A trespasser's possession can never be taken to be either a constructive possession or possession in law of the rightful owner much less her actual possession.

Mahapatra, J.

1. Both the appellants were plaintiffs who instituted a title suit in the court of the Subordinate Judge, Gaya, claiming themselves to be the next reversionary heirs of one Trilok Prasad Singh whose widow Kachnar Kuer is defendant No. 1 and mother Sheo Kuer is defendant No. 3. They claimed a declaration that the adoption of defendant No. 2, Dhiraj Narain Singh, by defendant No. 1 was illegal and void and the transfer made by defendant No. 1 under a registered Arpannama dated the 12th February 1956 in the name of Gopalji through the Shebait, defendant No. 3, was also illegal and void and not binding on the plaintiffs, Their case was that one Sheobalak Singh had three sons and two daughters. Of them, the eldest son died issueless. The second son Deonarain Singh had three sons who are all dead and only the widow of one of the sons Kamta Prasad Singh is alive and she is Sheo Kuer, defendant No. 3. The two plaintiffs are the sons of the third son of Sheobalak, Ramnarain Singh. Kamta Prasad Singh had two sons Trilok Singh and Kedarnath Singh. The latter died issueless. Trilok Singh died in May 1948 leaving his widow defendant No. 1, Kachnar Kuer.

On the death of Trilok his widow succeeded to his estate as a limited owner while defendant No. 3 was entitled to maintenance out of that estate. Plaintiffs alleged that defendants 1 and 3 conspired together and with a view to depriving the plaintiffs of their right to inherit the estate left by Trilok Singh transferred those properties to their respective brothers and their heirs by adopting a device of adopting defendant No. 2 who was the minor son of Rajballabh Singh, the brother of defendant No. 1 and of creating a nominal Thakurbari and making defendant No. 3 a shebait thereof for her life and after her Dinesh Prasad Singh, son of the brother of defendant No. 3 as the next shebait and thereafter nominating the son and grandson of the said Dinesh Prasad Singh to be the future shebaits. By this way a considerable part of the estate left by Trilok Singh was transferred. Two documents, one for adoption and another for dedication of properties, were executed and registered on the 12th of February 1956. Plaintiffs challenged the adoption as there was no authority given to defendant No. 1 by her husband before his death for that purpose; nor did he give any direction for constructing a Thakurbari or for endowing any property to the idol.

Further they said that there was actually no adoption of defendant No. 2 and there was no Thakurbari constructed or any Gopalji idol installed in village Barauli by defendant No. 1. To clear the apprehension the plaintiffs instituted the suit for the two declarations mentioned above so that they may be able to succeed to the estate of Triok Singh on the death of defendant No. 1.

2. Two written statements were filed; one by defendant No. 1 for herself and as mother guardian of defendant No. 2 and another by defendant No. 3 as shebait of Sri Gopalji Thakur. All of them pleaded that there was authority given by Trilok Singh before he died of small-pox to his wife, defendant No. 1, to make an adoption of a suitable boy and to construct a Thakurbari and instal a deity and make suitable endowment in his favour. They also asserted that there had been a valid adoption of defendant No. 2 and a valid endowment created. They denied any collusion or any fraudulent motive on their part in bringing about those two things. The suit was instituted on the 24th February 1956 and the written statements were filed on the 4th April, 1956. Thereafter there was an amendment to the plaint and so two additional written statements were filed on the 11th April, 1956.

3. The trial court held that the ceremonies of adoption as also dedication of property to deity had been properly performed and defendant No. 1 had the authority from her husband before his death to make an adoption and also to create an endowment. In that view, the plaintiffs suit was dismissed. On t