A photocopy or mechanical reproduction of Power of Attorney constitutes only secondary evidence and cannot be relied upon unless foundational facts required under Sections 63 and 65 of Evidence Act are first established. Mere marking of photocopy as exhibit does not amount to proof. Presumption under Section 85 Evidence Act regarding due execution of Power of Attorney arises only after legally admissible original or properly proved secondary evidence is brought on record. Findings founded upon inadmissible photocopy or no evidence constitute perversity and can validly be interfered with by High Court under Section 100 CPC

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APEX COURT HELD THAT 

INDIAN EVIDENCE ACT, 1872 – Ss. 63, 64, 65 & 85 – Secondary evidence – Photocopy of Power of Attorney – Admissibility and proof – Foundational facts – Mandatory requirements – Presumption under S.85 – When unavailable – REGISTRATION ACT, 1908 – S.33 – CODE OF CIVIL PROCEDURE, 1908 – S.100 – Scope of interference in Second Appeal – Misreading of documentary evidence – Reliance on inadmissible evidence – Power of Attorney allegedly conferring authority to alienate immovable property.

Plaintiff instituted suit for declaration, injunction and recovery of possession contending that Defendant No.1/brother-in-law fraudulently executed sale deeds in favour of Defendants Nos.2 and 3 by relying upon fabricated Power of Attorney allegedly interpolated to include power of sale – Plaintiff admitted execution of limited Power of Attorney only for management of properties and denied authority to alienate – Defendant No.1 relied upon notarised photocopy of alleged Power of Attorney (Exh.B-2) claiming comprehensive authority including power to sell – Trial Court decreed suit holding additions relating to “sale” appeared interpolated and original Power of Attorney was withheld – First Appellate Court reversed decree relying upon Exh.B-2 as secondary evidence and drawing presumptions under Section 85 Evidence Act and Section 33 Registration Act – High Court restored Trial Court decree in Second Appeal – Sustainability.

Held : Secondary evidence is exception to rule requiring proof by primary evidence under Section 64 Evidence Act. Before secondary evidence can be admitted, party relying upon such evidence must establish foundational facts namely:
(i) existence and execution of original document,
(ii) circumstances bringing case within clauses of Section 65,
and
(iii) reason for non-production of original.

Mere production or marking of photocopy does not amount to proof of document. Admissibility of secondary evidence requires compliance with statutory conditions under Sections 63 and 65 Evidence Act. Photocopy or mechanical reproduction of document is no evidence in absence of proof satisfying statutory requirements.

In present case, Exh.B-2 relied upon by Defendant No.1 was only notarised photocopy of alleged Power of Attorney. No factual foundation was laid regarding whereabouts of original document or circumstances justifying production of secondary evidence. No order permitting adducing of secondary evidence was brought on record. Consequently, Exh.B-2 could not legally be treated as admissible documentary evidence for proving authority to alienate immovable property.

Presumption under Section 85 Evidence Act regarding due execution and authentication of Power of Attorney arises only when foundational requirement of admissible document is first satisfied. In absence of legally admissible original or properly proved secondary evidence, neither Section 85 Evidence Act nor Section 33 Registration Act could be invoked.

First Appellate Court committed serious illegality by relying upon inadmissible photocopy and by itself comparing disputed signatures without assistance of expert though admitted signatures themselves were not properly proved. Finding based on no evidence or inadmissible evidence constitutes perversity giving rise to substantial question of law under Section 100 CPC.

High Court, while exercising jurisdiction under Section 100 CPC, is entitled to interfere where findings of First Appellate Court are based on misreading of documentary evidence, reliance upon inadmissible evidence or perversity. High Court in present case did not undertake prohibited reappreciation of evidence but corrected erroneous legal approach adopted by First Appellate Court.

A photocopy of Power of Attorney, not proved in accordance with Sections 63 and 65 Evidence Act, cannot confer authority to alienate immovable property nor validate sale deeds executed thereon.

Hero Vinoth v. Seshammal; H. Siddiqui v. A. Ramalingam; Smt. J. Yashoda v. K. Shobha Rani; Jagmail Singh v. Karamjit Singh; Dhanpat v. Sheo Ram; O. Bharathan v. K. Sudhakaran, relied on.

(Paras 16 to 24)

ANALYSIS OF FACTS AND LAW

Supreme Court analysed controversy from two interconnected angles:

1. scope of High Court’s jurisdiction under Section 100 CPC;
2. admissibility and evidentiary value of photocopy of Power of Attorney relied upon by defendants.

Court first reiterated settled principles governing Section 100 CPC and clarified that although High Court ordinarily cannot reappreciate evidence, interference is permissible where findings of First Appellate Court:

• are perverse,
• based on no evidence,
• founded upon inadmissible evidence,
• or arise from misreading of documents.

Court emphasised that perversity itself constitutes substantial question of law.

On facts, central controversy was whether Defendant No.1 possessed authority to alienate plaintiff’s immovable property. Defendant relied exclusively upon Exh.B-2, which admittedly was not original Power of Attorney but only notarised photocopy.

Supreme Court undertook detailed exposition of law relating to secondary evidence under Sections 63, 64 and 65 Evidence Act and held:

• primary evidence is rule;
• secondary evidence is exceptional;
• and party seeking to rely upon photocopy must first lay factual foundation explaining non-production of original and satisfying conditions of Section 65.

Court stressed that admissibility of secondary evidence is distinct from proof of contents. Both requirements are conjunctive.

Defendant failed to:

• establish whereabouts of original Power of Attorney,
• prove circumstances permitting secondary evidence,
• or obtain any order permitting secondary evidence.

Therefore, Exh.B-2 remained merely unproved photocopy having no evidentiary value in law.

Supreme Court strongly criticised First Appellate Court for:

• relying on inadmissible photocopy,
• independently comparing disputed signatures,
• and invoking presumptions under Section 85 Evidence Act without foundational admissibility of document itself.

Court clarified that statutory presumptions regarding notarised Power of Attorney arise only after legally admissible document is properly brought on record.

High Court therefore rightly corrected legal error committed by First Appellate Court and restored Trial Court decree declaring impugned sale deeds void.

RATIO

A photocopy or mechanical reproduction of Power of Attorney constitutes only secondary evidence and cannot be relied upon unless foundational facts required under Sections 63 and 65 of Evidence Act are first established. Mere marking of photocopy as exhibit does not amount to proof. Presumption under Section 85 Evidence Act regarding due execution of Power of Attorney arises only after legally admissible original or properly proved secondary evidence is brought on record. Findings founded upon inadmissible photocopy or no evidence constitute perversity and can validly be interfered with by High Court under Section 100 CPC