What Are the Differences Between Possession and Custody?

In this short law article, you will read about possession, custody and the major differences between them, with easy examples.

Possession

Possession is the real physical control of a property or goods and the authority to prevent others from using the property or goods for any purpose.

For the possession of property or goods, the possessor does not require private property rights. The possessor is the person who possesses goods or property.
Possession can be given to anyone, and it is different from ownership. Possession is considered to be a de facto (law of fact) concept as well as a single concept, unlike ownership, where the person both owns and possesses the goods.
In possession, the specific property is transferred to the possessor.
Example: Possession of a car by a son in the absence of his father, who is the actual owner of the car.

Custody

Custody is having the charge of governing the property or goods such as papers, other valuables, etc., without the authority to use it or letting others use it.

Custody is to take care of the property or goods assigned to the custodian. The custodian is the person to whom goods are assigned to be taken care of. For custody to be enforced, a legal right is an essential element.
In custody, the general property is transferred to the custodian, unlike in possession, where the specific property is transferred.
Example: Having a child’s custody after the divorce.

However, the transfer of property also takes place as an alienation of property which comes under the Hindu Family Law. Alienation is to dispose or transfer the right over property to someone in the form of a will, mortgage or gift.

Since it is covered under the Hindu Family Law, the Karta or the head of the family, has the right to alienate the property with the support of other members. Alienation is the form of giving possession of the property to others.

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Suhani Gandhi

Ex-Writer at WritingLaw

Suhani has written this article. She is pursuing B.B.A.LL.B. (Hons.) from Narsee Moonjee Institute of Management Studies, Bangalore. She is enthusiastic and a curious learner with a keen interest in the legal field.