The after-born son cannot challenge a mortgage if born after the cause of action to challenge the alienation arises.

1. After the decision of the Full Bench See : AIR 1940 Nag 305 (FB) only two points remain. The first relates to the fields Survey Nos. 17, 5/2, 6/2, 63/2 and 88. Both sides are agreed that the shares which defendants 6 and 7, Janrao and Dnyandeo, have in these fields should be released from the mortgage. But they are not agreed about the extent of their shares. According to the learned counsel for the plaintiffs, the family consists of Govinda (defendant 4), and his two sons, Janrao and Dnyandeo, (defendants 6 and 7), and the mother of the sons, defendant 5, Saraswatibai. The learned counsel contends that each would have a share on partition and therefore the extent of defendants 6 and 7's interests is only one-half and so that is all that can be released. The contention of the other side is that if the mother is taken into account then her share would also have to be excluded and that would leave the plaintiffs with only one-fourth. But, they say, no question about her share has been raised hitherto and so all they claim is two-third. We think this is sound. If the mother's rights are to be taken into account, then the plaintiffs can only get one-fourth because the mother is no more bound by an alienation which does not bind the family as a whole than ate the sons. But, as counsel for the defendants admits, no question about her share has been raised, and in any event her share does not accrue until the family partitions (which it has not done hitherto), therefore all that the defendants can claim is two-thirds. We accordingly direct that a two-third share in the fields mentioned be released from the mortgage and be excluded from the decree.

2. The next question is more difficult and pivots around the decision of the Full Bench. Lalji's son Bapurao (now defendant 1) was horn on 9th December 1926. The cause of action on the mortgage which this suit seeks to enforce did not accrue till 21st March 1927. Therefore, Bapurao was born after the mortgage (which is dated 21st March 1922) was executed and before the cause of action on it accrued. Bapurao's learned counsel relies on the following passages in the Pull Bench decision Kashinath v. Bapurao, 1940 AIR(Nag) 305 :

The cause of action arises at the moment the alienee enters into possession where the suit is for possession. It may be there are other causes of action arising at different dates.

Whichever cause of action is in question it belongs to those in existence when the cause of action arises.

If a coparcener is not in existence when such a cause of action arises he cannot sue.

When the coparceners are defendants different considerations arise.

3. It is argued by him that Bapurao was in existence when the cause of action in this suit arose and consequently had he been a plaintiff he could have sued for a declaration that the mortgage did not bind him, and if he could have done that, then he can set up the same right by way of defence. It is also argued in the alternative that even if he could not have sued, the Full Bench decides that different considerations apply in the case of defendants and therefore, as he is in possession, he can challenge the mortgage. This is not a proper interpretation of our decision. The question referred was whether an after-born coparcener can challenge an alienation made before the date of his conception. It was assumed all the way through the arguments, and that assumption underlies much of our opinions, that if he could challenge the alienation by way of suit he would also be able to do so by way of defence. The test was whether he could flue and as that answered the other question attention was concentrated on the first point. As regards the other point, namely that ''when the coparceners are defendants different considerations arise,'' it was not deve- loped because the case was not argued from that angle. It was never doubted or contested that the after-born son has a right of redemption--indeed that is why he was joined as a defendant