Raja Azlan Shah J (stated the facts and arguments set out in the headnote above, and continued):

The plaintiffs' claim in CS 464/69 being based on the sublease executed in favour of the first and second plaintiffs and in CS 514/69 being based on the sub- sublease executed in favour of the three plaintiffs, it must first be determined whether these leases are valid in order that the plaintiffs are entitled to challenge the rights of the defendants over the same piece of land. This point can be shortly disposed of on the analogy that a person cannot grant a valid tenancy to himself or to himself and another. (See Chew Khan V. Lam Weng Yoon & Anor.. Accordingly, the sub-sublease in CS 514/ 69 executed by the first two plaintiffs in favour of themselves and the third plaintiff is invalid and since CS 514/69 cannot stand for this reason, there remains only CS 464/69, the sublease of which is not affected by the invalid sub-sublease in CS 514/69. The sublease in CS 464/69 being registered on 7 February 1969 is effective to transfer the rights of the first, second and third defendants to the first and second plaintiffs.

However, the fourth and fifth defendants claim that all such rights of the first, second and third defendants have already been transferred to them previous to this sublease vide the first and second permits to mine and the sublease, all of which were executed on 22 August 1968. Since the legality of these three documents and a subsequent agreement employing the sixth defendants to operate the mine, is called into question by the plaintiffs, it becomes necessary to determine whether the first and second permits to mine and the sublease all executed on 22 August 1968 and the subsequent agreement are rendered invalid either by (1) the non-correspondence of the third defendant's name in the three documents and in the mining certificate, the deletions of the first and second plaintiffs' names from the three documents and other alterations therein; or (2) the contravention of the provision of the Malay Reservations Enactment; or (3) the contravention of the provision of the mining certificate; or (4) the intention, in drawing up two similar permits to mine, to, circumvent the provisions of the Mining Enactment.

I do not think that the non-correspondence of the third defendants name in the three documents and in the mining certificate is material enough to affect the validity of the three documents, after considering the similarity between the name appearing in the three documents and that appearing in the mining certificate.

With regard to the alterations of the three documents, the only relevant section in the Evidence Ordinance is s. 106 which reads: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." This seems to throw the onus of proving the alterations validly made upon the fourth and fifth defendants. For a clearer elucidation on the law regarding alterations of documents, reference can be made to Halsbury's Laws of England. There it is stated that the onus lies on the party who is claiming under the documents to explain the alterations and show when they were made. Alterations made before execution of the documents do not affect the validity of the documents. Any alteration appearing upon the face of the document is presumed, in the absence of evidence to the contrary, to have been made before the execution. If alterations are made in a material part of a document after its execution, by or with the consent of the parties, thereto or persons entitled thereunder, but without the consent of the parties liable thereunder, the document is thereby made void. (See Halsbury, 3rd Edn. Vol. 11 pp. 379 and 367 respectively; see also Nathu v. Gomti LR 67 IA 318).

The onus therefore lies upon the fourth and fifth defendants to show that the alterations were made before the execution of the three documents in order that they can uphold the validity of thes