Barakbah LP:

By an agreement dated 30 September 1956 (Exh. D6), the first respondent, the administratrix of the estate of Teo Teow Guan, deceased, agreed to sell to the appellant seven pieces of land held under EMR Nos. 4139, 4140, 5339, 4219, 4076, 5634 and 5633 in the Mukim of Setapak for Lots Nos. 2663, 2664, 3660, 2771, 2562, 1538 and 1537 respectively for the sum of $450 per acre. Respondents two to nine are the beneficiaries of the said, estate. On 1 August 1967, the first respondent made an application to the Court for an order that she be at liberty to sell all the seven pieces of land to the appellant. On 23 September 1957, an order was duly made in terms of the said application and on 20 January 1958, a formal transfer was made by the first respondent, to the appellant. Among the seven pieces of land was one piece held under EMR No. 5339 for Lot No. 3660 (hereinafter referred to as the "said land") which is just under half an acre in area and was situated at the third mile Setapak Road, Kuala Lumpur, whereas the other six pieces with a total area of about 34 acres were situated at the 11 mile, Gombak. The said land had a house on it known as No. 99 Klang Gates Road, Kuala Lumpur. The respondents alleged that the first respondent intended to sell only the rubber lands at Gombak and the said land at Setapak Road was included by mistake and on 30 July 1958, they filed this suit in Court praying for:

(i) an order that the said order of Court dated 23 September 1957, be set aside;

(ii) that the sale of the said lands aforesaid be also set aside or in the alternative that such sale be set aside in so far as it conveys lot No. 3660 to the defendant;

(iii) an order that the said agreement of sale between the first plaintiff and the defendant be set aside or in the alternative that it be set aside in so far as it agrees to convey Lot No. 8660 to the defendant;

(iv) an injunction restraining the defendant from disposing of or dealing in any other manner with the said lands until the determination of this case or alternatively for damages; and

(v) for such further or other order as the Court deems fit and just.

On 24 August 1958, the first respondent Madam Oh Hiam died and respondents two to nine obtained letters of administration de bonis non. On 18 August 1966, judgment was given in their favour and the appellant now appeals to this Court.

It is not disputed that the seven pieces of land were mentioned in the grant of letters of administration (Exh. P3), that there was a proper sale and transfer by order of Court and that all the title deeds were registered in the Land Office. According to the Certificate of Registration of Cultivation (Exh. D9), all the seven pieces of land were certified as rubber lands and the dispute before us now is in connection with the said land only which happened to have a house on it and is just under half an acre in area, situated at the third mile Setapak Road. It was alleged by the respondents that it was never their intention to include the said land in the agreement for sale. The first respondent had included it by mistake.

According to s. 21 of the Contracts (Malay States) Ordinance, 1950, where both the parties to an agreement are under a mistake as to a matter of fact essential to the agreement, the agreement is void. Mistakes may be classified into:- (1) common mistake; (2) mutual mistake; and (3) unilateral mistake. Mistake is common where both parties make the same mistake. Each knows the intention of the other and accepts it, but each is mistaken about some underlying and fundamental fact. The mistake is mutual where the parties misunderstand each other and are at cross-purposes. In unilateral mistake one only of the parties suffers from some mistake. The statement of claim alleges there was a unilateral mistake on the part of the respondents, but the learned Judge found that there was a common mistake. I do not think I need go into the question of whether there was a u