Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32026 January 16, 1986
RE: PETITION FOR DECLARATION OF ABSENCE OF ROBERTO L. REYES. ERLINDA
REYNOSO REYES,petitioner,
vs.
HON, JOSE P. ALEJANDRO, in his capacity as Judge, Court of First Instance of Cavite,
Branch II, Cavite City, respondents.

PATAJO, J.:
This is an appeal from an order of the Court of First Instance of Cavite dismissing the petition filed by
petitioner-appellant Erlinda Reynoso Reyes to have her husband Roberto Reyes declared an
absentee.
In a petition filed on October 25, 1969 Erlinda Reynoso prayed for the declaration of the absence of
her husband Roberto L. Reyes alleging that her husband had been absent from their conjugal
dwelling since April 1962 and since then had not been heard from and his whereabouts unknown.
The petition further alleged that her husband left no will nor any property in his name nor any debts.
The evidence presented by petitioner in support of her petition established that she and Roberto L.
Reyes were married on March 20, 1960; that sometime in April 1962 her husband left the conjugal
home due to some misunderstanding over personal matters; that since then petitioner has not
received any news about the whereabouts of her husband; that they have not acquired any
properties during their marriage and that they have no outstanding obligation in favor of anyone; that
her only purpose in filing the petition is to establish the absence of her husband, invoking the
provisions of Rule 107 of the New Rules of Court and Article 384 of the Civil Code.
After hearing the Court a quo dismissed the petition on the ground that since Roberto L. Reyes left
no properties there was no necessity to declare him judicially an absentee. It said:
A perusal of Rule 107 of the Rules of Court on absentees reveals that it is based on
the provisions of Title XIV of the New Civil Code on absence. And the reason and
purpose of the provisions of the New Civil Code on absence (Arts. 381 to 396) are:
(1) The interest of the person himself who has disappeared; (2) The rights of third
parties against the absentee, especially those who have rights which would depend
upon the death of the absentee; and (3) The general interest of society which may
require that property does not remain abandoned without someone representing it
and without an owner (Civil Code by Francisco, Vol. 2, pp. 930- 931, 1953 Ed.).
It will thus be noted that said provisions of the New Civil Code are concerned with
absence only with reference to its effects on property (2 Manresa, 101-102, Civil
Code by Francisco, Vol. 2, p. 932. 1953 Ed.). Article 384, New Civil Code, which is
reproduced from Article 184 of the old Code, and relied upon by herein petitioner,

refers to the second period or stage of absence, and specifically indicates the precise
moment when the same may begin. Thus, this article provides that after the lapse of
two (2) years without any news about the absentee or since the receipt of the last
news, and five (5) years in case the absentee has left a person in charge of the
administration of his property, his absence may be declared by the Court. The
primordial purpose of this declaration is to provide for an administrator of the property
of the absentee. It cannot be said that because of the comma (,) between the words
'news' and 'and', the two-year period mentioned in the first part of the law has no
reference to or bearing on the property of the absentee. Manresa states that the only
reason for the different periods is because in one case (2 years) the absentee has
not left a person in charge of the administration of his property, and in the other case
(5 years) the absentee has provided for his absence by appointing an administrator
of his property dispensing in a way the giving of news about himself (2 Manresa,
127-128). It is worth to note, in this connection, that the first period or stage of
absence as covered by Article 381 of the New Civil Code provides for provisional
measures-the appointment by the Court of a person to represent the absentee' in all
that may be necessary'-when a mere presumption of his absence arises. It should be
noted that the appointment of a 'representative' of the absentee is for the protection
of the interest of the latter. This is clear from the provisions of Article 382 which
enjoins the judge to 'take the necessary measures to safeguard the rights and
interests of the absentee. ... Moreover, it is not enough that a person is declared an
absentee. The law (see Articles 381, 382 and 383) requires the judge to appoint a
representative for the absentee precisely to safeguard the property or interest of the
latter. It is thus imperative that the declaration of absence be for a specific purpose,
and that purpose can be no other than the protection of the interest or property of the
absentee. Castan, in his commentary, emphatically states that there must be an
immediate necessity for the representation of the absentee in some specific urgent
matters (Vol. 1, pp. 182-183).
The same observation and commentary can be said of the corresponding
complimenting provisions of Rule 107 of the Rules of Court, particularly Sections 6
and 7 thereof which make it mandatory upon the Court to appoint a representative,
trustee or administrator who shall safeguard the rights and interest of the absentee.
Considering that neither the petition alleges, nor the evidence shows, that Roberto L.
Reyes has any rights, interest or property in the Philippines, there is no point in
judicially declaring him an absentee.
We affirm the order of the lower Court dismissing the petition. As this Court said in Jones vs.
Hortiguela, 64 Phil. 197:
... For the purposes of the civil marriage law, it is not necessary to have the former
spouse judicially declared an absentee. The declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose to enable
the taking of the necessary precautions for the administration of the estate of the
absentee. For the celebration of civil marriage, however, the law only requires that
the former spouse has been absent for seven consecutive years at the time of the
second marriage, that the spouse present does not know his or her former spouse to
he living, that such former spouse is generally reputed to be dead and the spouse
present so believes at the time of the celebration of the marriage (section III,
paragraph 2, General Orders, No. 68). (On page 183).

The need to have a person judicially declared an absentee is when he has properties which have to
be taken cared of or administered by a representative appointed by the Court (Article 384, Civil
Code); the spouse of the absentee is asking for separation of property (Article 191, Civil Code) or his
wife is asking the Court that the administration of an classes of property in the marriage be
transferred to her (Article 196, Civil Code). The petition to declare the husband an absentee and the
petition to place the management of the conjugal properties in the hands of the wife may be
combined and adjudicated in the same proceedings, Peyer vs. Martinez, 88 Phil. 72, 80).
IN VIEW OF THE FOREGOING, judgment is hereby rendered AFFIRMING the order of the lower
Court dismissing the petition to declare Roberto L. Reyes an absentee. With costs against petitionerappellant.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova Gutierrez, Jr. and De la Fuente, JJ.,
concur.

FIRST DIVISION

[G.R. No. 109557. November 29, 2000]

JOSE UY and his Spouse GLENDA J. UY and GILDA L.

JARDELEZA, petitioners, vs. COURT OF APPEALS and
TEODORO L. JARDELEZA, respondents.
DECISION
PARDO, J.:
The case is an appeal via certiorari from the decision[1] of the Court of Appeals and its
resolution denying reconsideration[2] reversing that of the Regional Trial Court, Iloilo,
Branch 32[3] and declaring void the special proceedings instituted therein by petitioners to
authorize petitioner Gilda L. Jardeleza, in view of the comatose condition of her husband,
Ernesto Jardeleza, Sr., with the approval of the court, to dispose of their conjugal property
in favor of co-petitioners, their daughter and son in law, for the ostensible purpose of
financial need in the personal, business and medical expenses of her incapacitated
husband.
The facts, as found by the Court of Appeals, are as follows:

