Supreme Court Rules Photocopy of Power of Attorney Inadmissible Without Proper Secondary Evidence Foundation

Introduction

In a significant ruling on the admissibility of documentary evidence in civil disputes, the Supreme Court of India has reaffirmed the stringent requirements for introducing secondary evidence under the Indian Evidence Act, 1872 . A bench comprising Justice Pankaj Mithal and Justice S.V.N. Bhatti dismissed a civil appeal in the case of Tharammel Peethambaran and Another v. T. Ushakrishnan and Another , holding that a notarized photocopy of a Power of Attorney (PoA) cannot be relied upon as evidence to validate a property sale unless the conditions for secondary evidence —particularly under Sections 65 and 66—are meticulously proved. The decision, delivered on February 6, 2026 , and cited as, underscores the primacy of original documents and the foundational proof required for copies, especially in property transactions involving agency powers. The appellants, who were defendants in the original suit challenging a 2007 sale of immovable properties, argued for the validity of the PoA based on a photocopy, but the Court found their reliance on inadmissible evidence, restoring the Kerala High Court 's decree in favor of the respondent-plaintiff, the property owner.

This judgment addresses a common pitfall in civil litigation involving PoAs, where family disputes over property often hinge on disputed authorizations. By setting aside the first appellate court's acceptance of the photocopy, the Supreme Court emphasizes judicial caution in evaluating secondary evidence , potentially impacting how attorneys handle cases with missing originals in real estate and agency law matters.

Case Background

The dispute traces its roots to familial property arrangements in Kerala, involving siblings with differing accounts of authority over immovable assets. The respondent, T. Ushakrishnan (plaintiff in the original suit, O.S. No. 197 of 2013 before the Senior Civil Judge, Kozhikode ), is the owner of three items of property listed in the Plaint A-Schedule, acquired through an assignment deed dated July 31, 1998 , for items 1 and 2, and a partition deed for item 3. She resides in Mumbai, while her brother, Tharammel Peethambaran (first appellant and first defendant), lives in Kozhikode and was purportedly involved in managing these properties.

On July 31, 1998 , the plaintiff allegedly executed a PoA in favor of her brother (Exh. A-4), but she contended it was limited to property management, with clauses authorizing sale, mortgage, or alienation explicitly struck out from a draft (Exh. A-3) sent to her. The defendants, however, claimed a general PoA (Exh. B-2, a notarized photocopy) empowered the brother to alienate the properties. Acting on this alleged authority, the first defendant executed registered sale deeds (Nos. 262 and 263 of 2007, Exh. A-7 and A-8) on March 15, 2007 , transferring the properties to the second and third defendants—his brothers-in-law—for a stated consideration, part of which he claimed was paid to the plaintiff via receipts dated December 20, 2006 (Rs. 5 lakhs, Exh. B-6), and April 23, 2007 (Rs. 6 lakhs, Exh. B-7).

Upon learning of the sales through a lawyer's notice on April 20, 2007 , the plaintiff canceled the PoA and denied the receipts' authenticity, labeling the general PoA as forged or interpolated. She filed the suit seeking declaration of the sales as void, perpetual injunction against interference, mandatory injunction for vacation of the property, and damages for use and occupation at Rs. 3,000 per month from April 20, 2007 .

The case timeline unfolded as follows: The Trial Court (Senior Civil Judge, Kozhikode ) in 2014 dismissed the suit initially but, upon detailed evidence review, declared the sales invalid due to the PoA's questionable genuineness—citing handwriting inconsistencies, lack of original production, and interpolation indicators like mismatched spacing in "sale" clauses. It granted the declarations, injunctions, and directed vacation but rejected damages. The first defendant appealed to the District Judge, Kozhikode (A.S. No. 166 of 2014), who reversed the Trial Court in 2015, upholding the PoA's validity based on the photocopy, presumptions under the Notaries Act and Evidence Act, and receipt authentications. The plaintiff then filed a second appeal to the Kerala High Court , which in the impugned judgment restored the Trial Court's decree, ruling the photocopy inadmissible without secondary evidence compliance. The defendants appealed to the Supreme Court via SLP (C) No. 11868 of 2024, leading to the February 2026 decision.

