Admissibility of Secondary Evidence & Statutory Presumptions under Section 85: Supreme Court Analysis in Tharammel Peethambaran v. T. Ushakrishnan
Case Details
Case Name: Tharammel Peethambaran and Another v. T. Ushakrishnan and Another
Citation / Case Number: 2026 INSC 134 | Civil Appeal No. ___ of 2026 (Arising out of SLP (C) No. 11868 of 2024)
Court: Supreme Court of India (Civil Appellate Jurisdiction)
Bench: Justice Pankaj Mithal and Justice S.V.N. Bhatti (Judgment authored by S.V.N. Bhatti, J.)
Date of Judgment: February 06, 2026
Factual Matrix
The 1st Respondent (Plaintiff), residing in Mumbai, is the undisputed owner of the Plaint A-Schedule properties situated in Kozhikode
In March 2007, the 1st Defendant executed registered sale deeds in favor of his brothers-in-law (2nd and 3rd Defendants) by presenting a notarized photocopy of a PoA (Exh. B-2) that purportedly granted comprehensive alienation powers
The Trial Court decreed the suit in favor of the Plaintiff, finding that Exh. B-2 was a fabricated document containing interpolated clauses inserted with disparate letter spacing
Issues Framed
Scope of Second Appellate Jurisdiction: Whether the High Court exceeded its jurisdiction under Section 100 of the Code of Civil Procedure, 1908 (CPC) by interfering with the factual findings of the First Appellate Court
. Admissibility of Secondary Evidence: Whether a notarized photocopy of a Power of Attorney (Exh. B-2) could be admitted as secondary evidence without laying the necessary factual foundation under Sections 63 and 65 of the Indian Evidence Act, 1872
. Applicability of Statutory Presumptions: Whether the legal presumption of valid execution under Section 85 of the Evidence Act and Section 33 of the Registration Act, 1908 can be extended to an unproved photocopy/secondary evidence
.
Key Arguments
Appellants (Defendants):
Contended that the High Court impermissibly reappreciated oral and documentary evidence under Section 100 CPC without formulating a substantial question of law, discarding the primacy of the First Appellate Court's factual findings
. Argued that the notarized photocopy (Exh. B-2) attracted statutory presumptions of due execution and authentication under Section 85 of the Evidence Act read with Section 33 of the Registration Act
. Claimed that the Plaintiff had ratified the transactions by accepting partial sale consideration
.
Respondents (Plaintiff):
Contended that the High Court did not conduct an impermissible factual reappreciation, but correctly interfered with a perverse finding founded entirely on inadmissible evidence
. Maintained that the 1st Defendant failed to satisfy the mandatory preconditions under Sections 65 and 66 of the Evidence Act for introducing secondary evidence; thus, an unauthenticated photocopy is "no evidence" in the eye of law
. Argued that statutory presumptions cannot be invoked to validate an unproved mechanical copy of a disputed document
.
Ratio Decidendi & Reasoning
The Supreme Court dismissed the appeal and affirmed the High Court’s decision, laying down crucial principles across civil and evidence jurisprudence:
1. Foundational Prerequisites for Adducing Secondary Evidence
The Court reiterated the "best evidence rule" under Section 64 of the Indian Evidence Act, emphasizing that primary evidence is the rule and secondary evidence is a strict exception
Two-Step Test: Introducing secondary evidence requires a conjunctive two-step process: (i) establishing the legal right/factual foundation under Section 65 explaining the non-production of the original, and (ii) independently proving the document's contents
. No Formal Application Required: The Court clarified that while a formal application is not strictly mandatory (affirming Dhanpat v. Sheo Ram), the foundational facts must still be pleaded or established in evidence before marking a document
. Photocopies as 'No Evidence': A mechanical photocopy marked as an exhibit without meeting Section 65 conditions has zero probative value and cannot be treated as legal evidence
.
2. Inapplicability of Section 85 Presumption to Photocopies
The Bench clarified that the statutory presumption under Section 85 of the Evidence Act (presumption as to powers of attorney) applies strictly to original documents authenticated by a Notary Public or competent authority
3. Limits on Judicial Comparison of Disputed Signatures
Relying on O. Bharathan v. K. Sudhakaran, the Court observed that appellate courts should not undertake comparisons of disputed signatures on their own with the naked eye without expert assistance, particularly when the comparator signatures are not admitted standards
4. Scope of Section 100 and Section 103 CPC
The Court held that the High Court was well within its powers to interfere under Section 100 CPC
A finding of fact based on inadmissible evidence, conjectures, or the exclusion of material evidence suffers from the vice of perversity
. A perverse finding of fact constitutes a substantial question of law in itself, justifying interference under Section 100 CPC
(citing Ramathal v. Maruthathal, Hero Vinoth v. Seshammal, and Municipal Committee, Hoshiarpur v. Punjab SEB ).
Final Decision
The Supreme Court held that the First Appellate Court acted on inadmissible evidence (Exh. B-2) without the foundation for secondary evidence having been laid
Key Takeaway / Practical Relevance
For Practicing Advocates & Judicial Aspirants:
Marking Exhibits vs. Proving Documents: Mere exhibition of a photocopy does not dispense with the burden of proving its admissibility under Section 65 of the Indian Evidence Act
. Section 85 Is Not a Cure-All: Counsel cannot rely on the presumption of a notarized PoA if the original is withheld or unproved
. Appellate Strategy under Section 100 CPC: Challenging a First Appellate Court’s factual finding on the grounds of perversity (such as relying on inadmissible evidence or flawed signature comparisons) constitutes a valid substantial question of law for maintaining a second appeal
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