This case is a dispute between Teodoro L. Jardeleza (herein respondent) on

the one hand, against his mother Gilda L. Jardeleza, and sister and brother-inlaw, the spouses Jose Uy and Glenda Jardeleza (herein petitioners) on the
other hand. The controversy came about as a result of Dr. Ernesto Jardeleza,
Sr.s suffering of a stroke on March 25, 1991, which left him comatose and
bereft of any motor or mental faculties. Said Ernesto Jardeleza, Sr. is the
father of herein respondent Teodoro Jardeleza and husband of herein private
respondent Gilda Jardeleza.
Upon learning that one piece of real property belonging to the senior
Jardeleza spouses was about to be sold, petitioner Teodoro Jardeleza, on
June 6, 1991, filed a petition (Annex A) before the R.T.C. of Iloilo City, Branch
25, where it was docketed as Special Proceeding No. 4689, in the matter of
the guardianship of Dr. Ernesto Jardeleza, Sr. The petitioner averred therein
that the present physical and mental incapacity of Dr. Ernesto Jardeleza, Sr.
prevent him from competently administering his properties, and in order to
prevent the loss and dissipation of the Jardelezas real and personal assets,
there was a need for a court-appointed guardian to administer said

properties. It was prayed therein that Letters of Guardianship be issued in

favor of herein private respondent Gilda Ledesma Jardeleza, wife of Dr.
Ernesto Jardeleza, Sr. It was further prayed that in the meantime, no property
of Dr. Ernesto Jardeleza, Sr. be negotiated, mortgaged or otherwise alienated
to third persons, particularly Lot No. 4291 and all the improvements thereon,
located along Bonifacio Drive, Iloilo City, and covered by T.C.T. No. 47337.
A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself
filed a petition docketed as Special Proceeding NO. 4691, before Branch 32 of
the R.T.C. of Iloilo City, regarding the declaration of incapacity of Ernesto
Jardeleza, Sr., assumption of sole powers of administration of conjugal
properties, and authorization to sell the same (Annex B). Therein, the
petitioner Gilda L. Jardeleza averred the physical and mental incapacity of her
husband, who was then confined for intensive medical care and treatment at
the Iloilo Doctors Hospital. She signified to the court her desire to assume sole
powers of administration of their conjugal properties. She also alleged that her
husbands medical treatment and hospitalization expenses were piling up,
accumulating to several hundred thousands of pesos already. For this, she
urgently needed to sell one piece of real property, specifically Lot No. 4291
and its improvements. Thus, she prayed for authorization from the court to sell
said property.
The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued
an Order (Annex C) finding the petition in Spec. Proc. No. 4691 to be
sufficient in form and substance, and setting the hearing thereof for June 20,
1991. The scheduled hearing of the petition proceeded, attended by therein
petitioner Gilda Jardeleza, her counsel, her two children, namely Ernesto
Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando Padilla, one of
Ernesto Jardeleza, Sr.s attending physicians.
On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City
rendered its Decision (Annex D), finding that it was convinced that Ernesto
Jardeleza, Sr. was truly incapacitated to participate in the administration of the
conjugal properties, and that the sale of Lot No. 4291 and the improvements
thereon was necessary to defray the mounting expenses for treatment and
Hospitalization. The said court also made the pronouncement that the petition
filed by Gilda L. Jardeleza was pursuant to Article 124 of the Family Code,
and that the proceedings thereon are governed by the rules on summary
proceedings sanctioned under Article 253 of the same Code x x x.
The said court then disposed as follows:

WHEREFORE, there being factual and legal bases to the petition dated June
13, 1991, the Court hereby renders judgment as follows:
1) declaring Ernesto Jardeleza, Sr., petitioners husband, to be incapacitated
and unable to participate in the administration of conjugal properties;
2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of
administration of their conjugal properties; and
3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey
of Iloilo, situated in Iloilo City and covered by TCT No. 47337 issued in the
names of Ernesto Jardeleza, Sr. and Gilda L. Jardeleza and the buildings
standing thereof.
SO ORDERED.
On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to
the proceedings before Branch 32 in Spec. Proc. Case No. 4691, said
petitioner being unaware and not knowing that a decision has already been
rendered on the case by public respondent.
On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for
reconsideration of the judgment in Spec. Proc. No. 4691 and a motion for
consolidation of the two cases (Annex F). He propounded the argument that
the petition for declaration of incapacity, assumption of sole powers of
administration, and authority to sell the conjugal properties was essentially a
petition for guardianship of the person and properties of Ernesto Jardeleza,
Sr. As such, it cannot be prosecuted in accordance with the provisions on
summary proceedings set out in Article 253 of the Family Code. It should
follow the rules governing special proceedings in the Revised Rules of Court
which require procedural due process, particularly the need for notice and a
hearing on the merits. On the other hand, even ifGilda Jardelezas petition can
be prosecuted by summary proceedings, there was still a failure to comply
with the basic requirements thereof, making the decision in Spec. Proc. No.
4691 a defective one. He further alleged that under the New Civil Code,
Ernesto Jardeleza, Sr. had acquired vested rights as a conjugal partner, and
that these rights cannot be impaired or prejudiced without his consent. Neither
can he be deprived of his share in the conjugal properties through mere
summary proceedings. He then restated his position that Spec. Proc. No.
4691 should be consolidated with Spec. Proc. No. 4689 which was filed earlier
and pending before Branch 25.

Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291
and the improvements thereon supposedly to pay the accumulated financial
obligations arising from Ernesto Jardeleza, Sr.s hospitalization. He alleged
that the market value of the property would be around Twelve to Fifteen
Million Pesos, but that he had been informed that it would be sold for much
less. He also pointed out that the building thereon which houses the Jardeleza
Clinic is a monument to Ernesto Jardeleza Sr.s industry, labor and service to
his fellowmen. Hence, the said property has a lot of sentimental value to his
family. Besides, argued Teodoro Jardeleza, then conjugal partnership had
other liquid assets to pay off all financial obligations. He mentioned that apart
from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors Hospital
which can be off-set against the cost of medical and hospital
bills. Furthermore, Ernesto Jardeleza, Sr. enjoys certain privileges at the said
hospital which allows him to pay on installment basis. Moreover, two of
Ernesto Jardeleza Sr.s attending physicians are his own sons who do not
charge anything for their professional services.
On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a
supplement to his motion for reconsideration (Annex G). He reiterated his
contention that summary proceedings was irregularly applied. He also noted
that the provisions on summary proceedings found in Chapter 2 of the Family
Code comes under the heading on Separation in Fact Between Husband and
Wife which contemplates of a situation where both spouses are of disposing
mind. Thus, he argued that were one spouse is comatose without motor and
mental faculties, the said provisions cannot be made to apply.
While the motion for reconsideration was pending, Gilda Jardeleza disposed
by absolute sale Lot No. 4291 and all its improvements to her daughter, Ma.
Glenda Jardeleza Uy, for Eight Million Pesos (P8,000,000.00), as evidenced
by a Deed Absolute Sale dated July 8, 1991 executed between them (p. 111,
Rollo). Under date of July 23, 1991, Gilda Jardeleza filed an urgent ex-parte
motion for approval of the deed of absolute sale.
On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for
approval of the deed of sale on the grounds that: (1) the motion was
prematurely filed and should be held in abeyance until the final resolution of
the petition; (2) the motion does not allege nor prove the justifications for the
sale; and (3) the motion does not allege that had Ernesto Jardeleza, Sr. been
competent, he would have given his consent to the sale.
Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent
Court, who had penned the decision in Spec. Proc. No. 4691 had in the

