JUDGMENT : ROHIT RANJAN AGARWAL, J. 1. Heard Sri Sundeep Agarwal along with Sri Nimai Dass, learned counsel for the plaintiff and Sri Narendra Mohan along with Sri Harishchandra Mishra, learned counsel for the defendant no.12. 2. This testamentary suit has been filed for grant of letter of administration to the plaintiffs in respect of Will dated 20.05.1980 regarding estate of late Mahadev son of Late Jari Bandhan. 3. Initially Testamentary Case No.30 of 2010 was filed by the petitioner late Amar Nath Pandey. The said testamentary case was contested by some of the defendants and caveat as well as written statement was filed and the testamentary case was converted into a suit. 4. According to the plaint, late Mahadev is said to have executed Will on 20.05.1980 bequeathing his entire property in favour of original plaintiffs Amar Nath Pandey. In the plaint it has been mentioned that late Mahadev was unmarried and used to live with his nephew and his sons who took care of his needs. Mahadev had two sisters Dharma Devi and Sukhraji. Dharma Devi had three sons Satya Narain, Jag Narain and Raj Narain. Satya Narain had two sons Omkar Nath and Amar Nath. Sukhraji had two sons Ram Lakhan and Paras Nath. According to para 5 of the plaint, Mahadev had left moveable and immoveable properties in the city of Allahabad and had fixed deposits in the bank at Taradev Branch Mumbai jointly in the name of Paras Nath. 5. According to plaint, Mahadev had already given western part of the house to one of the nephew Paras Nath and the fixed deposit was in the joint name. After the death of Mahadev, sons of Sukhraji, Ram Lakhan, Paras Nath and Sukhraji filed a Civil Suit No.30 of 1982 against Amar Nath Pandey and other sons and grand sons of Dharma Devi claiming relief of declaration for declaring the property recorded in the name of Mahadev as Benami and he being not the real owner of the property in suit. Relief was also sought that Mahadev be declared to have no right to execute any Will relating to properties in suit nor he executed any Will in favour of Amar Nath Pandey. Relief of permanent injunction was also sought against the defendant in the suit for not interfering with the possession of the plaintiff of the suit over the properties in dispute. 6. Relief of permanent injunction was also sought against the defendant in the suit for not interfering with the possession of the plaintiff of the suit over the properties in dispute. 6. The trial Court framed six issues, wherein issue No.1 was, whether the plaintiff of the suit are owner of the properties in possession?; secondly, whether the properties were acquired in the name of Mahadev as alleged?; thirdly, whether Mahadev was the sole owner of the property in suit and he executed a Will-deed on 20.05.1980 in favour of defendant No.1 (Amar Nath Pandey); and fourthly, whether the Court has no jurisdiction to try the suit. 7. Issue Nos.1 and 2 were decided against the plaintiff of the suit Ram Lakhan and Paras Nath. While deciding issue No.3, trial Court found that the Will executed by Mahadev, was obtained by playing fraud taking advantage of his illness. Trial Court decided issue No.3 against Amar Nath and held that Mahadev did not execute any Will in favour of Amar Nath. Issue No.4 as to the jurisdiction of the Court to try the suit was not pressed and decided in negative. The suit was partly decreed on 26.10.1983. 8. Against the judgment and order of the trial Court, Amar Nath filed First Appeal No.587 of 1983 before this Court. An application No.13796 of 1986 was moved by the appellant Amar Nath supported by his affidavit praying for dismissal of the appeal as the parties had amicably settled the matter outside the Court. The first Appellate Court on 15.11.1989 dismissed the appeal in view of application made by Amar Nath. 9. According to plaint averment, the plaintiff Amar Nath was not aware about the application of not pressing the first appeal on the basis of compromise arrived out of the Court, nor he had instructed his counsel R.N.Pandey to move such an application. It was when the applicant had come to meet his counsel and enquired about the status of his case than he was told to forget about his case and take money and return back. It was then the plaintiff contacted another counsel Mr. Virendra Singh and certified copy of entire records of first appeal was obtained on 18.05.2010. He came to know that the appeal was not pressed and thus immediately moved an application for recall of the order dated 15.11.1989. The said recall application was filed on 03.07.2010. 10. It was then the plaintiff contacted another counsel Mr. Virendra Singh and certified copy of entire records of first appeal was obtained on 18.05.2010. He came to know that the appeal was not pressed and thus immediately moved an application for recall of the order dated 15.11.1989. The said recall application was filed on 03.07.2010. 