JUDGEMENT : CHATURVEDI, J. This is a first appeal by defendant 1 directed against the judgment and decree passed on 15-1-1953 by Shri P.D. Gupta, Additional District Judge, Indore. The decree consists of two parts. The first part is a final decree of Rs.1,500/- passed in favour of the plaintiff against defendant 1. Then there is a preliminary decree declaring that in the property mentioned in Schedules A and C the plaintiff has got a moiety and the defendants 1 and 2 have got the other half share. A commissioner has been appointed for preparing a scheme for partition of the immovable properties. 2. The dispute relates to the property left by one Balkrishna Rao Kunte who died on 28-1-44 leaving behind his widow Radha Bai and his adopted son Vasant. Vasant died on 17-1-48 and Radha Bai died on 9-2-48. The plaintiff is the daughter of Balkrishna Rao Kunte's sister, and defendants 1 and 2 are Radha Bai's real brothers. The plaintiff's case is that the parties are Maharashtrian Brahmins coming from Konkan, worshipping the Goddess of Kolahpur and have, since their migration to former Indore State, continued to observe the customs prevalent in Maharashtra so far as marriage and succession are concerned and so they are governed by the Bombay school. Before Balkrishna Rao Kunte's death, according to the plaint, the Hindu Women's Rights to Property Act had come into force in former Indore State and according to it, Radha Bai had become owner of half of the property of Balkrishna Rao Kunte in 1944 after his death; and, when Vasant died, Radha Bai became owner of the full property. The plaintiff claims only a moiety of the property which had vested in Radha Bai according to S.3 (2), Hindu Women's Rights to Property Act. Defendant 1 alone contested the suit and contended that the parties were governed by the Benares School and not by the Bombay School. He further denied that Radha Bai got any share on the death of Balkrishna Rao Kunte and he claimed the whole of the property, being the nearest heir of the last male holder, Vasant. He also alleged that at the time of adoption of Vasant, Balkrishna Rao Kunte had made a will bequeathing all his property to the adopted son. 3. He also alleged that at the time of adoption of Vasant, Balkrishna Rao Kunte had made a will bequeathing all his property to the adopted son. 3. The story about the will made by Balkrishna Rao Kunte has been found to be false by the trial Court. The main witness Anna Shahtri D.W.2 was not produced for cross-examination and defendant 1 and his sister Parbati Bai D.W.1 and Kale D.W.4 have not been believed by the learned Additional District Judge. If the version that the original document was given to Vasant's natural father, Fadke of Sangli, is true, surely the document could have been produced and Fadke who is said to be alive could have supported the story. I think on the evidence, as it is, the trial Court was right in discarding the story of a will having been made in favour of the adopted son. 4. Now, so far as the question of the school which governs the parties is concerned the evidence of Yeswant Apte P.W.1 and the plaintiff is sufficient to show that the Kuntes migrated somewhere from Maharashtra and had been residing in Indore State for the last three generations that they are Konkanastha Brahmins and speak Marathi, worship the Goddess of Kolahpur, and observe all the Maharashtrian customs in marriage and other religious ceremonies and have retained their identity as Maharashtrians. No rebutting evidence was produced by the defendants and the appellant stated clearly that he did not know what is meant by a Maharashtrian Brahmin but that they are known as Deccani Brahmins. In my opinion, on the evidence in the case the learned District Court rightly came to the conclusion that the parties were governed by the Bombay School, and the observations in - 'Kesheo Rao v. Sadasheo Rao', AIR 1938 Nag 163 (A), that wherever a family is found clinging to its individuality and retaining its identity as Maharashtrian, it must be presumed until the contrary is shown that it hailed from the race or group of people known as Maharashtrians and carried the law of Maharashtra with them, fully applies to the present case. Therefore a Maharashtrian Brahmin resident in Malwa portion of Indore State who did not adopt the customs and laws of Malwa but retained his identity is to be governed by the Bombay interpretation of Mitakshara when migration is not proved in the sense that the exact origin of the family cannot be traced. 