meantime formally inhibited herself from further acting in this case (Annex
I). The case was then reraffled to Branch 28 of the said court.
On December 19, 1991, the said court issued an Order (Annex M) denying
herein petitioners motion for reconsideration and approving respondent
Jardelezas motion for approval of the deed of absolute sale. The said court
ruled that:
After a careful and thorough perusal of the decision, dated June 20, 1991, the
Motion for Reconsideration, as well as its supplements filed by oppositor,
Teodoro L. Jardeleza, through counsel, and the opposition to the Motion for
Reconsideration, including its supplements, filed by petitioner, through
counsel, this Court is of the opinion and so holds, that her Honor, Amelita K.
del Rosario-Benedicto, Presiding Judge of Branch 32, of this Court, has
properly observed the procedure embodied under Article 253, in relation to
Article 124, of the Family Code, in rendering her decision dated June 20,
1991.
Also, as correctly stated by petitioner, through counsel, that oppositor Teodor
L. Jardeleza does not have the personality to oppose the instant petition
considering that the property or properties, subject of the petition, belongs to
the conjugal partnership of the spouses Ernesto and Gilda Jardeleza, who are
both still alive.
In view thereof, the Motion for Reconsideration of oppositor Teodoro L.
Jardeleza, is hereby denied for lack of merit.
Considering the validity of the decision dated June 20, 1991, which among
others, authorized Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral
Survey of Iloilo, covered by Transfer Certificate of Title No. 47337 issued in
the names of Ernesto Jardeleza, Sr., and Gilda L. Jardeleza and the building
standing thereon, the Urgent Ex-Parte Motion for Approval of Deed of
Absolute Sale dated July 23, 1991, filed by petitioner, through counsel, is
hereby granted and the deed of absolute sale, executed and notarized on July
8, 1991, by and between Gilda L. Jardeleza, as vendor, and Ma. Glenda
Jardeleza, as vendee, is hereby approved, and the Register of Deeds of Iloilo
City, is directed to register the sale and issue the corresponding transfer
certificate of title to the vendee.
SO ORDERED.

[4]

On December 9, 1992, the Court of Appeals promulgated its decision reversing the
appealed decision and ordering the trial court to dismiss the special proceedings to
approve the deed of sale, which was also declared void.[5]
On December 29, 1992, petitioners filed a motion for reconsideration, [6] however, on
March 29, 1993, the Court of Appeals denied the motion, finding no cogent and
compelling reason to disturb the decision.[7]
Hence, this appeal.[8]
The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto
Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering him
comatose, without motor and mental faculties, and could not manage their conjugal
partnership property may assume sole powers of administration of the conjugal property
under Article 124 of the Family Code and dispose of a parcel of land with its
improvements, worth more than twelve million pesos, with the approval of the court in a
summary proceedings, to her co-petitioners, her own daughter and son-in-law, for the
amount of eight million pesos.
The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the
procedural rules on summary proceedings in relation to Article 124 of the Family Code
are not applicable. Because Dr. Jardeleza, Sr. was unable to take care of himself and
manage the conjugal property due to illness that had rendered him comatose, the proper
remedy was the appointment of a judicial guardian of the person or estate or both of such
incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court. Indeed, petitioner
earlier had filed such a petition for judicial guardianship.
Article 124 of the Family Code provides as follows:

ART. 124. The administration and enjoyment of the conjugal partnership

property shall belong to both spouses jointly. In case of disagreement, the
husbands decision shall prevail, subject to recourse to the court by the wife for
a proper remedy which must be availed of within five years from the date of
the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the conjugal properties, the other spouse
may assume sole powers of administration. These powers do not include the
powers of disposition or encumbrance which must have the authority of the
court or the written consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall be void. However,
the transaction shall be construed as a continuing offer on the part of the
consenting spouse and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or authorization by the
court before the offer is withdrawn by either or both offerors. (165a).

In regular manner, the rules on summary judicial proceedings under the Family Code
govern the proceedings under Article 124 of the Family Code. The situation contemplated
is one where the spouse is absent, or separated in fact or has abandoned the other or
consent is withheld or cannot be obtained. Such rules do not apply to cases where the
non-consenting spouse is incapacitated or incompetent to give consent. In this case, the
trial court found that the subject spouse "is an incompetent" who was in comatose or
semi-comatose condition, a victim of stroke, cerebrovascular accident, without motor and
mental faculties, and with a diagnosis of brain stem infarct.[9] In such case, the proper
remedy is a judicial guardianship proceedings under Rule 93 of the 1964 Revised Rules
of Court.
Even assuming that the rules of summary judicial proceedings under the Family Code
may apply to the wife's administration of the conjugal property, the law provides that the
wife who assumes sole powers of administration has the same powers and duties as a
guardian under the Rules of Court.[10]
Consequently, a spouse who desires to sell real property as such administrator of the
conjugal property must observe the procedure for the sale of the wards estate required
of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the summary
judicial proceedings under the Family Code.
In the case at bar, the trial court did not comply with the procedure under the Revised
Rules of Court. Indeed, the trial court did not even observe the requirements of the
summary judicial proceedings under the Family Code. Thus, the trial court did not serve
notice of the petition to the incapacitated spouse; it did not require him to show cause
why the petition should not be granted.
Hence, we agree with the Court of Appeals that absent an opportunity to be heard,
the decision rendered by the trial court is void for lack of due process. The doctrine
consistently adhered to by this Court is that a denial of due process suffices to cast on
the official act taken by whatever branch of the government the impress of nullity. [11] A
decision rendered without due process is void ab initio and may be attacked directly or
collaterally.[12] A decision is void for lack of due process if, as a result, a party is deprived
of the opportunity of being heard.[13] A void decision may be assailed or impugned
at any time either directly or collaterally, by means of a separate action, or by resisting
such decision in any action or proceeding where it is invoked.[14]
WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G. R.
SP No. 26936, in toto.
Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

See #85 Siochi v. Gozon (Refer below)

SECOND DIVISION
MARIO SIOCHI,
Petitioner,

G.R. No. 169900

- versus ALFREDO GOZON,

WINIFRED GOZON, GIL TABIJE,
INTER-DIMENSIONAL
REALTY,
INC., and ELVIRA GOZON,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
INTER-DIMENSIONAL REALTY,
INC.,
Petitioner,

- versus-

MARIO SIOCHI, ELVIRA GOZON,

ALFREDO GOZON, AND
WINIFRED GOZON,
Respondents.

