Introduction:

The Supreme Court of India, in Tharammel Peethambaran and Another v. T. Ushakrishnan and Another (2026 LiveLaw (SC) 128), delivered a significant ruling clarifying the law on admissibility and proof of secondary evidence under the Indian Evidence Act, 1872, particularly in cases involving Power of Attorney (PoA) and alienation of immovable property. The controversy arose out of a property transaction allegedly executed on the strength of a General Power of Attorney said to have been granted by the plaintiff in favour of her brother in 1998. The plaintiff categorically denied having executed any General Power of Attorney authorising sale and asserted that she had issued only a limited Power of Attorney for managing the property, with express deletion of clauses permitting alienation. The defendants, on the other hand, justified the sale of the property in favour of close relatives of the attorney-holder by relying upon a notarised photocopy of an alleged General Power of Attorney, claiming it conferred full authority to sell. This dispute ultimately compelled the Supreme Court to examine whether a mere photocopy of a document, without proper foundational proof, could be relied upon to uphold a sale of immovable property and whether secondary evidence could substitute strict proof of an original instrument affecting valuable civil rights.

Arguments on Behalf of the Plaintiff:

The plaintiff’s case was built on the foundational principle that title to immovable property cannot be divested except by strict compliance with law and by relying upon valid, proved documents. It was contended that the plaintiff had never executed any General Power of Attorney authorising her brother to alienate the property. According to her, the Power of Attorney executed in 1998 was strictly limited in nature, permitting only management-related acts such as collection of rent and supervision of the property. She specifically pleaded and proved that the clauses relating to sale or transfer had been consciously struck off at the time of execution, thereby clearly manifesting her intention not to delegate any power of alienation. The plaintiff further argued that the defendants’ entire case rested upon a notarised photocopy of an alleged General Power of Attorney, the original of which was never produced before the court. There was no explanation whatsoever regarding the whereabouts of the original document, nor any plea or proof to bring the case within the exceptions enumerated under Section 65 of the Evidence Act. It was emphasised that under Section 64, documents must be proved by primary evidence, and secondary evidence is permissible only upon strict proof of circumstances such as loss, destruction, or possession of the original by the adverse party. The plaintiff asserted that a notarised photocopy, by itself, is not evidence in the eyes of law and cannot be used to confer authority to sell immovable property. Reliance was placed on settled jurisprudence that secondary evidence does not automatically prove the contents of a document and that the party relying on such evidence must lay a proper foundation by proving how and when the copy was prepared, who was in custody of the original, and why the original could not be produced. The plaintiff also highlighted the suspicious circumstances surrounding the transaction, particularly the sale of property in favour of the in-laws of the alleged attorney-holder, which, according to her, clearly demonstrated abuse of trust and misuse of a limited authority. On these grounds, she supported the Trial Court’s decree declaring the sale deeds void and urged that the First Appellate Court had committed a grave error in reversing a well-reasoned judgment by acting upon inadmissible and unproved secondary evidence.

Arguments on Behalf of the Defendants:

The defendants, on the contrary, asserted that the plaintiff had indeed executed a General Power of Attorney in favour of her brother, conferring broad powers including the authority to sell the property. They contended that the photocopy of the General Power of Attorney relied upon by them was duly notarised and, therefore, carried a presumption of genuineness. It was argued that the plaintiff herself had admitted the execution of a Power of Attorney, and therefore, the burden shifted on her to disprove the existence of the general authority to alienate. The defendants further submitted that the sale deeds executed pursuant to the Power of Attorney were validly registered documents and enjoyed a presumption of legality. They contended that minor technical objections regarding proof of the Power of Attorney should not defeat substantive rights arising from a completed sale transaction, especially when the purchasers were bona fide and the sale had taken place years earlier. The defendants also sought to justify the reliance on secondary evidence by arguing that strict rules of evidence should not be applied mechanically and that the courts must adopt a pragmatic approach to prevent miscarriage of justice. According to them, the First Appellate Court had correctly appreciated the evidence on record, accepted the photocopy of the Power of Attorney as secondary evidence, and rightly upheld the sale. They argued that the High Court, while exercising jurisdiction under Section 100 of the Code of Civil Procedure, ought not to have interfered with the findings of fact recorded by the First Appellate Court and that the interference amounted to reappreciation of evidence beyond the permissible scope of a second appeal. On these premises, the defendants urged the Supreme Court to set aside the judgment of the Kerala High Court and restore the decree of the First Appellate Court.

Court’s Judgment and Reasoning:

The Supreme Court, speaking through Justice S.V.N. Bhatti for the Bench also comprising Justice Pankaj Mithal, dismissed the appeal and emphatically reaffirmed the settled legal position governing secondary evidence. The Court began by reiterating that Section 64 of the Evidence Act mandates proof of documents by primary evidence and that Section 65 carves out specific, limited exceptions permitting secondary evidence only when the original cannot be produced for reasons recognised by law. The Court underscored that secondary evidence is not a matter of right and that the party seeking to rely upon it must first establish the existence and execution of the original document and then satisfactorily explain its non-production. It was categorically held that merely producing a photocopy, even if notarised, does not dispense with these foundational requirements. The Court clarified that admission of a document as an exhibit or marking it during trial does not amount to proof of its contents and does not relieve the court of its duty to examine admissibility and probative value in accordance with law.

Applying these principles to the facts of the case, the Court found that the defendants had completely failed to account for the non-production of the original Power of Attorney. There was no plea or evidence to suggest that the original was lost, destroyed, or in possession of the plaintiff, nor was there any attempt to prove the circumstances under which the photocopy was prepared. The Court observed that if a party wishes to rely upon a photostat copy, it must explain who took the photocopy, from which original, and when, and must also establish that the original was in existence and validly executed. In the absence of such foundational evidence, the photocopy remained “no evidence” in the eyes of law. The Court further held that where the original document itself is not proved to be valid, the same party cannot be permitted to introduce secondary evidence of its contents, as this would defeat the very safeguards built into Section 65. Emphasising the two-step process for admission of secondary evidence, the Court stated that first, the right to lead secondary evidence must be established, and second, the contents of the document must be proved through reliable evidence; both conditions are conjunctive and mandatory.

The Supreme Court found that the First Appellate Court had committed a serious error by acting upon Exhibit B-2, the photocopy of the alleged General Power of Attorney, without examining its admissibility and without insisting upon proof of foundational facts. This amounted to reliance on inadmissible evidence and a clear misreading of the law. The High Court, therefore, was fully justified in correcting this error in second appeal, as the issue went to the root of admissibility of evidence and involved a substantial question of law. The Court also took note of the plaintiff’s consistent stand that she had executed only a limited Power of Attorney and that clauses permitting sale were struck off, a version which found support in the evidence accepted by the Trial Court. In such circumstances, the Court held that no valid authority to alienate the property was proved, and consequently, the sale deeds executed on the strength of an unproved photocopy could not confer any title. Upholding the High Court’s judgment, the Supreme Court concluded that reliance on a photocopy of a Power of Attorney, without compliance with Sections 64 and 65 of the Evidence Act, is legally impermissible and cannot form the basis of a valid sale of immovable property. Accordingly, the appeal was dismissed.