According to the Supreme Court of India, unless the requisite procedure under Section 65 of the Indian Evidence Act is strictly followed, a photocopy of a Power of Attorney (PoA) is considered secondary evidence and cannot be used to demonstrate the authority to transfer property.

The High Court's ruling to invalidate sale deeds executed using a notarized photocopy of a Power of Attorney was upheld by the Division Bench, which was composed of Justices Pankaj Mithal and S.V.N. Bhatti. The Division Bench dismissed the civil appeal in the case of Tharammel Peethambaran and Others v. T. Ushakrishnan and Others (2026 INSC 134).

The Case's Background

Siblings were at odds over three pieces of real estate that belonged to the Plaintiff (1st Respondent), who lives in Mumbai. The plaintiff's brother, who lives in Kozhikode, is the first defendant (appellant).

On July 31, 1998, the Plaintiff signed a Power of Attorney in the First Defendant's favor. Under the guise of this POA, the first defendant signed registered sale deeds in favor of the second and third defendants (his in-laws) on March 15, 2007.

The plaintiff requested a declaration that the sale deeds were void in a lawsuit (O.S. No. 197 of 2013). She argued that in the draft PoA that was handed to her, she had specifically marked out elements pertaining to "sale" and "mortgage," and that she had only been given the authority to manage the property. She claimed that the first defendant abused his authority and that the paper he used was falsified.

A notarized photocopy of the PoA (Exhibit B-2) was used by the first defendant to support their argument that it gave them complete permission to sell the property. Additionally, he asserted—supported by receipts—that the Plaintiff had approved the sale by taking a portion of the payment.

Lower Court Proceedings

Because the first defendant did not present the original PoA, the Trial Court rejected his claims. The Trial Court concluded that the phrases allowing for "sale" lacked coherence with the original document and had different spacing (monospace vs. proportional), indicating interpolation, after comparing the draft (Exhibit A-4) with the photocopy (Exhibit B-2). The selling deeds were ruled invalid by the court.

The Trial Court's ruling was overturned by the First Appellate Court. It concluded that, in accordance with Section 114(e) and Section 85 of the Evidence Act, the notarized photocopy (Exhibit B-2) conveyed a presumption of proper execution. It also relied on the receipts of consideration to uphold the validity of the sale.

In a Second Appeal, the High Court upheld the Trial Court's ruling. It concluded that Exhibit B-2 was a photocopy and that the defendant had not complied with the requirements of Sections 65 and 66 of the Evidence Act concerning secondary evidence because the original was not marked.

Analysis of the Supreme Court

The Supreme Court looked at two main issues: whether the photocopy of the PoA may be included as secondary evidence and whether the High Court had the authority to alter factual conclusions under Section 100 of the Code of Civil Procedure (CPC).

Analysis of the Supreme Court

The Supreme Court looked at two main issues: whether the photocopy of the PoA may be included as secondary evidence and whether the High Court had the authority to alter factual conclusions under Section 100 of the Code of Civil Procedure (CPC).

1. Section 100 CPC jurisdiction

The appellants contended that the High Court's reappraisal of the evidence went beyond its authority. According to the Supreme Court, "the High Court is well within its jurisdiction to interfere with findings of fact where they are founded on assumptions, conjectures, or surmises, or suffer from the vice of perversity."

Relying on inadmissible evidence is a substantial point of law, the Court explained.

2. Secondary Evidence Acceptability (Exhibit B-2)

The Court noted that the first defendant only used a notarized photocopy (Exhibit B-2) and neglected to provide the original PoA. According to the Court, a photocopy is considered "secondary evidence" and needs to be handled in accordance with the Indian Evidence Act.

"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," wrote Justice S.V.N. Bhatti in a bench opinion.

The Court listed the two prerequisites for secondary evidence admission:

Factual Foundation: The party must demonstrate that the original was created, that it was carried out, and that there were good reasons why it wasn't produced (such as because it was lost, destroyed, or in the enemy's control).

Process: The party needs to meet the requirements outlined in Section 65 of the Evidence Act.

The Court observed that no order was brought to its attention that would have allowed the Trial Court to properly record supplemental evidence.

3. The Evidence Act's Section 85 is not applicable.

The appellants contended that, in accordance with Section 85 of the Evidence Act (presumption as to powers of attorney), the PoA ought to be deemed legitimate. This was categorically denied by the Court, which held that a document that has not been properly brought into evidence cannot be covered by Section 85.

It is not permitted to use Section 85 of the Indian Evidence Act to determine the execution and scope of the plaintiff's authorization granted to the first defendant in the absence of original or at least secondary evidence. A photocopy of a document is not proof unless it is verified by the prescribed process.
 

Choice
The Supreme Court determined that the First Appellate Court's reliance on the photocopy without the required legal basis constituted "inadmissible evidence." As a result, the High Court was right to fix this mistake.

Since the first defendant was unable to demonstrate that he possessed the necessary permission to sell the land, the court dismissed the appeal. As a result, it was decided that the sale deeds signed in the names of the second and third defendants were void.

Case Details:

Case Title: Tharammel Peethambaran and Another v. T. Ushakrishnan and Another
Case Number: Civil Appeal No. of 2026 (@ SLP (C) No. 11868 of 2024) [2026 INSC 134]