Holding

A notarised photocopy of a Power of Attorney, without compliance with the statutory requirements for secondary evidence, cannot be admitted to prove the existence or extent of the attorney's authority.

Summary

The plaintiff, sister of the first defendant, executed a limited Power of Attorney (PoA) on 31 July 1998, which she later cancelled after learning that the first defendant had used it to sell her immovable properties to the second and third defendants on 15 March 2007. The plaintiff alleged that the PoA presented by the defendants (Exhibit B‑2) was a falsified photocopy with added clauses authorising sale, and that the sale deeds were therefore void. The trial court held the PoA was tampered with, declared the sale deeds invalid and granted an injunction; the first appellate court reversed this finding, accepting the photocopy as evidence of authority. On second appeal, the Supreme Court examined the admissibility of the photocopy as secondary evidence, emphasizing the strict requirements of Sections 63‑66 of the Evidence Act and the need for a factual foundation before secondary evidence can be admitted. It held that the photocopy, without proper foundation, could not establish the extent of the attorney's authority, and thus the appellate court’s reliance on it was erroneous. Consequently, the Supreme Court dismissed the civil appeal, upholding the trial court’s decree.

Issues considered

The admissibility of a notarised photocopy (Exhibit B‑2) of a Power of Attorney as secondary evidence under Sections 63‑66 of the Evidence Act.
Whether the photocopy can be used to determine the scope of authority granted under the Power of Attorney, particularly the power to alienate the plaintiff’s property.
The applicability of Section 85 of the Evidence Act and Section 33 of the Registration Act when the original document is not produced.
The jurisdiction of the High Court under Section 100 of the CPC to re‑appreciate findings of fact and whether the appellate court’s decision amounted to a perverse finding.

Legislation cited

Code of Civil Procedure, 1908s. 100, s. 103
Indian Evidence Act, 1872s. 63, s. 64, s. 65, s. 66, s. 85
Notaries Act, 1952s. 8(1)(a)
Registration Act, 1908s. 33

Headnote

Issue for Consideration The controversy centres around the disputed circumstance, namely, the power of agency given by the plaintiff to the 1st Defendant through Exh.B-2. Whether the documentary evidence in Exh.B-2 satisfies the requirement of law and whether it is fudged with Procedure, 1908 – ss.100 and 103 – Evidence Act, 1872 – s.85 – Registration Act, 1908 – s.33 – On 31.07.1998, the plaintiff executed a Power of Attorney (PoA) in favour of the 1st defendant – The Plaintiff is the 1st Defendant’s sister – The

Subjects

EvidenceDocumentary evidencePrimary evidenceSecondary evidencePower of attorneySale deedSection 85 Evidence ActSection 33 Registration ActSection 100 CPCSection 103 CPCNotarised photocopyMechanical copyForgeryInjunction

Judgment

[2026] 2 S.C.R. 576 : 2026 INSC 134

Tharammel Peethambaran and Another
v.
T. Ushakrishnan and Another
(Civil Appeal No. 856 of 2026)
06 February 2026
[Pankaj Mithal and S.V.N. Bhatti,* JJ.]

Issue for Consideration
The controversy centres around the disputed circumstance, namely,
the power of agency given by the plaintiff to the 1st Defendant
through Exh.B-2. Whether the documentary evidence in Exh.B-2
satisfies the requirement of law and whether it is fudged with
additions, etc.

Headnotes†
Code of Civil Procedure, 1908 – ss.100 and 103 – Evidence Act,
1872 – s.85 – Registration Act, 1908 – s.33 – On 31.07.1998, the
plaintiff executed a Power of Attorney (PoA) in favour of the 1st
defendant – The Plaintiff is the 1st Defendant’s sister – The PoA
is exhibited by the Plaintiff as Exhibit A-4 and by the Defendants
as Exhibit B-2, a notarised photocopy – On 15.03.2007, the 1st
Defendant, in the purported authority given to him through
the PoA/Exh.B-2, executed registered sale deeds nos.262 and
263 of 2007 in favour of the 2nd and 3rd Defendants – On the
knowledge of the same, plaintiff cancelled PoA – Suit filed –
The Plaintiff admits execution of the PoA, i.e. Exh.A-4, which
grants specific power and not general power to alienate the
plaint schedule properties – However, the 1st Defendant asserts
that the Plaintiff executed the PoA/Exh.B-2 authorising the
Defendant to have the power of management, mortgage and
alienation – The Trial Court declared that the sale deed nos.262
and 263 of 2007 (Exh.A-7 and A-8) were invalid and void – It
found that words providing for “sale” were added to the end
of existing clauses – Trial Court further directed, through a
mandatory injunction, 1st Defendant to vacate and surrender

