Judgment : 1. Heard the learned Counsel for the parties. The parties are referred to by their rank before the Trial Court for the sake of convenience. 2. The present appeal is filed by the defendants in a suit for specific performance of an agreement of sale. The plaintiff claimed that the defendants had executed an agreement of sale, dated 1-7-1988 in respect of the suit properties and had received a sale consideration of Rs.12,000/- and had agreed to execute a sale deed in respect of the suit properties upon the repeal of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 (hereinafter referred to as ‘the Fragmentation Act’ for brevity). The Act was repealed by Karnataka Act No. 4 of 1991 and was published in the Karnataka Gazette on 5-2-1991. Inspite of such repeal, the defendants having failed to execute and register the sale deed as agreed on repeated demands, the plaintiff had issued a notice dated 9-10-1995, which was returned unserved and thereafter, the suit was filed. The defendants contested the suit denying the very execution of the agreement of sale and the receipt of sale consideration while also contending that in any event, the suit was barred by limitation. The suit was dismissed on the ground that it was barred by limitation. An appeal having been filed before the lower Appellate Court, the same was allowed which is sought to be questioned in the present second appeal. 3. The substantial question of law framed at the time of admission was.-- “Whether the First Appellate Court was justified in construing that the cause of action has arisen only upon issuance of legal notice by the respondent, whereas, it is admitted in the plaint that demands were made by the plaintiff immediately upon the repeal of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 and the legal notice demanding the execution and registration of the sale deed having been issued only in the year 1995, whether it could be said that the cause of action arose only in 1995?” 4. And at the time of hearing, additional substantial questions of law were framed as follows:- (1) Whether an agreement having been executed in the face of a prohibition under the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, could be enforced in law? And at the time of hearing, additional substantial questions of law were framed as follows:- (1) Whether an agreement having been executed in the face of a prohibition under the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, could be enforced in law? (2) When the appellant was a willing party to an illegal contract, could the agreement be set aside at the instance of the appellant? The learned Counsel for the parties were heard on these substantial question of law. 5. The learned Counsel for the appellants would argue and the lower Appellate Court has misconstrued the scope of Article 54 of the Limitation Act, 1963. The lower Appellate Court has applied the second part of the provision in column (3) of the Schedule in relation to Article 54 which provides for the time from which the period of limitation begins to run. Article 54 provides for a period of limitation of three years for a suit for specific performance of a contract and the time from which the period begins to run is the date fixed for the performance or, if no such date is fixed, when the plaintiff has notice that performance is refused. In the instant case, it is contended that the agreement was a contingent contract and had prescribed the time for performance as the date of repeal of the Fragmentation Act. The Act having been repealed in the year 1991 and the admitted averments in the plaint that several demands were made on the defendants to execute and register the sale deed after such repeal of the Fragmentation Act, it cannot be said that time did not begin to run from the date of repeal of the Fragmentation Act. Therefore, the lower Appellate Court has committed an error in the interpretation of Article 54 in holding that the suit was not barred by limitation, and as the suit was filed five years from the date of repeal of the Fragmentation Act, it was clearly barred by limitation. Therefore, the lower Appellate Court has committed an error in the interpretation of Article 54 in holding that the suit was not barred by limitation, and as the suit was filed five years from the date of repeal of the Fragmentation Act, it was clearly barred by limitation. Secondly, it is also contended that since the notice issued to the defendants was never served on the defendants, even the second part of the provision under Article 54, which prescribes that the time would begin to run when the plaintiff has notice that performance is refused cannot also be strictly applied, as the burden was on the plaintiff to establish that there was a refusal to perform the contract on such demand. It is also pointed out that the plaintiff who claimed to be in possession of the suit property was in the face of revenue entries standing in the name of respondents upto the year 2005 and it is only thereafter that the plaintiffs have managed to have the entries made out in their favour. The Counsel for the appellant has placed reliance on the following authorities.