G.R. NO. 169977

Present:
CARPIO, J., CHAIRPERSON,
BRION,
DEL CASTILLO,
ABAD, AND
PEREZ, JJ.
Promulgated:
MARCH 18, 2010

X--------------------------------------------------X
RESOLUTION
CARPIO, J.:

This is a consolidation of two separate petitions for review,[1] assailing the 7 July
2005 Decision[2] and the 30 September 2005 Resolution[3] of the Court of Appeals in
CA-G.R. CV No. 74447.
THIS CASE INVOLVES A 30,000 SQ.M. PARCEL OF LAND (PROPERTY)
COVERED BY TCT NO. 5357.[4] THE PROPERTY IS SITUATED
IN MALABON, METRO MANILA AND IS REGISTERED IN THE NAME OF
ALFREDO GOZON(ALFREDO), MARRIED TO ELVIRA GOZON (ELVIRA).
ON 23 DECEMBER 1991, ELVIRA FILED WITH THE CAVITE CITY
REGIONAL TRIAL COURT (CAVITE RTC) A PETITION FOR LEGAL
SEPARATION AGAINST HER HUSBAND ALFREDO. ON 2 JANUARY 1992,
ELVIRA FILED A NOTICE OF LIS PENDENS, WHICH WAS THEN
ANNOTATED ON TCT NO. 5357.
ON 31 AUGUST 1993, WHILE THE LEGAL SEPARATION CASE WAS STILL
PENDING, ALFREDO AND MARIO SIOCHI (MARIO) ENTERED INTO AN
AGREEMENT TO BUY AND SELL[5] (AGREEMENT) INVOLVING THE
PROPERTY FOR THE PRICE OF P18 MILLION. AMONG THE
STIPULATIONS IN THE AGREEMENT WERE THAT ALFREDO WOULD: (1)
SECURE AN AFFIDAVIT FROM ELVIRA THAT THE PROPERTY IS
ALFREDOS EXCLUSIVE PROPERTY AND TO ANNOTATE THE
AGREEMENT AT THE BACK OF TCT NO. 5357; (2) SECURE THE
APPROVAL OF THE CAVITE RTC TO EXCLUDE THE PROPERTY FROM
THE LEGAL SEPARATION CASE; AND (3) SECURE THE REMOVAL OF
THE NOTICE OF LIS PENDENS PERTAINING TO THE SAID CASE AND
ANNOTATED ON TCT NO. 5357. HOWEVER, DESPITE REPEATED
DEMANDS FROM MARIO, ALFREDO FAILED TO COMPLY WITH THESE
STIPULATIONS. AFTER PAYING THE P5 MILLION EARNEST MONEY AS
PARTIAL PAYMENT OF THE PURCHASE PRICE, MARIO TOOK
POSSESSION OF THE PROPERTY IN SEPTEMBER 1993. ON 6 SEPTEMBER
1993, THE AGREEMENT WAS ANNOTATED ON TCT NO. 5357.
Meanwhile, on 29 June 1994, the Cavite RTC rendered a decision[6] in the legal
separation case, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered decreeing the legal separation

between petitioner and respondent. Accordingly, petitioner Elvira Robles Gozon is
entitled to live separately from respondent Alfredo Gozon without dissolution of
their marriage bond. The conjugal partnership of gains of the spouses is hereby
declared DISSOLVED and LIQUIDATED. Being the offending spouse,
respondent is deprived of his share in the net profits and the same is awarded to
their child Winifred R. Gozon whose custody is awarded to petitioner.
FURTHERMORE, SAID PARTIES ARE REQUIRED TO MUTUALLY SUPPORT THEIR
CHILD WINIFRED R. GOZON AS HER NEEDS ARISES.
SO ORDERED.[7]

As regards the property, the Cavite RTC held that it is deemed conjugal property.
ON 22 AUGUST 1994, ALFREDO EXECUTED A DEED OF DONATION OVER
THE PROPERTY IN FAVOR OF THEIR DAUGHTER, WINIFRED GOZON
(WINIFRED). THE REGISTER OF DEEDS OF MALABON, GIL
TABIJE,CANCELLED TCT NO. 5357 AND ISSUED TCT NO. M-10508[8] IN
THE NAME OF WINIFRED, WITHOUT ANNOTATING THE AGREEMENT
AND THE NOTICE OF LIS PENDENS ON TCT NO. M-10508.
ON 26 OCTOBER 1994, ALFREDO, BY VIRTUE OF A SPECIAL POWER OF
ATTORNEY[9] EXECUTED IN HIS FAVOR BY WINIFRED, SOLD THE
PROPERTY TO INTER-DIMENSIONAL REALTY, INC. (IDRI) FOR P18
MILLION.[10]IDRI PAID ALFREDO P18 MILLION, REPRESENTING FULL
PAYMENT FOR THE PROPERTY.[11] SUBSEQUENTLY, THE REGISTER OF
DEEDS OF MALABON CANCELLED TCT NO. M-10508 AND ISSUED TCT
NO. M-10976[12] TO IDRI.
MARIO THEN FILED WITH THE MALABON REGIONAL TRIAL COURT
(MALABON RTC) A COMPLAINT FOR SPECIFIC PERFORMANCE AND
DAMAGES, ANNULMENT OF DONATION AND SALE, WITH
PRELIMINARY MANDATORY AND PROHIBITORY INJUNCTION AND/OR
TEMPORARY RESTRAINING ORDER.
ON 3 APRIL 2001, THE MALABON RTC RENDERED A DECISION,[13] THE
DISPOSITIVE PORTION OF WHICH READS:

WHEREFORE, PREMISES CONSIDERED, JUDGMENT IS HEREBY

RENDERED AS FOLLOWS:
01. On the preliminary mandatory and prohibitory injunction:
1.1 THE SAME IS HEREBY MADE PERMANENT BY:
1.1.1 ENJOINING DEFENDANTS ALFREDO GOZON,
WINIFRED GOZON, INTER-DIMENSIONAL REALTY, INC.
AND GIL TABIJE, THEIR AGENTS, REPRESENTATIVES
AND ALL PERSONS ACTING IN THEIR BEHALF FROM ANY
ATTEMPT OF COMMISSION OR CONTINUANCE OF THEIR
WRONGFUL ACTS OF FURTHER ALIENATING OR
DISPOSING OF THE SUBJECT PROPERTY;
1.1.2. ENJOINING DEFENDANT INTER-DIMENSIONAL REALTY, INC. FROM
ENTERING AND FENCING THE PROPERTY;
1.1.3. ENJOINING DEFENDANTS ALFREDO GOZON, WINIFRED GOZON, INTERDIMENSIONAL REALTY, INC. TO RESPECT PLAINTIFFS POSSESSION OF THE
PROPERTY.
02. THE AGREEMENT TO BUY AND SELL DATED 31 AUGUST 1993,
BETWEEN PLAINTIFF AND DEFENDANT ALFREDO GOZON IS HEREBY
APPROVED, EXCLUDING THE PROPERTY AND RIGHTS OF DEFENDANT
ELVIRA ROBLES-GOZON TO THE UNDIVIDED ONE-HALF SHARE IN THE
CONJUGAL PROPERTY SUBJECT OF THIS CASE.
03. THE DEED OF DONATION DATED 22 AUGUST 1994, ENTERED INTO BY AND
BETWEEN DEFENDANTS ALFREDO GOZON AND WINIFRED GOZON IS HEREBY
NULLIFIED AND VOIDED.
04. THE DEED OF ABSOLUTE SALE DATED 26 OCTOBER 1994, EXECUTED BY
DEFENDANT WINIFRED GOZON, THROUGH DEFENDANT ALFREDO GOZON, IN
FAVOR OF DEFENDANT INTER-DIMENSIONAL REALTY, INC. IS HEREBY NULLIFIED
AND VOIDED.
05. DEFENDANT INTER-DIMENSIONAL REALTY, INC. IS HEREBY ORDERED TO
DELIVER ITS TRANSFER CERTIFICATE OF TITLE NO. M-10976 TO THE REGISTER OF
DEEDS OF MALABON, METRO MANILA.
06. THE REGISTER OF DEEDS OF MALABON, METRO MANILA IS HEREBY ORDERED
TO CANCEL CERTIFICATE OF TITLE NOS. 10508 IN THE NAME OF WINIFRED GOZON
AND M-10976 IN THE NAME OF INTER-DIMENSIONAL REALTY, INC., AND TO
RESTORE TRANSFER CERTIFICATE OF TITLE NO. 5357 IN THE NAME OF ALFREDO
GOZON, MARRIED TO ELVIRA ROBLES WITH THE AGREEMENT TO BUY AND SELL
DATED 31 AUGUST 1993 FULLY ANNOTATED THEREIN IS HEREBY ORDERED.
07. DEFENDANT ALFREDO GOZON IS HEREBY ORDERED TO DELIVER A DEED OF
ABSOLUTE SALE IN FAVOR OF PLAINTIFF OVER HIS ONE-HALF UNDIVIDED SHARE
IN THE SUBJECT PROPERTY AND TO COMPLY WITH ALL THE REQUIREMENTS FOR
REGISTERING SUCH DEED.
08. ORDERING DEFENDANT ELVIRA ROBLES-GOZON TO SIT WITH PLAINTIFF TO
AGREE ON THE SELLING PRICE OF HER UNDIVIDED ONE-HALF SHARE IN THE
SUBJECT PROPERTY, THEREAFTER, TO EXECUTE AND DELIVER A DEED OF
ABSOLUTE SALE OVER THE SAME IN FAVOR OF THE PLAINTIFF AND TO COMPLY