* Author
[2026] 2 S.C.R. 577

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

the house situated on item no.1 of the Plaint A-Schedule to
the Plaintiff – However, the First Appellate Court allowed the
appeal of 1st Defendant and dismissed the suit – The High
Court held that the sale deeds executed by the Defendant
using the invalid PoA were void, thereby restoring the Trial
Court’s decree – Correctness:
Held: Exh.B-2 is a photocopy, or a mechanical copy, of the purported
PoA – This implies that Exh.B-2 is, at best, secondary evidence –
Secondary evidence is evidence that proves the contents of an
original document through a medium that is one step removed
from the source – Before secondary evidence can be admitted, the
party relying on it must lay a factual foundation – This involves two
steps: First, the party must prove that the original document actually
existed and was executed – Secondly, the party must establish
valid reasons as to why the original cannot be furnished – Further,
admitting a document as secondary evidence does not automatically
prove its contents – The secondary evidence must be authenticated
by foundational evidence showing that the alleged copy is, in
fact, a true copy of the original – Mere admission of a document
or making it an exhibit does not dispense with the requirement
of proving it in accordance with the law – The introduction of
secondary evidence is a two-step process, wherein, first, the party
must establish the legal right to lead secondary evidence, and
second, they must prove the contents of the documents through
that evidence – The twin requirements are conjunctive – The case
on hand falls within the meaning of mechanical copies – In law,
the existence of Exh.B-2, in the absence of laying down a factual
foundation and following procedure, ought to be ignored for the
purpose of appreciating the 1st Defendant’s claim on the power to
alienate Plaint A-Schedule Property – In the absence of an original
or at least a secondary evidence, it is impermissible to apply s.85
of the Indian Evidence Act to conclude the execution and extent of
authority given by the plaintiff to the 1st Defendant – A photocopy of
a document is no evidence unless the same is proved by following
the procedure set out – Relying on Exh.B-2, the First Appellate
Court acted on inadmissible evidence and accepted the existence
of power to alienate – Exh.B-2/photocopy is no evidence, and the
incorrect reliance on no evidence, has been rightly corrected by
the High Court through the impugned judgment. [Paras 19, 20.2,
20.5, 20.6, 21, 23]
578 [2026] 2 S.C.R.

Supreme Court Reports

Case Law Cited
Ramathal v. Maruthathal, [2017] 8 SCR 613 : (2018) 18 SCC 303;
Jagdish Singh v. Natthu Singh [1991] Supp. 2 SCR 567 : (1992)
1 SCC 647; Dinesh Kumar v. Yusuf Ali [2010] 7 SCR 222 : (2010)
12 SCC 740; Bharatha Matha v. R. Vijaya Renganathan [2010] 7
SCR 154 : (2010) 11 SCC 483; Hero Vinoth v. Seshammal [2006]
Supp. 2 SCR 79 : (2006) 5 SCC 545; Sitaramji Badwaik v. Bisaram
[2021] 1 SCR 701 : (2021) 15 SCC 234; Municipal Committee,
Hoshiarpur v. Punjab SEB [2010] 13 SCR 658 : (2010) 13 SCC
216; Jagmail Singh v. Karamjit Singh [2020] 4 SCR 1163 : (2020)
5 SCC 178; Smt. J. Yashoda v. K. Shobha Rani [2007] 5 SCR
367 : (2007) 5 SCC 730; Kaliya v. State of Madhya Pradesh
[2013] 7 SCR 760 : (2013) 10 SCC 758; H. Siddiqui (D) By Lrs. v.
A. Ramalingam [2011] 5 SCR 587 : AIR (2011) SC 1492; Ashok
Dulichand v. Madahavlal Dube and Another [1976] 1 SCR 246 :
(1975) 4 SCC 664; Chandra v. M. Thangamuthu [2010] 11 SCR
38 : (2010) 9 SCC 712; Rakesh Mohindra v. Anita Beri [2015] 13
SCR 1158 : (2016) 16 SCC 483; Dhanpat v. Sheo Ram [2020] 7
SCR 131 : (2020) 16 SCC 209; O. Bharathan v. K Sudhakarana
(1996) 2 SCC 704 – referred to.

List of Acts
Code of Civil Procedure, 1908; Evidence Act, 1872; Registration
Act, 1908.

List of Keywords
Evidence; Documentary evidence; Primary evidence; Secondary
evidence; Copy made from original by mechanical process; Section
65 of Evidence Act, 1872; Admission of document; Probative value
of document; Section 85 of Evidence Act, 1872; Mechanical copies;
Disputed signatures; Expert; Photocopy of document; Power to
alienate; Contents of document.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 856 of 2026
From the Judgment and Order dated 15.09.2023 of the High Court
of Kerala at Ernakulam in RSA No. 892 of 2016
[2026] 2 S.C.R. 579

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

Appearances for Parties
Advs. for the Appellant(s):
Pijush Kanti Roy, Sr. Adv., Dileep Poolakkot, Harshad V. Hameed,
Mrs. Ashly Harshad, Dr. Arunender Thakur, Mahabir Singh,
Ms. Khushboo Sharma, Anshul Saharan.
Advs. for the Respondent(s):
Siddharth Bhatnagar, Mrs. Manjula Rao, Sr. Advs., Nitin Sangra,
Nadeem Afroz, Riju Ghosh, Upmanyu Tewari.

Judgment / Order of the Supreme Court

Judgment

S.V.N. Bhatti, J.

