INTRODUCTION

The Hon’ble Supreme Court of India in the matter of Tharamel Peethambaran & Anr. v. T. Ushakrishnan & Anr., decided on 06 February 2026, and authored by Justice S.V.N. Bhatti, examined the scope of the High Court’s jurisdiction under Section 100 of the Code of Civil Procedure, 1908, particularly in cases where findings of fact are alleged to be vitiated by reliance on inadmissible evidence. The case arose out of a dispute concerning the validity of sale deeds executed by an alleged agent under a disputed Power of Attorney. The controversy centred on whether the 1st Defendant was authorised to alienate the suit properties and whether the First Appellate Court erred in relying upon a notarised photocopy of a Power of Attorney without compliance with the mandatory provisions of the Indian Evidence Act, 1872 governing secondary evidence. 

FACTS OF THE CASE

• The Plaintiff, who is the sister of the 1st Defendant, is the admitted owner of three items of immovable property described in the Plaint A-Schedule. Items 1 and 2 were acquired through an assignment deed dated 31.07.1998, and Item 3 was obtained through Partition Deed No. 317 of 1998. 
• The Plaintiff resides in Mumbai, while the 1st Defendant resides in Kozhikode. According to the Plaintiff, on 31.07.1998, a draft Power of Attorney was sent to her by the 1st Defendant for execution. She asserted that she was not willing to grant general powers and therefore struck out the clauses authorising mortgage and alienation before executing the document. The executed Power of Attorney was marked as Exh. A-4 and, according to her, conferred only limited authority to manage the properties.
• The 1st Defendant, however, relied upon a notarised photocopy of a Power of Attorney marked as Exh. B-2 and contended that it conferred comprehensive authority upon him, including the power to sell the suit properties. 
• Acting under the alleged authority of this document, he executed Sale Deed Nos. 262 and 263 of 2007 on 15.03.2007 in favour of the 2nd and 3rd Defendants. Upon learning of these transactions, the Plaintiff issued a legal notice dated 20.04.2007 cancelling the Power of Attorney. The 1st Defendant relied on two receipts dated 20.12.2006 (Exh. B-6) and 23.04.2007 (Exh. B-7) to claim that the Plaintiff had received Rs. 11,00,000/- towards sale consideration. 
• The Plaintiff denied having executed these receipts and challenged the sale deeds as illegal, void, and not binding on her. Consequently, she instituted O.S. No. 197 of 2013 before the Senior Civil Judge, Kozhikode seeking declaration, injunction, and damages.

LD. TRIAL COURT FINDINGS

• Authority under the Power of Attorney – The Ld. Trial Court decreed the suit in favour of the Plaintiff after a detailed appreciation of oral and documentary evidence. The primary issue was whether the 1st Defendant had authority under the Power of Attorney to alienate the suit properties. The Plaintiff asserted that she had executed only a limited Power of Attorney granting powers of management and had struck off clauses relating to mortgage and sale. In contrast, the 1st Defendant relied on Exh. B-2, a different version of the Power of Attorney, which allegedly conferred broader powers, including authority to sell the properties.
• Interpolation in the Disputed Power of Attorney – The Ld. Trial Court compared the draft Power of Attorney produced by the Plaintiff with the disputed version relied upon by the Defendant. It found that words conferring power to “sell” or otherwise alienate the property appeared to have been added at the end of certain clauses. These words lacked structural and grammatical cohesion with the earlier portions of the document. The Court also observed that the spacing and alignment of the added words differed from the rest of the text, indicating that they were likely inserted later. On this basis, the Court concluded that the document relied upon by the Defendant showed signs of interpolation.
• Non-production of Original Document – The Ld. Trial Court noted that the 1st Defendant failed to produce the original Power of Attorney and gave inconsistent explanations regarding its whereabouts. In the absence of the original document and in light of the suspicious alterations, the Court held that the genuineness and validity of the alleged Power of Attorney were not proved.

• Requirement under Section 33 of the Registration Act – The Ld. Trial Court further held that under Section 33 of the Registration Act, 1908, a Power of Attorney authorising execution of sale deeds must be duly authenticated. Since the Defendant failed to prove a valid and properly authenticated Power of Attorney conferring power of sale, he had no legal authority to execute the impugned sale deeds.