— (a) Mannalal Khetan and Others v Kedar Nath Khetan and Others AIR 1977 SC 536 : (1977)2 SACC 424; (b) Natraj Studios (Private) Limited v Navrang Studios and Another AIR 1981 SC 537 : (1981)1 SCC 523 ; (c) Nutan Kumar and Others v II Additional District Judge, Banda and Others AIR 1994 All. 298 . to address the substantial questions of law and would submit that the appeals be allowed. 6. 298 . to address the substantial questions of law and would submit that the appeals be allowed. 6. The learned Counsel for the fifth respondent, on the other hand, would contend that the Fragmentation Act would not apply to the suit properties as there was no compliance with Sections 3 and 4 of the Fragmentation Act by the State Government and that it was permissible for the parties to enter into an agreement of sale under Section 5(I)(b) of the Fragmentation Act in respect of properties of which they are contiguous owners and in the instant case, the seller and purchasers being closely related, each of whom had a share in the suit properties and by virtue of the sale, there was no fragment created and it is only on account of their ignorance as they were illiterate that they had incorporated a clause in the agreement, that the provisions of the Fragmentation Act was applicable and therefore, it was a curable defect. The learned Counsel would further contend that in view of the Fragmentation Act not being applicable, it cannot be said that the time began to run from the date of repeal of the Fragmentation Act. Hence, the lower Appellate Court was justified in holding that time would begin to run only from the date of refusal of performance of contract. The contention that no notice was served on the defendants is an incorrect assertion, as a legal notice issued by way of post, was returned as refused, the defendants were deemed to have been served and the refusal to perform the contract is, therefore deemed and the cause of action arose on such refusal. He would place reliance on a large number of decisions which are as follows.— (a) H.M. Krishna Reddy v H.C. Narayana Reddy 2001(5) Kar. L.J. 204 : AIR 2001 Kant. 442; (b) Prashanth E.L. v Kuvempu University, Shimoga and Others 2002(3) Kar. L.J. 364 : AIR 2001 Kant. He would place reliance on a large number of decisions which are as follows.— (a) H.M. Krishna Reddy v H.C. Narayana Reddy 2001(5) Kar. L.J. 204 : AIR 2001 Kant. 442; (b) Prashanth E.L. v Kuvempu University, Shimoga and Others 2002(3) Kar. L.J. 364 : AIR 2001 Kant. 448; (c) Gunwantbhai Mulchand Shah and Others v Anton Elis Farel and Others AIR 2006 SC 1556 : (2006)3 SCC 634 : 2006 AIR SCW 1377; (d) Balasaheb Dayandeo Naik (dead) through L. Rs and Others v Appasaheb Dattatarya Pawar AIR 2008 SC 1205 : (2008)4 SCC 464 : 2008 AIR SCW 1183; (e) Ganpati Madhav Sawant (dead) by L.Rs v Dattur Madhav Sawant (2008)3 SCC 183 : 2008 AIR SCW 1189; (f) S. Brahmanand and Others v K.R. Muthugopal (dead) and Others AIR 2006 SC 40 : (2005)12 SCC 764 : 2005 AIR SCW 5447; (g) State of Madhya Pradesh v Sangram and Others AIR 2006 SC 48 : 2005 Cri. L.J. 4642 (SC) : 2005 AIR SCW 5447; (h) Syed Zaheer and Others v C. V. Siddveerappa ILR 2010 KAR. 765 (DB); (i) E.S. Rajan v R. Mohan 1994(5) Kar. L.J. 357 (DB) : ILR 1995 Kar. 492 (DB); (j) K. Sambasiva Rao v P. Bangaru Raju AIR 1985 AP 393 ; (k) R.K. Parvatharaj Gupta v K.C. Jayadeva Reddy (2006)2 SCC 428 ; (l) Puran and Others v Gram Panchayat, Faridabad (2006)2 SCC 433 ; (m) K. Gururao v M. Subba Rao 1991(3) Kar. L.J. 223 (DB) : ILR 1992 Kar. 429 (DB); (n) Yogambika v Narasingh ILR 1992 Kar. 717 (DB); (o) Ninge Gowda v Smt. Jayamma and Others 1980(2) Kar. L.J. 25 : AIR 1980 Kar. 166 ; (p) Kallanagouda Somanagouda Patil v Rudragouda and Others 1978(1) Kar. L.J. 34 (DB) : AIR 1978 Kant. 61 (DB); (q) Ramakka v K. Muniyappa, (2006) 2 SCC 428 (sic) 7. In addressing the substantial questions of law in the background of the above contentions, it is to be noticed that the plaintiffs are contending for the first time before this Court that the Fragmentation Act did not in fact apply to the lands in question. 61 (DB); (q) Ramakka v K. Muniyappa, (2006) 2 SCC 428 (sic) 7. In addressing the substantial questions of law in the background of the above contentions, it is to be noticed that the plaintiffs are contending for the first time before this Court that the Fragmentation Act did not in fact apply to the lands in question. The contention that they were rustic villagers and illiterate and were not aware of the nuances of the law and unwittingly had indicated that the Fragmentation Act applied to the suit properties is belied by the fact that the legal notice has been issued through Counsel, where it is asserted that the suit properties were covered under the provisions of the Fragmentation Act. This was also not the ground on which the lower Appellate Court had held that the agreement was enforceable. The lower Appellate Court has only proceeded on the footing that time would run in a suit for specific performance