entitled to compensation for the death of his father, willful or negligent injury inflicted on a child in the womb.
(ii) Rights to be born:
An unborn person has a right to be born and abortion and child destruction are declared as crimes to protect his right of him. A pregnant woman condemned to death is respited as of right until she has been delivered of her child.
(iii) Right to Inherit:
In unborn child may inherit, but if he dies in the womb or is still-born, his inheritance fails to take effect and on one claim thought him.
(iv) Beneficiary of trust:
An unborn child may be made beneficiary of the trust and such trust cannot be varied without obtaining the consent of the Court on their behalf.
(v) Right to own:
There is nothing in law to prevent a man form owing property before he is born. His ownership is contingent on his born alive and once born alive, his contingent ownership will become vested.
(vi) Right to gift:
A direct gift may be made to the child in womb.
(vii) Right to Partition:
In Hindu Law , if a partition is made, a share should be allotter to a child in the womb which is contingent on his as a living human being.
5. Legal Status Of Animals:
I. Primitive View:
Beasts were regarded as persons in the old days. There are examples in Greek law where they tried and punished for offences to human beings.
II. Modern View:
In modern law animals are not regarded as person, they are things. The only natural person are human beings and beasts are not person either natural or legal. They are merely things.
III. Reasons For Incapability:
Following are the reasons for incapability of animals as person.
(i) Not subjects of rights:
They are often the object of legal rights and duties but never the subject of them.
(ii) Acts:
Their acts are neither lawful nor unlawful.
(iii) Subject-matter:
They are not recognized by law as the appropriate subject-matter either of permission or prohibition.
(iv) Incapability:
A beast in incapable of legal rights as of legal duties.
(v) Recognition:
His interests are not recognized by law.
(vi) Moral rights:
They possess moral rights but those are not recognized by any legal system.
(vii) Cannot be the owner:
No animal can be owner of any property even through the medium of a human trustee.
IV. Exceptions:
There are two cases in which beasts may be thought to possess legal rights.
(i) Cruelty to animals is a criminal offence.
(ii) A trustee for the benefit of particular class of animals is made like broken down horses.
(i) Cruelty to animals is an offence not because of any love animals but because of the ill effects produced in society by perpetuation of cruelty.
(ii) The trust is crated for the protection and benefit not an individual animal but for a group as it is charitable and public trust. All these duties are contemplated by law not towards the animals but towards society.
6. Conclusion:
To conclude, I can say, that according to the legal theory, only that being is designated as person who is capable of holding rights and duties, irrespective of the fact whether he is human being or not, existed or not. i.e., corporations, idols, dead and unborn child are the best examples of his concept of personality.