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Property in possession of wife, clerk or servant

Section 27 of the Indian Penal Code, 1860.

When property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of this Code.

Explanation: A person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is a clerk or servant within the meaning of this section.

Under this section property in the possession of a person’s wife, clerk, or servant, is deemed to be in that person’s possession. This section abrogates the distinction made by English law between ‘possession’ and ‘custody’.

Corporeal property is in a person’s possession when he has such power over it that he can exclude others from it, and intends to exercise, if necessary, that power on behalf of himself or of some person for whom he is trustee. But a wife, a clerk or a servant, has not this power or intention to deal with things in their charge as owners. They are, therefore, said to have custody merely according to the English law. The word ‘custody’ means “such a relation towards a thing as would constitute possession it the person having custody had it on his own account.”

A man’s goods are in his possession not only while they are in his house or on his premises, but also when they are in a place where he may usually send them (as when horses and cattle feed on common land), or in a place where they may be lawfully deposited by him, as if he buries money or ornaments in his own land, or puts them in any other secret place of deposit.

Wife: A permanent mistress may be regarded as a ‘wife’. When a man furnishes a house for his mistress’ occupation, he may reasonably be presumed to be in possession of all articles therein which can reasonably be inferred to belong to him or to be in possession of his mistress on his behalf. But the inference must be inapplicable to articles of which the mistress is in possession illegally or contrary to the provisions of law, especially when the article in question is such that he might well remain in ignorance that it was in his mistress’ possession.

On Account of that Person: This clause is very important. It means that there must be recognition, express or implied that the property is held by the wife, clerk or servant merely as its custodian. Possession of wood by a forest inspector, who is a servant of the government, is possession of the government itself; and a dishonest removal of it, without payment of the necessary fees, from his possession, albeit with his actual consent, constitutes theft, within the meaning of s 378 of the Code, if that consent was unauthorised or fraudulent.

Doctrine of possession cannot be extended to illegal possession of wife or servant.1)

Banwari Lal v Emperor, AIR 1914 Lah 455

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