Judgment ( 1. ) THIS second appeal under Section 100 of the Code of Civil procedure has been preferred being aggrieved by judgment and decree passed on 17. 01. 1998 by Fifth additional District Judge, Rewa in Civil Appeal No. 37a/ 1998, arising out from the judgment and decree passed on 26. 06. 1993 by Fifth Civil Judge, Class-II, rewa in Civil Suit No. 20a/1993 whereby civil suit for declaration, possession and damages regarding the disputed property situated at Sabji Mandi, Rewa has been dismissed. ( 2. ) THIS appeal was filed on 23. 04. 1998 which was dismissed on 18. 09. 1998 by holding that matters stand concluded by finding of fact. No substantial questions of law arise for determination, hence appeal stands dismissed in limine. ( 3. ) SLP was filed by appellants and the Hon. Apex Court in civil Appeal No. 2705/2000 set aside the order of this court and admitted the second appeal No. 409/98 on the following substantial questions of law: "a. Whether the judgment of the district Judge Rewa passed on 25. 01. 1951 in Civil Appeal No. 271/1951, the Judgment of the Additional District Judge, Rewa passed on 13. 09. 1952 in C. S. No. 33/1952 and the judgment of the Judicial commissioner, Vindhya Pradesh in f. A. no. 93 decided on 04. 12. 1952 operated res judicata to the present suit? b. Whether the judgment of the district Judge Rewa passed on 25. 01. 1951 in Civil Appeal No. 271/1951, the judgment of the Additional District Judge Rewa passed on 13. 09. 1952 in C. S. No. 33/1952 and the judgment of the Judicial commissioner, Vindhya Pradesh in f. A. No. 93 decided on 04. 12. 1952 hold that under the will dated 15. 06. 1950 mst. Malkutia had only life interest in the suit property and after her death the suit property has vested on Shyamdas?" ( 4. ) RESPONDENT No. 1 Smt. Shakuntala filed memorandum of cross objection on 10. 08. 2007 under Order 41 Rule 22 of the Code of Civil Procedure. Its reply was filed by appellant on 05. 09. 2007. ( 5. ) THE appellants case was that Jagatdev Prasad was uncle of late Shri Shyamdas Shukla. He was the owner of the disputed property situate at Sabji Mandi, Rewa. 08. 2007 under Order 41 Rule 22 of the Code of Civil Procedure. Its reply was filed by appellant on 05. 09. 2007. ( 5. ) THE appellants case was that Jagatdev Prasad was uncle of late Shri Shyamdas Shukla. He was the owner of the disputed property situate at Sabji Mandi, Rewa. Rajdulari was his wedded wife but she turned unchaste, therefore, he renounced her and kept Smt. Malkutiya as his wife who remained with him upto 12-13 years. He bequeathed all his movable and immovable properties to her on 26. 02. 1950 which was registered on 13. 03. 1950 under coercion and fraud of Smt. Malkutiya. On 15. 06. 1950 he annulled this will and executed another will in favour of late Shri Shyamdas Shukla to the effect that Malkutiya shall have the right and title to enjoy it during her life time and upon her death Shyamdas shukla will become the owner of the property. Smt. Malkutiya unauthorisedly executed the registered will in favour of her daughter Smt. Shakuntala ON 18. 01. 1971. Smt. Malkutiya died in the year 1973. After her death shyamdas Shukla came to Rewa from village Bansa and informed the tenants of this house that he wants to construct it in new style. When Smt. Shakuntala came to know this fact she persuaded the tenants in 1977 to part with the Pagdi amount of the rent, demolished the old house, started constructing a new house and did not desist in spite of refusal by Shyamdas Shukla. It was also pleaded that Smt. Shakuntala born after 13-14 months of death of Jagatdev, therefore, she was an illegitimate child and had no right, title or interest in the property, therefore, the civil suit was filed for declaration, possession and damage regarding disputed property. ( 6. ) DEFENDANT/respondent No. 1 Smt. Shakuntala filed written statement denying the plaint allegations mainly contending that partition of the disputed house took place 50 years back to the death of Jagatdev. He had executed a will in favour of her mother Malkutiya without any coercion or fraud. He has never revoked the will dated 13. 03. 1950. Late Shyamdas never recovered any rent from the tenants. She had spent about Rs. 85,000/in reconstructing the house. In civil suit No. 267-A/1950 the will dated 15. 06. 1990 had been held invalid. He had executed a will in favour of her mother Malkutiya without any coercion or fraud. He has never revoked the will dated 13. 03. 1950. Late Shyamdas never recovered any rent from the tenants. She had spent about Rs. 85,000/in reconstructing the house. In civil suit No. 267-A/1950 the will dated 15. 06. 1990 had been held invalid. In another civil suit filed by Rajdulari the will dated 13. 03. 1950 has been held valid. There has been the consideration regarding the will of the plaintiffs in civil suit decided by Additional District Judge, Rewa on 13. 