1. Leave granted.
2. The appeal is at the instance of the 1st and 2nd Defendants in O.S
No. 197 of 2013 before the Senior Civil Judge, Kozhikode. The 1st
Respondent filed OS No. 197 of 2013 for declaration, perpetual
injunction, and damages for use and occupation. The Plaintiff is
admittedly the owner of the Plaint A-Schedule consisting of three items
of immovable property. A few household items are mentioned in Plaint
B-Schedule. The Plaintiff is the 1st Defendant’s sister. The Plaintiff
resides in Mumbai, and the 1st Defendant resides in Kozhikode. The
1st defendant is the brother-in-law of the 2nd and 3rd Defendants. Stated
chronologically, on 31.07.1998, the Plaintiff is said to have executed
a Power of Attorney (“PoA”) in favour of the 1st defendant. The PoA
is exhibited by the Plaintiff as Exhibit A-4 and by the Defendants as
Exhibit B-2, a notarised photocopy. On 15.03.2007, the 1st Defendant,
in the purported authority given to him through the PoA/Exh. B-2,
executed registered sale deeds nos. 262 and 263 of 2007 in favour
of the 2nd and 3rd Defendants. The Plaintiff, having come to know of
the sale in favour of the 2nd and 3rd Defendants, through the lawyer’s
notice dated 20.04.2007, cancelled the PoA. The 1st Defendant refers
to a receipt dated 23.04.2007, said to have been executed by the
Plaintiff, acknowledging the receipt of Rs. 6,00,000/-, forming part of
the sale consideration under the sale deeds dated 15.03.2007. The
1st Defendant issued a reply notice dated 05.05.2007 to the Plaintiff’s
legal notice dated 20.04.2007. In this background, O.S No. 597 of
580 [2026] 2 S.C.R.

Supreme Court Reports

2007 was filed before the Munsiff Court I, Kozhikode, renumbered as
OS No. 197 of 2013 before the Senior Civil Judge, Kozhikode. The
pleadings on both sides are considered in detail by the impugned
judgment. Reference to pleadings as are necessary for disposing of
the appeals is made in the Judgment. The Plaintiff claims title to item
nos. 1 and 2 of the Plaint A-Schedule through the assignment deed
dated 31.07.1998. Item no. 3 of the Plaint A-Schedule is claimed
through the Partition Deed no. 317 of 1998.
3. The Plaintiff avers that the 1st Defendant has sent a draft PoA
dated 31.07.1998/Exh. A-3 by post to her address in Mumbai for
the execution of the PoA. Exh. A-3 is a general power of attorney.
The Plaintiff, not interested in granting general power to the 1st
Defendant to deal with the Plaint A-Schedule, has scored out the
clauses dealing with the power to mortgage, alienate, etc in Exh.
A-3. The Plaintiff admits execution of the PoA, i.e. Exh. A-4, which
grants specific power and not general power to alienate the plaint
schedule properties. The Plaintiff states that the PoA/Exh. B-2, relied
on by the defendant, is a sham and fudged document. Therefore,
by referring to a fudged PoA, execution of assignment deed nos.
262 and 263 of 2007 is illegal, unenforceable and not binding on
the Plaintiff. The agent exceeded the authority given to him and the
sale deeds do not bind the principal. In other words, the Plaintiff
asserts that the 1st Defendant/agent does not have the power to
alienate or exceed the power granted to him under the PoA/Exh. A-4,
signed and sent by the Plaintiff. The Plaintiff denies the execution
of receipts dated 20.12.2006 (Exh. B-6) and 23.04.2007 (Exh. B-7)
for Rs. 11,00,000/- towards the sale consideration. Hence, the suit
for the reliefs prayed for.
4. The 1st Defendant admits that the Plaintiff is the owner as per the
records, but the possession of the house is with the 1st Defendant.
On the fact in issue at stake between the parties, the 1st Defendant
asserts that the Plaintiff executed the PoA/Exh. B-2 authorising
the Defendant to have the power of management, mortgage and
alienation. The sub-registrar verified the 1st Defendant’s competence
to execute the sale deed on behalf of the Plaintiff and accepted the
sale deeds (Exh. A7 and A8) dated 15.03.2007, executed in favour
of the 2nd and 3rd Defendants for registration. The said sale deeds
executed are valid, legal and bind the Plaintiff as principal, because
the 1st Defendant, as agent, acted under the comprehensive powers
[2026] 2 S.C.R. 581

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

granted to him under Exh. B-2 by the Plaintiff. Resiling from the power
vested in favour of the 1st Defendant is contradictory and contrary to
the conduct of the Plaintiff in receiving Rs. 11,00,000/- under receipts
(Exh. B-6 and B-7) dated 20.12.2006, and 23.04.2007, respectively.
The Plaintiff, as beneficiary of the sale consideration, is not entitled
to challenge the action of the 1st Defendant.
5. The Trial Court, on consideration of the oral evidence of PW 1 and
the documentary evidence of Exhibits A-1 to A-9, DWs 1 and 2, and
Exhibits B-1 to B-26, decreed the suit. The issues settled by the Trial
Court are as follows:
“1. Whether the plaintiff had executed a power of attorney
authorizing the 1st defendant to sell the properties
described in the plaint A schedule ?
2. Whether the power of attorney alleged to have been
executed by the plaintiff on 31.7.199[8] is a valid genuine
and properly executed document ?
3. Whether the power of attorney alleged to have been
executed by the plaintiff on 31.7.1998 empowers the 1st
defendant to execute a valid conveyance in respect of the
properties described in the plaint A-schedule ?
4. Whether the defendant had executed registered sale
deeds in favour of defendants 2 and 3 on the strength of
a forged and fabricated power of attorney as alleged ?
5. Whether the plaintiff is entitled to get a declaration as
prayed for ?
6. Whether the plaintiff is entitled to get a permanent
prohibitory injunction as prayed for ?
7. Whether the plaintiff is entitled to get a mandatory
injunction as prayed for ?
8. Whether the plaintiff is entitled to get damages for use
Occupation at the rate of Rs. 3,000/- per month from
20.4.2007?
9. Whether the plaintiff is entitled to get share of mesne
profits as alleged ?
10. Reliefs and Costs ?”
582 [2026] 2 S.C.R.