10. Initially the testamentary suit was contested by Shivwasini, son of late Ram Lakhan and Smt. Ram Sawan widow of late Ram Lakhan and Prem Narain son of Ram Lakhan by filing their caveat application on 27.01.2011. Subsequently, Laxmi Narain son of Paras Nath also filed his caveat application on 01.02.2011 and contested the suit. Written statement was also filed on behalf of Laxmi Narain on the same day. 11. On 23.02.2011 following issues were framed : “1. Whether the abovementioned suit is maintainable ? 2. Whether the abovementioned suit is barred by resjudicata ? 3. Whether the Will dated 20.5.1980 is validly and duly executed by the deceased Mahadev, son of Jaribandan, Resident of Pargana Kewari, Tehsil Handia, district Allahabad in favour of the plaintiff ? 4. Whether at the time of the execution of the will deceased Mahadev was in sound state of mind ?" 12. Thereafter an impleadment application was moved on behalf of one Vinay Kumar Shukla and Arun Kumar Shukla to be impleaded as additional defendants in the suit on the ground that they have purchased the property from one of the defendants Jag Narain. Vide order dated 17.04.2014 their application was dismissed. 13. On 05.05.2014 counsel appearing for defendant was granted time to submit list of defendants witness and adduce documentary affidavit. Written statement on behalf of defendant No.12 Jag Narain @ Yagya Narain was filed on 27.07.2014 which was opposed by the plaintiff counsel, but the argument was not accepted for rejecting the written statement filed by defendant No.12 vide order dated 08.09.2014 and the Court accepted the examination-in-chief of DW-1 Jag Narain and DW-2 Omkar Nath. On the refusal to cross examine the defendants’ witness the Court after recording the said fact proceeded to close the evidence. The plaintiff has produced witness Amar Nath Pandey (PW-1) and Baqar Hussain (PW-2). On the other hand, defendant No.12 had produced Jag Narain @ Yagya Narain (DW-1) and Omkar Nath (DW-2). On the refusal to cross examine the defendants’ witness the Court after recording the said fact proceeded to close the evidence. The plaintiff has produced witness Amar Nath Pandey (PW-1) and Baqar Hussain (PW-2). On the other hand, defendant No.12 had produced Jag Narain @ Yagya Narain (DW-1) and Omkar Nath (DW-2). The witness PW-1 and PW-2 were examined and cross examined, while DW-1 and DW-2 had filed examination-in-chief but were not cross examined in view of the statement of the plaintiff counsel made on 08.09.2014. 14. I have heard the counsel for the parties and perused the material on record. 15. Now, I proceed to decide the case issue-wise. Issue Nos.1 and 2 16. As issue No.1 is in regard to maintainability of suit while issue No.2 is whether suit is barred by res judicata, both the issues are interconnected and are thus tried together. 17. Plaintiff’s counsel submitted that there is no res judicata between the co-defendants as suit filed by Ram Lakhan and others against Amar Nath and others in which contesting defendant No.12 Jag Narain was co-defendant and there was no lis between them and relief given to plaintiff was independent. According to him, once no relief has been claimed against co-defendant and no controversy has been decided between the co-defendants, Section 11 CPC would not be attracted and question of res judicata would not arise. Once the suit is not barred by res judicata thus is maintainable before this Court. Reliance has been placed upon decision of Apex Court rendered in case of Govindammal (Dead) by LRs & others vs. Vaidiyanathan & Ors. (2019) 17 SCC 433 . 18. He then contended that decision rendered by Civil Court as to proof of Will under no circumstances would operate as res judicata in probate proceedings taken before a probate Court. Reliance has been placed upon a decision in case of Jerbanoo Rustomji Jamasji Garda vs. Pootlamai Manecksha Mehta & Ors. AIR 1955 (Bombay) 447. 19. It was then contended that Civil Court has no jurisdiction to decide that the Will is the last Will and is a valid Will. The jurisdiction of Civil Court was barred under Section 9 of CPC. Further a decision of Civil Court or decision of higher Court cannot operate as res judicata in proceedings under Section 276 of Indian Succession Act, 1925. The jurisdiction of Civil Court was barred under Section 9 of CPC. Further a decision of Civil Court or decision of higher Court cannot operate as res judicata in proceedings under Section 276 of Indian Succession Act, 1925. Reliance has been placed upon decision in case of Ram Shankar vs. Balakdas AIR 1992(MP) 224 and Chintamoni Barik & Anr. vs. Chari Bewa AIR 1962 Ori. 224 . 20. Reliance has also been placed upon decision rendered in case of Chiranjilal Shrilal Goenka (Deceased) though LRs vs. Jasjit Singh & Others (1993) 2 SCC 507 wherein it has been held that Civil Court on the original side or the arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executor/ executrix. 