Photocopy Of Document No Evidence Unless Conditions To Produce Secondary Evidence Proved : Supreme Court

The Supreme Court has set aside the sale undertaken on the strength of a photocopied Power of Attorney, noting that a photocopy of a document, being secondary evidence, is not evidence unless it falls under the conditions set out in Section 65 of the Evidence Act.

Section 65 of the Evidence Act permits the production of secondary evidence (copies, oral accounts) when the original document cannot be produced under Section 64. This applies if the original document/evidence is lost, destroyed, rests in possession of an adverse party, or is a public document.

A bench of Justices Pankaj Mithal and SVN Bhatti heard the case where the core controversy centred on the nature and scope of authority granted under a PoA executed by the plaintiff in 1998.

While the plaintiff contended that she had issued only a limited PoA authorising management of the property, and had expressly struck out clauses permitting sale, the defendants claimed that the plaintiff had executed a general PoA empowering her brother to alienate the property.

The defendants relied on a notarised photocopy of the alleged general PoA to justify the sale in favour of the brothers' in-laws. The Trial Court accepted the plaintiff's case and declared the sale deeds void. This was reversed by the First Appellate Court, which upheld the validity of the PoA and the sale. The Kerala High Court, however, restored the Trial Court's decree in the second appeal, prompting the defendants to appeal to the Supreme Court.

Affirming the High Court's decision, the judgment authored by Justice Bhatti said that admitting a document as secondary evidence does not automatically prove its contents unless the secondary evidence is authenticated by foundational evidence showing that the alleged copy is, in fact, a true copy of the original.

“For instance, if a party wishes to introduce a photostat copy, they must explain the circumstances under which the copy was prepared and who possessed the original at the time the photograph was taken.”, the court explained.

However, when the party fails to prove the original evidence, the reliance on its secondary evidence is barred.

"Secondary evidence is inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65. If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.", the court said.

The Court observed that the introduction of secondary evidence is a two-step process, wherein, first, the party must establish the legal right to lead secondary evidence, and second, they must prove the contents of the documents through that evidence. The twin requirements are conjunctive.

Also, the mere admission of a document or making it an exhibit does not dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence. If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.

Applying the law, the Court observed:

“A photocopy of a document is no evidence unless the same is proved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence, has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”

Accordingly, the appeal was dismissed.

Cause Title: THARAMMEL PEETHAMBARAN AND ANOTHER VERSUS T. USHAKRISHNAN AND ANOTHER

Citation : 2026 LiveLaw (SC) 128

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Appearance:

For Petitioner(s) Mr. Pijush Kanti Roy, Sr. Adv.(argued by) 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.

For Respondent(s) Mr. Siddharth Bhatnagar, Sr. Adv.(argued by) Mrs. Manjula Rao, Sr. Adv. Mr. Nitin Sangra, Adv. Mr. Nadeem Afroz, Adv. Mr. Riju Ghosh, Adv. Mr. Upmanyu Tewari, AOR