TaxTMI 
TaxTMI 
2026 (2) TMI 1477
X X X X Extracts X X X X
X X X X Extracts X X X X
....efendant's sister. The Plaintiff resides in Mumbai, and the 1st Defendant resides in Kozhikode. The 1st defendant is the brother-in-law of the 2nd and 3rd Defendants. Stated chronologically, on 31.07.1998, the Plaintiff is said to have executed a Power of Attorney ("PoA") in favour of the 1st defendant. 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. The Plaintiff, having come to know of the sale in favour of the 2nd and 3rd Defendants, through the lawyer's notice dated 20.04.2007, cancelled the PoA. The 1st Defendant refers to a receipt dated 23.04.2007, said to have been executed by the Plaintiff, acknowledging the receipt of Rs. 6,00,000/-, forming part of the sale consideration under the sale deeds dated 15.03.2007. The 1st Defendant issued a reply notice dated 05.05.2007 to the Plaintiff's legal notice dated 20.04.2007. In this background, O.S No. 597 of 2007 was filed before the Munsiff Court I, Kozhikode, renumbered ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as principal, because the 1st Defendant, as agent, acted under the comprehensive powers granted to him under Exh. B-2 by the Plaintiff. Resiling from the power vested in favour of the 1st Defendant is contradictory and contrary to the conduct of the Plaintiff in receiving Rs. 11,00,000/- under receipts (Exh. B-6 and B-7) dated 20.12.2006, and 23.04.2007, respectively. The Plaintiff, as beneficiary of the sale consideration, is not entitled to challenge the action of the 1st Defendant. 5. The Trial Court, on consideration of the oral evidence of PW 1 and the documentary evidence of Exhibits A-1 to A-9, DWs 1 and 2, and Exhibits B-1 to B-26, decreed the suit. The issues settled by the Trial Court are as follows: " 1. Whether the plaintiff had executed a power of attorney authorizing the 1st defendant to sell the properties described in the plaint A schedule ? 2. Whether the power of attorney alleged to have been executed by the plaintiff on 31.7.199[8] is a valid genuine and properly executed document ? 3. Whether the power of attorney alleged to have been executed by the plaintiff on 31.7.1998 empowers the 1st defendant to execute a valid conveyance in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....edule to the Plaintiff within two months; and (iv) rejected the claim for damages for use and occupation. 7. The 1st Defendant filed A.S. No. 166 of 2014 before the District Judge, Kozhikode, and the First Appellate Court allowed the appeal, resulting in the dismissal of O.S. No. 197 of 2013. The First Appellate Court examined the issues and recorded the findings, which can be classified under the following heads: Rejection of Independent Ownership Claims (Benami and Oral Sale) 7.1 The 1st Defendant's claim of purchasing items nos. 1 and 2 in the Plaintiff's name using his own funds was barred under the provisions of the Benami Transactions (Prohibition) Act, 1988. Similarly, regarding item no. 3, it was held that the immovable property was worth more than Rs. 100, and cannot be orally sold to the 1st Defendant without a registered document as per Section 17 of the Registration Act. Validity and Existence of the Power of Attorney 7.2 Plaintiff in the legal notice (Exh. A-5) stated that she was "cancelling" the PoA. If the Plaintiff had never executed a valid power of attorney, there would have been no need to cancel it. Furthermore, PW1 admitted during cross-examinat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecuted by the 1st Defendant in favour of the 2nd Defendant and 3rd Defendant were valid. 8. The Plaintiff assailing the above findings filed the second appeal before the High Court, and through the impugned judgment, the High Court restored the findings of the Trial Court, and its consideration is summarised: 8.1 The original of Exh. B-2 is not marked. Without following the procedure under Sections 65 and 66 of the Evidence Act, Exh. B-2, a photostat copy does not satisfy the requirements of secondary evidence. The 1st Defendant traces the authority to sell the property to Exh. B-2. The non-marking of the original of Exh. B-2, coupled with non-compliance with Sections 65 and 66 of the Evidence Act, would render the assertion untenable. 8.2 The High Court concluded that the original PoA - Exh B-2 was not duly executed by the Plaintiff. It compared the clauses in the draft/copy - Exh. A4 with the disputed PoA/Exh. B-2. It was observed that the words providing for "sale" in the disputed PoA had no cohesion with the former parts of the clauses. Crucially, the spacing between the letters in the added words relating to "sale" was monospace, whereas the rest of the document used ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....006 and 23.04.2007, cannot resile and challenge the validity of the sale deeds dated 15.03.2007. 11.1 The 1st Defendant has discharged the burden fastened on him, and, on a combined reading of Section 85 of the Evidence Act, read with Section 33 of the Registration Act, the execution or extent of the power under the PoA is a non-issue. The High Court committed an illegality by failing to apply the available presumption to the sale deeds dated 15.03.2007. The 1st Defendant contends that the purported clauses authorising him to alienate are not manipulated or fudged; this is evidenced by the draft PoA/Exh. A-3 that was sent by the 1st Defendant to the Plaintiff. 