Allowed

Anoop Kumar v. General Public

Himachal Pradesh HC19 May 2026CMPMO/579/2025

Case brief

AI extract

What is this about?

Petition for guardianship of two mentally infirm persons was returned by the trial court on jurisdictional grounds holding they resided at Mandi. The High Court held ordinary residence is a question of fact requiring evidence, quashed the return order, restored the guardianship petition and directed the trial court to first decide the local commissioner application.

What the court decided

AI extract

Anoop Kumar Vs General Public — Child Custody and Guardianship | Himachal Pradesh HC (2026)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CMPMO No. 579 of 2025 Decided on : 19.05.2026

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Anoop Kumar ...Petitioner. Versus General Public ..Respondent. Coram Hon'ble Mr. Justice Romesh Verma, Judge. Whether approved for reporting?¹ For the petitioner: Mr. Deepak Gupta, Advocate. For the respondent: Nemo. Romesh Verma, Judge(oral)

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The present petition arises out of the impugned order as passed by the learned Additional District Judge-I, Shimla dated 05.09.2025, whereby it was held that petition filed under Section 7 of the Guardian and Wards Act, 1890 shall be adjudicated by the District Court at Mandi, HP and consequently, the petition filed by the present petitioner was returned with liberty to file the same in the competent Court of jurisdiction i.e. the District Court at Mandi in accordance with law and in the proper form, as prescribed under Section 10 of said Act.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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The facts of the case are that the present petitioner filed a petition Under Section 7 of the Guardians and Wards Act, 1890 for the appointment of the guardian of the persons, namely, Ms. Sonika and Mr. Pankaj Gupta, daughter and son of late Sh. Kailash Chand Gupta, and their property.

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As per the averments, as made in the petition, late Sh. Kailash Chand Gupta was the owner of land and building comprised in Khewat No. 190, Khatuni No. 270, Khasra Nos. 1196 and 1197, Kitas 2, measuring 110-71 square meters as shown in the Jamabandi for the year 2016-2017. It was averred that Ms. Sonika Gupta and Pankaj Gupta are also co-owners with late Sh. Kailash Chand Gupta with respect to the land comprised in Khewat No. 119, Khatauni No. 197, Khasra Nos. 368, 370 to 375, 378, 380, 388, 390, 391, 394, 397, 398 and 408, Kitas 15, measuring 04-10-19 hectares in Mohal Rahada, Tehsil Nihari as depicted in the Jamabandi annexed with the petition. It was averred that the aforesaid persons along with their father late Sh. Kailash Chand Gupta was also co-owners in land comprised in Khewat No. 154, Khatauni No. 289, Khasra No. 2155/459 measuring 00-10-00 hectares, Khewat No. 154, Khatauni No. 299, Khasra Nos.

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365, 393, 395, 400, 405 and 406, Kitas 6 measuring 01-11-19 hectares along with the land comprised in Khewat No. 154, Khatauni No. 301, Khasra Nos. 364/1, 384, 396, 399 and 407, Kitas 5, measuring 02-01-00 hectares.

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As per petitioner, father of Ms. Sonika and Mr. Pankaj Gupta had expired on 02.12.2022 and copy of death certificate has also been appended with the petition. After the death of late Sh. Kailash Chand Gupta, Ms. Sonika and Mr. Pankaj Gupta succeeded his estate. The aforesaid persons are not mentally sound and incapable of understanding their good and bad and protecting their rights. During the lifetime of Late. Sh. Kailash Chand Gupta, the present petitioner was taking care of both the aforesaid persons, who are mentally infirm. The petitioner is son of Smt. Radha Thakur, who was god-sister of late Sh. Kailash Chand Gupta.

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During the lifetime of late Sh. Kailash Chand Gupta, Smt. Radha Thakur, mother of the petitioner was having cordial relation with him and she was looking after the deceased Kailash Chand Gupta and his children Ms Sonika and Mr. Pankaj. As the petitioner has nothing adverse against the rights of the aforesaid persons, therefore, under such

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circumstances, the petition was preferred before the Court of learned Additional District Judge-I, Shimla, H.P. for the appointment of present petitioner as guardian of Ms. Sonika Gupta and Mr. Pankaj Gupta, who are mentally ill.