21. Learned counsel appearing for defendant No.12 submitted that suit for declaration, injunction and that Mahadev had no right to execute a Will was only maintainable before Civil Court. Before the trial Court not only the sons of Sukhraji were there litigating against plaintiff (Amar Nath) but also the sons of Dharma Devi were arrayed as co-defendants. Issues were framed as to whether Mahadev was the sole owner of the suit property and he executed a Will on 20.5.1980 in favour of Amar Nath. The trial Court had recorded clear finding that Will was obtained by playing fraud upon Mahadev who was ill and admitted in hospital and was suffering from paralysis. The judgment rendered by the trial Court on 26.10.1983 was binding between the parties inter se. 22. The judgment and decree of trial Court was challenged before this Court through First Appeal No.587 of 1983 which was dismissed on 15.11.1989 on the application and affidavit filed by appellant Amar Nath Pandey, the present plaintiff. The judgment and decree of the trial Court stood merged in the first appeal and was confirmed vide judgment dated 15.11.1989. The findings as to Will having been obtained by playing fraud has been confirmed by the first Appellate Court. 23. According to defendant’s counsel, the executor of the Will was not indisposing mind and was suffering from paralysis and the witnesses produced before trial Court were disbelieved. Once the decree has been confirmed, the present suit is not maintainable. The findings as to Will having been obtained by playing fraud has been confirmed by the first Appellate Court. 23. According to defendant’s counsel, the executor of the Will was not indisposing mind and was suffering from paralysis and the witnesses produced before trial Court were disbelieved. Once the decree has been confirmed, the present suit is not maintainable. He then contended that recall application in First Appeal for recalling the order dated 15.11.1989 has been moved by the plaintiff on 03.07.2010 i.e. after 21 years of passing of the order in the first appeal. The reason given is that the counsel R.N.Pandey had not informed about withdrawal application moved in the first appeal and blank papers were made to sign by the plaintiff, who is illiterate. There is no denial of the signature on the application moved for dismissing first appeal by the plaintiff. He then contended that the original Will was filed in Suit No.30 of 1982 along with index dated 03.8.1983. The said Will has been received back by the counsel for the plaintiff Sri Ravindra Kumar Mishra on 10.5.2005. According to him, once the original Will was received back in 2005, the allegation against Mr. R.N.Pandey that the original Will was not returned to him is incorrect and false. 24. It is not in dispute that plaintiff late Amarnath and defendants are related to each other and are sons of Dharma Devi and Sukhraji, the sisters of deceased Mahadev. After the death of Mahadev, sons of Sukhraji had filed Suit No.30 of 1982 claiming relief of declaration that property purchased in the name of Mahadev was Benami and he was not the real owner of the suit property. Further he had no right to execute any Will relating to the suit property, nor he executed any Will in favour of Amar Nath. 25. The Trial Court after framing issues recorded a finding that Will dated 20.05.1980 was executed playing fraud on Mahadev and the attesting witnesses failed to prove the Will. Moreover, Mahadev was hospitalized and was in paralysis and thus could not have executed the Will. 26. The judgment of trial Court was challenged by the plaintiff before this court by filing first appeal No.587 of 1983 which was dismissed as not pressed on the application and affidavit filed by the plaintiff himself on 15.11.1989. Moreover, Mahadev was hospitalized and was in paralysis and thus could not have executed the Will. 26. The judgment of trial Court was challenged by the plaintiff before this court by filing first appeal No.587 of 1983 which was dismissed as not pressed on the application and affidavit filed by the plaintiff himself on 15.11.1989. Thus the decree of trial Court merged in the order passed by first Appellate Court. 27. In between, the plaintiff through his counsel had received back the original Will on 10.05.2005. The said fact has not been denied by the plaintiff at any stage. It was after 21 years since the passing of the compromise decree by this Court that a recall application was preferred in the year 2010 for recalling the order dated 15.11.1989 and thereafter the present suit has been filed for grant of letter of administration to the estate of late Mahadev. 28. Section 11 of the Civil Procedure Code provides that 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. 