VENKATARAMIAH, J. ( 1 ) DEFENDANTS 2 to 8 in O. S. 15/1967, on the file of the Civil Judge, Udipi have filed this appeal against the preliminary decree for partition passed therein. The plaintiffs instituted the said suit fox partition and separate possession of their share in the kutumba properties. The properties are governed by Aliyasanthana Law. Before instituting the said suit, they caused a notice dt. 25-1-1965, issued to the first defendant who was the yajaman of the kutumba claiming their share in the family properties. Later or the suit was instituted on 11-4-1967. Some of the defendants- contended that the members of the kutumba had become divided in the year 1959 and not on the date on which the notice was issued by the plaintiffs. Defendant 9 claimed that, the kutumba became divided in September, 1966. The Court below was of the opinion that the kutumba became divided on the date of the plaint i. e. , on 11-4-1967 and on that basis, passed a preliminary decree. ( 2 ) AGGRIEVED by the said preliminary decree, the defendants 2 to 8 have filed this appeal. The only question canvassed by Sri Mohandas N. Hegde for defendants 2 to 8 before us relates to the date on which the family became divided. It is not disputed that if 25-1-1965 on which date the plaintiffs caused a notice issued to the first defendant claiming their share, is taken as the relevant date, some of the defendants 'who were born subsequently cannot be taken into account for the p'urpose of determining the shares to which the parties are entitled. That is so in view of the amendment to the madras Aliyasanthana Act made by Mysore Act I of 1961. The Explanation in S. 37 (a) of Madras Aliyasanthana Act as amended by the Madras aliyasanthana (Mysore Amendment) Act, 1961 (I of 1962), which has a bearing on the question involved in this appeal, reads as follows : " Explanation:-For the purposes of sub-secs (2) and (3), the date on which a partition is claimed shall be- (a) Where the claim is made by a suit for partition, the date of the institution of the suit (whether the suit is prosecuted or not), and (b) Where the claim is made otherwise than by a suit, the date on which such claim is made. " it was not, disputed that the plaintiffs issued notice dt. 25-1-1985, claiming their share in the Kutumba properties and that the said notice was also received by the first defendant who was the yajaman of the family. The question for consideration is whether the issue of a notice resulted in the disruption of the entire family. ( 3 ) SRI Tilak Hegde, learned Counsel for the defendants 9 to 20, contended that the separation of one or few members of Aliyasanthana family, need not result in the division of the remaining members of the family and hence the date of suit or the date of the written statement in which any member of the family claimed his or her share in the family properties, should be taken as the date of division of status. He was not able to cite any decision either of this Court or of any other High Court in which the said question has been considered in relation to an Aliyasanthana family, in so far as a joint Hindu family governed by the Mitakshara law is concerned, the law on the above question is settled by the decision of the supreme Court in Bhagawati Prasad Sha v. D. R. Kuer AIR. 1952 SC. 72,, Mukherjea, j. (as he then was), speaking for the Supreme Court observed in the above decision as follows :"the general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but, as it is admitted here, that Imrit, one of the coparceners, did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff's side too that because one member of the family separated himself, there has been separatiori with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence, of a particular state of things on the 'basis of which he claims relief. The burden would undoubtedly lie on the party who asserts the existence, of a particular state of things on the 'basis of which he claims relief. These principles which have been laid down in several pronouncments of the Judicial Committee seem to us to be perfectly sound; vide Balakrishna v. Ram Krishna (58 Ind. App. 220, pc); Palaniawmal v. Muthu Venkatachala (52 Ind. App. 83); Balabux ladhuram v. Rukhmabai (30 Ind. App. 130 ). " ( 4 ) IT appears to be reasonable to extend the same principle to an Aliyasanthana family also in the absence of any principle of customary law or statute law governing the members of an Aliyasanthana family, which is contrary to it. The question whether the other members of the family also became divided on 25-1-1965 or continued as members of a kutumba on, and after 25-1-1965, is a question of fact. It has got to be pleaded by the parties who assert that the family continued to be joint even after 25-1-65. In the instant case, no such, plea has been raised by any of the members of the kutumba who are parties to the suit. What was however pleaded by defendant 9 who is one of the contesting respondents in this appeal was that the family became divided in the month of September, 1966, at a panehayat in which one Shivarama Shetty took active interest. Defendant 9 did not enter the witness box. Shivaram Shetty was not called as a witness. Hence the plea of defendant 9 remains unsubstantiated. Similarly the case of some other defendants who put forward the plea that the division of the family took place in the year 1959 at a panehayat in which the very same Shivaram Shetty participated also remains not proved. There is no acceptable evidence regarding the case that the division of status took place in the year 1959. ( 5 ) IN view of the incontrovertible evidence available in the suit, we arc of the opinion that the family became divided on 25-1-1965 on which date the plaintiffs claimed their share, since the division of the family has been brought about by the issue of notice " (otherwise than by a suit ). ( 5 ) IN view of the incontrovertible evidence available in the suit, we arc of the opinion that the family became divided on 25-1-1965 on which date the plaintiffs claimed their share, since the division of the family has been brought about by the issue of notice " (otherwise than by a suit ). The date of the notice issued by the plaintiffs claiming their share, should be considered as the date of division of status in view of the second clause of the Explanation to S. 37 (a) of the Madras Aliyasahthtna Act as amended by Mysore Act I of 1962. The Court below was" therefore wrong in holding that on 11-4-1967, the date on which the suit was filed, the family became divided. ( 6 ) AS a consequence, of the above, finding, the preliminary decree passed by the court below has tc be set aside and it is accordingly set aside. But the findings on issues 1, 2, 3 and 8 remain undisturbed. The case is remanded to the Court below to pass a fresh preliminary decree on the basis that the family became divided on 25-1-1955. The institution fee. paid on the memorandum of appeal is refunded to the appellants. The appeal is accordingly disposed of. No costs. --- *** --- .