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Plaintiffs, - versus CIVIL CASE NO. 98-480

BRAIAN CIFRA, Defendant. x------------------------------ x


COME NOW the DEFENDANT, thru counsel, to this Honorable Court, most respectfully allege

1. The herein movants, thru undersigned counsel is in receipt last November 5, 2013 of an Order dated September 17, 2013 denying their Motion for Leave to Intervene, etc.. The Order is hereby quoted in full, to wit: Acting on the Motion for Leave to Intervene, etc. filed by Spouses _________________________ as well as the Comment of the plaintiffs and defendants Opposition thereto, and finding the defendants reasons in support of his oppositions to be well-taken, the Court is left with no recourse but to DENY the foregoing motion. SO ORDERED.

2. With all due respect to the Honorable Court, the movants feel that they have been unjustifiably denied the very vital right to intervene, the reasons of which were not clearly and distinctly stated in the Order or disposition;

3. Likewise, with all due respect to the Honorable Court, the movants are of the contention that there is absolutely no basis for the said Order as the substantive law, the rules of procedure in the Rules of Court and the jurisprudence all plainly give them the right to intervene in a case of this nature; 4. The single reason advanced in the one-page Opposition filed by the defendant was that allegedly, nowhere in the complaint can it be found that the plaintiffs sold their respective shares on the property to the intervenors. While this may be true, the Reply filed by the plaintiffs in the instant case clearly declares the fact that majority of the plaintiffs have sold their undivided shares to the property to herein movants. Paragraph 4 of plaintiffs Reply is quoted as follows:

Xxx 4. That the defendants admits that all the heirs desire to sell the inherited property and divide the sale proceeds thereof equally among them, but he, together with the minority heirs, wants the same to be sold to any interested heir, which is no longer feasible considering that majority of the heirs have already sold their corresponding shares in the subject property to the SPS. _______________________________ after the filing of this case and copies of the deeds of sale shall be presented during the pre-trial proceedings, (emphasis supplied)

5. And indeed, during the pre-trial last June 7, 2013 set for marking the documents for the parties, the plaintiffs marked the following documents, to wit: Exhibits G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, AA, BB, and CC in the presence of the counsel for the defendant. These documents evidence the sale by the plaintiffs to the herein movants; 6. On account of the foregoing, it is evident that the opposition has absolutely no basis at all; 7. Moreover, Rule 19 of the Rules of Court specifically provides for the rules on intervention as follows: Sec. 1 Who may intervene. A person who has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both or is so situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or an office thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties and whether or not the intervenors rights may be fully protected in a separate proceeding.

Section 2. Time to intervene. The motion to intervene may be filed at any time before the rendition of judgment by the trial court

8. The Spouses _________________________ are the buyers of the shares of the majority of the compulsory heirs, comprising the plaintiffs, with respect to the property subject matter of this case. Both the plaintiffs and the defendant admit this fact. As such, the said spouses have become co-owners with the other heirs insofar as their purchased shares are concerned. They have, therefore, unmistakable legal interests and direct rights in the matter of the present case and will be adversely affected if not allowed to intervene; 9. Art. 493 of the New Civil Code on co-ownership provides for the rights of each coowner to his own share in the property owned in common. Thus: Each co-owner shall have the full ownership of his part of the fruits and benefits pertaining thereof, and he may therefore, alienate, assign or mortgage it, and even substitute another in its enjoyment, except when the personal rights are involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. Obviously, the rights of the herein movants are clear and unequivocal; 10. Since the rule (see Art. 494, New Civil Code) is that a co-owner shall not be obliged to remain in the co-ownership, and that such co-owner may demand at anytime the partition of the thing owned in common insofar as his share is concerned, the Rules of Court makes available to a co-owner the remedy of partition. It is for this reason too that the movants wish to intervene in the instant case, as their rights may not be fully protected in a separate proceedings; 11. Further, Rule 69 of the Rules of Court provides: Section 1. Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. 12. The Court, in the case of Tomas Claudio Memorial College, Inc. vs. Court of Appeals, et. al. says: Under Article 493 of the Civil Code, the sale or other disposition affects only the sellers share pro indiviso, and the transferee gets only

what corresponds to his grantors share in the partition of the property owned in common. Since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner is not null and void. However, only the rights of the coowner/seller are transferred, thereby making the buyer a co-owner of the property. The proper action in a case like this is not for the nullification of the sale, or for the recovery of possession of the property owned in common from a third person, but for division or partition of the entire property if it continued to remain in the possession of the co-owners who possessed and administered it. Such partition should result in segregating the portion belonging to the seller and its delivery to the buyer. 13. The intervention will not unduly delay or prejudice the adjudication of the rights of the parties to the instant case;

14. All the foregoing premises considered, it is submitted that since all the statutory rules, requisites or conditions for the right of intervention have been clearly met and complied with by the herein movants, a reconsideration of the questioned Order is only proper. PRAYER

WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the instant motion be granted and the Order dated September 17, 2013 be reconsidered and set aside. Other reliefs and remedies just and equitable under the premises are likewise prayed for.

January 27, 2014, Mandaluyong City.

FERDINAND P. INTON Counsel for the Defendant 214 Wilson St., San Juan City Roll of Attorney No. ______ PTR No. 4363278 1-05-13 Rizal IBP No. 697033, 1-05-13 Rizal MCLE Compliance No. ______ Issued on __________________

Notice of Hearing

To all the concerned parties:

Please note that the undersigned will submit the instant motion for the consideration and approval of the Honorable Court on February 3, 2013 at 2:00 oclock p.m. Atty.________________________

Copy furnished:

NIMPA T. PICHAY Counsel for the Plaintiff Unit 104 Ground Floor, Teylan Building 6917 Washington St., Brgy. Pio Del Pilar Makati City

Explanation (Pursuant to Section 11, Rule 13 of the 1997 Rules on Civil Procedure)

The foregoing pleading is being served by registered mail to the aforementioned parties on account of distance and lack of sufficient personnel to personally serve.

Atty. __________________________