The core legal questions were: (1) Whether the notarized photocopy of the PoA (Exh. B-2) could prove a general authority to alienate without the original or proper secondary evidence foundation? (2) Did the first appellate court err in relying on presumptions under Sections 85 of the Evidence Act and 33 of the Registration Act without addressing admissibility? (3) Was the High Court's interference under Section 100 CPC justified as correcting perversity in fact-finding?

Arguments Presented

The appellants (Tharammel Peethambaran and the second defendant) mounted a multi-pronged defense, primarily centering on the PoA's scope and evidentiary presumptions. They contended that the plaintiff had executed a general PoA on July 31, 1998 , authorizing full management, including sale and mortgage, as evidenced by Exh. B-2, a notarized photocopy. Senior counsel Mr. Pijush Kanti Roy argued that the plaintiff's legal notice "cancelling" the PoA implied its existence and validity, and her admission during cross-examination of seeing the original at her lawyer's office suggested deliberate withholding. The sales to the second and third defendants were valid, as the sub-registrar verified the PoA under Section 33 of the Registration Act, 1908 , and presumptions under Section 85 of the Evidence Act and Section 8(1)(a) of the Notaries Act, 1952 , confirmed execution and authentication. They highlighted the plaintiff's receipt of Rs. 11 lakhs via Exh. B-6 and B-7 as ratification, supported by expert handwriting analysis (CW-1) matching signatures, and her possession of title deeds by the first defendant indicating trust for alienation. Claims of benami purchases or oral sales for item 3 were raised but barred under the Benami Transactions (Prohibition) Act, 1988 , and Section 17 of the Registration Act. The appellants accused the High Court of exceeding Section 100 CPC jurisdiction by re-appreciating evidence without framing substantial questions of law , ignoring the first appellate court's primacy.

Conversely, the respondents (T. Ushakrishnan and another), represented by senior counsel Mr. Siddharth Bhatnagar and Mrs. Manjula Rao , vehemently denied general authority, asserting the PoA was limited to management, with sale clauses deliberately scored out in Exh. A-4. They labeled Exh. B-2 as a sham, fudged document with interpolated "sale" words showing monospace spacing against the proportional font elsewhere, indicating post-execution tampering. The first defendant, as PoA holder, failed to produce the original, offering inconsistent explanations (e.g., given to plaintiff's husband), violating Section 64's primary evidence rule. Without laying a foundation under Sections 65 and 66—proving existence, execution, and reasons for non-production (e.g., loss under 65(c))—the photocopy was inadmissible secondary evidence . They disputed the receipts as fabricated, written in the first defendant's handwriting on inappropriate letterhead without stamps, and noted his withdrawn forgery-related cheque case undermining credibility. The sales exceeded limited authority, binding no title on bona fide purchasers (second and third defendants). The High Court correctly tested the first appellate court's findings for misreading evidence and reliance on inadmissible material, constituting perversity under Section 100 CPC , without impermissible re-appreciation.

Both sides invoked factual consistencies: Appellants stressed the plaintiff's prior PoAs to family and sub-registrar's acceptance; respondents highlighted DW-1's cross-examination admissions on original's whereabouts, lack of witness signatures on the photocopy, and unchanged Panchayat records in plaintiff's name.

Legal Analysis

The Supreme Court's reasoning meticulously dissects the evidentiary framework under the Indian Evidence Act, 1872 , emphasizing that primary evidence (Section 64) is the rule, with secondary evidence (Section 63) an exception requiring strict compliance. Justice S.V.N. Bhatti's judgment elucidates a two-step process for secondary evidence : (1) Establishing the legal right via Section 65 exceptions (e.g., original lost (65(c)), in adversary possession (65(a)), or public document (65(e))); (2) Proving contents through authenticated copies, explaining preparation circumstances and original custody.