WITH ALL THE REQUIREMENTS FOR REGISTERING SUCH DEED, WITHIN FIFTEEN
(15) DAYS FROM THE RECEIPT OF THIS DECISION.
09. THEREAFTER, PLAINTIFF IS HEREBY ORDERED TO PAY DEFENDANT ALFREDO
GOZON THE BALANCE OF FOUR MILLION PESOS (P4,000,000.00) IN HIS ONE-HALF
UNDIVIDED SHARE IN THE PROPERTY TO BE SET OFF BY THE AWARD OF DAMAGES
IN PLAINTIFFS FAVOR.
10. PLAINTIFF IS HEREBY ORDERED TO PAY THE DEFENDANT ELVIRA ROBLESGOZON THE PRICE THEY HAD AGREED UPON FOR THE SALE OF HER ONE-HALF
UNDIVIDED SHARE IN THE SUBJECT PROPERTY.
11. DEFENDANTS ALFREDO GOZON, WINIFRED GOZON AND GIL TABIJE ARE
HEREBY ORDERED TO PAY THE PLAINTIFF, JOINTLY AND SEVERALLY, THE
FOLLOWING:
11.1 TWO MILLION PESOS (P2,000,000.00) AS ACTUAL AND
COMPENSATORY DAMAGES;
11.2 ONE MILLION PESOS (P1,000,000.00) AS MORAL DAMAGES;
11.3 FIVE HUNDRED THOUSAND PESOS (P500,000.00) AS EXEMPLARY DAMAGES;
11.4 FOUR HUNDRED THOUSAND PESOS (P400,000.00) AS ATTORNEYS FEES; AND
11.5 ONE HUNDRED THOUSAND PESOS (P100,000.00) AS LITIGATION EXPENSES.
11.6 THE ABOVE AWARDS ARE SUBJECT TO SET OFF OF PLAINTIFFS OBLIGATION
IN PARAGRAPH 9 HEREOF.
12. DEFENDANTS ALFREDO GOZON AND WINIFRED GOZON ARE
HEREBY ORDERED TO PAY INTER-DIMENSIONAL REALTY, INC.
JOINTLY AND SEVERALLY THE FOLLOWING:
12.1 EIGHTEEN MILLION PESOS (P18,000,000.00) WHICH
CONSTITUTE THE AMOUNT THE FORMER RECEIVED FROM THE
LATTER PURSUANT TO THEIR DEED OF ABSOLUTE SALE DATED
26 OCTOBER 1994, WITH LEGAL INTEREST THEREFROM;
12.2 ONE MILLION PESOS (P1,000,000.00) AS MORAL DAMAGES;
12.3 FIVE HUNDRED THOUSAND PESOS (P500,000.00) AS EXEMPLARY DAMAGES;
AND
12.4 ONE HUNDRED THOUSAND PESOS (P100,000.00) AS ATTORNEYS FEES.
13. DEFENDANTS ALFREDO GOZON AND WINIFRED GOZON ARE
HEREBY ORDERED TO PAY COSTS OF SUIT.
SO ORDERED.[14]

ON APPEAL, THE COURT OF APPEALS AFFIRMED THE MALABON RTCS

DECISION WITH MODIFICATION. THE DISPOSITIVE PORTION OF THE
COURT OF APPEALS DECISION DATED 7 JULY 2005 READS:
WHEREFORE, PREMISES CONSIDERED, THE ASSAILED DECISION
DATED APRIL 3, 2001 OF THE RTC, BRANCH 74, MALABON IS HEREBY
AFFIRMED WITH MODIFICATIONS, AS FOLLOWS:

1. THE SALE OF THE SUBJECT LAND BY DEFENDANT ALFREDO GOZON TO

PLAINTIFF-APPELLANT SIOCHI IS DECLARED NULL AND VOID FOR THE
FOLLOWING REASONS:
A) THE CONVEYANCE WAS DONE WITHOUT THE CONSENT OF DEFENDANTAPPELLEE ELVIRA GOZON;
B) DEFENDANT ALFREDO GOZONS ONE-HALF () UNDIVIDED SHARE HAS BEEN
FORFEITED IN FAVOR OF HIS DAUGHTER, DEFENDANT WINIFRED GOZON, BY
VIRTUE OF THE DECISION IN THE LEGAL SEPARATION CASE RENDERED BY THE
RTC, BRANCH 16, CAVITE;
2. DEFENDANT ALFREDO GOZON SHALL RETURN/DELIVER TO PLAINTIFFAPPELLANT SIOCHI THE AMOUNT OF P5 MILLION WHICH THE LATTER PAID AS
EARNEST MONEY IN CONSIDERATION FOR THE SALE OF THE SUBJECT LAND;
3. DEFENDANTS ALFREDO GOZON, WINIFRED GOZON AND GIL TABIJE ARE
HEREBY ORDERED TO PAY PLAINTIFF-APPELLANT SIOCHI JOINTLY AND
SEVERALLY, THE FOLLOWING:
A) P100,000.00 AS MORAL DAMAGES;
B) P100,000.00 AS EXEMPLARY DAMAGES;
C) P50,000.00 AS ATTORNEYS FEES;
D) P20,000.00 AS LITIGATION EXPENSES; AND
E) THE AWARDS OF ACTUAL AND COMPENSATORY DAMAGES ARE
HEREBY ORDERED DELETED FOR LACK OF BASIS.
4. DEFENDANTS ALFREDO GOZON AND WINIFRED GOZON ARE
HEREBY ORDERED TO PAY DEFENDANT-APPELLANT IDRI JOINTLY
AND SEVERALLY THE FOLLOWING:
A) P100,000.00 AS MORAL DAMAGES;
B) P100,000.00 AS EXEMPLARY DAMAGES; AND
C) P50,000.00 AS ATTORNEYS FEES.
DEFENDANT WINIFRED GOZON, WHOM THE UNDIVIDED ONE-HALF SHARE OF
DEFENDANT ALFREDO GOZON WAS AWARDED, IS HEREBY GIVEN THE OPTION
WHETHER OR NOT TO DISPOSE OF HER UNDIVIDED SHARE IN THE SUBJECT LAND.
THE REST OF THE DECISION NOT INCONSISTENT WITH THIS RULING STANDS.
SO ORDERED.[15]

