Primary Evidence Is Rule, Secondary Evidence An Exception : Supreme Court Explains Principles On Secondary Evidence Production; Dismisses Appeal Over Sale Deeds Executed On Inadmissible Unproved Photocopy Power Of Attorney
Kiran Raj
The Supreme Court of India, Division Bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti, dismissed a civil appeal challenging a High Court judgment that had voided two registered sale deeds executed by a power of attorney holder in favour of third parties. The bench took the occasion to set out the governing principles on when a party may rely on secondary evidence in place of an original document, affirming that primary evidence is the foundational rule and secondary evidence a narrowly permitted exception. The Court held that a notarised photocopy placed on record without fulfilling the procedural preconditions for secondary evidence carries no evidentiary value, rendering the sale deeds executed on its basis void.
The plaintiff, a Mumbai-based woman and registered owner of three immovable properties, had entrusted her Kozhikode-based brother with managing them through a power of attorney executed in 1998, granting him limited authority. In 2007, the brother executed two registered sale deeds transferring the properties to his wife's relatives, relying on a power of attorney he claimed granted him comprehensive authority including the power to sell. The plaintiff alleged the document was fabricated, with sale-related clauses interpolated into the original text.
The plaintiff filed a suit seeking declaration, injunction, and damages. The brother countered that the plaintiff had ratified the transactions by accepting sale consideration of eleven lakhs, evidenced by two receipts, which the plaintiff denied signing. The core evidentiary dispute centred on the brother's reliance on a notarised photocopy of the power of attorney, as the original document was not produced before the court.
The Court set out the following principles governing the admissibility of secondary evidence under the Indian Evidence Act:
On the primacy of original documents, the Court observed that "the fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence" and that "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)."
On the foundational facts required before secondary evidence may be admitted, the Court stated that 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."
On the inadmissibility of secondary evidence where the original is itself unproven, the Court recorded that "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."
On the exhaustive nature of Section 65, the Court observed that the provision "states the specific circumstances under which secondary evidence is permissible" and that "a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65."
On the distinction between admissibility and proof, the Court stated that "admitting a document as secondary evidence does not automatically prove its contents" and that "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."
On the effect of marking a document as an exhibit, the Court recorded that "mere admission of a document or making it an exhibit does not dispense with the requirement of proving it in accordance with the law" and that "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."
On whether a formal application is mandatory, the Court observed that "there is no requirement that an application must be filed to lead secondary evidence" and that "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."
On the conjunctive two-step test, the Court stated that "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."
Applying these principles to the facts of the case, the Court observed that the power of attorney produced by the defendant was a notarised photocopy and not the original document. It recorded that "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." The Court further stated that "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."
On the First Appellate Court's comparison of disputed signatures without expert assistance, the Court observed 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."
The Court concluded that "relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence" and that "Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence, has been rightly corrected by the High Court."
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 v. 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 and Justice S.V.N. Bhatti