Supreme Court Reports

6. The Trial Court examined all the issues together, and the gist of the
Trial Court’s findings is that the Trial Court compared the draft PoA
(Exh. A-4) with the one used for the sale (Exh. B-2) and found that
words providing for “sale” were added to the end of existing clauses.
These additions lacked “cohesion” with the original document. It also
noted that the spacing between letters in the added “sale” words was
significantly different from the rest of the document (monospace vs.
proportional), indicating they were inserted later. The 1st Defendant
failed to produce the original PoA (Exh. B-2) despite being its
holder. The Trial Court found his explanation that it was given to
the Plaintiff’s husband to be inconsistent and contradictory. Under
Section 33 of the Registration Act, 1908, a PoA used for executing
sale deeds must be properly authenticated. The Trial Court held that
since the PoA was unregistered and its genuineness was unproven,
the resulting sale deeds (Exh. A-7 and A-8) were invalid. While 1st
Defendant claimed to have paid the plaintiff Rs. 11,00,000/-, the Trial
Court found this evidence insufficient to validate the unauthorised
sale deeds. The sale prices shown in the deeds were also lower
than the amount he allegedly paid her, undermining his credibility.
The Trial Court (i) declared that the sale deed nos. 262 and 263 of
2007 (Exh. A-7 and A-8) were invalid and void; (ii) The Trial Court
granted the relief of injunction as well; (iii) Further directed, through
a mandatory injunction, 1st Defendant to vacate and surrender the
house situated on item no. 1 of the Plaint A-Schedule to the Plaintiff
within two months; and (iv) rejected the claim for damages for use
and occupation.
7. The 1st Defendant filed A.S. No. 166 of 2014 before the District
Judge, Kozhikode, and the First Appellate Court allowed the appeal,
resulting in the dismissal of O.S. No. 197 of 2013. The First Appellate
Court examined the issues and recorded the findings, which can be
classified under the following heads:

Rejection of Independent Ownership Claims (Benami and Oral
Sale)
7.1 The 1st Defendant’s claim of purchasing items nos. 1 and 2 in
the Plaintiff’s name using his own funds was barred under the
provisions of the Benami Transactions (Prohibition) Act, 1988.
Similarly, regarding item no. 3, it was held that the immovable
[2026] 2 S.C.R. 583

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

property was worth more than Rs. 100, and cannot be orally
sold to the 1st Defendant without a registered document as per
Section 17 of the Registration Act.

Validity and Existence of the Power of Attorney
7.2 Plaintiff in the legal notice (Exh. A-5) stated that she was
“cancelling” the PoA. If the Plaintiff had never executed a valid
power of attorney, there would have been no need to cancel it.
Furthermore, PW1 admitted during cross-examination that she
had seen the original PoA at her lawyer’s office. Hence, the
plaintiff was deliberately withholding the original PoA. Plaintiff’s
prior conduct in executing powers of attorney in favour of her
father and brother proves that the Plaintiff was well aware of the
legal formalities required for executing a PoA. Now, the stand
she has taken undermines her claim of ignorance.

Admissibility of Secondary Evidence (Exh. B2)
7.3 Since the Plaintiff withheld the original power of attorney, the
1st Defendant produced a photocopy (Exh. B2) as secondary
evidence under Section 66 of the Indian Evidence Act. Section
8(1)(a) of the Notaries Act, 1952 and Section 114(e) of the Indian
Evidence Act hold that the PoA, which was notarised by a Notary,
carry a presumption of valid execution and authentication.

Objections under the Registration Act
7.4 The Plaintiff’s challenge under Section 33 of the Registration
Act (requiring Registrar’s authentication for the PoA) was also
rejected because the plaintiff had relied on a similarly Notary-
attested PoA for her own partition deed (Exh. B12). The other
objection under Section 28 of the Registration Act that the sale
deeds (Exh. A7 and A8) were registered in Kozhikode rather than
the jurisdictional SRO at Kakkodi, where the land is situated,
was also rejected because the Sub-Registrar in Kozhikode held
the charge of District Registrar, giving him jurisdiction to accept
a document for registration.

Confirmation of Sale Receipts (Exh. B6 and B7)
7.5 Plaintiff had accepted sale consideration totalling Rs. 11 lakhs,
receipts Exh. B-6 dated 20.12.2006 for Rs. 5,00,000/- and Exh.
584 [2026] 2 S.C.R.

Supreme Court Reports

B-7 dated 23.04.2007 for Rs. 6,00,000/-. Expert witness (CW1)
confirmed that the signature on the receipt Exh. B6 matched
the Plaintiff’s specimen signature. Regarding the second receipt
(Exh. B7), the First Appellate Court, after making a comparison
with the naked eye, concluded that the disputed signature was
by the same author, i.e., the Plaintiff.