Only Mario and IDRI appealed the decision of the Court of Appeals. In his petition,
Mario alleges that the Agreement should be treated as a continuing offer which may
be perfected by the acceptance of the other spouse before the offer is withdrawn.
Since Elviras conduct signified her acquiescence to the sale, Mario prays for the

Court to direct Alfredo and Elvira to execute a Deed of Absolute Sale over the
property upon his payment of P9 million to Elvira.
ON THE OTHER HAND, IDRI ALLEGES THAT IT IS A BUYER IN GOOD
FAITH AND FOR VALUE. THUS, IDRI PRAYS THAT THE COURT SHOULD
UPHOLD THE VALIDITY OF IDRIS TCT NO. M-10976 OVER THE
PROPERTY.
WE FIND THE PETITIONS WITHOUT MERIT.
THIS CASE INVOLVES THE CONJUGAL PROPERTY OF ALFREDO AND
ELVIRA. SINCE THE DISPOSITION OF THE PROPERTY OCCURRED AFTER
THE EFFECTIVITY OF THE FAMILY CODE, THE APPLICABLE LAW IS THE
FAMILY CODE. ARTICLE 124 OF THE FAMILY CODE PROVIDES:
Art. 124. The administration and enjoyment of the conjugal partnership property
shall belong to both spouses jointly. In case of disagreement, the husbands decision
shall prevail, subject to the recourse to the court by the wife for a proper remedy,
which must be availed of within five years from the date of the contract
implementing such decision.
IN THE EVENT THAT ONE SPOUSE IS INCAPACITATED OR OTHERWISE UNABLE
TO PARTICIPATE IN THE ADMINISTRATION OF THE CONJUGAL PROPERTIES,
THE OTHER SPOUSE MAY ASSUME SOLE POWERS OF ADMINISTRATION. THESE
POWERS DO NOT INCLUDE THE POWERS OF DISPOSITION OR ENCUMBRANCE
WHICH MUST HAVE THE AUTHORITY OF THE COURT OR THE WRITTEN
CONSENT OF THE OTHER SPOUSE. IN THE ABSENCE OF SUCH AUTHORITY OR
CONSENT, THE DISPOSITION OR ENCUMBRANCE SHALL BE VOID. HOWEVER,
THE TRANSACTION SHALL BE CONSTRUED AS A CONTINUING OFFER ON THE PART
OF THE CONSENTING SPOUSE AND THE THIRD PERSON, AND MAY BE PERFECTED
AS A BINDING CONTRACT UPON THE ACCEPTANCE BY THE OTHER SPOUSE OR
AUTHORIZATION BY THE COURT BEFORE THE OFFER IS WITHDRAWN BY EITHER
OR BOTH OFFERORS. (EMPHASIS SUPPLIED)

In this case, Alfredo was the sole administrator of the property because Elvira, with
whom Alfredo was separated in fact, was unable to participate in the administration
of the conjugal property. However, as sole administrator of the property, Alfredo
still cannot sell the property without the written consent of Elvira or the authority of
the court. Without such consent or authority, the sale is void.[16] The absence of the
consent of one of the spouse renders the entire sale void, including the portion of the
conjugal property pertaining to the spouse who contracted the sale.[17] Even if the
other spouse actively participated in negotiating for the sale of the property, that

other spouses written consent to the sale is still required by law for its validity.[18]The
Agreement entered into by Alfredo and Mario was without the written consent of
Elvira. Thus, the Agreement is entirely void. As regards Marios contention that the
Agreement is a continuing offer which may be perfected by Elviras acceptance
before the offer is withdrawn, the fact that the property was subsequently donated
by Alfredo to Winifred and then sold to IDRI clearly indicates that the offer was
already withdrawn.
However, we disagree with the finding of the Court of Appeals that the one-half
undivided share of Alfredo in the property was already forfeited in favor of his
daughter Winifred, based on the ruling of the Cavite RTC in the legal separation
case. The Court of Appeals misconstrued the ruling of the Cavite RTC that Alfredo,
being the offending spouse, is deprived of his share in the net profits and the same
is awarded to Winifred.
THE CAVITE RTC RULING FINDS SUPPORT IN THE FOLLOWING
PROVISIONS OF THE FAMILY CODE:
ART. 63. THE DECREE OF LEGAL SEPARATION SHALL HAVE THE
FOLLOWING EFFECTS:
(1) THE SPOUSES SHALL BE ENTITLED TO LIVE SEPARATELY
FROM EACH OTHER, BUT THE MARRIAGE BONDS SHALL
NOT BE SEVERED;
(2) THE ABSOLUTE COMMUNITY OR THE CONJUGAL
PARTNERSHIP SHALL BE DISSOLVED AND LIQUIDATED
BUT THE OFFENDING SPOUSE SHALL HAVE NO RIGHT TO
ANY SHARE OF THE NET PROFITS EARNED BY THE
ABSOLUTE
COMMUNITY
OR
THE
CONJUGAL
PARTNERSHIP, WHICH SHALL BE FORFEITED IN
ACCORDANCE WITH THE PROVISIONS OF ARTICLE 43(2);
(3) THE CUSTODY OF THE MINOR CHILDREN SHALL BE
AWARDED TO THE INNOCENT SPOUSE, SUBJECT TO THE
PROVISIONS OF ARTICLE 213 OF THIS CODE; AND
THE OFFENDING SPOUSE SHALL BE DISQUALIFIED FROM INHERITING FROM THE
INNOCENT SPOUSE BY INTESTATE SUCCESSION. MOREOVER, PROVISIONS IN
FAVOR OF THE OFFENDING SPOUSE MADE IN THE WILL OF THE INNOCENT SPOUSE
SHALL BE REVOKED BY OPERATION OF LAW.
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall
produce the following effects:
XXX
(2) THE ABSOLUTE COMMUNITY OF PROPERTY OR THE
CONJUGAL PARTNERSHIP, AS THE CASE MAY BE, SHALL BE

DISSOLVED AND LIQUIDATED, BUT IF EITHER SPOUSE CONTRACTED

SAID MARRIAGE IN BAD FAITH, HIS OR HER SHARE OF THE NET
PROFITS OF THE COMMUNITY PROPERTY OR CONJUGAL
PARTNERSHIP PROPERTY SHALL BE FORFEITED IN FAVOR OF THE
COMMON CHILDREN OR, IF THERE ARE NONE, THE CHILDREN OF
THE GUILTY SPOUSE BY A PREVIOUS MARRIAGE OR, IN DEFAULT OF
CHILDREN, THE INNOCENT SPOUSE; (EMPHASIS SUPPLIED)

