Kiran Raj

The Supreme Court Division Bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti dismissed the defendants’ appeal and upheld the High Court’s decision invalidating the sale of a property owner’s immovable assets that had been executed by her brother as agent in favour of purchasers on the basis of a notarised photocopy of a Power of Attorney. The Court held that a photocopy, being secondary evidence, cannot be treated as proof of the document or its contents unless the statutory requirements for leading secondary evidence are first satisfied under Section 65 of the Evidence Act. It noted that Section 65 permits copies or other secondary proof only where the original cannot be produced, including situations such as loss or destruction, possession with an adverse party, or where the original is a public document.

The dispute concerned a sale of the plaintiff’s immovable property, where the first defendant, her brother, acted as agent and executed registered sale deeds in favour of the second and third defendants on 15.03.2007, relying on a Power of Attorney produced as a notarised photocopy (Exh. B-2). The plaintiff stated that she learned of the sale through a lawyer’s notice dated 20.04.2007 and thereafter cancelled the Power of Attorney.

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The plaintiff’s case, as recorded, was that the first defendant had earlier sent a draft Power of Attorney dated 31.07.1998 (Exh. A-3), that she scored out clauses relating to mortgage and alienation, and that she executed a limited Power of Attorney (Exh. A-4). She disputed Exh. B-2 as “a sham and fudged document,” and denied executing the receipts relied upon for alleged payment towards sale consideration.

The first defendant admitted the plaintiff’s ownership in records but contended that the Power of Attorney (Exh. B-2) authorised management, mortgage, and alienation, and that the registering authority accepted the sale deeds after verifying his competence. He also relied on receipts (Exh. B-6 and Exh. B-7) for Rs. 11,00,000/- and referred to statutory provisions, including Sections 65 and 66 of the Evidence Act on secondary evidence, Section 85 of the Evidence Act, and Section 33 of the Registration Act.

On the general rule of proof, the Court stated: "The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence." It added: "Section 64 mandates that documents must be proved by primary evidence, which is considered the ‘best evidence’."

On the threshold for receiving secondary evidence, the Court observed: "Before secondary evidence can be admitted, the party relying on it must lay a factual foundation." It further stated: "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."

By way of illustration on photostat copies, the Court stated: "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."

On the scope of Section 65, the Court recorded: "Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible." It stated: "To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65."

On what follows even after admission of a copy, the Court stated: "Further, admitting a document as secondary evidence does not automatically prove its contents." It added: "The secondary evidence must be authenticated by foundational evidence showing that the alleged copy is, in fact, a true copy of the original."

Regarding the Power of Attorney produced, the Court recorded: "Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA." It stated: "This, therefore, implies that Exh. B-2 is, at best, secondary evidence."

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On the treatment of the photocopy and the appellate approach, the Court stated: "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."

The Court directed: “Therefore, the Civil Appeal is without merit and is dismissed accordingly. No order as to costs. Pending application(s), if any, stand disposed of.”

Advocates Representing the Parties:

For the Petitioners: Mr. Pijush Kanti Roy, Sr. Adv.(argued by) Mr. Dileep Poolakkot, Adv. Mr. Harshad V. Hameed, AOR Mrs. Ashly Harshad, Adv. Dr. Arunender Thakur, Adv. Mr. Mahabir Singh, Adv. Ms. Khushboo Sharma, Adv. Mr. Anshul Saharan, Adv.

For the Respondents: Mr. Siddharth Bhatnagar, Sr. Adv.(argued by) Mrs. Manjula Rao, Sr. Adv. Mr. Nitin Sangra, Adv. Mr. Nadeem Afroz, Adv. Mr. Riju Ghosh, Adv. Mr. Upmanyu Tewari, AOR

Case Title: Tharammel Peethambaran and Another versus T. Ushakrishnan and Another
Neutral Citation: 2026 INSC 134
Case Number: CIVIL APPEAL NO. OF 2026 [@ SLP (C) NO. 11868 OF 2024]
Bench: Justice Pankaj Mithal, Justice S.V.N. Bhatti