The Supreme Court of India has ruled that a photocopy of a Power of Attorney (PoA) constitutes secondary evidence and cannot be relied upon to prove the authority to alienate property unless the mandatory procedure under Section 65 of the Indian Evidence Act is strictly complied with.
The Division Bench comprising Justice Pankaj Mithal and Justice S.V.N. Bhatti dismissed the civil appeal in the case of Tharammel Peethambaran and Another v. T. Ushakrishnan and Another (2026 INSC 134), upholding the High Court’s decision to set aside sale deeds executed on the strength of a notarized photocopy of a Power of Attorney.
Background of the Case
The dispute involved siblings regarding three items of immovable property owned by the Plaintiff (1st Respondent), who resides in Mumbai. The 1st Defendant (Appellant) is the Plaintiff’s brother residing in Kozhikode.
The Plaintiff had executed a Power of Attorney in favor of the 1st Defendant on July 31, 1998. On March 15, 2007, the 1st Defendant, purporting to act under the authority of this PoA, executed registered sale deeds in favor of the 2nd and 3rd Defendants (his in-laws).
The Plaintiff filed a suit (O.S. No. 197 of 2013) seeking a declaration that the sale deeds were invalid. She contended that she had only granted power to manage the property and had explicitly scored out clauses relating to “sale” and “mortgage” in the draft PoA sent to her. She alleged that the 1st Defendant misused his position and that the document relied upon by him was fudged.
The 1st Defendant relied on a notarized photocopy of the PoA (Exhibit B-2), claiming it conferred full authority to sell the property. He also claimed the Plaintiff had ratified the sale by accepting part of the consideration, evidenced by receipts.
Proceedings Before Lower Courts
The Trial Court dismissed the 1st Defendant’s claims, noting that he failed to produce the original PoA. Upon comparing the draft (Exhibit A-4) with the photocopy (Exhibit B-2), the Trial Court found that the words providing for “sale” lacked cohesion with the original document and had different spacing (monospace vs. proportional), indicating interpolation. The Court declared the sale deeds invalid.
The First Appellate Court reversed the Trial Court’s decision. It held that the notarized photocopy (Exhibit B-2) carried a presumption of valid execution under Section 85 of the Evidence Act and Section 114(e). It also relied on the receipts of consideration to uphold the validity of the sale.
The High Court, in a Second Appeal, restored the Trial Court’s decree. It held that Exhibit B-2 was a photocopy and, as the original was not marked, the Defendant failed to satisfy the requirements of Sections 65 and 66 of the Evidence Act regarding secondary evidence.
Supreme Court’s Analysis
The Supreme Court examined two primary issues: the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (CPC) to interfere with findings of fact, and the admissibility of the photocopy of the PoA as secondary evidence.
1. Jurisdiction under Section 100 CPC
The Appellants argued that the High Court exceeded its jurisdiction by reappreciating evidence. The Supreme Court rejected this, stating: “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 Court clarified that relying on inadmissible evidence constitutes a substantial question of law.
2. Admissibility of Secondary Evidence (Exhibit B-2)
The Court observed that the 1st Defendant failed to produce the original PoA and relied solely on a notarized photocopy (Exhibit B-2). The Court held that a photocopy is “secondary evidence” and must follow the procedure under the Indian Evidence Act.
Justice S.V.N. Bhatti, writing for the Bench, observed: “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.”
The Court outlined the twin requirements for admitting secondary evidence:
- Factual Foundation: The party must prove the original existed, was executed, and establish valid reasons for its non-production (e.g., loss, destruction, or possession by the adversary).
- Procedure: The party must satisfy the conditions of Section 65 of the Evidence Act.
The Court noted that no order was brought to its notice through which secondary evidence was properly brought on record before the Trial Court.
3. Inapplicability of Section 85 of the Evidence Act
The Appellants argued that the PoA should be presumed valid under Section 85 of the Evidence Act (presumption as to powers of attorney). The Court firmly rejected this, stating that Section 85 cannot be applied to a document that has not been properly admitted in 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… A photocopy of a document is no evidence unless the same is proved by following the procedure set out.”
Decision
The Supreme Court concluded that the First Appellate Court had acted on “inadmissible evidence” by relying on the photocopy without the necessary legal foundation. Therefore, the High Court was correct in correcting this error.
The Court dismissed the appeal, affirming that the 1st Defendant failed to prove he had the authority to sell the property. Consequently, the sale deeds executed in favor of the 2nd and 3rd Defendants were held to be invalid.
Case Details:
- Case Title: Tharammel Peethambaran and Another v. T. Ushakrishnan and Another
- Case Number: Civil Appeal No. of 2026 (@ SLP (C) No. 11868 of 2024) [2026 INSC 134]
- Bench: Justice Pankaj Mithal and Justice S.V.N. Bhatti