5. If the parties are governed by the Bombay School then the preliminary decree passed in favour of the plaintiff by the Court below cannot be correct. It is true that according to Vyavahara Mayukha, that is paramount in Bombay the father's sister is a gotraja Sapinda. She comes in before bandhus but after all the gotraja Sapindas (See Mulla Hindu Law P.87, Edn.11). In 'Saguna v. Sadashiva', 26 Bom 710 (B), it was held that the father's half-sister, though a female, being a bandhu 'ex parte paterna' is entitled to preference over the mother's brother, who though a male, is a bandhu 'ex parte materna'. 'Father's sister's son' is specially mentioned in the Mitakshara among the cognates related to the man himself (Colebrooke Chap. II S.VI). In 'Sakharam Narayan v. Balkrishna Sadashiv', AIR 1925 Bom 451 (FB) (C), a Full Bench of the Bombay High Court decided that, according to Hindu Law as prevailing in the Bombay Presidency, the father's sister's son is entitled to succeed to the property of a deceased Hindu in preference to the maternal uncle. Then, every female other than the daughter, sister, and father's sister, in Bombay who rank above bandhus, who, if she were a male would have been an heir, that is, who is related to the propositus by birth, within the limits of degrees for bandhus is regarded as a heritable bandhu (Mulla: Hindu Law, Edn. 11 p.72). If 'AIR 1925 Bom 451 (FB) (C)' had been correctly decided the plaintiff might have been preferred to the maternal uncles. 11 p.72). If 'AIR 1925 Bom 451 (FB) (C)' had been correctly decided the plaintiff might have been preferred to the maternal uncles. But the Privy Council in the three decisions in - 'Vedachela v. Subramania Mudaliar', AIR 1922 PC 33 (D); - 'Jatindra Nath v. Nagendra Nath', AIR 1931 PC 268 (E) and - 'Balasubrahmanya Pandya v. Subbayya', AIR 1938 PC 34 (F), held that the propinquity is the main test and that the test of mere affinity or religious efficacy under which a bandhu 'ex parte paterna' is to be preferred to one 'ex parte materna' is to be applied only when the test of propinquity furnishes no certain guide i.e., when the rival bandhus are equally related in degree. 6. In 'Virangauda v. Vellappa Shidappa', AIR 1943 Bom 56 (FB) (G), a Full Bench of the Bombay High Court considered these Privy Council cases and observed that the conclusion of the Privy Council in these cases is derived from the same texts that are equal authorities in Madras and Bombay, and, therefore should be taken to supersede the line of reasoning adopted in 'AIR 1925 Bom 451 (FB) (C)'. So after the Privy Council cases a maternal uncle, even in Bombay, is preferred to the father's sister's children. There is nothing in - 'Kisan Dhondu v. Sevantabai', AIR 1950 Bom 254 (FB) (H), which may indicate that any rule contrary to it has been laid down. Therefore, so far as the property left by Vasant was concerned, the plaintiff could not claim it and Vasant's maternal uncles must be preferred to her. 7. Now, there are three kinds of properties left in this case; the first is the immovable property; the second is money left in the Bank and the third is the property which is found to be Stridhan of Radha Bai. So far as the first two properties are concerned, there is no doubt that the defendants are entitled to them. Now, there are three kinds of properties left in this case; the first is the immovable property; the second is money left in the Bank and the third is the property which is found to be Stridhan of Radha Bai. So far as the first two properties are concerned, there is no doubt that the defendants are entitled to them. In 'Bai Jamna v. Bhaishankar', 16 Bom 233 (I), it was held that under the Hindu Law in force in the presidency of Bombay, a widow inheriting from her husband, or a mother from her son, may have an absolute power of disposal over movable property so inherited; but any undisposed of residue of such property reverts on her death to the estate of the last male holder and passes as his property to his heirs. So the money deposited in the Bank in the name of Radha Bai must also revert on her death to the estate of the last male holder (i.e., Vasant) and must pass as his property to his maternal uncles. 8. On this reasoning it should be held that the judgment of the learned District Judge is not correct. But it is supported by Mr. Chaphekar learned counsel for the plaintiff-respondent, by advancing two ingenious arguments. The first is that the interest which Radha Bai took after the death of Balkrishna Rao Kunte is a separated interest which a widow takes under S.3 (2), Hindu Women's Rights to Property Act and after her death, the plaintiff is entitled to it. In support of this proposition reliance was placed by him upon a case of the Orissa High Court in - 'Kunja Sahu v. Bhagwan Mohanti', AIR 1951 Orissa 35 (I). In my opinion the observation in that case and the principle deduced cannot be made applicable to the present case. There a widow had alienated her share and it was held in that case that the