The determination of a person's 'ordinary residence' under Section 9 of the Guardian and Wards Act, 1890, is a question of fact or a mixed question of law and fact that requires an evidentiary inquiry and cannot be summarily decided based solely on averments in interlocutory applications.

Romesh Verma, Judge(oral)

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.

Whether approved for reporting?¹1 Whether reporters of Local Papers may be allowed to see the judgment?

2. 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.

3. 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. 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.

4. 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.

5. 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 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.

6. 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 Depart