• Receipts and Alleged Payment of Consideration – The 1st Defendant relied upon Exh. B-6 and Exh. B-7 to claim that he had paid Rs. 11,00,000/- to the Plaintiff towards sale consideration. The Plaintiff denied executing these receipts. The Ld. Trial Court found inconsistencies in the evidence relating to the receipts and noted discrepancies between the alleged consideration mentioned therein and the sale price reflected in the registered sale deeds. The Ld. Trial Court was not satisfied that payment of consideration had been reliably established.

• Relief Granted – In view of the failure to prove a valid Power of Attorney authorising sale and the doubtful nature of the alleged payment, the Ld. Trial Court declared Sale Deed Nos. 262 and 263 of 2007 invalid and void. It granted permanent injunction in favour of the Plaintiff, directed the 1st Defendant to vacate and surrender possession through a mandatory injunction, and rejected the claim for damages for use and occupation.

FIRST APPELLATE COURT FINDINGS

• Alternative Claims of Ownership – The First Appellate Court reversed the decree of the Ld. Trial Court and dismissed the suit. It first examined the 1st Defendant’s alternative pleas of ownership. With respect to Items 1 and 2 of the Plaint A-Schedule, the Defendant contended that the properties, though standing in the Plaintiff’s name, had in fact been purchased using his funds pursuant to an agreement with their brother. The First Appellate Court treated this as a plea of benami transaction and held that such a claim was barred under the Benami Transactions (Prohibition) Act, 1988. Regarding Item 3, the Defendant claimed that he had orally purchased the property from the Plaintiff for Rs. 2,00,000/-. The First Appellate Court rejected this plea as legally untenable, holding that an immovable property valued above Rs. 100 cannot be transferred orally and must be conveyed through a registered instrument in terms of Section 17 of the Registration Act, 1908.

• Validity of the Power of Attorney – After rejecting the independent ownership claims, the First Appellate Court addressed the central issue of the Power of Attorney. It observed that the Plaintiff, in her legal notice cancelling the Power of Attorney, had referred to its existence, and during cross-examination admitted having seen the original document in her lawyer’s office. From this, the First Appellate Court inferred that the Plaintiff had executed the document and was withholding the original. The First Appellate Court accepted Exh. B-2, a notarised photocopy of the Power of Attorney, as admissible secondary evidence. It invoked the presumption under Section 114(e) of the Evidence Act, read with Section 8(1)(a) of the Notaries Act, 1952, to hold that a notarised document carries a presumption of due execution and authentication. On this basis, it concluded that the Power of Attorney was valid and conferred authority upon the 1st Defendant to sell the properties.

• Objections under the Registration Act – The First Appellate Court rejected the Plaintiff’s objection under Section 33 of the Registration Act, holding that the Power of Attorney was not invalid on that ground. It further held that the sale deeds were validly registered, noting that the Sub-Registrar had jurisdiction as he was holding additional charge as District Registrar.

• Sale Receipts and Consideration – The First Appellate Court relied on expert evidence to hold that the signature on Exh. B-6 matched the Plaintiff’s admitted signature. In respect of Exh. B-7, it compared the signatures itself and concluded that the Plaintiff had executed the receipt. On this basis, it held that the Plaintiff had received Rs. 11,00,000/- towards sale consideration.

• Possession of Title Deeds and Final Conclusion – The First Appellate Court also attached significance to the fact that the 1st Defendant was in possession of the original title deeds, drawing an inference that they were entrusted to him for the purpose of sale. Considering the presumed validity of the Power of Attorney, receipt of consideration, and possession of title deeds, the First Appellate Court held that the sale deeds executed in favour of the 2nd and 3rd Defendants were valid and binding on the Plaintiff, and accordingly dismissed the suit.