Thus, among the effects of the decree of legal separation is that the conjugal
partnership is dissolved and liquidated and the offending spouse would have no right
to any share of the net profits earned by the conjugal partnership. It is only Alfredos
share in the net profits which is forfeited in favor of Winifred. Article 102(4) of the
Family Code provides that [f]or purposes of computing the net profits subject to
forfeiture in accordance with Article 43, No. (2) and 63, No. (2), the said profits
shall be the increase in value between the market value of the community property
at the time of the celebration of the marriage and the market value at the time of its
dissolution. Clearly, what is forfeited in favor of Winifred is not Alfredos share in
the conjugal partnership property but merely in the net profits of the conjugal
partnership property.
WITH REGARD TO IDRI, WE AGREE WITH THE COURT OF APPEALS IN
HOLDING THAT IDRI IS NOT A BUYER IN GOOD FAITH. AS FOUND BY
THE RTC MALABON AND THE COURT OF APPEALS, IDRI HAD ACTUAL
KNOWLEDGE OF FACTS AND CIRCUMSTANCES WHICH SHOULD IMPEL
A REASONABLY CAUTIOUS PERSON TO MAKE FURTHER INQUIRIES
ABOUT THE VENDORS TITLE TO THE PROPERTY. THE
REPRESENTATIVE OF IDRI TESTIFIED THAT HE KNEW ABOUT THE
EXISTENCE OF THE NOTICE OF LIS PENDENS ON TCT NO. 5357 AND THE
LEGAL SEPARATION CASE FILED BEFORE THE CAVITE RTC. THUS, IDRI
COULD NOT FEIGN IGNORANCE OF THE CAVITE RTC DECISION
DECLARING THE PROPERTY AS CONJUGAL.
Furthermore, if IDRI made further inquiries, it would have known that the
cancellation of the notice of lis pendens was highly irregular. Under Section 77 of
Presidential Decree No. 1529,[19] the notice of lis pendens may be cancelled (a) upon
order of the court, or (b) by the Register of Deeds upon verified petition of the party
who caused the registration of the lis pendens. In this case, the lis pendens was

cancelled by the Register of Deeds upon the request of Alfredo. There was no court
order for the cancellation of the lis pendens. Neither did Elvira, the party who caused
the registration of the lis pendens, file a verified petition for its cancellation.
Besides, had IDRI been more prudent before buying the property, it would have
discovered that Alfredos donation of the property to Winifred was without the
consent of Elvira. Under Article 125[20] of the Family Code, a conjugal property
cannot be donated by one spouse without the consent of the other spouse. Clearly,
IDRI was not a buyer in good faith.
Nevertheless, we find it proper to reinstate the order of the Malabon RTC for the
reimbursement of the P18 million paid by IDRI for the property, which was
inadvertently omitted in the dispositive portion of the Court of Appeals decision.
WHEREFORE, we DENY the petitions. We AFFIRM the 7 July 2005 Decision
of the Court of Appeals in CA-G.R. CV No. 74447 with the
following MODIFICATIONS:
(1) We DELETE the portions regarding the forfeiture of Alfredo Gozons one-half
undivided share in favor of Winifred Gozon and the grant of option to
Winifred Gozon whether or not to dispose of her undivided share in the property;
and
(2) We ORDER Alfredo Gozon and Winifred Gozon to pay Inter-Dimensional
Realty, Inc. jointly and severally the Eighteen Million Pesos (P18,000,000) which
was the amount paid by Inter-Dimensional Realty, Inc. for the property, with legal
interest computed from the finality of this Decision.
SO ORDERED.

[19]

SEC. 77. Cancellation of lis pendens. - Before final judgment, a notice of lis pendens may be cancelled upon order
of the court after proper showing that the notice is for the purpose of molesting the adverse party, or that it is
not necessary to protect the rights of the party who caused it to be registered. It may also be cancelled by the
Register of Deeds upon verified petition of the party who caused the registration thereof.
[20]
Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However,
either spouse may, without the consent of the other, make moderate donations from the conjugal partnership
property for charity or on occasions of family rejoicing or family distress.

EN BANC
MANUEL O. FUENTES and G.R. No. 178902
LETICIA L. FUENTES,
Petitioners, Present:
Puno, C.J.,
Carpio,
Corona,
Carpio Morales,
Velasco, Jr.,
Nachura,
- versus - Leonardo-De Castro,
Brion,
Peralta,
Bersamin,
Del Castillo,
Abad,
Villarama, Jr.,
Perez, and
Mendoza, JJ.
CONRADO G. ROCA, ANNABELLE R.
JOSON, ROSE MARIE R. CRISTOBAL
and PILAR MALCAMPO, Promulgated:
Respondents.
April 21, 2010
x ---------------------------------------------------------------------------------------- x

DECISION
ABAD, J.:
This case is about a husbands sale of conjugal real property, employing a
challenged affidavit of consent from an estranged wife. The buyers claim valid
consent, loss of right to declare nullity of sale, and prescription.
The Facts and the Case

Sabina
Tarroza
owned
a
titled
358-square
meter
lot
in
Canelar, Zamboanga City. On October 11, 1982 she sold it to her son, Tarciano T.
Roca (Tarciano) under a deed of absolute sale.[1] But Tarciano did not for the
meantime have the registered title transferred to his name.
Six years later in 1988, Tarciano offered to sell the lot to petitioners Manuel and
Leticia Fuentes (the Fuentes spouses). They arranged to meet at the office of Atty.
Romulo D. Plagata whom they asked to prepare the documents of sale. They later
signed an agreement to sell that Atty. Plagata prepared[2] dated April 29, 1988, which
agreement expressly stated that it was to take effect in six months.
The agreement required the Fuentes spouses to pay Tarciano a down payment
of P60,000.00 for the transfer of the lots title to him. And, within six months,
Tarciano was to clear the lot of structures and occupants and secure the consent of
his estranged wife, Rosario Gabriel Roca (Rosario), to the sale. Upon Tarcianos
compliance with these conditions, the Fuentes spouses were to take possession of
the lot and pay him an additional P140,000.00 or P160,000.00, depending on
whether or not he succeeded in demolishing the house standing on it. If Tarciano
was unable to comply with these conditions, the Fuentes spouses would become
owners of the lot without any further formality and payment.
The parties left their signed agreement with Atty. Plagata who then worked on the
other requirements of the sale. According to the lawyer, he went to see Rosario in
one of his trips to Manila and had her sign an affidavit of consent.[3] As soon as
Tarciano met the other conditions, Atty. Plagata notarized Rosarios affidavit
in Zamboanga City. On January 11, 1989 Tarciano executed a deed of absolute
sale[4] in favor of the Fuentes spouses. They then paid him the
additional P140,000.00 mentioned in their agreement. A new title was issued in the
name of the spouses[5] who immediately constructed a building on the
lot. On January 28, 1990 Tarciano passed away, followed by his wife Rosario who
died nine months afterwards.
Eight years later in 1997, the children of Tarciano and Rosario, namely, respondents
Conrado G. Roca, Annabelle R. Joson, and Rose Marie R. Cristobal, together with
Tarcianos sister, Pilar R. Malcampo, represented by her son, John Paul M. Trinidad
(collectively, the Rocas), filed an action for annulment of sale and reconveyance of

