JUDGMENT : BLAIR, J.:— This is an appeal against an order declaring the appellant Rameshwar. Tiwari a lunatic and appointing a guardian of his person and effects. The word “lunatic” is defined in section 23 of Act No. XXXV of 1858, under which this application was made and granted, as follows:— The word “lunatic” as used in this Act shall mean every person found in due course of law to be of unsound mind and incapable of managing of his affairs. The learned Judge after recording the evidence of the Civil Surgeon made what he describes as an order in the following terms:— ” From the evidence of the Civil Surgeon and the demeanour of Rameshwar Tiwari in Court it is obvious that he is of unsound mind and unable to manage his property. A guardian must be appointed.” His definite order in the case is couched in the following words:— ” Rameshwar Tiwari is clearly a lunatic. His brother Nageshwar, with whom he has till recently lived is the fittest person to manage his property. His wife is too young and will inevitably be too much in the hands of her own relatives.” Accordingly, Nageshwar, the applicant and brother of the appellant, was appointed guardian. Now it is necessary for us to consider, prior to any ulterior question which arises, whether the learned Judge had any foundation for the finding that the present appellant is a lunatic within the meaning of section 23 of Act No. XXXV of 1858. The only expert evidence was that of Major Morwood, Civil Surgeon, who says that “Rameshwar Tewari's mental condition is in my opinion not up to the average of his class in life. His mind is not deranged. He is in a condition of imbecility resembling the mental condition of a child. In my opinion he has not sufficient mental capacity to enable him to manage a, large property.” The only evidence of fact is the evidence of the brother, who is himself the applicant, and whose bona fides is impeached both by the appellant and his wife. 2. He informs the Court that Rameshwar has always been mad. This broad allegation is not supported by any statement of facts from which the learned Judge might draw a reasonable conclusion for himself. 2. He informs the Court that Rameshwar has always been mad. This broad allegation is not supported by any statement of facts from which the learned Judge might draw a reasonable conclusion for himself. It is quite manifest that the opinion of the Civil Surgeon falls short of declaring Rameshwar to be a lunatic within the meaning and scope of section 23 of the Act referred to above. He is spoken of as being below the average of his class in life. The expression used indicates that in the opinion of the doctor there is a substantial number of persons of similar mental condition and intelligence as the appellant. He again speaks of the appellant as a person who is in a condition of imbecility resembling the mental condition of a child, That definition falls far short of lunacy. It only indicates that he is of undeveloped mind but not subject to delusions. From the doctor's opinion that the appellant has not sufficient mental capacity to enable him to manage a large property, one can by rational interpretation draw the inference that the doctor thought him fit to manage a small estate. That is the basis of the learned Judge's finding. It was not only incorrect but most unsafe to base upon such foundation a finding that the appellant is a lunatic. We set aside the order of the Court below and dismiss the application of the respondent with costs.