from the date of refusal to perform the contract. The lower Appellate Court was, however, not concerned with the applicability or otherwise of the provisions of the Fragmentation Act nor has it considered whether it could also be said that the contract being a contingent one, it was enforceable upon the repeal of the Fragmentation Act, and whether time would indeed run from the date of repeal of the Act. The more primary question as to whether the contract was void would require to be addressed having regard to the substantial questions of law framed by this Court. The several judgments cited by the learned Counsel for the fifth plaintiff would throw light on the interpretation of the scope of the provisions. In the case of Yogambika, a Division Bench of this Court, had occasion to consider the scope of Rule 18 of the City of Mysore Improvement, (Allotment of Sites) Rules, 1972, which among other things provided that an allottee shall not alienate the allotted site within a period of ten years from the date of allotment, except to mortgage the same in favour of certain institutions and authorities and whether the said Rule would be an impediment in granting a decree for specific performance. The Division Bench placing reliance on a judgment of the Supreme Court in Nathulal v Phoolchand AIR 1970 SC 546 : (1969)3 SCC 120 , wherein it was held that where by statute any property is not transferable without the permission of the authority, the agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain sanction of the authority concerned. While also placing reliance on a Division Bench judgment of this Court, in T. Dase Gowda v D. Srinivasaiah and Others 1993(1) Mys. L.J. 166 (DB), which was an unreported judgment in RFA No. 575 of 1987, dated 14-12-1990, which was said to be affirmed by the Supreme Court in a special leave petition and it was held that the rule did not come in the way of granting a decree for specific performance. But the said judgment does not disclose how the rule was not a prohibition for alienation. In the case of Ninge Gowda, the facts were as follows.— One Ramegowda who had acquired land measuring 30 and ½ guntas sold 18 guntas to the petitioner before this Court in that case in the year 1975. The wife and children of Ramegowda filed a petition under Section 39 of the Fragmentation Act. The Competent Authority, namely, the Deputy Commissioner even without issuing a notice to the purchaser, held that the sale was void because the land sold was a fragment as defined under the Fragmentation Act. That order was challenged before the Karnataka Appellate Tribunal by the purchaser. The Tribunal confirmed the order of the Commissioner while observing that the purchaser ought to have been heard before such an order was passed. It was held by the Tribunal that the alienation was in clear transgression of Section 6 of the Fragmentation Act. That was in challenge before this Court. This Court while considering Section 6 of the Act, which reads as follows: “6. Fragmentation prohibited.—No land in any area shall be transferred or partitioned or sub-divided so as to create a fragment”. This Court held that what was prohibited is a transfer or partition or a sub-division so as to create a fragment. If the land was already a fragment Section 6, cannot be a bar. Fragmentation prohibited.—No land in any area shall be transferred or partitioned or sub-divided so as to create a fragment”. This Court held that what was prohibited is a transfer or partition or a sub-division so as to create a fragment. If the land was already a fragment Section 6, cannot be a bar. Though this sounds illogical, the Court observed, that law is not logic and that it was also the view taken by a Division Bench of this Court in Chayappa Santammappa v Mahamad Hasan and Others. The further reason to support the alienation was that the land was not notified as a fragment as required under Section 4(2) so as to fall within the scope of Section 5 of the Act. Therefore, alienation could not be found fault with. In Kallanagouda Somanagouda Patil’s case, the facts were as follows.-- The petition was before a Division Bench on a reference made by a Single Judge on a question of law. The respondent therein had sold land on 13-6-1969. The Fragmentation Act had come into force on 1-5-1969. By Section 47 of the Karnataka Act, the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 was repealed, while expressly providing that Section 6 of the Mysore General Clauses Act, 1899 shall be applicable in respect of such repeal and that Section 24 of the said Act shall not be applicable. The respondent had made an application to the Special Deputy Commissioner, Dharwad under Section 5(1) of the Karnataka Act for a declaration that the sale of the land in favour of the petitioner therein was void as it was in contravention of the mandatory prohibition under Section 5(1) of the Karnataka Act. The contention was that though the sale had taken place after the Karnataka Act came into force, the sale was void as the land in question was determined as a fragment under