Peh Swee Chin FCJ:

[1] The appeal raises a short but interesting point as to the nature of the evidence required to prove consent to a variation of a term of an agreement, and a summary of relevant facts is given below, with first, an agreement dated 6 October 1972 but with only its relevant clauses, to be set out below:

Agreement

An agreement made this 6 October 1972 between Cheok Toh Gong, Nric No 0237732 of 32 Main Road, Lukut, Port Dickson and Chok Yek Ann, Nric No 3562361 of 2nd Mile Seremban Road, Port Dickson (hereinafter called the vendors) of the one part and Nalamah d/o Sangapillay, Nric No 3020573 of Cheok Bau Tuan Building Site, 3½ Mile, Seremban Road, Port Dickson (hereinafter called the purchaser) of the other part.

Whereas by an option agreement entered into between Port Dickson-Lukut Rubber Estates Limited (hereinafter referred to as the said company) and Menjunjong Kebawah Duli Yang Maha Mulia, Yang Di Pertuan Besar Negri Sembilan of Istana Hinggap, Seremban dated 14 June 1972 (hereinafter referred to as the principal option agreement) the said Menjunjong Kebawah Duli Yang Maha Mulia, Yang Di Pertuan Besar Negri Sembilan had obtained an option to purchase from the said company the land situated in the Mukim of Port Dickson comprising total area of 56 acres 1 rood 20 poles more or less comprised in Lot 1493 being part of the land held under Certificate of Title No 4007 (hereinafter referred to as the said land).

And whereas the principal option agreement is expressly subject to the company obtaining from the Estate Lands Board all such consents to this sale as shall be necessary and to the issue of a separate document of title in respect of Lot 1493.

And whereas by a deed of assignment entered into between the said Menjunjong Kebawah Duli Yang Maha Mulia, Yang Di Pertuan Besar Negri Sembilan and S Sathappan dated 26 June 1972, the said Menjunjong Kebawah Duli Yang Maha Mulia, Yang Di Pertuan Besar Negri Sembilan has assigned his rights title and interest in respect of the said land under the principal option agreement to the said S Sathappan.

And whereas by an agreement entered into between the said S Sathappan and the vendors dated 8 August 1972 the said vendors have agreed to purchase the said land.

And whereas the purchaser has inspected the documents mentioned in the recital above and is deemed to have notice thereof.

And whereas the vendors have agreed to sell and the purchaser to purchase a portion of the said land as is delineated in red on the plan annexed hereto (hereinafter referred to as the said portion of the said land) at the price of RM6,000 per acre which said portion of the said land contains an area of 1.500 acres or thereabouts and is marked Temporary Lot No 10, upon and subject to the terms and conditions hereinafter appearing.

Now it is agreed as follows:

1. In consideration of the sum of RM1,800 (Dollars One Thousand and Eight Hundred only) paid by the purchaser to the vendors by way of deposit being 20% of the purchase price (the receipt of which sum the vendors hereby acknowledge) and the sum of RM1,800 (Dollars One Thousand and Eight Hundred only) to be paid by the purchaser to the vendor's solicitors by way of additional deposit being a further 20% of the purchase price on or before 15 September 1972, the vendors agree to sell and the purchaser to purchase the said portion of the said land with vacant possession except as hereinafter mentioned subject to all conditions of title whether express or implied and all unregistered easements (if any) affecting the said portion of the said land but otherwise free from encumbrances for the purchase price and upon the terms and conditions hereinafter contained.

2. The purchase price of the said portion of the said land shall be the sum of RM9,000 (dollars Nine Thousand only) and the sums referred to in cl 1 hereof shall be treated as deposits on account of the purchase price.

3. The balance of the purchase price amounting to RM5,400 (Dollars Five Th