Validity of Sale Deeds and Possession of Documents
7.6 The Plaintiff did not explain as to why the 1st Defendant was
in possession of all the original title deeds, including the prior
sale agreement, purchase certificate, and partition deed. It was
inferred that these were entrusted to the 1st Defendant for the
purpose of selling the property. Consequently, the sale deeds
executed by the 1st Defendant in favour of the 2nd Defendant
and 3rd Defendant were valid.
8. The Plaintiff assailing the above findings filed the second appeal
before the High Court, and through the impugned judgment, the High
Court restored the findings of the Trial Court, and its consideration
is summarised:
8.1 The original of Exh. B-2 is not marked. Without following the
procedure under Sections 65 and 66 of the Evidence Act, Exh.
B-2, a photostat copy does not satisfy the requirements of
secondary evidence. The 1st Defendant traces the authority to
sell the property to Exh. B-2. The non-marking of the original
of Exh. B-2, coupled with non-compliance with Sections 65 and
66 of the Evidence Act, would render the assertion untenable.
8.2 The High Court concluded that the original PoA – Exh B-2 was
not duly executed by the Plaintiff. It compared the clauses in
the draft/copy - Exh. A-4 with the disputed PoA/Exh. B-2. It was
observed that the words providing for “sale” in the disputed PoA
had no cohesion with the former parts of the clauses. Crucially,
the spacing between the letters in the added words relating
to “sale” was monospace, whereas the rest of the document
used proportional spacing, indicating interpolation/fabrication.
The High Court rejected the Defendant’s claim regarding the
original PoA. It noted inconsistencies in the Defendant’s evidence
regarding the whereabouts of the original document. It was finally
noted that in the draft PoA/Exh. A-3 sent by the Defendant to
[2026] 2 S.C.R. 585

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

the Plaintiff, the specific clause providing for sale and mortgage
(Clause b) had been deleted from the final version - Exh. A-4/
Exh. B-2, thus supporting the Plaintiff’s claim that she did not
grant power to sell. Consequently, the High Court held that the
sale deeds executed by the Defendant using the invalid POA
were void, thereby restoring the Trial Court’s decree
9. Hence, the 1st and 2nd Defendants are in appeal challenging the
impugned judgment.
10. We have heard learned senior counsel Mr. Pijush Kanti Roy and Mr.
Siddharth Bhatnagar for the parties.
11. The Defendants assail the impugned judgment, as exceeding the
jurisdiction of the High Court under Section 100 of the Code of Civil
Procedure, 1908. The impugned judgment has not framed substantial
questions of law for consideration. Still, by re-appreciating the
evidence, it interfered with the findings of fact recorded by the First
Appellate Court. The primacy of opinion available to the view of the
First Appellate Court is not accorded in the impugned judgment. The
illegality in the impugned judgment is a reappreciation of oral and
documentary evidence to record findings on facts in issue. Therefore,
the impugned judgment, since it exceeded the jurisdiction of the
High Court under Section 100 of the CPC, is liable to be set aside.
Adverting to the merits, the Defendants contend that in the case on
hand, the execution of PoA is not in dispute. Still, the core issue is
whether the PoA/Exh B-2 granted comprehensive authority to deal
with scheduled property or was it a limited power assigned to the 1st
Defendant/Exh. B-2, a notarised photocopy of PoA, is a complete
answer on the extent of power granted to the 1st Defendant. The
clauses are clear and categorical, authorising the 1st Defendant to
sell the Plaint A-Schedule Property. The acts of the 1st Defendant
conform to the authority and are well within the power granted to
the Defendant under Exh. B-2. The Plaintiff, having ratified the act of
the 1st Defendant, by receiving Rs. 11,00,000/- through Exh. B6 and
B7, dated 20.12.2006 and 23.04.2007, cannot resile and challenge
the validity of the sale deeds dated 15.03.2007.
11.1 The 1st Defendant has discharged the burden fastened on him,
and, on a combined reading of Section 85 of the Evidence Act,
read with Section 33 of the Registration Act, the execution or
extent of the power under the PoA is a non-issue. The High
586 [2026] 2 S.C.R.

Supreme Court Reports

Court committed an illegality by failing to apply the available
presumption to the sale deeds dated 15.03.2007. The 1st
Defendant contends that the purported clauses authorising him
to alienate are not manipulated or fudged; this is evidenced
by the draft PoA/Exh. A-3 that was sent by the 1st Defendant
to the Plaintiff.
12. The Plaintiff contends that the First Appellate Court committed a
serious illegality by relying on PoA/Exh. B-2. The findings of fact
recorded by the First Appellate Court are contrary to the evidence or
result of incorrect construction of the documents. The 1st Defendant
admits that the original of Exh. B-2 is not available to him. Further, to
place on record, Exh. B-2, a notarised photocopy of a PoA procedure
for adducing secondary evidence must be followed. In the admitted
scenario, neither is an original nor a photocopy on record after
complying with the requirements of adducing secondary evidence.
Exh. B-2, since it is not an original document, but a notarised PoA,
cannot be the document of source for the authority said to have
been given by the Plaintiff to the 1st Defendant. The requirements,
either under Section 33 of the Registration Act, or Section 85 of
the Evidence Act, fall for consideration only if the original deed
or Exh. B-2 is produced after complying with the requirements of
secondary evidence. The photocopy is not a piece of evidence.
The High Court has not conducted an independent reappreciation
of oral and documentary evidence, but tested the findings of fact on
the oral and documentary evidence adduced by the parties. Such
a procedure is within the scope and jurisdiction of the High Court.
The unauthorised act of the 1st Defendant will not bind the Plaintiff,
and no title is conveyed to the 2nd and 3rd Defendants through Exh.
A-7 and A-8.
13. The arguments on both sides are noted, and the record is perused
and appreciated.
14. The controversy centres around the disputed circumstance, namely,
the power of agency given by the plaintiff to the 1st defendant
through Exh. B-2, if the documentary evidence in Exh. B-2 satisfies
the requirement of law, whether it is fudged with additions, etc.
Inasmuch as the 1st Defendant can convey title to the 2nd and 3rd
Defendants only when the authority to do so is proved as pleaded by
him. The admitted circumstances are that the Plaintiff is the owner
[2026] 2 S.C.R. 587

