Legal Review and Analysis of Tharammel Peethambaran & Anr vs T Ushakrishnan & Anr 2026 INSC 134
Synopsis
This judgment, delivered by a Division Bench of the Supreme Court of India, serves as a definitive primer on the procedural law governing the admissibility of secondary evidence and the circumscribed jurisdiction of a High Court under Section 100 of the Code of Civil Procedure, 1908. At its core, the case involved a dispute over the validity of sale deeds executed by an agent (Power of Attorney holder). The Supreme Court’s decision underscores the non-negotiable requirement of strictly complying with the statutory procedure for proving documents, especially when relying on secondary evidence like photocopies, before any presumption or substantive right can be claimed thereunder.
1. Basic Information of the Judgment
Case Title: Tharammel Peethambaran and Another (Appellants) vs T. Ushakrishnan and Another (Respondents)
Jurisdiction: Supreme Court of India, Civil Appellate Jurisdiction
Special Leave Petition (C) No.: 11868 of 2024
Civil Appeal No.: Of 2026 (Arising from the SLP)
Date of Judgment: Not explicitly stated in provided text, but citation is 2026 INSC 134.
Judges: Hon'ble Mr. Justice S.V.N. Bhatti and Hon'ble Mr. Justice Pankaj Mithal
Citation: 2026 INSC 134
Bench Type: Division Bench
2. Legal Framework and Pertinent Precedents
a) Substantive and Procedural Laws:
Indian Evidence Act, 1872:
Sections 63 & 65: Define secondary evidence and the specific circumstances under which it is permissible.
Sections 64 & 66: Establish the rule of primary evidence being the best evidence and the procedure for leading secondary evidence.
Section 85: Provides a presumption that a Power of Attorney executed before and authenticated by a Notary Public is genuine.Code of Civil Procedure, 1908:
Section 100: Limits the jurisdiction of the High Court in a second appeal to only cases involving a "substantial question of law."
Section 103: Allows the High Court to determine an issue of fact in exceptional circumstances, such as perverse findings.Registration Act, 1908 – Section 33: Pertains to the authentication of a Power of Attorney presented for registration of a document.
Notaries Act, 1952 – Section 8(1)(a): Governs the authentication by a Notary Public.
b) Key Legal Doctrines and Precedents (Referenced or Implied):
The principle that secondary evidence is an exception to the rule of primary evidence and cannot be admitted without first establishing a legal foundation for its production.
The doctrine that a finding of fact is perverse if it is based on no evidence, ignores material evidence, or is so irrational that no reasonable person could arrive at it. This is a valid ground for interference under Section 100 CPC.
Jurisprudence on the limited scope of High Court's power in second appeal, prohibiting re-appreciation of evidence merely to take a different view.
3. Relevant Facts of the Case
The first respondent/plaintiff, owner of three immovable properties (Plaint A-Schedule), resided in Mumbai. Her brother, the first appellant/first defendant, resided in Kozhikode.
The plaintiff alleged she executed a limited Power of Attorney (PoA - Exh. A-4) authorizing the 1st defendant only to manage the properties, not to sell them.
The 1st defendant, claiming to hold a general PoA (Exh. B-2 – a notarised photocopy) with powers to alienate, executed registered sale deeds in 2007 in favour of appellants 2 and 3.
The plaintiff cancelled the PoA via legal notice and filed a suit for declaration that the sale deeds were void, for injunction, and for damages.
Trial Court: Dismissed the plaintiff's claims, but on a review, decreed the suit in her favour, declaring the sale deeds void, and granted injunction and mandatory relief.
First Appellate Court: Allowed the defendant's appeal and dismissed the suit, relying heavily on the photocopy of the PoA (Exh. B-2) and presumed its validity under Section 85 of the Evidence Act.
High Court (in Second Appeal): Allowed the plaintiff's appeal, restoring the Trial Court's decree. It held that Exh. B-2 was inadmissible as secondary evidence was not properly proved, and the findings of the First Appellate Court were perverse.
4. Issues Before the Supreme Court
The Supreme Court framed the appeal around two primary issues:
a) Whether the High Court exceeded its jurisdiction under Section 100 of the CPC by re-appreciating evidence, or was it justified in interfering on the ground of perversity and misreading of evidence?
b) Whether the First Appellate Court was correct in relying on the photocopy of the Power of Attorney (Exh. B-2) as admissible and conclusive evidence of the agent's authority to sell?
5. Ratio Decidendi of the Supreme Court
The Supreme Court dismissed the defendants' appeal, upholding the High Court's judgment. The core legal reasoning (ratio) is twofold:
On Jurisdiction of High Court (Section 100 CPC): The High Court did not exceed its jurisdiction. Its interference was warranted because the First Appellate Court's finding—that the 1st defendant had authority to sell based on Exh. B-2—was perverse. This perversity arose from relying on a document (photocopy) that was inadmissible in evidence as the foundational requirements for leading secondary evidence were not met. Examining whether a court has relied on "no evidence" or inadmissible evidence is a question of law, falling within the ambit of Section 100 CPC.