widow without claiming partition can alienate interest of her husband as it devolved upon her under the Act. It was stated that after devolution, it becomes an interest which unlike a co-parcener's interest can be predicated with certainty, and in that event, as a property, it carries with it the incidents of transferability at the hands of its holder either limited or absolute. It was stated that after devolution, it becomes an interest which unlike a co-parcener's interest can be predicated with certainty, and in that event, as a property, it carries with it the incidents of transferability at the hands of its holder either limited or absolute. In the present case there was no dispute between Radha Bai and her son, and Radha Bai did not alienate her interest in favour of the plaintiff. The said Radha Bai was a guardian of her adopted minor son and there can be no ground for any conjecture that she desired a partition or that the wanted to keep her interest separate from that of her minor son. 9. Section 3, Hindu Women's Rights to Property Act, 1937 has been the subject-matter of a number of cases and other High Courts have not approved the principle laid down in the Orissa case. In - 'Mahadu v. Gajarabai', AIR 1954 Bom 442 (K), a Division Bench of the Bombay High Court disapproved the opinion expressed by the Orissa High Court and the correct view appears to be laid down in this Bombay case. It is this that the interest which a widow takes upon the death of her husband under the Act is not a separated interest, separated that is, from the interest of the other members of the family who may, of course, be coparceners. Her interest is like the interest of her husband an undivided interest in the joint family property, and even though she is able to file a suit for partition, the interest does not get separated, at any rate until the suit for partition is filed by her. The family, consequently, continues to be a joint Hindu family till the widow files a suit for partition or till a separation of interest is otherwise brought about. The material portion of S.3, Hindu Women's Rights to Property Act (1937) runs as follows: "Section 3: (2) When a Hindu governed by any School of Hindu Law other than the Dayabhaga School or by customary law dies, having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-s. (3), have in the property the same interest as he himself had. (3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate provided however that she shall have the same right of claiming partition as a male owner." 10. There is nothing in the language of this section to warrant the proposition that there results a severance of status by operation of the statute or that the interest of a deceased co-parcener devolves on his widow as if he had become divided in status. It merely provides that the widow shall have the same interest in the joint family properties which her husband had, and that, if she so desires, she can demand a partition of the said properties. If however she does not demand a partition of the properties then she takes the husband's interest in the joint family property with all its rights and liabilities - ('Siveshwar Prasad Narain Singh v. Harnarain Mal', AIR 1945 Pat 116 (L) and - 'Saradambal v. Subbarama Ayyar', AIR 1942 Mad 212 (M)). A similar conclusion was reached in - 'Subba Rao v. Krishna Prasadam', AIR 1954 Mad 227 (N) and in - 'Parappa v. Nagamma', AIR 1954 Mad 576 (FB) (O), which held that S.3(2), Hindu Women's Rights to Property Act, 1937 has conferred a new right on the widow of deceased coparcener in modification of the pre-existing law, but that it does not bring about a severance of interest of the deceased coparcener, and that the joint family would continue as before subject only to her statutory right of demanding a partition. On the basis of these rulings, I am of opinion that the first contention of Mr. Chaphekar must fall to the ground. 11. The second contention of Mr. On the basis of these rulings, I am of opinion that the first contention of Mr. Chaphekar must fall to the ground. 11. The second contention of Mr. Chaphekar is based upon a text of Brihaspati quoted on p.228 of AIR 1954 Mad 227 (N) and which reads as follows: "When a person dies and his wife survives, half his body survives in her; when half the body of a person survives, how can another person take his property?" It was pointed out in that case and was approved by a Full Bench of the Madras High Court in AIR 1954 Mad 576 (FB) (O) that the Hindu conception that a widow is the surviving half of the deceased husband has to be invoked in such cases and a fiction is to be introduced, namely, that she continued the legal persona of the husband till her death. Mr. Chaphekar also invited our attention to the following passage at p.228 of AIR 1954 Mad 227 (N): "The result is, that when once the widow dies, S.3(2) has no further effect and the rights of the parties must be determined exactly as if there had been no interposition of the widow or as if the husband himself had died when the widow died." Mr. Chaphekar contends that the husband Balkrishna Rao Kunte should be considered to have died only when Radha Bai died i.e. on 29-2-48 and, therefore, the property should go to the heirs of Balkrishna Rao Kunte and not to the heirs of Vasant who had died earlier. 