2026 INSC 134

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026

[@ SLP (C) NO. 11868 OF 2024]

THARAMMEL PEETHAMBARAN AND ANOTHER … APPELLANT(S)

VERSUS

T. USHAKRISHNAN AND ANOTHER … RESPONDENT(S)

J U D G M E N T

S.V.N. BHATTI, J.

1. Leave granted.

2. The appeal is at the instance of the 1

st

and 2

nd

Defendants in O.S No.

197 of 2013 before the Senior Civil Judge, Kozhikode. The 1

st

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 1

st

Defendant’s

sister. The Plaintiff resides in Mumbai, and the 1

st

Defendant resides in

Kozhikode. The 1

st

defendant is the brother-in-law of the 2

nd

and 3

rd

Defendants. Stated chronologically, on 31.07.1998, the Plaintiff is said to

have executed a Power of Attorney (“PoA”) in favour of the 1

st

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 1

st

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 2

nd and 3

rd

2

Defendants. The Plaintiff, having come to know of the sale in favour of the 2

nd

and 3

rd

Defendants, through the lawyer’s notice dated 20.04.2007, cancelled

the PoA. The 1

st

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 1

st

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 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 1

st

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 1

st

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

3

words, the Plaintiff asserts that the 1

st

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 1

st

Defendant admits that the Plaintiff is the owner as per the

records, but the possession of the house is with the 1

st

Defendant. On the fact

in issue at stake between the parties, the 1

st

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

1

st

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 2

nd

and 3

rd

Defendants for registration. The said sale deeds

executed are valid, legal and bind the Plaintiff as principal, because the 1

st

Defendant, as agent, acted under the comprehensive powers granted to him

under Exh. B-2 by the Plaintiff. Resiling from the power vested in favour of

the 1

st

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 1

st

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, dismissed the suit. The issues settled by the Trial Court are as

follows:

4

“ 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 ?”

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 1

st

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

5

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 1

st

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, 1

st

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 1

st

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 1

st

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 property was worth more than Rs. 100, and

cannot be orally sold to the 1

st

Defendant without a registered document as

per Section 17 of the Registration Act.

6

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 1

st

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

7

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. 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 1

st

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 1

st

Defendant for the purpose of selling the

property. Consequently, the sale deeds executed by the 1

st

Defendant in

favour of the 2

nd

Defendant and 3

rd

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 1

st

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

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 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 1

st

and 2

nd

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

9

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 1

st

Defendant/Exh. B-2, a

notarised photocopy of PoA, is a complete answer on the extent of power

granted to the 1

st

Defendant. The clauses are clear and categorical,

authorising the 1

st

Defendant to sell the Plaint A-Schedule Property. The acts

of the 1

st

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 1

st

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 1

st

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 Court committed an illegality by failing to apply the

available presumption to the sale deeds dated 15.03.2007. The 1

st

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 1

st

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

10

the First Appellate Court are contrary to the evidence or result of incorrect

construction of the documents. The 1

st

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 1

st

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 1

st

Defendant will not bind the Plaintiff, and no title

is conveyed to the 2

nd

and 3

rd

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 1

st

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 1

st

Defendant can

convey title to the 2

nd

and 3

rd

Defendants only when the authority to do so is

11

proved as pleaded by him. The admitted circumstances are that the Plaintiff

is the owner of the Suit A-Schedule Properties, the Plaintiff resides in Mumbai,

the 1

st

defendant resides in Kozhikode, and was authorised to, according to

the Plaintiff, manage the property and according to the 1

st

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 1

st

Defendant. The 1

st

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 1

st

Defendant proved the case as pleaded in the written

statement. The burden is on the 1

st

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 1

st

Defendant.

XxX

the plaintiff has nowhere (sic) stated why the 1

st

defendant was

entrusted with the power to dispose of the property, sell it etc. From

these circumstances it is proved that the 1

st

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 1

st

respondent

(defendant) admits the letter sent along with it. But no letter has been

sent by the 1

st

defendant after getting the Power of Attorney.

XxX

12

The Power of Attorney issued by the plaintiff also empowered the 1

st

defendant to sell the property. The 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

1

Ramathal v. Maruthathal, (2018) 18 SCC 303.

2

Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647.

13

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

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

3

Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740.

4

Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483.

5

Hero Vinoth v. Seshammal, (2006) 5 SCC 545, ¶24.

14

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 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.

6

Ibid.

7

Sitaramji Badwaik v. Bisaram, (2021) 15 SCC 234.

8

Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216, ¶26.

15

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 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 2

nd

and 3

rd

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

16

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 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:

17

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 permissible. To introduce

secondary evidence, a party must satisfy the conditions of one of the clauses

(a) through (g) of Section 65.

14

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.

14

18

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 the party lays the necessary factual foundation for

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.

19

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 1

st

Defendant is a notarised photocopy, and not the original

document. The 1

st

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 1

st

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 authorities

18

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

17

Dhanpat v. Sheo Ram 2020 (16) SCC 209.

18

O. Bharathan v. K Sudhakarana, 1996 2 SCC 704.

20

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

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 dismisse d

accordingly. No order as to costs. Pending application(s), if any, stand

disposed of.

………..……….…………………J.

[PANKAJ MITHAL ]

………..…………………………J.

[S.V.N. BHATTI]

New Delhi;

February 06, 2026.