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

of the Suit A-Schedule Properties, the Plaintiff resides in Mumbai,
the 1st defendant resides in Kozhikode, and was authorised to,
according to the Plaintiff, manage the property and according to the
1st Defendant, he was authorised to act as an agent of the Plaintiff
for all purposes. The Plaintiff denies having given general power,
including the alienation of the Suit A-Schedule in favour of the 1st
Defendant. The 1st Defendant asserts and claims that the PoA in his
favour includes the power to alienate the Suit A-Schedule Property.
15. In the admitted and disputed circumstances, the issue boils down to
whether the 1st Defendant proved the case as pleaded in the written
statement. The burden is on the 1st Defendant. For clarity, we excerpt
the averments in the written statement on the execution, scope and
content of PoA, which reads as under:

“XxX
the plaintiff handed over to the first defendant all the
powers to handle, sell, mortgage the above said property
as his own and a power of attorney draft was prepared
and sent as per the plaintiff’s instructions. Plaintiff herself
voluntarily prepared it as her on style and signed it and
sent it to the 1st Defendant.
XxX
the plaintiff has nowhere (sic) stated why the 1st defendant
was entrusted with the power to dispose of the property,
sell it etc. From these circumstances it is proved that the
1st defendant also had the authority over the above said
property.
XxX
The draft Power of Attorney produced by the Plaintiff along
with the plaint was sent by the 1st defendant. Similarly
the 1st respondent (defendant) admits the letter sent along
with it. But no letter has been sent by the 1st defendant
after getting the Power of Attorney.
XxX
The Power of Attorney issued by the plaintiff also
empowered the 1st defendant to sell the property. The
588 [2026] 2 S.C.R.

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registrar allowed to register the document after fully
understanding the contents. Up to this point, the plaintiff
has not raised an argument that the officials of the Register
Office and these defendants have conspired to create the
Sale deeds.
XxX”
These pleadings will be considered at the appropriate stage.
16. We now turn to whether the High Court exceeded its jurisdiction
under Section 100 of the Code of Civil Procedure, 1908, while
reversing the judgment of the First Appellate Court. The defendants
argue that the High Court’s findings were recorded on reappreciation
of oral and documentary evidence. The Plaintiff contends that the
High Court has not reappreciated the evidence but has examined
whether the evidence was misread/documents were not correctly
interpreted, and whether inadmissible documents were relied upon
by the first appellate Court. The broad parameters for exercising the
jurisdiction under Section 100 of the Code of Civil Procedure are
summed up hereunder:
16.1 The Code of Civil Procedure (Amendment) Act, 1976,
introduced a specific embargo on the High Court’s jurisdiction
under Section 100 to ensure the finality of findings of fact
and to confine its jurisdiction to cases involving a substantial
question of law.1 Consequently, the general rule is that findings
of fact recorded by the trial and appellate courts are binding
and will not be disturbed, even if they appear to be erroneous.2
16.2 However, this restriction is not absolute. Where the findings
of fact are founded on assumptions, conjectures or surmises,
or suffer from the vice of perversity, the High Court is well
within its jurisdiction to interfere with findings of fact. The
legality of a finding of fact, when challenged on the ground of
perversity, itself constitutes a question of law and, therefore,
may give rise to a substantial question of law under Section
100 of the CPC.3

1 Ramathal v. Maruthathal (2018) 18 SCC 303.
2 Jagdish Singh v. Natthu Singh (1992) 1 SCC 647.
3 Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740.
[2026] 2 S.C.R. 589

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

16.3 A finding may be termed perverse where it is arrived at by
ignoring or excluding relevant and material evidence, by
considering irrelevant material, or where it is based on no
evidence or on wholly unreliable evidence. A decision based
on no evidence is not confined to cases of complete absence
of evidence, but also includes cases where the evidence on
record, taken as a whole, is incapable of reasonably supporting
the findings recorded. A finding that outrageously defies logic,
suffers from irrationality, or is such that no reasonable person
acting judicially could have arrived at it, is equally perverse
in the eye of the law. Findings resting on the ipse dixit of the
court or on conjecture and surmises reflect non-application of
mind and stand vitiated on that ground as well.4
16.4 Insofar as documentary evidence is concerned, an inference
drawn from the contents of a document is ordinarily a question
of fact. However, the legal effect of a document’s terms, its
construction involving the application of legal principles, or a
misconstruction thereof gives rise to a question of law.5
16.5 While exercising jurisdiction under Section 100 of the CPC,
the High Court must be satisfied that the case involves not
merely a question of law but a substantial question of law
having a material bearing on the rights of the parties. A
substantial question of law may arise where the legal position
is debatable or unsettled. It may also occur in cases where
statutory provisions or binding precedents well settle the legal
position. Still, the courts below have decided the matter by
ignoring settled principles or by acting in direct contravention
of them. In such cases, the substantial question of law arises
not because the law is uncertain, but because the decision
violates the settled position of law.6
16.6 Section 103 of the CPC enables the High Court, in a second
appeal, to determine an issue of fact, provided the evidence
on record is sufficient, in two contingencies: first, where an
issue necessary for the disposal of the appeal has not been