29. In the instant case, the Will executed by Mahadev on 20.05.1980 was challenged in the suit filed by sons of Sukhraji in the year 1982, in which not only the plaintiff but as well as contesting defendants and other sons of Dharma Devi were arrayed as co-defendants. The Court after framing the issues as to whether the Will was executed by Mahadev in favour of defendant No.1 after examining the attesting witnesses found the Will to be forged. The appeal preferred by the plaintiff before this Court was withdrawn on the basis of compromise alleged to have been arrived outside the Court in the year 1989. Till date the order dated 15.11.1989 has not been recalled by this Court. 30. Reliance placed upon a decision of Apex Court in case of Govindammal (supra) does not help the case of the plaintiff as held in paras 18 and 19, which reads as under : “18. Till date the order dated 15.11.1989 has not been recalled by this Court. 30. Reliance placed upon a decision of Apex Court in case of Govindammal (supra) does not help the case of the plaintiff as held in paras 18 and 19, which reads as under : “18. It is true that under Section 11 CPC, when the matter has been directly or 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, the decree in the former suit would operate as res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D-1 and D-2, the matter is directly and substantially in issue between D-1 and D-2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D-1 and D-2 in which either of them is the plaintiff or the defendant. In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. 19. This Court in Mahboob Sahab v. Syed Ismail Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693 , considering the applicability of the doctrine of res judicata between the co-defendants held that the following four conditions must be satisfied, namely, (SCC p. 698, para 8) “(1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit.” To reach the conclusion mentioned above, this Court relied upon the judgments in Syed Mohd. Saadat Ali Khan v. Mirza Wiquar Ali Beg, AIR 1943 PC 115 , Shashibhushan Prasad Misra v. Babuaji Rai, AIR 1970 SC 809 and Iftikhar Ahmed v. Syed Meharban Ali, (1974) 2 SCC 151 .” 31. In Jerbanoo Rustomji Jamasji Garda (supra) the Bombay High Court held that a decision of the Civil Court holding the proof of Will would not operate as a judgment in rem and will not bind the probate Court from dealing with the issue. The said case is distinguishable from the present set of case as the Will alleged to have been executed by Mahadev was disbelieved by the trial Court as the attesting witness failed to prove the same and it was found to have been executed by playing fraud upon the deceased Mahadev, who was suffering from paralysis and could not have executed the same. Similarly reliance placed upon decision in case of Ram Shankar (supra) is not applicable in the present case. 32. The argument has been raised from the plaintiff’s side that Mr. R.N.Pandey, plaintiff’s counsel in the appeal, had got the blank paper signed and moved withdrawal application along with affidavit in the first appeal, though there was no such instructions from the plaintiff. Moreover, the original Will was also not returned, thus a certified copy was filed in the present proceedings relying upon provisions of Section 65(e) of Indian Evidence Act, 1872 (hereinafter called as “Act of 1872”). 33. A glance of Sections 64, 65 and 74 of Act of 1872 is necessary for better appreciation of the case and are extracted hereas under : “64. Proof of documents by primary evidence.–– Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. 33. A glance of Sections 64, 65 and 74 of Act of 1872 is necessary for better appreciation of the case and are extracted hereas under : “64. Proof of documents by primary evidence.–– Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given.––Secondary evidence may be given of the existence, condition, or contents of a document in the following cases: –– (a) when the original is shown or appears to be in the possession or power –– of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” “74. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” “74. Public documents.- The following documents are public documents: – (1) Documents forming the acts, or records of the acts – (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents.” 34. Section 64 of Act of 1872 provides that document must be proved by primary evidence except in cases mentioned in Section 65 of Act of 1872. In the instant case plaintiff had not made any effort to prove that original Will was lost or never returned by his previous counsel Mr. R.N.Pandey. From the documents filed from the defendant side it is clear that the Will was received back by one of the counsel for plaintiff Sri Ravindra Kumar Mishra on 10.5.2005, meaning thereby that original Will was in possession of the plaintiff. 