the Bombay Act before it was repealed. It was not in dispute that it was a fragment is defined under the Bombay Act. The Competent Authority declared that the sale was void and imposed a fine and directed summary eviction of the petitioner. This was challenged before the Karnataka Revenue Appellate Tribunal. The Tribunal affirmed the order of the Special Deputy Commissioner. That was challenged in a writ petition before this Court. The Competent Authority declared that the sale was void and imposed a fine and directed summary eviction of the petitioner. This was challenged before the Karnataka Revenue Appellate Tribunal. The Tribunal affirmed the order of the Special Deputy Commissioner. That was challenged in a writ petition before this Court. The question that was considered by the Division Bench was as to whether the sale of the land in question effected on 13-6-1969 after the Karnataka Act came into force was void as offending Section 5(1) (a) of the Karnataka Act. It was held after a detailed discussion of the provisions of the Karnataka Act and the scope of the provisions of the Bombay Act that the bar contained in Section 5(1)(a) was not applicable to the sale of land in question which was made after the Karnataka Act came into force. In Ramakka’s case, the facts were as follows.— The defendant in a suit was in second appeal before this Court against divergent findings of the Courts below. The plaintiff had sought for enforcement of an agreement of sale in respect of certain lands and a house. The agreement was of the year 1957 in favour of the plaintiff. The seller did not have title to the land as it was locked up in litigation. She finally obtained a decree in a suit filed by her for declaration and possession. The defendant who had been put in possession was sought to be dispossessed by the seller, in execution proceedings, after the decree was passed the defendant resisted dispossession and filed a suit calling upon the seller to convey the suit properties in accordance with the agreement of the year 1957. The suit was resisted and the agreement was denied. The suit was dismissed by the Trial Court. An appeal against the same was allowed. The same was challenged by way of a second appeal before this Court and that appeal was allowed and the matter was remitted to the lower Appellate Court for a fresh disposal to assign reasons for reversing the judgment of the Trial Court. The lower Appellate Court having decreed the suit, the second time around, an appeal was filed before this Court. The lower Appellate Court having decreed the suit, the second time around, an appeal was filed before this Court. The contention that was raised by way of amendment in the Memorandum of appeal, was that inspite of an express prohibition contained in the Fragmentation Act, the agreement had been executed and therefore, was not enforceable. This Court after referring to the definition of ‘Fragment’ under the Act and the `determination of standard area’ in terms of the schedule to the Act, opined that the lands are classified under the Act into seven classes, which has been reduced to four classes by subsequent amendment. The four classes of lands under the said Act have different areas specified for standard areas. It would suffice to notice that in Class D, the last class of land, standard area is specified to be a little over two acres. It was not the case of the defendant that she was required to convey a portion of a larger area which results in fragmentation below the standard area and that all the items of the suit properties, except two items were less than an acre and are themselves fragments and that what the defendant was required to convey was not a portion of a larger area resulting in fragmentation but, the fragments themselves. This Court opined that there are no provisions under the Act prohibiting the alienation of such fragments and dismissed the appeal. In the case of Bai Dosabai v Mathurdas Govinddas and Others AIR 1980 SC 1334 : (1980)3 SCC 545 , the appellant had obtained two items of land from her father-in-law by way of gift. She executed a deed styled as a deed of lease in favour of one Indu Prasad Dev Shankar Bhatt, whose successors in interest were the respondents in the appeal before the Apex Court. The lease was for a period of seven years from the year 1946. As a tenant was already in actual possession of the land, the lessee in whose favour the deed was executed was given symbolic possession. Rent for two years was paid in advance. The future rent was to be paid in advance every year. There was default in payment of rent. Under the terms of the lease, the lessee was entitled to purchase the land at any time within seven years by paying the price. Rent for two years was paid in advance. The future rent was to be paid in advance every year. There was default in payment of rent. Under the terms of the lease, the lessee was entitled to purchase the land at any time within seven years by paying the price. A part of which was paid in advance. There was default in payment of rent and a notice was issued. On