On Admissibility of Secondary Evidence (Exh. B-2): The Supreme Court laid down a strict, two-step process for relying on secondary evidence:
Establishing the Right to Lead Secondary Evidence: The proponent must first lay a factual foundation proving (a) the existence and execution of the original document, and (b) a legally recognized excuse (under Section 65) for its non-production (e.g., loss, in possession of adversary).
Proving the Contents: Only after step one is satisfied can the party proceed to prove the contents of the document through the secondary evidence (e.g., photocopy).
In this case, the 1st defendant failed entirely at step one. No foundation was laid for the non-production of the original PoA. Therefore, the photocopy (Exh. B-2) was "no evidence" and should have been ignored. The presumption under Section 85 of the Evidence Act for notarised documents is irrelevant if the document itself is not legally before the court.
6. Legal Principles Established and Reinforced
This judgment does not establish radically new law but provides a crystal-clear and authoritative restatement of fundamental procedural principles:
The Imperative of Foundational Facts for Secondary Evidence: The Court rigidly reinforced that the exceptions under Section 65 of the Evidence Act are not mere formalities. A party cannot bypass the production of an original document without a strict and clear explanation accounted for in the pleadings and evidence.
"No Evidence" as a Ground for Perversity: A finding based on a document that is fundamentally inadmissible for lack of proper proof is a finding based on "no evidence." This constitutes perversity, justifying interference by the High Court in second appeal.
Limits and Powers under Sections 100 & 103 CPC: The judgment provides a succinct summary of when a High Court can interfere with concurrent findings of fact, primarily in cases of perversity, misconstruction of documents, or application of wrong legal principles.
7. Judicial Examination and Analysis
The Supreme Court's analysis was methodical:
Jurisdictional Threshold: It first examined the defendants' challenge to the High Court's jurisdiction. The Court summarised the settled law on Section 100 & 103 CPC, emphasizing that reappreciation is forbidden, but correction of a perverse finding is permitted.
Core Evidence Scrutiny: The Court then focused on the heart of the dispute—Exh. B-2. It analyzed the testimony of DW1 (1st defendant), highlighting critical admissions: he did not know where the original PoA was, the photocopy lacked witness signatures and notary endorsements, and his story about its handling was inconsistent and absent from pleadings.
Application of Evidence Act Principles: The Court systematically applied the law on secondary evidence (Sections 63, 64, 65, 66). It concluded that the 1st defendant never discharged the initial burden of laying the foundation for secondary evidence. Hence, Exh. B-2 remained inadmissible.
Consequence of Inadmissibility: Since the sole basis for the First Appellate Court's finding on the agent's authority was this inadmissible photocopy, its finding was vitiated. The High Court was correct in setting it aside.
Rejection of Alternative Defenses: The Court implicitly rejected the defendant's alternative claims (benami purchase, oral sale, ratification by receipt of money) by affirming the High Court's judgment which had found them unsubstantiated or legally barred.
8. Critical Analysis and Final Outcome
Core Outcome: The Civil Appeal was dismissed. The judgment of the High Court, which had decreed the plaintiff's suit—declaring the sale deeds void and granting possession—was affirmed.
Critical Perspective: This judgment is a masterclass in procedural law. It reinforces that substantive rights (like claiming title under a sale deed) cannot be built upon a procedural void. Lawyers must meticulously plead and prove the foundational facts for adducing evidence, especially when relying on copies. It also safeguards the hierarchy of courts by clearly delineating when a High Court can intervene in factual matters, thus preventing frivolous second appeals while allowing corrections of gross injustices.
Implication: The decision stresses the importance of safeguarding original documents and maintaining a clear chain of custody. It warns against casual reliance on photocopies, even if notarized, in legal proceedings. The defendant's failure to account for the original PoA proved fatal to his entire case.
(MCQs)
1. Under the Indian Evidence Act, 1872, before a photocopy of a document can be admitted as secondary evidence, what must the proponent first establish?
a) That the original document is with the opposing party.
b) The existence of the original and a legally acceptable reason for its non-production.
c) That the photocopy is certified by a Notary Public.
d) That the contents of the photocopy are not disputed by the other side.
2. In the context of Section 100 of the Code of Civil Procedure, 1908, when can a High Court rightfully interfere with a finding of fact recorded by the First Appellate Court?
a) When it simply disagrees with the appreciation of evidence.
b) When the finding is based on a misconstruction of a document or is perverse (e.g., based on no evidence).
c) Whenever a substantial question of fact is involved.
d) Only when new evidence is discovered.
3. The Supreme Court, in this judgment, held that the presumption under Section 85 of the Evidence Act (regarding a Notarised Power of Attorney) becomes applicable?
a) As soon as a photocopy of the notarised document is filed in court.
b) Only after the document is admitted in evidence following the proper procedure for primary or secondary evidence.
c) Automatically, if the document is registered under the Registration Act.
d) When the executant of the document does not deny its execution.
4. What was the fatal procedural flaw committed by the First Appellate Court, as identified by the Supreme Court?
a) It did not frame substantial questions of law.
b) It relied upon a photocopy of a Power of Attorney (Exh. B-2) without first ensuring the foundational requirements for admitting secondary evidence were met.
c) It wrongly applied the Benami Transactions Act.
d) It misapplied the law of agency concerning ratification.