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During the pendency of the petition, the petitioner preferred an application under Order 26 Rule 9 read with Section 151 of CPC for the appointment of Local Commissioner i.e. Doctor of Psychiatric Department of IGMC, Shimla, H.P for the purpose of ascertaining the mental illness/extent of the infirmity of the aforesaid persons. During the pendency of this application, the impugned order has been passed by the learned Additional District Judge, ShimlaI, Shimla.

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Feeling dissatisfied, the petitioner has approached this Court by assailing the order dated 05.09.2025. On 26.09.2025, this Court had issued notice for the service of General Public by way of publication in two newspapers widely circulated in the area concerned. The respondent were duly served through publication, as per report of the Registry dated 06.11.2025. Consequently, the General Public is proceeded against ex-parte.

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It is contended by Sh. Deepak Gupta, learned counsel for the petitioner that the impugned order passed by the learned Additional District Judge-1 Shimla is erroneous and liable to be quashed and set aside. He submits that the learned Court below has misinterpreted provision of Section 9 of the Act, especially, Section 9 sub Section (1) (2) (3). He has taken this Court to the provision of Section 9, of the Guardian Wards Act, 1890 which reads as follows:-

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“9. Court having jurisdiction to entertain application .—

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(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.

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(2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.

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(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction.”

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Section 9 (1) deals with the application for the guardianship of a person and the same shall be made with

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the District Court, having jurisdiction in place where the minor ordinarily resides.

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Section 9 (2) provides that the application shall be filed

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to the District Judge, having the jurisdiction in the place where the minor ordinarily resides or to a District Court having the jurisdiction in the place where he has property.

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While interpreting the said provisions, the Appellate Court has relied upon the alleged admission as made by the petitioner in the application which was filed under Order 26 Rule 9 CPC, which is part and parcel of the present case file. The learned counsel for the petitioner has drawn attention of this Court to para 2 of the said application, which reads as

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follows:-

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“That in order to prove the assertions made by the applicant/petitioner, it is expedient that the aforesaid persons who are presently residing in village Rihada, Tehsil Nihari may be mentally examined by the Doctor, Psychiatric Department, I.G.M.C. Shimla and thereafter to submit his report to this Hon’ble Court. Since the doctor is an expert in the field to assess the mental disability of the aforesaid persons, as such, the appointment of local commission in the facts and circumstances of the case is necessary and expedient in the interest of justice. The applicant/petitioner is ready and willing to deposit the fees, as would be assessed by this Hon’ble Court.”

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On perusal of the averments as made in the application, it is clear that it has been stated therein that the aforesaid persons, who are mentally ill, are presently residing

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in Village Rehada, Tehsil Nihari, and that they may be

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medically examined by a doctor from the Psychiatric Department, IGMC. The learned Court below treated the said statement as an admission on the part of the petitioner and, relying upon the provisions of Section 9, came to the conclusion that the petition filed by the present petitioner was liable to be returned, with liberty to file the same before the competent jurisdiction, i.e., the District Court, Mandi.

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The learned counsel for the petitioner has relied upon the judgment of the Apex Court in AIR 2011 SC 1952 , titiled Ruchi Majoo vs. Sanjeev Majoo, decided on 13.05.2011. the relevants paras of the same read as under:-

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13. Section 9 of the Guardian and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the Court to entertain a claim for grant of custody of a minor. While sub- Section (1) of Section 9 identifies the court competent to pass an order for the custody of the persons of the minor, sub-sections (2) & (3) thereof deal with courts that can be approached for guardianship of the property owned by the minor. Section 9(1) alone is, therefore, relevant for our purpose. It says :

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"9. Court having jurisdiction to entertain application - (1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having Jurisdiction in the place where the minor ordinarily resides."

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14. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the `ordinary residence' of the minor. The expression used is "Where the minor ordinarily resides". Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact.

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It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer. We may before doing so examine the true purpose of the expression ordinarily resident' appearing in Section 9(1) (supra). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word ordinary' has been defined by the Black's Law Dictionary as follows:

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"Ordinary (Adj.) :Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterized by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."

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15. The word `reside' has been explained similarly as under:

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"Reside: live, dwell, abide, sojourn, stay, remain, lodge. (Western- Knapp Engineering Co. V. Gillbank, C.C.A. Cal., 129 F2d 135, 136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as quality, to be vested as a right. (State ex rel. Bowden v. Jensen Mo., 359 S.W.2d 343, 349.)"