12. I have not been able to find this verse anywhere in Mitakshara though many other verses from Brihaspati are frequently cited. The Privy Council referred to this verse in - 'Katama Natchiar v. Ranganadha B.G. Thaver', 9 Moo Ind App 539 at p.614 (PC) (P). West, J. observed at page 440 in - 'Lallubhai v. Mankuvarbai', 2 Bom 388 (FB) (Q) that "Vijnyanesvara's rules for the inheritance of the widow and to her property, show that he identified the wife with her husband and his family more closely than the doctors of other schools. He really accepted the proposition that "of him whose wife subsists, one-half the body survives", as a basis for actual practice. In support of this verse, verse 45 of Chap. IX of Manusmriti is also referred to. 13. He really accepted the proposition that "of him whose wife subsists, one-half the body survives", as a basis for actual practice. In support of this verse, verse 45 of Chap. IX of Manusmriti is also referred to. 13. In the Brihaspati Smriti (Reconstructed) by Shri K.V. Rangaswami Aiyangar published as Vol. 85 of the Gaekwad's Oriental Series (1941 Edn.) the said verse is printed as No.93 on p.211 (Dayabhaga) and I think it should be considered along with other verses on the subject. The next verse (94) runs as follows : It may be rendered into English thus: "Although kinsmen (Sakulyas), father, brother or relatives may be alive, if a man dies without a son his wife succeeds to his share in the property." Then it is further explained in verse 96: "In the absence of a son the wife gets the share of the deceased and in the absence of a wife his brother gets it." It will be clear from the above verses that, according to Brihaspati, the widow is entitled to the share of the deceased husband only when he dies without leaving behind a son. This will also be obvious from a perusal of verses 135 and 136 of the Daya Vibhaga Chapter of Yajnavakya Smriti commenting upon which the Mitakshara has quoted with approval verse 94 of Brihaspati mentioned above. Commenting on these verses of Daya Vibhaga Chapter, the Mitakshara concludes: "Therefore it has been established that a wedded wife takes the whole estate of a man, who being separated and not subsequently reunited dies leaving no male issue." (Gharpure's English Translation of Yajnavalkya Smriti, p.1087). The old belief that there is no heaven for the sonless is also reaffirmed by Brihaspati in unmistakable terms in stanza 58 (p.240 of Samskara Kanda): If one has no issue, he is doomed. For one without a son there is no heaven in store, much less salvation. There is no superior state for one without a son. Thus, according to Brihaspati, and also according to Mitakshara, the theory that the wife is one half of the body of the husband can be applied only in the absence of a son, and it is well known that the Hindu Law does not recognise any difference between a natural son and an adopted son in this respect. Thus, according to Brihaspati, and also according to Mitakshara, the theory that the wife is one half of the body of the husband can be applied only in the absence of a son, and it is well known that the Hindu Law does not recognise any difference between a natural son and an adopted son in this respect. Explaining the word (of one without son) in verse 136 of Yajnavalkya Smriti, the Viramitrodaya states clearly that it means 'without any of the twelve sorts of sons'. (See Gharpure's English Translation of Yajnavalkya Smriti, p.1104). 14. It may here be observed that in Hindu Law the identification of the wife with her husband is not so complete as the identification of the son with the father. In this connection the following observaions of that venerable jurist, Chandavarkar J. at p.286 of 32 Bom 275 Gangu v. Chandra-bhagabai (R)' are both apposite and weighty: "No doubt, 'the wife is half of her husband' _______ but she is only a half, not the whole, and that also for certain defined purposes into which considerations as to rights of inheritance and partition do not necessarily enter in the same way that they do in the case of a father and his son. A son is by legal fiction the whole of his father. There is no text or rule of succession or partition, according to which, a husband dying, his