09. 1952 and also in appeal decided by Judicial commissioner, Vindhya Pradesh. Therefore, this suit was barred by res judicata. It was also pleaded that her mother was absolute owner of the property. She has bequeathed the property to her by registered will dated 18. 01. 1971 and, therefore, she is the owner of the disputed property, therefore, the plaintiffs are not entitled for any relief. ( 7. ) RESPONDENT No. 2 Bhanuprasad Shukla also filed the written statement mainly contending that no partition had been made amongst Jagatdeo Prasad and his brother of the ancestral property. The disputed property was ancestral property. Rajdulari was wedded wife w/o jagatdeo Prasad. Jagatdeo Prasad was not competent to execute the wills. On 15. 06. 1969 Rajdulari also executed registered will in favour of Bhanuprasad and Annpurna prasad. The prayer was made to dispossess respondent no. 1 from the disputed property and handover the possession to him. ( 8. ) TRIAL Court framed the several issues, recorded the evidence of both the parties. After appreciating the evidence, trial Court found that the disputed property was of Jagatdeo. He executed a sale deed dated 26. 02. 1950 in favour of Malkutiya which is valid. It was not found proved that he revoked this sale deed and executed another sale deed in favour of Shyamdas shukla giving the life interest in this property to malkutiya and thereafter vesting the property in him. The trial Court also found that the question of the execution of the sale deed in favour of defendant/respondent No. 1 is barred by the doctrine of res judicata and dismissed the suit. The trial Court also found that the question of the execution of the sale deed in favour of defendant/respondent No. 1 is barred by the doctrine of res judicata and dismissed the suit. Being aggrieved by the judgment and decree passed by the trial Court the present appellants and respondent No. 2 preferred the separate appeals before first appellate Court wherein civil Appeal No. 37a/1998 and 38a/1998 were registered and disposed of by the common judgment passed by the appellate Court on 17. 01. 1998. Both the appeals were dismissed. Appellate Court also confirmed the finding of trial Court that the suit of the plaintiffs was barred by the principle of res judicata. However, gave the finding in favour of the appellants that the subsequent will dated 15. 06. 1950 revoked the previous will dated 26. 02. 1950, therefore, there is no legal effect of the will dated 18. 01. 1971 executed in favour of respondent No. 1 by her mother Mulkutiya since the appeal was dismissed on the basis of res-judicata, therefore, the present appellants preferred second appeal in this Court. ( 9. ) THE learned counsel for the appellants Shri S. P. Mishra has submitted that the lower appellate Court held that the last will dated 15. 06. 1950 in favour of Shyamdas shukla was valid and earlier will dated 26. 02. 1950 in favour of Smt. Malkutiya stood revoked in spite of the appeal was dismissed which is perverse. Learned counsel further submitted that the order passed in previous judgment dated 25. 01. 1951 has now become final and the will in favour of Shyamdas Shukla is valid. Smt. Malkutiya was regarded only as an administrator of the property in the judgment dated 04. 12. 1952. She was not the owner of the property hence was not competent to bequeath the property by registered will in favour of respondent No. 1. Learned counsel further submitted that according to Section 48 of the Rewa Land Revenue and tenancy Code, 1935 the illegitimate child can not get any right in the property. Shyamdas Shukla being nephew of jagatdeo Prasad was entitled to inherit his property. The principle of res-judicata was not applicable in the case and both the courts below have incorrectly applied this doctrine. ( 10. ) ON the other hand, Shri Alok Aradhe, Sr. Shyamdas Shukla being nephew of jagatdeo Prasad was entitled to inherit his property. The principle of res-judicata was not applicable in the case and both the courts below have incorrectly applied this doctrine. ( 10. ) ON the other hand, Shri Alok Aradhe, Sr. Advocate with shri Siddharth Gulati have submitted that the trial Court has given the reasons for accepting the will dated 26. 02. 1950 as valid whereas the lower appellate Court has given contrary finding to it without any valid reason. Therefore lower appellate Court was not justified in accepting the latter will valid. The memorandum of cross objection has been filed in this regard to set aside such finding. The learned counsel invited the attention towards the previous litigations regarding the wills and contended that Judicial Commissioner, Vindhya Pradesh has finally accepted the will dated 26. 02. 