HON’BLE HIGH COURT FINDINGS

In second appeal, the Hon’ble High Court set aside the judgment of the First Appellate Court and restored the decree passed by the Ld. Trial Court. The High Court held the following:  

• Exh. B-2, being only a photostat copy of the alleged Power of Attorney, could not be relied upon as evidence unless the requirements of Sections 65 and 66 of the Indian Evidence Act were strictly complied with. 
• The 1st Defendant had neither produced the original document nor laid the necessary foundational facts to justify admission of secondary evidence. The explanation for non-production of the original was found unsatisfactory and unsupported by pleadings.
• The Hon’ble High Court further examined the contents of the disputed Power of Attorney and compared it with the draft version relied upon by the Plaintiff. It observed that the clauses conferring power to sell appeared inconsistent with the structure of the original document and that the spacing and format of the added words differed from the rest of the text, suggesting interpolation. On this basis, the Hon’ble High Court concluded that the Power of Attorney had not been duly proved in accordance with law. 
• Since the authority to alienate the property was not established, the sale deeds executed by the 1st Defendant were held to be invalid and not binding on the Plaintiff.

ISSUE BEFORE THE HON’BLE SUPREME COURT

The principal issue before the Hon’ble Supreme Court was whether the High Court had exceeded its jurisdiction under Section 100 of the Code of Civil Procedure by interfering with findings of fact recorded by the First Appellate Court. The Hon’ble Supreme Court was also required to determine whether the First Appellate Court had acted upon inadmissible secondary evidence in accepting the notarised photocopy of the Power of Attorney as proof of authority to alienate the suit properties.

ARGUMENTS ADVANCED BY BOTH PARTIES

The Appellants contended that the Hon’ble High Court had impermissibly reappreciated oral and documentary evidence in second appeal and had failed to accord primacy to the findings of the First Appellate Court. They argued that the execution of the Power of Attorney was not seriously in dispute and that the document carried a presumption under Section 85 of the Evidence Act. It was further contended that the Plaintiff had ratified the transaction by accepting Rs. 11,00,000/- under the receipts and therefore could not challenge the sale deeds.

The Respondent argued that Exh. B-2 was only a photocopy and that no foundational facts had been laid for admitting it as secondary evidence. It was submitted that Sections 65 and 66 of the Evidence Act had not been complied with and that a photocopy, without proper proof, was inadmissible. The Respondent maintained that the Hon’ble High Court had not reappreciated evidence but had corrected the First Appellate Court’s reliance on inadmissible material, which constituted a substantial question of law within the meaning of Section 100 CPC.

HON’BLE SUPREME COURT’S ANALYSIS AND FINDINGS

• Scope of Section 100 CPC – The Hon’ble Supreme Court first addressed the objection that the High Court had exceeded its jurisdiction under Section 100 CPC by reappreciating evidence. Referring to Ramathal v. Maruthathal, and Jagdish Singh v. Natthu Singh, the Hon’ble Apex Court reiterated that Section 100 CPC, particularly after the 1976 amendment, imposes a clear embargo on the High Court’s jurisdiction and confines it to cases involving a substantial question of law. Findings of fact recorded by the Ld. Trial Court and affirmed or reversed by the First Appellate Court ordinarily attain finality and are not to be disturbed merely because another view is possible. However, the Hon’ble Supreme Court emphasised that this restriction is not absolute. It referred to Dinesh Kumar v. Yusuf Ali, and Bharatha Matha v. R. Vijaya Renganathan, to explain that where findings of fact are perverse, meaning they are based on no evidence, or on inadmissible evidence, or where relevant evidence has been ignored, or where conclusions defy logic, the Hon’ble High Court is justified in interfering, as such perversity itself gives rise to a substantial question of law. The Hon’ble Apex Court also referred to Hero Vinoth v. Seshammal, wherein the Court held that the legal effect and admissibility of documentary evidence may itself give rise to a substantial question of law.