widow can claim to take his place as his 'alter ego' in the same way that his son can and to inherit or share what he would have been entitled to inherit or share, had he been alive." It follows that the fiction that Radha Bai continued the legal persona of the husband till her death on 9-2-48 cannot be invoked in this case. The legal persona of Balkrishna Rao Kunte, in fact has merged in the adopted son Vasant who survived him. After Vasant's death, Radha Bai, succeeded him and took the property as his mother. The death of Radha Bai thus opened the inheritance to the reversioners and the one most related at the time of the last full owner became entitled to possession: - 'Duni Chand v. Mt. Anarkali', AIR 1946 PC 173 (S). After Vasant's death, Radha Bai, succeeded him and took the property as his mother. The death of Radha Bai thus opened the inheritance to the reversioners and the one most related at the time of the last full owner became entitled to possession: - 'Duni Chand v. Mt. Anarkali', AIR 1946 PC 173 (S). I, therefore, come to the conclusion that so far as the immovable property and the money deposited in the Bank are concerned this appeal must succeed and the preliminary decree must be set aside. 15. As regards the third property consisting of gold and silver ornaments and articles mentioned in Sch. 'B' of the plaint it will be sufficient to state that the appellant himself admitted in his written statement that this was the Stridhan property of Radha Bai. It was found by the trial Court and there is evidence in its support that these ornaments were given at the time of marriage to Radha Bai by her father-in-law. So there can be no doubt that these ornaments constituted Paribhasik (or technical) Stridhan of Radha Bai; and when a female dies without leaving any issue it devolves on her husband if she was married to him in the Brahm (or approved) form which will be presumed, and failing him on his nearest heirs (Mulla: Hindu Law, Edn. 11, p.147). Radha Bai's husband's sister's daughter being a heritable bandhu of her husband according to the Bombay School (ibid p.72), the plaintiff is entitled to the Stridhan of Radha Bai. The appellant admitted in his deposition that he had sold all these ornaments for a sum of Rs.1,500/- and, in my opinion, the trial Court has rightly awarded a decree of Rs.1,500/- in favour of the plaintiff and against the appellant. This decree must be confirmed and this appeal to this extent is bound to fail. 16. Mr. Newaskar, learned counsel for the appellant, contends that inasmuch as the plaintiff claimed only half of the property mentioned in Sch. 'B' she cannot be given more than Rs.750/-. In this connection it may be observed that the plaintiff did not come on the basis that this property was Radha Bai's Stridhana. She regarded it as Balkrishna Rao Kunte's property and demanded a moiety of all the properties specified in Schs. 'A', 'B' and 'C'. 'B' she cannot be given more than Rs.750/-. In this connection it may be observed that the plaintiff did not come on the basis that this property was Radha Bai's Stridhana. She regarded it as Balkrishna Rao Kunte's property and demanded a moiety of all the properties specified in Schs. 'A', 'B' and 'C'. It was the defendant-appellant who had stated in his written statement that this property was the Stridhana of Radha Bai and his plea is now found to be correct. We are therefore dismissing her suit for a moiety in properties mentioned in Schs. 'A' and 'C' but are only giving a decree for the value of properties mentioned in Sch. 'B'. The total amount claimed by the plaintiff was to the extent nearly of Rs.18,000/-. This Court can, under the circumstances of the case, mould the relief according to the facts proved provided the defendant is not taken by surprise and there can be no surprise if the relief granted is consistent with the case raised by the written statement or when a plaintiff suing for a larger relief is given a decree for the smaller relief. Considering that it was within the knowledge of the plaintiff that this property was the Stridhana of Radha Bai, and still she did not claim it as such, I think, she should not get costs of that part of the suit which is decided in her favour. 17. The result is that the appeal is allowed to this extent that the preliminary decree declaring half share of the plaintiff in properties mentioned in Schs. 'A' and 'C' is set aside and the plaintiff's suit to this extent will be dismissed. The appeal so far as decree for Rs.1,500/- is concerned will be dismissed. The appellant will be entitled to two third costs from the plaintiff-respondent in this Court as well as in the Court below. The plaintiff-respondent will bear her own costs throughout. 18. SHINDE, C.J.: I agree. Order accordingly.