failure of the lessee to pay rent, a suit was filed. The same was resisted on the ground that the lessee was a tenant as defined under the Bombay Tenancy and Agricultural Lands Act, 1948 and therefore, the Civil Court had no jurisdiction to entertain the suit. The suit was decreed. The lesee himself had filed a suit for possession against the tenant who was in actual possession of the lands and had obtained possession from him and the lessee filed an appeal to the High Court against the judgment of the Trial Court which was dismissed. In execution of the decree, the lessor obtained possession. The lessee thereafter filed a suit in terms of the lease deed seeking specific performance of the agreement directing the lessor to execute a sale deed after receiving the sale price. The Trial Court dismissed the suit. But on appeal, the judgment was reversed and it was decreed that the suit land should be sold by public auction or by private treaty, if the parties agree. The High Court negatived the contention that the provisions of the Bombay Tenancy and Agricultural Land Act applied to the property. One of the contentions raised before the Apex Court was that the contract became void as soon as the Bombay Tenancy and Agricultural Lands Act became applicable to the suit lands and that it could not be revived even after that Act ceased to apply to the suit lands. This contention was negatived by the Apex Court and it was held that events and changes in law occurring during the pendency of an appeal could be taken into consideration and a decree can be moulded accordingly by the Apex Court. This contention was negatived by the Apex Court and it was held that events and changes in law occurring during the pendency of an appeal could be taken into consideration and a decree can be moulded accordingly by the Apex Court. It was held thus relying upon the judgments in the case of Pasupuleti Venkateswarlu v The Motor and General Traders AIR 1975 SC 1409 : (1975)1 SCC 770 and Rameshwar and Others v Jot Ram and Another AIR 1976 SC 49 : (1976)1 SCC 194 and the appeal was dismissed while modifying the decree on certain terms. In H.M. Krishna Reddy’s case, this Court was dealing with a second appeal by the defendant in a suit for specific performance of an would be completed when the prohibition under the Fragmentation Act ceases to apply on the repeal of the Act. After the Act was repealed, a notice was issued by the plaintiff in the year 1993 seeking execution of the sale deed and on his refusal, a suit was filed. The suit was contested and the agreement of sale was denied. The suit however was decreed by the Trial Court in favour of the plaintiff. An appeal before the lower Appellate Court was dismissed which was challenged in second appeal before this court. The substantial question of law that was framed on the question of limitation, was whether the suit was barred by limitation since the contingency on which the agreement could have been enforced occurred by the repeal of the Act much prior to the date of the suit and therefore, the suit was barred by limitation. This Court opined that the Act prohibited the sale of any fragment except with the permission of the Tahsildar or in favour of a contiguous landowner in the same survery number. There was however no total prohibition under the Act. This Court while referring to Sections 5 and 6 of the said Act and Article 54 of the Limitation Act, held that the clause under the agreement stipulated that the sale would be completed on the repeal of the Fragmentation Act, was not an event, which was certain to happen to the knowledge of the parties nor was it common knowledge which was certain to happen. It was a contingency which was uncertain. It was a contingency which was uncertain. Therefore, it could not be said that the parties contemplated a date with reference to a future event from which event, the performance became due. Therefore, it could not be said that the parties had agreed upon a particular date for performance of the contract. In this regard, reliance was placed on a judgment of the Madras High Court in R. Muniswami Gounder v B.M. Shamanna Gouda AIR 1950 Mad. 820 , wherein it was held that “date fixed” occurring in Article 54 has reference to not merely a calendar date but, also dates with reference to an event which was certain to happen. It was laid down therein while interpreting Article 113 of the Limitation Act, 1908, which was in pari materia with Article 63 of the Act as follows.