4 Bharatha Matha v. R. Vijaya Renganathan (2010) 11 SCC 483.
5 Hero Vinoth v. Seshammal (2006) 5 SCC 545, ¶24.
6 Ibid.
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determined by the lower appellate court or by both courts below;
and second, where such issue has been wrongly determined
by reason of a decision on a question of law as referred to in
Section 100 of the CPC.7
16.7 Section 103 does not operate as an exception to, or a
substitute for, Section 100, but is intended to advance the
same legislative purpose. The power under Section 103 CPC
can be exercised only in exceptional circumstances and with
circumspection. Before invoking this provision, the High Court
must record a clear finding that the findings of fact recorded
by the courts below are vitiated by perversity. In the absence
of such a categorical finding, the exercise of power under
Section 103 would fall outside the permissible limits of Section
100 of the CPC.8
17. Therefore, we examine whether the findings in the impugned
judgment are based on reappreciation of evidence, or on a finding
of misreading of evidence, wrong interpretation of documents, and
reliance on inadmissible evidence, Exh. B-2.
18. The evidence of DW1 is important, and in chief examination the
witness denied the Plaintiff’s claims, stating that while the Plaint
A-Schedule properties (Items 1 and 2) were purchased in the Plaintiff’s
name from their brother Mohandas, this was done solely due to
Mohandas’s insistence and the plaintiff’s love and affection to assist
DW1, who could not raise the full funds immediately. DW1 claimed
he had originally entered into an agreement to sell with Mohandas for
Rs.7 lakhs and paid an advance of Rs.1 lakh, and later the plaintiff
provided Rs.6 lakhs to complete the purchase. Further, he has been
in exclusive possession of the property since 1984, residing there
with his family, and denied being merely a caretaker. Regarding Item
3, he claimed to have orally purchased it from the Plaintiff for Rs. 2
lakhs. That Plaintiff voluntarily prepared, signed, and notarised a PoA
empowering him to sell the property and sent it to him. Furthermore,
DW1 had settled all financial obligations to the Plaintiff by paying
Rs.5,00,000/- on 20.12.2006 and Rs.6,00,000/- on 23.04.2007, for

7 Sitaramji Badwaik v. Bisaram (2021) 15 SCC 234.
8 Municipal Committee, Hoshiarpur v. Punjab SEB (2010) 13 SCC 216, ¶26.
[2026] 2 S.C.R. 591

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

which the plaintiff signed receipts. Further, the Plaintiff’s suit was an
afterthought driven by ulterior motives, and he had sold the property
to the 2nd and 3rd Defendants with full authority and with the Plaintiff’s
knowledge. The appreciation of the chief examination of DW-1 would
not show the crucial aspect of clauses in Exh. B2.
18.1 During cross-examination, he admitted he did not know where
the original PoA was. The cross-examination further reads that
a witness named Muraleedharan retrieved the documents from
the office of the Sub-registrar and handed the original POA
to the Plaintiff’s husband. He admitted that he had nothing
to say as to why this significant fact was omitted from his
pleadings. When confronted with a photocopy of the POA,
he admitted that it lacked witness signatures and contained
no notary endorsement. He denied sending the draft PoA to
the Plaintiff. Regarding the payment receipts, he admitted
they were written in his own handwriting on the Plaintiff’s
husband’s letterhead and were not stamped. He admitted
he did not affix a revenue stamp to the receipts and justified
it by saying the plaintiff was her sister. He admitted to filing
a previous cheque case (CC No. 667/09) against a woman
named K.K. Rajani, and that the accused in that case alleged
that DW1 had forged her signature. Subsequently, DW1
withdrew the case as not pressed rather than pursuing it.
He admitted that he continued to reside in the house on the
property. That he did not accompany the buyer Sunil Kumar
to register the subsequent sale of the property and did not
know who currently possesses item no. 3. He admitted the
house ownership in the Panchayat records were still in the
name of plaintiff.
19. The crux of the matter depends on whether Exh. B-2 can be treated as
documentary evidence warranting interpretation of the clauses and the
alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy,
or a mechanical copy, of the purported PoA. This, therefore, implies
that Exh. B-2 is, at best, secondary evidence. Secondary evidence is
evidence that proves the contents of an original document through a
medium that is one step removed from the source. Section 63 of the
Indian Evidence Act provides an exhaustive list of what constitutes
secondary evidence. This includes certified copies, copies made
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from the original by mechanical processes ensuring accuracy, copies
compared with such copies, counterparts of documents against parties
who did not execute them, and oral accounts of the contents given
by a person who has seen the document.
20. The broad parameters summarising the procedure to be followed
for introducing secondary evidence are reiterated and read thus:
20.1 The fundamental principle of the Indian Evidence Act is that
facts have to be established by primary evidence.9 Section
64 mandates that documents must be proved by primary
evidence, which is considered the “best evidence”. Primary
evidence is the rule, while secondary evidence is an exception
admissible only in the absence of primary evidence. A party
is generally required to produce the best evidence available;
so long as the superior evidence (the original) is within a
party’s possession or reach, they cannot introduce inferior
proof (secondary evidence).10
20.2 Before secondary evidence can be admitted, the party relying
on it must lay a factual foundation. This involves two steps:
First, the party must prove that the original document actually
existed and was executed. Secondly, the party must establish
valid reasons as to why the original cannot be furnished.11
20.3 Secondary evidence is inadmissible until the non-production
of the original is accounted for in a manner that brings the
case within the specific exceptions provided in Section 65.12
If the original itself is found to be inadmissible through failure
of the party who files it to prove it to be valid, the same
party is not entitled to introduce secondary evidence of its
contents.13
20.4 Section 65 of the Evidence Act is exhaustive and states the
specific circumstances under which secondary evidence is

