Summary
The Court upheld the High Court's second-appeal judgment restoring the decree that declared void the sale deeds executed by the plaintiff's brother under a disputed power of attorney. The defendant relied only on a notarised photocopy of the power of attorney, without laying the foundation for secondary evidence, so it was no evidence of a power to sell. The first appellate court had acted on inadmissible evidence, and correcting that was within Section 100 CPC.
Issues
- Whether the High Court exceeded its jurisdiction under Section 100 CPC in reversing the first appellate court's findings of fact.
- Whether a notarised photocopy of a power of attorney, produced without laying a foundation for secondary evidence, could prove the agent's authority to sell.
- Whether the presumptions under Section 85 of the Evidence Act and Section 33 of the Registration Act could be invoked without the original or duly adduced secondary evidence.
Provisions considered
- Section 100, Code of Civil Procedure, 1908Findings of fact are ordinarily binding in second appeal. Perversity, reliance on no or inadmissible evidence, and misconstruction of a document's legal effect raise questions of law. The High Court's correction of reliance on inadmissible evidence was within jurisdiction. (¶¶ 16, 16.1, 16.2, 16.3, 16.4, 16.5, 17, 23)
- Section 103, Code of Civil Procedure, 1908The power to decide issues of fact in second appeal is supplementary to Section 100, to be used exceptionally and only after a clear finding that the findings below are perverse. (¶¶ 16.6, 16.7)
- Sections 63 and 64, Indian Evidence Act, 1872A photocopy is at best secondary evidence, as a mechanical copy; documents must be proved by primary evidence, the best evidence, and secondary evidence is only an exception. (¶¶ 19, 20.1, 23)
- Section 65, Indian Evidence Act, 1872Secondary evidence is inadmissible until the party proves that the original existed and accounts for its non-production within one of clauses (a) to (g). The defendant laid no such foundation for the photocopied power of attorney. (¶¶ 20.2, 20.3, 20.4, 21, 22, 23)
- Section 85, Indian Evidence Act, 1872The presumption about notarised powers of attorney cannot be applied to establish execution and extent of authority where neither the original nor admissible secondary evidence is on record. (¶¶ 11.1, 23)
- Section 33, Registration Act, 1908Like Section 85, it could not be invoked to prove the power of attorney when the threshold requirement of producing the original or proper secondary evidence had not been met. (¶ 23)
Held
- Under Section 100 CPC, concurrent or appellate findings of fact are ordinarily binding, but a finding based on no evidence, on inadmissible or wholly unreliable evidence, on ignoring material evidence, or on conjecture is perverse. Its legality is a question of law, and the legal effect or construction of a document also raises a question of law. (¶¶ 16.1, 16.2, 16.3, 16.4, 16.5)
- Section 103 CPC does not substitute for Section 100; the High Court may decide facts under it only exceptionally and after a clear finding that the findings below are vitiated by perversity. (¶¶ 16.6, 16.7)
- Leading secondary evidence is a two-step, conjunctive process: the party must first establish the right to lead it, proving that the original existed and why it cannot be produced within Section 65, and then prove that the copy truly reflects the original. Exhibiting a document does not dispense with proof, though no separate application is required if the foundation is laid in pleadings or evidence. (¶¶ 20.2, 20.3, 20.4, 20.5, 20.6, 20.7, 21)
- The power of attorney relied on by the defendant was only a notarised photocopy; no foundation was laid and no order admitting secondary evidence was shown. It had to be ignored, and the presumptions under Section 85 of the Evidence Act and Section 33 of the Registration Act could not be invoked to establish the authority to alienate. (¶¶ 22, 23)
- A court should not itself compare disputed signatures without expert assistance when the signatures used for comparison are not admitted ones; the first appellate court erred in doing so. (¶ 23)
- Because the first appellate court acted on inadmissible evidence in accepting a power to alienate, the High Court rightly corrected the misreading of evidence in second appeal without exceeding its jurisdiction, and the burden on the defendant to prove the pleaded authority was not discharged. (¶¶ 15, 23)
Result
Appeal dismissed; the High Court's judgment restoring the trial court's decree upheld. No order as to costs.