12. The Plaintiff contends that the First Appellate Court committed a serious illegality by relying on PoA/Exh. B-2. The findings of fact recorded by the First Appellate Court are contrary to the evidence or result of incorrect construction of the documents. The 1st Defendant admits that the original of Exh. B-2 is not available to him. Further, to place on record, Exh. B-2, a notarised photocopy of a PoA procedure for adducing secondary evidence must be followed. In the admitted scenario, neither is an original nor a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....;"XxX the plaintiff handed over to the first defendant all the powers to handle, sell, mortgage the above said property as his own and a power of attorney draft was prepared and sent as per the plaintiff's instructions. Plaintiff herself voluntarily prepared it as her on style and signed it and sent it to the 1st Defendant. XxX the plaintiff has nowhere (sic) stated why the 1st defendant was entrusted with the power to dispose of the property, sell it etc. From these circumstances it is proved that the 1st defendant also had the authority over the above said property. XxX The draft Power of Attorney produced by the Plaintiff along with the plaint was sent by the 1st defendant. Similarly the 1st respondent (defendant) admits the letter sent along with it. But no letter has been sent by the 1st defendant after getting the Power of Attorney. XxX The Power of Attorney issued by the plaintiff also empowered the 1st defendant to sell the property. The registrar allowed to register the document after fully understanding the contents. Up to this point, the plaintiff has not raised an argument that the officials of the Regis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is such that no reasonable person acting judicially could have arrived at it, is equally perverse in the eye of the law. Findings resting on the ipse dixit of the court or on conjecture and surmises reflect non-application of mind and stand vitiated on that ground as well. Bharatha Matha v. R. Vijaya Renganathan, (2010) 11 SCC 483. 16.4 Insofar as documentary evidence is concerned, an inference drawn from the contents of a document is ordinarily a question of fact. However, the legal effect of a document's terms, its construction involving the application of legal principles, or a misconstruction thereof gives rise to a question of law. Hero Vinoth v. Seshammal, (2006) 5 SCC 545, ¶24 16.5 While exercising jurisdiction under Section 100 of the CPC, the High Court must be satisfied that the case involves not merely a question of law but a substantial question of law having a material bearing on the rights of the parties. A substantial question of law may arise where the legal position is debatable or unsettled. It may also occur in cases where statutory provisions or binding precedents well settle the legal position. Still, the courts below have decided the matter by i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rally purchased it from the Plaintiff for Rs. 2 lakhs. That Plaintiff voluntarily prepared, signed, and notarised a PoA empowering him to sell the property and sent it to him. Furthermore, DW1 had settled all financial obligations to the Plaintiff by paying Rs.5,00,000/- on 20.12.2006 and Rs.6,00,000/- on 23.04.2007, for which the plaintiff signed receipts. Further, the Plaintiff's suit was an afterthought driven by ulterior motives, and he had sold the property to the 2nd and 3rd Defendants with full authority and with the Plaintiff's knowledge. The appreciation of the chief examination of DW-1 would not show the crucial aspect of clauses in Exh. B2. 18.1 During cross-examination, he admitted he did not know where the original PoA was. The cross-examination further reads that a witness named Muraleedharan retrieved the documents from the office of the Subregistrar and handed the original POA to the Plaintiff's husband. He admitted that he had nothing to say as to why this significant fact was omitted from his pleadings. When confronted with a photocopy of the POA, he admitted that it lacked witness signatures and contained no notary endorsement. He denied sending the draft ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....party's possession or reach, they cannot introduce inferior proof (secondary evidence). Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730 20.2 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. Ibid; Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758. 20.3 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. H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492. 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. Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730. 20.4 Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible. To introduce secondary evidence, a party must....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntents of the documents through that evidence. The twin requirements are conjunctive. 22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It is axiomatic that secondary evidence is permissible only as an exception to the requirement of adducing primary evidence. 23. 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. It is apposite to refer to one of the views expressed by the First Appellate Court by examining the signature in Exh. B-2, and recording a finding against the plaintiff. It is axiomatic and fairly established by the authorities O. Bharathan v. K Sudhakarana, 1996 2 SCC 704. of this Court that courts should not by itself compare d....