Appeal
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 ASchedule 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 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 ASchedule, 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. A4, 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 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.
Analysis
10. We have heard learned senior counsel Mr. Pijush Kanti Roy and Mr. Siddharth Bhatnagar for the parties.
Main contention of 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.
Main controversy
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 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 ASchedule 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.
High Court’s jurisdiction under section 100 of the C.P.C 1908 and its exceptions
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 [Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647].
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 [Dinesh Kumar v. Yusuf Ali, (2010) 12 SCC 740].
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 [Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483].
What is the question of fact and law regarding documentary evidence? Explained
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 [Hero Vinoth v. Seshammal, (2006) 5 SCC 545].
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 [Hero Vinoth v. Seshammal, (2006) 5 SCC 545].
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 [Sitaramji Badwaik v. Bisaram, (2021) 15 SCC 234].
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 [Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216].
What is secondary evidence? Explained
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.
How to introduce secondary evidence? Procedure given
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 [Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178. (Para 14)]. 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) [Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730].
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 [Ibid; Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758].
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 [H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492]. 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 [Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730].
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.
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 [Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664; Chandra v. M. Thangamuthu, (2010) 9 SCC 712].
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 [Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483].
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 leading secondary evidence either in the pleadings or during the course of evidence [Dhanpat v. Sheo Ram 2020 (16) SCC 209].
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.
Party can claim a presumption after following the procedure for adducing secondary evidence
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.
Conclusion
How to appreciate the secondary evidence marked without following procedures? Explained
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 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.
Appeal dismissed
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.
Party
Tharammel Peethambaran and another (Appellants) versus T. Ushakrishnan and another (Respondents) - Civil Appeal No. 856 of 2026 (arising out of SLP (C) No. 11868 of 2024) - 2026 INSC 134 - February 06, 2026 – Hon’ble Mr. Justice Pankaj Mithal and Hon’ble Mr. Justice S.V.N. Bhatti.
