Tharammel Peethambaran vs T. Ushakrishnan, Pankaj Mithal, S.V.N. Bhatti, JJ.,  AIR 2026 SC 938: A Classic Decision on Secondary Evidence

Saji Koduvath, Advocate, Kottayam.

Points Decided in this Decision

  • The FACTS have to be established by primary evidence.
  • DOCUMENTS must be proved by primary evidence.
  • Primary evidence is the rule, while secondary evidence is an exception.
  • A factual foundation must be laid before admitting secondary evidence
  • This involves two steps:
    • First, prove that the original document actually existed and was executed.
    • Secondly, establish valid reasons as to why the original cannot be furnished.
  • Secondary evidence is inadmissible until the non-production of the original is accounted.
  • Section 65 of the Evidence Act is exhaustive
  • The introduction of secondary evidence is a two-step process.
    • 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.
  • Admitting a secondary evidence does not prove its contents.
  • The secondary evidence must be shown to be, in fact, a true copy.
  • Section 63 provides an exhaustive list of what constitutes secondary evidence.
  • Mere admission of a document as an exhibit does not dispense with proof.
  • The court has an obligation to examine the probative value of the document and decide the question of admissibility before making the secondary evidence.
  • If the foundational facts (loss of the original) are not established, the court cannot legally allow the party to adduce secondary evidence.
  • There is no requirement that an application must be filed to lead secondary evidence.

Facts in a Nutshell

  • Plaint schedule property was alienated by the defendant.
  • Plaintiff claimed it to be joint family property.
  • The plaintiff challenged the authority of the defendant to alienate.
  • The plaintiff contended that there was no valid Power of Attorney in favour of the defendant.
  • Only a notarised photocopy of the alleged Power of Attorney was produced.
  • The original document was not placed on record.
  • No foundational evidence was given for leading secondary evidence.

The Trial Court decreed the suit finding that the the Power of Attorney was not proved.

The Trial Court found:

  • If the procedure under Sections 65 and 66 of the Evidence Act is not followed, a photostat copy does not satisfy the requirements of secondary evidence.
  • The non-marking of the original of the PoA, coupled with non-compliance with Sections 65 and 66 of the Evidence Act, would render the assertions on the document untenable.

The First Appellate Court reversed the Trial Court’s findings, accepting the PoA.

The High Court restored the findings of the Trial Court.

The Supreme Court of India accepted the views of the High Court and dismissed the Appeal.

Important Findings of the Apex Court

  • “19. The crux of the matter depends on whether Exh. B-2 can be treated as documentary evidence warranting interpretation of the clauses and the alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA. This, therefore, 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. Section 63 of the Indian Evidence Act provides an exhaustive list of what constitutes secondary evidence. This includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with such copies, counterparts of documents against parties who did not execute them, and oral accounts of the contents given by a person who has seen the document.
  • 20. The broad parameters summarising the procedure to be followed for introducing secondary evidence are reiterated and read thus:
  • 20.1 The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence.
    • Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178. (Para 14) 
  • Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”.
  • Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a 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.
    • 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 satisfy the conditions of one of the clauses (a) through (g) of Section 65.
  • 20.5 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. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstances under which the copy was prepared and who possessed the original at the time the photograph was taken.
    • Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664; 
    • Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
  • 20.6 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 court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence.
  • If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.
    • Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
  • 20.7 There is no requirement that an application must be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence
    • Dhanpat v. Sheo Ram 2020 (16) SCC 209
Condition for Secondary Evidence# Statutory Clause  #Type of Secondary Evidence Allowed
Adversary Possession                            Section 65(a)      Any secondary evidence (after notice).
Written Admission                                 Section 65(b)      The written admission itself.
Loss or Destruction                                 Section 65(c)       Any secondary evidence.
Immovable Original                                Section 65(d)      Any secondary evidence.
Public Document                                      Section 65(e)      Only a certified copy.
Law-Specified Document                     Section 65(f)       Only a certified copy.
Voluminous Records                              Section 65(g)      Testimony of a skilled examiner.
  • 21. Therefore, 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.
  • 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 permissibleonly as an exception to the requirement of adducing primary evidence.
  • 23. ….. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application if the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. 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. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”

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