__ “The principle underlying this article is apparent. When the date is fixed under the first part of column (3), limitation begins to run forthwith, as the date is certain. But where no such time is fixed and where the party against whom the limitation runs is not in position to know of the occurrence of the contingency contemplated by the contract, time begins to run only when he has notice of the refusal of the performance. The question is, what is the meaning to be attached to the words “date fixed” in the first part of column (3). Do they mean the date by calendar or are they comprehensive enough to include a date, which can be ascertained with reference to an event certain to happen? The principle applicable is the Doctrine of “Id certum est quod certum reddi potest”. This doctrine is stated in Broom’s Legal maxims”. The said decision was referred with approval by the Supreme Court in the case of Ramzan v Hussaini AIR 1990 SC 529 : (1990)1 SCC 104 and it is on that reasoning that this Court held that the period of limitation would run from the date of refusal to perform the contract and therefore, the suit could not be held to be barred by limitation. In Gunwantbhai Mulchand Shah’s case, which was an appeal arising out of a judgment dismissing the suit for specific performance which was filed 29 years after the agreement of sale, in which, no date was fixed for performance of the agreement as being barred by limitation, which was decided as a preliminary issue. The Apex Court held that the question of limitation, having regard to the facts and circumstances could not have been decided as a preliminary issue and that it warranted a trial and allowed the appeal. In Syed Zaheer’s case, a Division Bench of this Court has held while dealing with a first appeal, arising out of a suit for declaration that an agreement of the year 1991 was enforceable as they are owners and for possession of the suit schedule properties. The appellants who were the plaintiffs contended that they were in debt and taking advantage of their dire financial circumstances, the first respondent had exploited the situation and obtained a deed of agreement of sale of the suit property and it was under that agreement that the respondents had taken possession. It was further contended that there was a non-alienation clause which prohibited the sale of the suit property for 15 years when the property was granted to the holder and that the agreement which was executed during the said period was in violation of the term and therefore, the agreement was enforceable. It was opined by the Division Bench of this Court that notwithstanding the non-alienation clause under which the grant was made to the original holder to enforce the contract, all that was necessary for conveyance of the property was for the appellants to obtain the necessary permission from the concerned Deputy Commissioner or other Competant Authority after the lapse of non-alienation period and on that footing held that the agreement was enforceable. 8. In the light of the above, insofar as the question of limitation is concerned, the admission in the plaint that, immediately on the repeal of the Fragmentation Act, the plaintiff had made repeated demands on the appellant to execute and register a sale deed in respect of the suit properties and that the appellant did not comply cannot be glossed over. When the above Act was repealed on 5-2-1991, it would be safe to presume that the admission of the plaintiff making demands on the appellant to complete the transaction, was made soon thereafter – even allowing for several months after such repeal, if the date of such demand is construed – the suit was certainly barred by limitation. This Court is certainly bound by the reasoning, as approved by the Apex Court in Ramzan’s case, that the “date fixed” occurring in Article 54 has reference to not merely a calendar date but also dates with reference to an event which was certain to happen. The repeal of the Fragmentation Act, which was the contingency upon which the parties had agreed that the sale agreement would be enforceable, was an uncertain event and it cannot be said that time would begin to run immediately upon the repeal of the Act. Assuming, on the above premise, that in effect the parties had not fixed a date for the performance of the contract, the admission in the plaint that there were several demands made on the appellant, after the repeal of the Fragmentation Act, to complete the transaction and if such date is construed as being as late as 27-10-1992, the suit filed on 28-10-1995 was certainly barred by limitation. The lower Appellate Court having held that time would run only on the legal notice, demanding performance, being returned unserved, is not acceptable. Whether a party had notice of refusal or not, depends not only upon the evidence to that effect but also on an inference from surrounding facts and circumstances. The refusal to perform the contract need not be express. It may be gathered from surrounding circumstances. Further, the word “notice” means intimation, information, cognizance or observance. “Notice” implies knowledge which comes from direct perception or from inference reasonably arising out of several facts and circumstances. ( AIR 1976 Cal. 115 ) In that view of the matter, the decision of this Court in H.M. Krishna Reddy’s case would not apply to the facts of this case. On the question whether the agreement of sale in question was void for being in violation of the Fragmentation Act is concerned, it is seen that both the plaintiff and the defendant were not in doubt that the transaction was prohibited under the Act. On the question whether the agreement of sale in question was void for being in violation of the Fragmentation Act is concerned, it is seen that both the plaintiff and the defendant were not in doubt that the transaction was prohibited under the Act. Added to this from a reading of the provisions of the Act it is seen that a “fragment” means a holding of land of less extent than the appropriate standard area specified in column (3) of the Schedule to the Act in respect of the class of land specified in the corresponding entry in column (2) of the said Schedule, which reads as follows.