Here, Exh. B-2, a mechanical copy (photostat), fell short as the appellants neither produced the original nor explained non-production—admitting unavailability without foundational proof like loss certification. The Court clarified that mere notarization invokes no presumption under Section 85 (proof of execution for foreign or Indian documents) or Section 33 of the Registration Act without primary/secondary admissibility. Courts cannot compare signatures sans expert aid if admitted signatures are disputed, per O. Bharathan v. K. Sudhakarana (1996) 2 SCC 704.

Key precedents bolstered this: In Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730, the Court held secondary evidence inadmissible if the original's invalidity is unproven, mirroring the appellants' failure. H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR 2011 SC 1492 stressed accounting for non-production under Section 65 clauses. Ashok Dulichand v. Madhavlal Dube (1975) 4 SCC 664 required authentication for photostats, including custody details, unmet here. For voluminous records or certifications, only specified secondary forms suffice, as tabulated in the judgment.

The Court distinguished admissibility from probative value : Mere exhibition doesn't prove contents; courts must scrutinize foundational facts before endorsement. It rejected benami/oral sale claims as statutorily barred, noting Section 17 Registration Act mandates registration for sales over Rs. 100.

On appellate jurisdiction, the judgment invokes Hero Vinoth v. Seshammal (2006) 5 SCC 545, affirming High Court interference under Section 100 CPC for perversity —e.g., ignoring material evidence (interpolation indicators), relying on no evidence (unproven photocopy), or misconstruction yielding irrational findings. Section 103 CPC allows fact-determination if tied to Section 100 questions, exercised cautiously per Municipal Committee, Hoshiarpur v. Punjab SEB (2010) 13 SCC 216. The first appellate court's errors—presuming validity sans foundation, naked-eye signature comparisons—constituted such perversity , justifying reversal without re-appreciation.

This analysis clarifies distinctions: Secondary evidence proves contents only post-foundation, unlike primary's automatic weight; presumptions (e.g., notary) apply post-admissibility, not as shortcuts. In PoA contexts, especially unregistered ones for sales (Registration Act implications), genuineness scrutiny is heightened to prevent agency abuse in family property disputes.

Key Observations

The judgment extracts pivotal principles through direct quotes, emphasizing procedural rigor:

• "A photocopy of a document is no evidence unless the same is proved by following the procedure set out." This underscores the foundational burden on parties relying on copies.

• "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. 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."

• "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."

• "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."

• "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."

These observations, drawn verbatim, highlight the Court's mandate for courts to independently assess probative value before endorsing secondary evidence .

Court's Decision

The Supreme Court unequivocally dismissed the civil appeal, affirming the Kerala High Court 's restoration of the Trial Court's decree. It declared the sale deeds (Nos. 262 and 263 of 2007) void for lack of authority, as Exh. B-2 proved no general PoA. No costs were awarded, and pending applications disposed of.

Practically, this mandates the appellants to vacate item 1 property and surrender possession, upholding the perpetual injunction against interference. The plaintiff regains unencumbered title, with no liability for alleged receipts deemed unproven.

Broader implications are profound for civil practice: This ruling fortifies evidence standards in PoA-driven transactions, curbing reliance on unverified copies in an era of digital reproductions. It signals caution in family disputes, where originals are often "misplaced," potentially increasing demands for originals or affidavits explaining absence. Future cases may see more Section 65 applications, expert authentications, and challenges to appellate findings on perversity grounds. For legal professionals, it necessitates thorough pre-trial document audits, emphasizing that presumptions (notary/registrar) are secondary to admissibility. In property law, it deters unauthorized alienations, protecting principals from agent overreach and bona fide buyers from void titles, though Section 47A Registration Act inquiries might mitigate some risks. Overall, it promotes evidentiary integrity, reducing litigation over fabricated authorities and aligning with the Act's "best evidence " ethos, likely influencing lower courts to reject shortcut proofs in similar civil suits.