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19. In Kuldip Nayar & Ors. v. Union of India & Ors. 2006 (7) SCC 1, the expression "ordinary residence" as used in the Representation of People Act, 1950 fell for interpretation. This Court observed:

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"243. Lexicon refers to Cicutti v. Suffolk County Council (1980) 3 All ER 689 to denote that the word "ordinarily" is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found "ordinarily", in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is

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"ordinary" and general, rather than merely for some special or limited purpose.

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244. The words "ordinarily" and "resident" have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.

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245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.

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246. Thus, residence is a concept that may also be transitory. Even when qualified by the word "ordinarily" the word "resident" would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being "ordinarily resident" at a particular place is incapable of ensuring nexus between him and the place in question.

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24. It is evident from the statement and the pleadings of the parties that the question whether the decision to allow the appellant and Kush to stay back in Delhi instead of returning to America was a voluntary decision as claimed by the appellant or a decision taken by the respondent under duress as alleged by him was a seriously disputed question of facts, a satisfactory answer to which could be given either by the District Court where the custody case was filed or by the High Court only after the parties had been given opportunity to adduce evidence in support of their respective versions.”

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The perusal of the exposition of law as laid down by

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the Hon’ble Apex Court clearly states that a bare reading of

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the Act shows that the solitary test for determining the jurisdiction of the Court under Section 9 of the Act is the ordinary residence of the minor. The expression used is

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“where the minor ordinarily resides.” Whether the minor is ordinarily residing at a given place is primarily a question of intention, which, in turn, is a question of fact. Further, it has been held that it may, at best, be a mixed question of law and fact, but unless the jurisdictional facts are admitted, it cannot be answered without an inquiry into the factual aspects of the controversy.

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The exposition of law as laid down by the Hon’ble Apex Court is very specific and clear. In the present case, it is the case of the present petitioner that the aforesaid persons, namely, Ms. Sonika Gupta and Mr. Pankaj Gupta, are ordinarily residing at Shimla. However, at the time of filing of the application under Order 26 Rule 9 CPC, it was averred in the application that Ms. Sonika Gupta and Mr. Pankaj Gupta were presently residing in Village Rihada. Therefore, the Court below has wrongly interpreted the provisions of Section 9 of the Act, which is in conflict with the judgment passed by the Hon’ble Apex Court.

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The averments and assertions made in the application as well as in the petition are questions of fact, which are yet

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to be proved by the present petitioner.

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Therefore, whether the minor ordinarily resides at a given place is primarily a question of intention, which, in turn, is a question of fact. Hence, the Court below has erred in passing the impugned order. The Court below ought to have granted an opportunity to the petitioner to lead evidence and satisfy the conscience of the Court as to where the aforesaid persons ordinarily reside.

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The Hon’ble Apex Court has held in the judgment rendered (supra) that since liberal interpretation is the first and foremost rule of interpretation, it would be useful to understand the literal meaning of the two words that comprise the expression. In the said judgment, it has been held by the Apex Court that residence is a concept that may also be transitory. Even when qualified by the word “ordinarily,” the word “resident” would not result in a construction having the effect of requiring a person to use a particular place for dwelling always or on a permanent and uninterrupted basis. Thus understood, even the requirement of a person being ordinarily resident at a particular place is incapable of ensuring a nexus between him and the place in question.

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Consequently, the impugned order as passed by the learned Court below is not sustainable in the eyes of law, and this Court has no other option but to quash and set aside the same by reviving the petition filed by the present petitioner, bearing Petition No. 1-S/2 of 2022, and restoring it to its original number, with a direction to the Court below that, after restoration of the said petition, an opportunity be granted to the petitioner to lead evidence in order to demonstrate whether the aforesaid persons are residing in Shimla or Mandi.

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At this stage, Mr. Deepak Gupta, learned counsel for the petitioner, has submitted that he has filed an application under Order 26 Rule 9 CPC for the appointment of an expert doctor in order to verify the mental condition of Ms. Sonika Gupta and Ms. Pankaj Gupta. It is directed that the learned Court below shall decide the application under Order 26 Rule 9 CPC before proceeding further in the matter. The petitioner is directed to remain present before the Court below on

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18.06.2026 .

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