Code of Civil Procedure, 1908 – ss.100 and 103 – Evidence Act, 1872 – s.85 – Registration Act, 1908 – s.33 – On 31.07.1998, the plaintiff executed a Power of Attorney (PoA) in favour of the 1st defendant – The Plaintiff is the 1st Defendant’s sister – The PoA is exhibited by the Plaintiff as Exhibit A-4 and by the Defendants as Exhibit B-2, a notarised photocopy – On 15.03.2007, the 1st Defendant, in the purported authority given to him through the PoA/Exh.B-2, executed registered sale deeds nos.262 and
263 of 2007 in favour of the 2nd and 3rd Defendants – On the knowledge of the same, plaintiff cancelled PoA – Suit filed – The Plaintiff admits execution of the PoA, i.e. Exh.A-4, which grants specific power and not general power to alienate the plaint schedule properties – However, the 1st Defendant asserts that the Plaintiff executed the PoA/Exh.B-2 authorising the Defendant to have the power of management, mortgage and alienation – The Trial Court declared that the sale deed nos.262 and 263 of 2007 (Exh.A-7 and A-8) were invalid and void – It found that words providing for “sale” were added to the end of existing clauses – Trial Court further directed, through a mandatory injunction, 1st Defendant to vacate and surrender the house situated on item no.1 of the Plaint A-Schedule to the Plaintiff – However, the First Appellate Court allowed the appeal of 1st Defendant and dismissed the suit – The High Court held that the sale deeds executed by the Defendant using the invalid PoA were void, thereby restoring the Trial Court’s decree – Correctness:
Held: Exh.B-2 is a photocopy, or a mechanical copy, of the purported PoA – This implies that Exh.B-2 is, at best, secondary evidence – Secondary evidence is evidence that proves the contents of an original document through a medium that is one step removed from the source – Before secondary evidence can be admitted, the party relying on it must lay a factual foundation – This involves two steps: First, the party must prove that the original document actually existed and was executed – Secondly, the party must establish valid reasons as to why the original cannot be furnished – Further, admitting a document as secondary evidence does not automatically prove its contents – The secondary evidence must be authenticated by foundational evidence showing that the alleged copy is, in fact, a true copy of the original – 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 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 – The case on hand falls within the meaning of mechanical copies – In law, the existence of Exh.B-2, in the absence of laying down a factual foundation and following procedure, ought to be ignored for the purpose of appreciating the 1st Defendant’s claim on the power to alienate Plaint A-Schedule Property – In the absence of an original or at least a secondary evidence, it is impermissible to apply s.85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st Defendant – 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. [Paras 19, 20.2, 20.5, 20.6, 21, 23]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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