Second Appeal — Scope of Interference under Section 100 CPC — Findings Based on Inadmissible Evidence — Whether Substantial Question of Law Arises
(Paras 16 to 16.7, 17, 23)
The restriction imposed by Section 100 of the Code of Civil Procedure, 1908, confines the jurisdiction of the High Court in second appeal to cases involving substantial questions of law. Ordinarily, findings of fact recorded by the first appellate court are final and binding. However, where such findings are founded upon inadmissible evidence, or are based on no evidence, or suffer from perversity by ignoring settled principles of law, interference becomes permissible. A finding rendered on the basis of an unproved photocopy, without compliance with the mandatory requirements for leading secondary evidence, constitutes a perversity in law. Such perversity itself gives rise to a substantial question of law warranting interference in second appeal.
Evidence Act, 1872 — Sections 63, 64 and 65 — Secondary Evidence — Foundational Requirements — Photocopy of Power of Attorney — Admissibility
(Paras 19 to 23)
Primary evidence is the rule and secondary evidence is an exception. Before secondary evidence can be admitted, the party relying upon it must establish the existence and execution of the original document and must satisfactorily account for its non-production within the framework of Section 65 of the Evidence Act. A photocopy, even if notarised, does not become admissible unless foundational facts are proved and the case falls within one of the clauses of Section 65. Mere marking of a document as an exhibit does not dispense with the obligation of proving its admissibility in accordance with law. In the absence of compliance with Sections 63 and 65, the photocopy remains no evidence in the eye of law.
Evidence Act, 1872 — Section 85 — Presumption as to Power of Attorney — Applicability
(Para 23)
The statutory presumption under Section 85 of the Evidence Act applies only when a power of attorney is duly produced and proved. The presumption cannot be invoked in respect of a document whose admissibility itself is not established. Where the foundational requirement of admissible evidence is not satisfied, the presumption under Section 85 does not arise.
Registration Act, 1908 — Section 33 — Authentication of Power of Attorney — Relevance
(Para 23)
Questions concerning authentication under Section 33 of the Registration Act become relevant only after the existence and admissibility of the power of attorney are established. When the very document relied upon is not proved in accordance with law, the issue of statutory authentication does not arise for consideration.
Civil Law — Agency — Burden of Proving Authority to Alienate — Consequence of Failure
(Paras 14, 15, 23)
Where an agent claims authority to alienate immovable property on the strength of a power of attorney, the burden lies squarely upon the agent to prove the existence, execution and scope of such authority. Failure to discharge that burden renders any conveyance executed by the agent void and non-binding on the principal.
ANALYSIS OF FACTS AND LAW
The controversy arose out of a family dispute concerning alienation of immovable properties by the 1st defendant, who claimed to have acted under a power of attorney allegedly executed by the plaintiff, his sister. The plaintiff admitted execution of a limited power of attorney but denied granting authority to sell the property. The defendants relied upon a document marked as Exh. B-2, which was only a notarised photocopy of the alleged power of attorney.
The Trial Court, upon examination of the document and surrounding circumstances, found that the alleged clauses authorising sale appeared interpolated and that the original power of attorney was not produced. It concluded that the defendants failed to prove valid authority to alienate and decreed the suit.
The First Appellate Court reversed this decree. It treated the photocopy as admissible secondary evidence, invoked the presumption under Section 85 of the Evidence Act, and accepted that the authority to sell stood proved.
In second appeal, the High Court restored the decree of the Trial Court, holding that the foundational requirements for adducing secondary evidence were not satisfied and that reliance on Exh. B-2 was legally untenable.
Before the Supreme Court, the principal question was whether the High Court exceeded its jurisdiction under Section 100 CPC by interfering with findings of fact.
The Court undertook a detailed exposition of the law governing second appeals. It reiterated that although factual findings are ordinarily immune from interference, such protection does not extend to findings based on inadmissible evidence. A decision founded upon a document that is legally non-existent in evidence amounts to a perverse finding.
Turning to the evidentiary issue, the Court emphasised that secondary evidence is not automatically admissible merely because the original is unavailable. The party must first establish the existence and execution of the original and then account for its absence in terms of Section 65. No such foundation was laid in the present case. There was no order permitting secondary evidence, nor any proof satisfying the statutory requirements. Consequently, Exh. B-2 could not be treated as evidence.
The Court further clarified that statutory presumptions under Section 85 presuppose proper proof of the document. A presumption cannot cure a fundamental defect of inadmissibility. Since the power of attorney itself was not proved, the presumption did not arise.
The First Appellate Court, by relying on Exh. B-2 and comparing signatures without proper evidentiary basis, acted upon inadmissible material. Such reliance vitiated its findings. The High Court, therefore, did not reappreciate evidence but corrected a legal error concerning admissibility. That correction fell squarely within the permissible ambit of Section 100 CPC.
RATIO DECIDENDI
A finding of fact based upon a document that has not been proved in accordance with the mandatory requirements governing secondary evidence is perverse in law. The presumption under Section 85 of the Evidence Act cannot be invoked unless the power of attorney is first proved by admissible primary or secondary evidence. Where the first appellate court relies upon an inadmissible photocopy to uphold authority of an agent to alienate immovable property, the High Court is justified in interfering in second appeal under Section 100 CPC. Failure to prove authority results in the conveyance being void and non-binding upon the principal.
CONCLUSION
The Supreme Court dismissed the civil appeal and affirmed the High Court’s judgment restoring the decree of the Trial Court. The sale deeds executed by the 1st defendant were held invalid for want of proof of authority. The decision reinforces the strict evidentiary discipline governing secondary evidence and clarifies that correction of perversity falls within the legitimate scope of Section 100 CPC.
