1. This is an appeal against a judgment of Wadsworth, J; allowing a second appeal. Some of the points raised in the case were decided in the judgment of this Court in C.M.A. No. 283 of 1926. When the case went back to the first Court after that judgment, those Courts did not deal with the whole case but only with issues 4 and 5, a plea of res judicata and a plea of estoppel respectively.
2. The plea of res judicata has been found even by the lower Courts against the defendants. It was however represented before us by Mr. Kuttikrishna Menon on behalf of the appellants, that when this litigation was pending in appeal before the lower appellate Court, one of his clients had obtained a decree against plaintiff 2 in ejectment in respect of item 2. No. petition has been filed before us to admit in evidence the papers relating to that litigation. We are not therefore in a position to express any opinion as to whether anything that happened in that litigation will or will hot advance the plea of res judicata. The appellants may, if so advised, take proper steps before the lower Court to get the decision referred to admitted in evidence and then with the permission of that Court raise a plea of res judicata if it arises on that decision. The plea of estoppel was however decided by both the lower Courts in defendants favour. But on second appeal by the plaintiffs Wadsworth, J. held that there was no basis for the plea of estoppel. The learned Judge based his decision on two grounds: one was that the representations relied on in support of the plea of estoppel were not representations on matters of fact but only of particular views on questions of law or in respect of the construction of a document; the other ground was that there was no definite allegation and much less any proof that defendant 1 was misled by any such misrepresentations into acting to her prejudice. So far as the first point is concerned, there is some force in the appellant's argument that some of the statements are not strictly statements on matters of law in the sense in which that expression is used in connexion with the question of estoppel. The statements themselves read like statements of fact, though they might have been founded on an erroneous view of law. But it does not seem to us necessary to pursue this point because we agree with the learned Judge as. to the other reason given by him.
3. The probabilities are that both parties were under a mistaken impression as to their respective rights and each acted; under his or her impression. In a case of this kind, if one of the parties asks the. Court to believe that any conduct or omission on the part of the other misled the former party into adopting a particular course of action, it is necessary for the Court to scrutinise the connexion between the representation and the course of conduct alleged to have been pursued as a result thereof. There is an utter absence of evidence in this case to satisfy these requirements of the plea of estoppel. Defendant 1, herself has not gone into the box; and having regard to the occasions when and the purpose for which the alleged statements are said to have been made, it seems to us very doubtful if they could even be regarded as representations made to defendant 1 or intended to be acted upon by her. The Courts below were certainly not justified in drawing an inference of estoppel from the mere omission of defendant 2 to defend particular litigations. The law relating to estoppel draws a distinction between representations and omissions; and omission to speak out will furnish a basis for estoppel only when circumstances are such as to throw upon a party the duty to speak out the truth. If plaintiff 2 had allowed a certain decree to be passed ex parte against him by omission to defend a suit it is too much to suggest therefrom that a further estoppel also would arise against him because somebody chooses to put a particular interpretation on that omission. The Letters Patent Appeal therefore fails and is dismissed with costs.