9 Jagmail Singh v. Karamjit Singh (2020) 5 SCC 178. (Para 14)
10 Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730.
11 Ibid; Kaliya v. State of Madhya Pradesh (2013) 10 SCC 758.
12 H. Siddiqui (D) By Lrs. v. A. Ramalingam, AIR (2011) SC 1492.
13 Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730.
[2026] 2 S.C.R. 593

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

permissible. To introduce secondary evidence, a party must
satisfy the conditions of one of the clauses (a) through (g) of
Section 65.14
20.5 Further, admitting a document as secondary evidence does
not automatically prove its contents. The secondary evidence
must be authenticated by foundational evidence showing
that the alleged copy is, in fact, a true copy of the original.
For instance, if a party wishes to introduce a photostat copy,
they must explain the circumstances under which the copy
was prepared and who possessed the original at the time the
photograph was taken.15
20.6 Mere admission of a document or making it an exhibit does not
dispense with the requirement of proving it in accordance with
the law. The court has an obligation to examine the probative
value of the document and decide the question of admissibility
before making an endorsement on the secondary evidence.
If the foundational facts, such as the loss of the original or
the explanation for its non-production, are not established,
the court cannot legally allow the party to adduce secondary
evidence.16
20.7 There is no requirement that an application must be filed to
lead secondary evidence. While a party may choose to file
such an application, secondary evidence cannot be ousted
solely because no application was filed. It is sufficient if

14
Condition for Secondary Evidence Statutory Clause Type of Secondary Evidence Allowed
Adversary Possession Section 65(a) Any secondary evidence (after notice).
Written Admission Section 65(b) The written admission itself.
Loss or Destruction Section 65(c) Any secondary evidence.
Immovable Original Section 65(d) Any secondary evidence.
Public Document Section 65(e) Only a certified copy.
Law-Specified Document Section 65(f) Only a certified copy.
Voluminous Records Section 65(g) Testimony of a skilled examiner.

15 Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664; Chandra v. M. Thangamuthu
(2010) 9 SCC 712.
16 Rakesh Mohindra v. Anita Beri (2016) 16 SCC 483.
594 [2026] 2 S.C.R.

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the party lays the necessary factual foundation for leading
secondary evidence either in the pleadings or during the
course of evidence.17
21. Therefore, the introduction of secondary evidence is a two-step
process, wherein, first, the party must establish the legal right to
lead secondary evidence, and second, they must prove the contents
of the documents through that evidence. The twin requirements are
conjunctive.
22. The High Court recorded a finding which is not challenged, that the
PoA produced by the 1st Defendant is a notarised photocopy, and
not the original document. The 1st Defendant is obligated to follow
the procedure for adducing secondary evidence, and thereafter,
claim presumption, if any, available to a document so adduced in
evidence. It is axiomatic that secondary evidence is permissible only
as an exception to the requirement of adducing primary evidence.
23. The case on hand falls within the meaning of mechanical copies.
In law, the existence of Exh. B-2, in the absence of laying down a
factual foundation and following procedure, ought to be ignored for
the purpose of appreciating the 1st Defendant’s claim on the power
to alienate Plaint A-Schedule Property. It is apposite to refer to one
of the views expressed by the First Appellate Court by examining the
signature in Exh. B-2, and recording a finding against the plaintiff. It is
axiomatic and fairly established by the authorities18 of this Court that
courts should not by itself compare disputed signatures without the
assistance of any expert, when the signatures with which the disputed
signatures compared, are themselves not the admitted signatures. In
our considered view, neither Section 33 of the Registration Act nor
Section 85 of the Evidence Act would come into application if the
primary requirement of adducing secondary evidence is discharged
by the party relying on the document. Section 85 of the Evidence Act
falls under Chapter V, titled Documentary Evidence. In the absence
of an original or at least a secondary evidence, it is impermissible
to apply Section 85 of the Indian Evidence Act to conclude the
execution and extent of authority given by the plaintiff to the 1st
defendant. No order is brought to our notice through which secondary

17 Dhanpat v. Sheo Ram (2020) 16 SCC 209.
18 O. Bharathan v. K Sudhakarana (1996) 2 SCC 704.
[2026] 2 S.C.R. 595

Tharammel Peethambaran and Another v.
T. Ushakrishnan and Another

evidence is brought on record before the Trial Court. A photocopy of
a document is no evidence unless the same is proved by following
the procedure set out. Relying on Exh. B-2, the First Appellate Court
acted on inadmissible evidence and accepted the existence of power
to alienate. Exh. B-2/photocopy is no evidence, and the incorrect
reliance on no evidence, has been rightly corrected by the High Court
through the impugned judgment. The High Court has considered the
misreading of evidence by the Appellate Court and, by applying the
correct principles of law, allowed the second appeal.
24. Therefore, the Civil Appeal is without merit and is dismissed
accordingly. No order as to costs. Pending application(s), if any,
stand disposed of.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Ankit Gyan