1950 valid. This has the effect of res-judicata for this case. Since plaintiffs case has rightly been dismissed by both the Courts below, hence does not call for any interference. ( 11. ) BOTH the parties have adduced oral as well as documentary evidence. Respondent No. 1 has filed the copy of judgment Ex. D/1 passed on 31. 08. 1950 by munsif Court, Rewa in Civil Suit No. 264/1950. The suit was filed by Rajdulari w/o Jagatdeo Prasad against shyamdas, Janki Prasad, Laxmi Prasad, Bhanu Prasad and Mst. Malkutiya. The suit was for providing maintenance, residential accommodation and also to cancel the sale deed. In this case, it was held that there is no any effect of will dated 15. 06. 1950 (Ex. D/3) on the will dated 26. 02. 1950 (Ex. D/1) until cancelled. It was also held that the will dated 13. 03. 1950 was valid and rajdulari was not entitled to get any maintenance from the property obtained by way of this will. ( 12. ) IT is apparent from this judgment that both these wills were considered by the Courts and found the will dated 26. 02. 1950 which was registered on 13. 03. 1950 valid and the subsequent will dated 15. 06. 1950 did not cancel that will. ( 13. ) APPELLANTS have produced the copy of judgment passed by District Judge, Rewa in Civil Appeal No. 271/1951 decided on 25. 01. 1951 (Ex. P/4 ). This appeal was filed only with regard to cancel the wills. 03. 1950 valid and the subsequent will dated 15. 06. 1950 did not cancel that will. ( 13. ) APPELLANTS have produced the copy of judgment passed by District Judge, Rewa in Civil Appeal No. 271/1951 decided on 25. 01. 1951 (Ex. P/4 ). This appeal was filed only with regard to cancel the wills. Appellate Court held that Jagatdeo Prasad was competent to execute the will but the provisions for maintenance ought to have been kept on the property. In this appeal, it was also held that will Ex. D/1 automatically was revoked by will Ex. D/3 and no action separately was required to be taken. ( 14. ) IT again goes to show that these wills were considered in this appeal also. ( 15. ) RESPONDENT No. 1 has filed copy of another judgment ex. D/5 passed by Additional District Judge, Rewa in civil Suit No. 33/1952 decided on 13. 09. 1952. This civil suit was also filed by Rajdulari against Malkutiya, Janki prasad, Laxmi Prasad, Bhanuprasad and Shyamdas for maintenance as well as to declare the sale deed dated 13. 03. 1950 invalid. ( 16. ) IN this judgment, it is mentioned that Rajdulari filed a civil suit No. 264/1950 which was dismissed. Appeal was also filed but she could not get success. She prayed for withdrawal of that suit before the Court of Judicial commissioner, Vindhya Pradesh. The permission was granted subjected to payment of costs of all the Courts. Therefore, after getting such permission, she filed the suit for maintenance, cancellation of sale deed dated 13. 03. 1950 and for recovering possession of house. ( 17. ) IN this case, it was held that Rajdulari was entitled for maintenance of Rs. 20/-per month from the property in possession of respondent No. 1. She was also entitled for arrears of maintenance allowance of Rs. 160/-and there will be the charge on the disputed house. It was also held that the will made in favour of Malkutiya is in existence. ( 18. ) BEING aggrieved by this judgment Malkutiya filed first appeal No. 93/1952 which was decided by Judicial commissioner, Vindhya Pradesh on 04. 12. 1952 wherein the maintenance amount was reduced from Rs. 20/-to rs. 18/8/-per month and it was also mentioned that district Judge has held that will in favour of Malkutiya was properly executed. ( 19. ( 18. ) BEING aggrieved by this judgment Malkutiya filed first appeal No. 93/1952 which was decided by Judicial commissioner, Vindhya Pradesh on 04. 12. 1952 wherein the maintenance amount was reduced from Rs. 20/-to rs. 18/8/-per month and it was also mentioned that district Judge has held that will in favour of Malkutiya was properly executed. ( 19. ) THE learned counsel for the respondent No. 1 has submitted that since Rajdulari withdrawn the suit, therefore, the findings in the previous case are wiped out and subsequently in the judgment Ex. D/5 the will in favour of Malkutiya has been found in existence and also held properly executed hence it was the valid will and has not been cancelled or revoked by subsequent will. The contention of the learned counsel of the respondent No. 1 appears to be acceptable. Since Shyamdas Shukla was also party in the case, therefore, he ought to have preferred the appeal raising the objection regarding the existence of will and also to revoke the same by subsequent will made in his favour. ( 20. ) FROM the perusal of the previous judgments, it clearly indicates that not only the matter of maintenance was considered in these cases but the validity of the wills were also considered time to time and ultimately it was found by Ex. D/5 and Ex. D/2 that the will made in favour of Malkutiya is still in existence and properly executed. ( 21. ) SECTION 11 of the Code of Civil Procedure runs as follows: "s. 11. Res Judicata. " No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation I-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.