Ajaib Singh J (after stating the facts and the evidence continued):

On the evidence before me I am not at all satisfied that the plaintiffs have proved their case against the defendants. The Court no doubt has jurisdiction to rectify an agreement which because of a common mistake of fact does not substantially represent the real intention of the parties when the agreement is finally drawn up. But there must be a prior common and continuing intention of the parties as to their real intention right up to the time of the written agreement and the burden of proving this intention is upon the plaintiffs. As to the burden and standard of proof which is required in such a case I can do no better than to quote Cheshire and Fifoot's Law of Contract, 8th Edn., at p. 219 as follows:

The burden of proving this common and continuing intention lies upon the party who claims that the written contract should be rectified [1887] 38 Ch. D 1 at, as regards the standard of proof required all that can be said is that the claim will

fail unless the common intention upon which it is based is proved by convincing evidence. It is not necessary that the evidence should be 'irrefragable' as Lord Thurlow once suggested [1784] 1 Bro CC 338, 341 or that it should settle the question 'beyond all reasonable doubt' as is demanded by the criminal law [1970] 2 QB 86 at p. 98. If the negotiations leading up to the execution of the written instrument were vague and inconclusive, so that it is impossible to ascertain what the parties really meant, then the writing represents the only agreement that has been concluded, and there is no antecedent and common intention upon which rectification can be based.

Moreover, it must be shown that the alleged common intention, though once undoubtedly reached, continued unchanged down to the time when the instrument was reached. Proof that the parties varied their original intention and that the instrument represents what they finally agreed is fatal to a suit for rectification [1837] 2 My & Cr 711.

Finally, it must be emphasized that the issue relates not to the individual intention of the parties, but to their common intention. If the defendant can satisfy the Court that he understood the agreement to be exactly what was stated in the written instrument, rectification will be excluded" Lloyd v. Stanbury [1971] 2 All ER 267; [1971] 1 WLR 535.

In my view the plaintiffs have with regard to the two disputed lots failed to prove by convincing evidence that it was the common intention of the parties that the two lots should form part of the properties to be sold. The negotiations leading to the final agreement of 27 March 1965 were vague and inconclusive insofar as the two disputed lots are concerned. Earlier when the draft agreement was drawn up both Mr. Keith Sellar and Messrs Laycock & Ong as well as the defendants were aware of the two valuation reports in which the two lots were not valued at all and were stated to have been sold. The omission on the part of the defendants and their solicitors to comment on the draft agreement which listed the two disputed lots in the schedule as well as their omission to comment on Mr. Keith Sellar's letter that the two lots appeared to have been sold do not prove anything. Silence is not equivalent to acceptance of any fact nor does it conclusively prove any intention. So too with regard to the defendants' letter dated 21 February 1966 (Exh. P5A) addressed to the tenant of 15 Portuguese Street, Teoh Joo Tee, PW3, to the effect that the house had been sold to Heap Huat Rubber Co. Ltd. The estate of the deceased consisted of several landed properties in Malacca some of which fairly large in extent and I am inclined to think. that the letter of 21 February 1966 was of a very cursory nature which was sent out not very long after the sale of the estate so that in all probability the writer of the letter hardly checked whether the house stood on any part of the two disputed lots or o