35. Section 65 of Act of 1872 provides cases in which secondary evidence relating to documents may be given. Sub-section (c) of Section 65 of Act of 1872 provides for cases in which secondary evidence may be given, when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. 36. A certified copy of a Will is not a public document within the meaning of Section 74. It cannot be presumed to be a primary document which could be adduced in evidence and the same could be proved only by leading secondary evidence as held by the Punjab and Haryana High Court in case of Sampat Singh vs. Bhagwanti AIR 2010 (NOC). 37. The party filing secondary evidence has to prove that the original document was lost. It has to be established by the party alleging loss of original document that he has exhausted all the resources for search of the document, which were available to him. 38. 37. The party filing secondary evidence has to prove that the original document was lost. It has to be established by the party alleging loss of original document that he has exhausted all the resources for search of the document, which were available to him. 38. In the instant case, a bald averment has been made that the counsel who was appearing before the appellate Court had not returned the original Will. It is not sufficient compliance and the burden is upon the plaintiff to prove that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery, which the nature of the case would naturally suggest, and which are accessible to him. 39. A coordinate bench of this Court in Testamentary Suit No.11 of 2005 decided on 08.09.2006 took the same view relying upon the judgment rendered in case of Saudal Azeez vs. District Judge, Gorakhpur, 2000 ACJ 1165 and Badrunissa Begum vs. Mohamooda Begum, AIR 2001 AP 394 . 40. After hearing the counsel for the parties and perusing the material on record I find that in the suit filed by sons of Sukhraji, the issue in regard of execution of Will by Mahadev had already been decided between the contesting parties and finding has been returned that the Will was executed by playing fraud upon Mahadev and the same was disbelieved. The order of trial Court having been affirmed in the first appeal, the issue in regard to the execution of Will dated 20.05.1980 stands concluded between the parties inter se and the present suit at the behest of the plaintiff is barred by the provisions of res judicata and is not maintainable. Issue No.3 & 4 41. Both the issue 3 and 4 are inter connected and are being decided together. 42. As issue Nos.1 and 2 has already been decided against the plaintiff and it has been held that the suit is not maintainable, nothing remains to be decided as far as validity of the Will dated 20.05.1980 is concerned. However, for the academic purpose, this Court finds that Will executed by a testator has to be in accordance with Section 63 of the Indian Succession Act, 1925 and the same has to be proved in terms of Section 68 of the Act of 1872. 43. However, for the academic purpose, this Court finds that Will executed by a testator has to be in accordance with Section 63 of the Indian Succession Act, 1925 and the same has to be proved in terms of Section 68 of the Act of 1872. 43. From perusal of examination-in-chief of the attesting witness Bankar Hussain, it is clear that in para 4, he has stated that Mahadev was admitted in Chiranjiv Nursing Home and he was not in good mental health. Moreover, in his cross-examination PW-2 had failed to prove the Will as the certified copy of the Will was never produced before him. In his cross-examination, he had stated that in case the original Will is produced before him, he would recognize his signature. 44. From the reading of the cross-examination of PW-2, it is clear that the alleged Will dated 20.05.1980 was never produced before the attesting witness and thus compliance of Section 68 was not made as the same was not proved by the attesting witness. Moreover, the plaintiff had not cross-examined DW-1 and DW-2 and their examination-in-chief is on record. Once the testimony of the defendant has not been cross examined and has been accepted wherein it has been stated that the Will stood cancelled by judgment dated 26.10.1983, no case remains. 45. As the plaintiff had failed to prove the Will in terms of Section 68 of Act of 1872, issue Nos.3 and 4 stands decided against the plaintiff. 46. Considering the facts and circumstances of the case, this Court finds that the suit filed by the plaintiff for grant of letter of administration in respect of estate of late Mahadev is not maintainable as the Will in question has already been disbelieved by the trial Court vide judgment dated 26.10.1983 and the appeal filed against the said judgment having been dismissed on 15.11.1989, the present suit filed after 21 years for grant of letter of administration is not maintainable and stands dismissed.