JUDGMENT S.D. Khare, J. - This is an appeal directed against a judgment and decree dated 24th July, 1959, passed by the learned First Additional Civil Judge, Kanpur, decreeing the plaintiffs suit for Rs. 35,802/15/6 on the basis of a mortgage debt. It was directed that a preliminary decree for sale of the mortgaged property be prepared. 2. The contention of the defendant appellant is that the court should not have arrived at the finding that the will is genuine and that in any case the interest awarded is excessive and no decree could have been passed unless probate of the will had been obtained. 3. We have heard the learned counsel for the appellant. There is no force whatsoever in the contention that the execution or the genuineness of the will relied upon by the plaintiff had not been established. Madan Lal (P. W. 1) , an attesting witness of the will, was examined and he has duly proved the due execution and the genuineness of the will. Radhey Saran Nigam (P. W. 2) , the scribe of the will, was also examined, and it is clear from his evidence that as a measure of abundant caution the thumb-impression of Shambhu Nath, the executant, was also obtained on the document which had been written at the instance of the testator. 4. Shambhu Nath had no son, and the will is in favour of his nephews. Anrudh Prasad (P. W. 3) , one of the legatees, was examined in support of the plaintiffs' case. In the face of such convincing evidence no argument could be advanced in support of the ground of appeal that the will was not properly executed and was not genuine. The finding of the court that it was a properly executed will and was genuine cannot be successfully challenged. 5. It has not been pointed out to us how the interest claimed was exessive. The oral evidence led by the defendant on the point that the agreed rate of interest was not 12 per cent' per annum with six-monthly rests, as mentioned in the deed itself but 6 per cent per annum simple only has been rightly rejected by the court below.. The testimony of Kundan Lal (defend-. The oral evidence led by the defendant on the point that the agreed rate of interest was not 12 per cent' per annum with six-monthly rests, as mentioned in the deed itself but 6 per cent per annum simple only has been rightly rejected by the court below.. The testimony of Kundan Lal (defend-. ant) or of Ram Lal (D. W. 2) on that point could not be relied upon when it was clear from the testimony of Radhey Saran Nigam (P. W. 2) , the scribe and Madan Lal (P. W. 1) , the attesting witness, that no such s understanding was arrived at. 6. The interest was charged at the contractual rate, which does not appear to be excessive. 7. The main point which has been pressed in this appeal is that the court below could not have granted any decree on the basis of the mortgage because of the pro, visions of Section 214 of the Indian Succession Act, (hereinafter referred to as the Act) . It has been contended that the mortgage debt is also a debt within the meaning of Section 214 of the Act. In our opinion there is good deal of force in this contention of the learned counsel for the appellant, Section 214 of the Act reads as follows :- " (1) No Court shall - (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming On succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of, - (i) a probate or letters of administration evidencing the grant to him. of .administration to the estate of the deceased, or (ii) a certificate granted under Section 31 or Section 32 of the Administrator-General's Act, 1913, and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889, or (v) ...... ..... ..... ..... (2) The word 'debt' in sub-Sec. (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes". ..... ..... ..... (2) The word 'debt' in sub-Sec. (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes". 8. The definition of the word "debt" is very wide and the term "debt" as used in Section 214 includes any debt, except rent, revenue or profits payable in respect of land used for agricultural purposes. From this definition, which is very comprehensive, it can be well inferred that the mortgage debt also comes within its ambit. 9. So far as our own High Court is concerned it is of the view that the mortgage debt is also a debt within the meaning of Section 214 of the Act. The Full Bench case of Fateh Chand v. Mohammad Bux, ILR 16 All 259 is a clear authority on that point. 10. The plaintiff legatee may, without obtaining the probate of the will executed in his favour, institute a suit on the basis of the mortgage deed. Section 214 of the Act does not bar the institution of the suit. It merely bars the passing of the decree. The court below could not have passed the decree without a probate of the will having been obtained and filed in the court. The learned Civil Judge ought to have allowed sometime to the plaintiff to obtain the probate and thereafter should have proceeded to pass the decree. Unfortunately that was not done because the court was of the view that it was not at all necessary to obtain a probate of the will. 11. Reliance was placed by the learned Civil Judge on the provisions of Section 213 of the Act which reads as follows:- "(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in Clauses (a) and (b) of Section 57." 12. (2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in Clauses (a) and (b) of Section 57." 12. The argument which was accepted by the learned Civil Judges was that the plaintiff's claim fell under Clause (c) of Section 57 of the Act and, therefore, it was not necessary to obtain the probate. Section 57 of the Act reads as follows :- "57. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply- (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the first day of January, 1927, to which those provisions are not applied by Clauses (a) and (b) ; Provided that marriage shall not revoke any such will or codicil." 13. It is true that the plaintiff's case could not fall under Clauses (a) and (b) of Section 57 of the Act. To that extent it can be said that it was not necessary for the plaintiff, to have obtained a probate of the will under the provisions of Section 213 of the Act. However, the requirements of Section 214 of the Act are also mandatory. Inasmuch as the probate of the will was required to be taken under the provisions of Section 214 of the Act, the plaintiff's suit could not have been decreed without first obtaining the probate. 14. An application had been made by the learned counsel for the respondents that sometime should be allowed to the plaintiffs to obtain a probate of the will. It is contended that after the probate had been obtained the appeal will have no -0% force and shall have to be dismissed. 14. An application had been made by the learned counsel for the respondents that sometime should be allowed to the plaintiffs to obtain a probate of the will. It is contended that after the probate had been obtained the appeal will have no -0% force and shall have to be dismissed. In our view it is not a fit case in which the prayer of the plaintiff-respondents for the stay of the hearing of the appeal should be granted. It will not be possible for us to confirm a decree which could not have been passed by the court below on the date it was actually passed. The appeal shall have to be allowed and the decree passed by the court below set aside with the direction that it should now allow time to the plaintiff to obtain a probate of the will and to dispose of the suit in accordance with law. 15. The appeal is allowed. The decree dated 24-7-1959 by the learned Civil Judge is set aside and the case is sent back to the court below for decision in accordance with law in the light of the observations made above. In the circumstances of the case we make no order as to costs.