The Supreme Court has dismissed a civil appeal challenging a Kerala High Court judgment which invalidated sale deeds executed on the strength of a disputed power of attorney, holding that a notarised photocopy of a power of attorney, produced without complying with the requirements for leading secondary evidence, has no evidentiary value in law. The Bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti affirmed that reliance on such inadmissible material amounts to reliance on “no evidence” and justified interference in the second appeal.
The dispute arose from intra-family litigation over immovable property in Kozhikode, where the plaintiff alleged that her brother had exceeded the limited authority granted under a power of attorney by executing sale deeds in favour of third parties. While admitting execution of the power of attorney for management purposes, the plaintiff contended that it did not authorise the sale and that the document relied upon by the defendants was fabricated.
The Trial Court, noting interpolation of words relating to “sale” and non-production of the original power of attorney, held the document unproven and invalid, declared the sale deeds void, and granted consequential reliefs. This was reversed by the First Appellate Court, which accepted a notarised photocopy as secondary evidence and upheld the transactions.
In the second appeal, the Kerala High Court restored the Trial Court’s decree, holding that the photocopy did not meet the requirements of Sections 65 and 66 of the Indian Evidence Act and that authority to sell could not be inferred without a legally proved power of attorney.
Affirming the High Court’s reasoning, the Supreme Court held that secondary evidence is admissible only after laying a proper factual foundation establishing the existence, execution and loss or non-availability of the original document. The Court reiterated that mere marking of a document as an exhibit does not dispense with the requirement of proving its admissibility and contents in accordance with law. It clarified that presumptions under Section 85 of the Evidence Act or Section 33 of the Registration Act cannot be invoked unless the primary requirement of admissible evidence is first satisfied.
The Bench further held that the High Court had not exceeded its jurisdiction under Section 100 of the Code of Civil Procedure, as it did not reappreciate evidence but corrected findings of the First Appellate Court, which were based on “no evidence” and misapplication of settled legal principles. The Court emphasised that findings founded on inadmissible documents are perverse in law and constitute a substantial question of law warranting interference in the second appeal.
Accordingly, the Court upheld the High Court’s judgment declaring the sale deeds void.
Apperanaces
Petitioners- Mr. Pijush Kanti Roy, Sr. Adv. 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.
Respondents- Mrs. Manjula Rao, Sr. Adv. Mr. Nitin Sangra, Adv. Mr. Riju Ghosh, Adv. Mr. Upmanyu Tewari, AOR