-For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.-Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI-Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [explanation VII.-The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. ]" ( 22. ) IN the case of Isher Singh v. Shrawan Singh and others, AIR 1965 SC 948 (V 52 C 151), the Apex Court has held that: "the question whether a matter was directly and substantially in issue in the former suit has to be decided (a) on the pleadings in the former suit, (b) the issues struck therein, and (c) the decision in the suit. Further, it depends upon whether a decision on such an issue will materially affect the decision of the suit. " ( 23. Further, it depends upon whether a decision on such an issue will materially affect the decision of the suit. " ( 23. ) IN the case of Pawan Kumar Gupta v. Rochiram nagdeo, AIR 1999 SC 1823 , the Apex Court has held that: "thus the second legal position is this : If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit. " ( 24. ) NO doubt the contesting parties in this case were not against each other in the previous cases but they were the co-defendants. The doctrine of res judicata also applies in between the co-defendants. The conditions for its application are as follows: " (1) there must be conflict of interest between the defendant concerned; (2) it must be necessary to decide the conflict in order to give the plaintiff the relief he claims; (3) the co-defendants must be necessary or proper parties to the suit; (4) the question between the defendants must have been finally decided inter se between them. " ( 25. ) THE present suit was filed by Shyamdas Shukla on the basis of will dated 15. 06. 1950 regarding the declaration, possession and damage of the suit property situated at sabji Mandi, Rewa. The wills made in favour of malkutiya and Shyamdas Shukla have already been considered in the previous suit and the dispute was also regarding the same property. This was held as far back as in the year 1951 and 1952 that the will executed in favour of Malkutiya was proper then it was incumbent upon Shyamdas Shukla to get it revoked or cancelled. He remained silent upto 1977 and woke up after lapse of 4 years of death of Smt. Malkutiya by instituting the suit. This was held as far back as in the year 1951 and 1952 that the will executed in favour of Malkutiya was proper then it was incumbent upon Shyamdas Shukla to get it revoked or cancelled. He remained silent upto 1977 and woke up after lapse of 4 years of death of Smt. Malkutiya by instituting the suit. The will made in favour of Malkutiya was registered whereas the paper on which the will in favour of shyamdas Shukla is made has not been registered. It was never acted upon immediately even after the death of malkutiya. The original will has also not been produced in the case only photocopy in the form of Ex. P/1 is filed. Malkutiya remained in settled possession of the property until her death and subsequently her daughter Smt. Shakuntala Bai is in the settled possession of the disputed property. Shyamdas Shukla never recovered the rent from the tenants residing in the disputed house. Smt. Shakuntala has reconstructed the house by investing the huge amount. Shyamdas Shukla knowing well the execution of sale deed in favour of Malkutiya and shakuntala, never tried to get the will cancelled. ( 26. ) FROM the foregoing discussion and keeping in view the evidence available on record, it is manifestly clear that there has already been consideration regarding the validity of wills in the previous judgments and also with regard to the disputed property. Therefore, the judgment passed in the previous suits operate res judicata to this case hence both the Courts below have not committed any illegality in finding this case barred by res judicata. ( 27. ) LEARNED counsel for the respondent No. 1 has submitted that appellants have not proved the will dated 15. 06. 1950 by valid evidence. Learned counsel has placed the reliance on the decision rendered by Apex court in the case of Beni Chand (since dead) now by l. Rs. ( 27. ) LEARNED counsel for the respondent No. 1 has submitted that appellants have not proved the will dated 15. 06. 