___ SCHEDULE Sl. No Class of lands Area (1) (2) (3) 1. A Class One-half acre 2 B Class Three-fourth acre 3 C Class One and one-fourth acre 4 D Class Two and Seven-tenth acres Explanation.- In this Schedule ‘A’ Class, `B’ Class, ‘C’ Class or ‘D’ Class shall have the meaning assigned to them in the Karnataka Land Reforms Act, 1961. The suit schedule properties, excluding a house property and a vacant site, are described as “dry lands” and would hence the “D class” lands for the purposes of the Act. It cannot also be disputed that each measures less than the two and seven-tenth acres and would fall under the definition of a “Fragment” for the purposes of the Act. As the parties were contracting on the basis that there was a prohibition in respect of the transfer of the said lands, it is to be presumed that the said lands were entered in the record of Rights as such and notice of such entries was given to the defendants as required under Section 4 of the Act. Therefore, the contract was prohibited under Section 5 of the Act. The said section reads as follows.— “5. Sale, Lease etc.—(1) (a) No person shall sell any fragment in respect of which a notice has been given under sub-section (2) of Section 4, except in accordance with the provisions of clause (b). [(b) Subject to the provisions of Sections 39 and 80 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), whenever a fragment is proposed to be sold, the owner thereof shall sell it to the owner of a contiguous survey number or recognized sub-division of a survey number (hereinafter referred to as the ‘contiguous owner’). [(b) Subject to the provisions of Sections 39 and 80 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), whenever a fragment is proposed to be sold, the owner thereof shall sell it to the owner of a contiguous survey number or recognized sub-division of a survey number (hereinafter referred to as the ‘contiguous owner’). Is the fragment cannot be so sold to the contiguous owner, for any reason, the owner of the fragment shall intimate in the prescribed form, the reasons therefore along with an affidavit in support thereof to the Tahsildar and also send copies of such intimation and affidavit to the Sub-Registrar, in the prescribed manner and may thereafter sell such fragment to any other person.] (2) Notwithstanding anything contained in any law for the time being in force or in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land, which is contiguous to the fragment. (3) No such fragment shall be sub-divided or partitioned”. In the absence of any pleading or evidence that the parties were contiguous owners and the sale was permissible – there was a clear bar under the above provision. The opinion expressed by this Court in Ninge Gowda’s case, with reference to Section 6 of the Act, to the effect that what was prohibited is a transfer or partition or a sub-division so as to create a fragment, but if the land was already a fragment Section 6 cannot be a bar, is hence inexplicable. Section 5 certainly is a bar in respect of a sale, lease, sub-division or partition of a fragment – except as provided therein. It is not merely the creation of a fragment by the transfer, partition or subdivision, that is prohibited under the Act. Therefore, a transfer of a fragment being expressly prohibited, the contract is void ab initio and cannot be enforced at all. It is irrelevant whether the parties intended that the contract could be completed at a later point of time – which was again in contemplation of the repeal of the Act, an uncertain event. Reliance placed in the above decision on a Division Bench judgment was not relevant as the Division Bench was dealing Sections 7, 8 and 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Reliance placed in the above decision on a Division Bench judgment was not relevant as the Division Bench was dealing Sections 7, 8 and 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Secondly, those provisions were held not applicable to the facts of that case. Insofar as the question whether the appellant being a willing party to the illegal agreement of sale, could negate the same and seek the aid of the Court in questioning the impugned judgment, the question may not be relevant as the appellant or the concerned respondent cannot rely upon the same as it was void ab initio. The substantial questions of law framed are answered as above. In the result, the appeal is allowed, the judgment and decree of the First Appellate Court is set aside and the suit is dismissed.