MAHAPATRA, J.:- These two appeals by two different sets of defendants arise out of the same judgment in a suit in which the plaintiffs, as nearest reversionary heirs of one Nathuni Singh, asked for declaration that twelve alienations of immoveable properties effected by Nathuni Singhs widow, Mst. Jagabati (defendant No.54), in favour of defendants 2, 5, 9, father of defendants 9 and 10, defendants 29, 38 and 53 and a deed of endowment in favour of Sri Thakur Ram Janki (defendant No.21) through shebait, Bishnu Singh, were not for legal necessity and as such were not binding on the plaintiffs. The defendants can be divided for purpose of convenience into two groups - one consisting of defendants 1 to 20 who, it was stated before us, belong to one joint Hindu family of which defendant No.1 was the karta and the other group consisting of defendants 21 to 52.

First Appeal 25 of 1956 has been filed by the latter group (defendants 21 to 52). The other appeal namely, F.A.30 of 1956 has been filed by defendants 1, 2 and 5 to 10. The defence of all these defendants were three-fold:

(i) The plaintiffs are not the nearest reversionary heirs of Nathuni Singh who died leaving behind his widow, Mst. Jagabati, and a daughter Mst. Chanchalia Kuer. Chanchalia died leaving behind a son, Tarkeshwar Rai by name. Tarkeshwar was, therefore, the nearest reversionary heir in preference to the plaintiffs to the estate of Nathuni Singh.

(ii) All the transactions by the widow of Nathuni Singh were supported by legal necessity and were binding on the reversioners.

(iii) The plaintiffs have no cause of action.

Of these three, the real point in controversy between the parties during the trial was about the existence of Tarkeshwar and the legal necessity for the transfers of the immoveable properties by the widow. The trial court found that none of the transactions was supported by any legal necessity and that the plaintiffs were the nearest reversioners of Nathuni Singh as Nathunis daughter, Chanchalia, did not have any son born to her and Tarkeshwar set up by the defendants was an imposter in the sense that he was not the reversionary heir of Nathuni. On these findings, the plaintiffs suit was decreed and the declaration was granted to them as asked for in the plaint. Against this judgment, the present two appeals have been filed but not by all the defendants.

2. A preliminary objection was raised on behalf of the plaintiffs respondents. Learned counsel for them contended that First Appeal 30 of 1956 is not maintainable and cannot be proceeded with in absence of the legal representatives of two of the defendants, namely, defendants 3 and 4 who died during the pendency of this appeal. According to their affidavit, defendant no. 3 died on the 26th January, 1959, leaving behind him as his heirs and legal representatives four sons (defendants 11 to 14) and his widow, Smt. Sansaria Devi, as also a daughter, Shrimati Rajkali Devi; and, defendant No.4 died on 12th January, 1960, leaving behind him as his heirs and legal representatives his six sons, five of whom were defendants 15 to 19, a widow, Shrimati Saraswati Devi, and two daughters, Shrimati Kamli Devi and Shrimati Shobha Devi.

First Appeal 30/55 was filed in this court on 11th of January, 1956. The took shelter under Rule 4 of Order 41 of the Code of Civil Procedure and contended that, as the decree appealed from proceeded on the ground common to all the defendants, any one of the defendants was competent to appeal from the whole decree and thereupon the appellate court may reverse or vary the decree in favour of all the defendants, although the defendants other than the did not join the appeal either as or respondents, yet the appellate court can vary the decree passed against in a manner as will be favourable to them as, in the present case, the decree of the trial court proceeded on grounds which were common to all the defendants. Non-existence of Tarkeshwar and want of legal necessity were the two c