1950 by valid evidence. Learned counsel has placed the reliance on the decision rendered by Apex court in the case of Beni Chand (since dead) now by l. Rs. , v. Smt. Kamla Kunwar and others, AIR 1977 SC 63 , wherein it has been held that: "by attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Sec. 63 (c) of the Succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Where D and two others had signed below the thumb impression of the testatrix and D was examined and his evidence showed that he and the two others saw the testatrix putting her thumb mark on the will by way of execution and that they all signed the will in token of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will the execution was held proved in terms of Section 63 of Succession act read with Section 68 of Succession Act read with Section 68 of the Evidence Act. " ( 28. ) AS stated earlier, no original will dated 15. 06. 1950 has been produced. It has not been held in any of the previous judgments that Malkutiya had only life interest in the suit property and that after her death the suit property has vested on Shyamdas Shukla. ( 29. ) LEARNED counsel for the appellants has submitted that shyamdas Shukla was nephew of Jagatdeo Prasad and hence he was entitled his property according to Section 48 of Rewa Land Revenue and Tenancy Code, 1935. Learned counsel has further submitted that according to this act no illegal sons or daughters are entitled to the property under this Act. ( 30. ) SO far as the present case is concerned, there is no question to get the property by way of succession because Jagatdeo Prasad has himself bequeathed his entire property to Malkutiya by registered will which has already been acted upon after his death. ( 31. ( 30. ) SO far as the present case is concerned, there is no question to get the property by way of succession because Jagatdeo Prasad has himself bequeathed his entire property to Malkutiya by registered will which has already been acted upon after his death. ( 31. ) MEMORANDUM of cross objection has been filed on behalf of respondent No. 1 for assailing the finding of lower appellate Court regarding the validity of the wills. The same has been objected by appellants mainly on the ground that this Court is to consider only the substantial questions which have been framed by Hon. Apex Court and also on the grounds of delay in filing the cross objection. ( 32. ) IN the case of Palasseri Velayudhan and another v. Palasseri Ithayi and others, AIR 1994 Kerala 267, it has been held that: "if on the objections raised by the respondent a substantial question of law arises he can maintain a second appeal subject to the conditions embodied in s. 100, C. P. C. The provisions of R. 22 of O. 41 regarding the taking of cross objections by respondent in a first appeal can therefore be made applicable to an appeal from an appellate decree since the provisions in o. 41 "so far as may be" had been made applicable to second appeals also. The phrase "so far as may be" only means that provisions of O. 41 are to be made applicable to second appeals subject to the other provisions contained in the Act relating to second appeals. In other words, the applicability of R. 22 of O. 41 to an appeal against an appellate decree will be subject to the provisions contained in S. 100, C. P. C. The position therefore is that a cross objection can be maintained in an appeal against an appellate decree but only if a substantial question of law is raised therein. The stringent conditions embodied in S. 100 shall applicable to a cross objection filed in a second appeal. In other words, the cross objection shall precisely state the substantial question of law involved in the cross objection and the cross objection will be admitted only if the High Court is satisfied that the case involves a substantial question of law. The stringent conditions embodied in S. 100 shall applicable to a cross objection filed in a second appeal. In other words, the cross objection shall precisely state the substantial question of law involved in the cross objection and the cross objection will be admitted only if the High Court is satisfied that the case involves a substantial question of law. On such admission of the cross objections the High Court has to formulate that question and the cross objections shall be heard only on the question so formulated. " ( 33. ) IT is apparent that the respondent No. 1 has not framed substantial questions of law in the memo of cross objection as a result thereof no such substantial questions of law was formulated by this Court. Therefore, there is no need to consider the cross objection filed by respondent No. 1. ( 34. ) AFTER considering the entire aspect of the case, it is manifestly clear that both the Courts below have not committed any illegality in arriving at the conclusion that the suit of the plaintiffs was barred by the doctrine of res judicata, therefore, the appeal deserves to be dismissed. ( 35. ) CONSEQUENTLY, the appeal fails and is dismissed accordingly. The cross objection filed by respondent No. 1 also dismissed. Parties to bear their own costs. The counsel fee be quantified as per schedule. The decree be drawn up accordingly.