• Admissibility of Secondary Evidence – The Hon’ble Supreme Court then examined whether Exh. B-2, a notarised photocopy of the alleged Power of Attorney, was validly admitted as secondary evidence. It reiterated that under Sections 63 and 64 of the Evidence Act, documents must be proved by primary evidence, and secondary evidence is admissible only under the limited circumstances specified in Section 65. The Hon’ble Supreme Court emphasised that before secondary evidence can be admitted, the party seeking to rely upon it must lay a factual foundation. This involves establishing two essential elements: first, that the original document existed and was duly executed; and second, that the original cannot be produced for reasons recognised under Section 65. The Court relied upon Smt. J. Yashoda v. K. Shobha Rani, and H. Siddiqui (D) by LRs v. A. Ramalingam, to reiterate that unless the non-production of the original is satisfactorily accounted for, secondary evidence is inadmissible. The Hon’ble Supreme Court further observed that mere marking of a document as an exhibit does not dispense with the requirement of proof. It referred to Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483, and reiterated that courts are duty-bound to examine the admissibility and probative value of a document before acting upon it. The Hon’ble Supreme Court also relied upon Ashok Dulichand v. Madhavlal Dube, to underscore that a photostat copy is not evidence unless it is proved in accordance with law and the circumstances under which it was prepared are explained.
• Failure to Prove Exh. B-2– Applying these principles, the Hon’ble Apex Court found that the 1st Defendant failed to produce the original Power of Attorney and did not lay the necessary foundation for secondary evidence. His explanation regarding the whereabouts of the original was inconsistent and unsupported by pleadings. No order permitting secondary evidence had been passed by the Ld. Trial Court. Consequently, Exh. B-2 could not be treated as admissible evidence, and a photocopy without statutory compliance amounts to “no evidence.”
• Presumption under Section 85 of the Evidence Act – The Hon’ble Supreme Court then addressed the First Appellate Court’s reliance upon Section 85 of the Evidence Act, which raises a presumption regarding powers of attorney executed before and authenticated by a notary public. The Hon’ble Supreme Court clarified that Section 85 presupposes that the document is properly before the court as admissible evidence. Unless the document is proved in accordance with Sections 64 and 65, the presumption under Section 85 cannot be invoked. The presumption does not cure defects of admissibility; it operates only after the foundational requirement of proof is satisfied. In the present case, since Exh. B-2 was never properly admitted as secondary evidence, the presumption under Section 85 was unavailable.
• Improper Comparison of Signatures – The Hon’ble Supreme Court also examined the First Appellate Court’s approach in comparing signatures. It observed that the First Appellate Court had compared the disputed signature on Exh. B-7 with other signatures without ensuring that the comparator signatures were admitted or proved. Relying upon O. Bharathan v. K. Sudhakaran, the Hon’ble Supreme Court reiterated that courts must exercise caution in comparing disputed signatures and should not undertake such comparison when the admitted signatures themselves are not duly proved. The Hon’ble Apex Court found that the First Appellate Court’s approach in this regard was legally unsustainable.

• Burden of Proof – The Hon’ble Supreme Court held that the burden squarely lay on the 1st Defendant, who asserted authority to alienate the property under the Power of Attorney. Since he specifically pleaded that the Plaintiff had executed a Power of Attorney conferring power of sale, strict proof was required. His failure to produce the original or establish admissibility of secondary evidence meant that he had not discharged this burden.

• Validity of Hon’ble High Court’s interference – The Hon’ble Supreme Court observed that the High Court had not reappreciated evidence but had corrected the First Appellate Court’s reliance on inadmissible material. Such correction fell within the permissible limits of Section 100 CPC, as it involved a substantial question of law concerning admissibility and perversity.

Ultimately, the Hon’ble Supreme Court concluded that the First Appellate Court’s findings were vitiated because they were based on a document that had not been proved in accordance with law. Since the alleged Power of Attorney authorising sale was not legally established, the 1st Defendant lacked authority to execute the sale deeds in favour of the 2nd and 3rd Defendants. Consequently, the sale deeds were invalid and not binding on the Plaintiff. The Hon’ble High Court, therefore, rightly restored the Ld. Trial Court’s decree. The Hon’ble Supreme Court dismissed the Civil Appeal, holding that there was no merit in the challenge and that the Hon’ble High Court had acted within its jurisdiction in correcting the error committed by the First Appellate Court . 

Conclusion

The Hon’ble Supreme Court reaffirmed the narrow but vital scope of interference under Section 100 of the Code of Civil Procedure, holding that while findings of fact are ordinarily final, they may be set aside where they are perverse or founded upon inadmissible evidence. The Court underscored the mandatory compliance required for admitting secondary evidence under the Indian Evidence Act and clarified that statutory presumptions cannot cure defects in proof. By upholding the Hon’ble High Court’s correction of the First Appellate Court’s reliance on an unproved document, the Hon’ble Supreme Court reinforced the principle that evidentiary discipline and proper burden of proof are foundational to the validity of judicial findings.

Analysis by: Mitali Umat (Associate)