the land against the Fuentes spouses before the Regional Trial Court (RTC) of
Zamboanga City in Civil Case 4707. The Rocas claimed that the sale to the spouses
was void since Tarcianos wife, Rosario, did not give her consent to it. Her signature
on the affidavit of consent had been forged. They thus prayed that the property be
reconveyed to them upon reimbursement of the price that the Fuentes spouses paid
Tarciano.[6]
The spouses denied the Rocas allegations. They presented Atty. Plagata who
testified that he personally saw Rosario sign the affidavit at her residence in
Paco, Manila, on September 15, 1988. He admitted, however, that he notarized the
document inZamboanga City four months later on January 11, 1989.[7] All the same,
the Fuentes spouses pointed out that the claim of forgery was personal
to Rosario and she alone could invoke it. Besides, the four-year prescriptive period
for nullifying the sale on ground of fraud had already lapsed.
Both the Rocas and the Fuentes spouses presented handwriting experts at the trial.
Comparing Rosarios standard signature on the affidavit with those on various
documents she signed, the Rocas expert testified that the signatures were not written
by the same person. Making the same comparison, the spouses expert concluded that
they were.[8]
On February 1, 2005 the RTC rendered judgment, dismissing the case. It ruled that
the action had already prescribed since the ground cited by the Rocas for annulling
the sale, forgery or fraud, already prescribed under Article 1391 of the Civil Code
four years after its discovery. In this case, the Rocas may be deemed to have notice
of the fraud from the date the deed of sale was registered with the Registry of Deeds
and the new title was issued. Here, the Rocas filed their action in 1997, almost nine
years after the title was issued to the Fuentes spouses on January 18, 1989.[9]
Moreover, the Rocas failed to present clear and convincing evidence of the fraud.
Mere variance in the signatures of Rosario was not conclusive proof of
forgery.[10] The RTC ruled that, although the Rocas presented a handwriting expert,
the trial court could not be bound by his opinion since the opposing expert witness
contradicted the same. Atty. Plagatas testimony remained technically unrebutted.[11]
Finally, the RTC noted that Atty. Plagatas defective notarization of the affidavit of
consent did not invalidate the sale. The law does not require spousal consent to be

on the deed of sale to be valid. Neither does the irregularity vitiate Rosarios
consent.She personally signed the affidavit in the presence of Atty. Plagata.[12]
On appeal, the Court of Appeals (CA) reversed the RTC decision. The CA found
sufficient evidence of forgery and did not give credence to Atty. Plagatas testimony
that he saw Rosario sign the document in Quezon City. Its jurat said
differently. Also, upon comparing the questioned signature with the specimen
signatures, the CA noted significant variance between them. That Tarciano and
Rosario had been living separately for 30 years since 1958 also reinforced the
conclusion that her signature had been forged.
Since Tarciano and Rosario were married in 1950, the CA concluded that their
property relations were governed by the Civil Code under which an action for
annulment of sale on the ground of lack of spousal consent may be brought by the
wife during the marriage within 10 years from the transaction. Consequently, the
action that the Rocas, her heirs, brought in 1997 fell within 10 years of the January
11, 1989 sale.
Considering, however, that the sale between the Fuentes spouses and Tarciano was
merely voidable, the CA held that its annulment entitled the spouses to
reimbursement of what they paid him plus legal interest computed from the filing of
the complaint until actual payment. Since the Fuentes spouses were also builders in
good faith, they were entitled under Article 448 of the Civil Code to payment of the
value of the improvements they introduced on the lot. The CA did not award
damages in favor of the Rocas and deleted the award of attorneys fees to the Fuentes
spouses.[13]
Unsatisfied with the CA decision, the Fuentes spouses came to this court by petition
for review.[14]
The Issues Presented
The case presents the following issues:
1. Whether or not Rosarios signature on the document of consent to her
husband Tarcianos sale of their conjugal land to the Fuentes spouses was forged;

2. Whether or not the Rocas action for the declaration of nullity of that sale to
the spouses already prescribed; and
3. Whether or not only Rosario, the wife whose consent was not had, could
bring the action to annul that sale.
The Courts Rulings
First. The key issue in this case is whether or not Rosarios signature on the
document of consent had been forged. For, if the signature were genuine, the fact
that she gave her consent to her husbands sale of the conjugal land would render the
other issues merely academic.
The CA found that Rosarios signature had been forged. The CA observed a
marked difference between her signature on the affidavit of consent[15] and her
specimen signatures.[16] The CA gave no weight to Atty. Plagatas testimony that he
saw Rosario sign the document in Manila on September 15, 1988 since this clashed
with his declaration in the jurat that Rosario signed the affidavit in Zamboanga City
on January 11, 1989.
The Court agrees with the CAs observation that Rosarios signature strokes on
the affidavit appears heavy, deliberate, and forced. Her specimen signatures, on the
other hand, are consistently of a lighter stroke and more fluid. The way the letters R
and s were written is also remarkably different. The variance is obvious even to the
untrained eye.
Significantly, Rosarios specimen signatures were made at about the time that
she signed the supposed affidavit of consent. They were, therefore, reliable standards
for comparison. The Fuentes spouses presented no evidence that Rosario suffered
from any illness or disease that accounted for the variance in her signature when she
signed the affidavit of consent. Notably, Rosario had been living separately from
Tarciano for 30 years since 1958. And she resided so far away in Manila. It would
have been quite tempting for Tarciano to just forge her signature and avoid the risk
that she would not give her consent to the sale or demand a stiff price for it.

What is more, Atty. Plagata admittedly falsified the jurat of the affidavit of
consent. That jurat declared that Rosario swore to the document and signed it
in Zamboanga City on January 11, 1989 when, as Atty. Plagata testified, she
supposedly signed it about four months earlier at her residence in
Paco, Manila on September 15, 1988. While a defective notarization will merely
strip the document of its public character and reduce it to a private instrument, that
falsified jurat, taken together with the marks of forgery in the signature, dooms such
document as proof of Rosarios consent to the sale of the land. That the Fuentes
spouses honestly relied on the notarized affidavit as proof of Rosarios consent does
not matter. The sale is still void without an authentic consent.
Second. Contrary to the ruling of the Court of Appeals, the law that applies to
this case is the Family Code, not the Civil Code. Although Tarciano and Rosario got
married in 1950, Tarciano sold the conjugal property to the Fuentes spouses
onJanuary 11, 1989, a few months after the Family Code took effect on August 3,
1988.
When Tarciano married Rosario, the Civil Code put in place the system of conjugal
partnership of gains on their property relations. While its Article 165 made Tarciano
the sole administrator of the conjugal partnership, Article 166[17] prohibited him
from selling commonly owned real property without his wifes consent. Still, if he
sold the same without his wifes consent, the sale is not void but merely
voidable. Article 173 gave Rosario the right to have the sale annulled during the
marriage within ten years from the date of the sale. Failing in that, she or her heirs
may demand, after dissolution of the marriage, only the value of the property that
Tarciano fraudulently sold. Thus:
Art. 173. The wife may, during the marriage, and within ten years from
the transaction questioned, ask the courts for the annulment of any contract
of the husband entered into without her consent, when such consent is
required, or any act or contract of the husband which tends to defraud her or
impair her interest in the conjugal partnership property. Should the wife fail
to exercise this right, she or her heirs, after the dissolution of the marriage,
may demand the value of property fraudulently alienated by the husband.

But, as already stated, the Family Code took effect on August 3, 1988. Its
Chapter 4 on Conjugal Partnership of Gains expressly superseded Title VI, Book I

of the Civil Code on Property Relations Between Husband and Wife.[18] Further, the
Family Code provisions were also made to apply to already existing conjugal
partnerships without prejudice to vested rights.[19] Thus:
Art. 105. x x x The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses before the
effectivity of this Code, without prejudice to vested rights already acquired in
accordance with the Civil Code or other laws, as provided in Article 256. (n)

Consequently, when Tarciano sold the conjugal lot to the Fuentes spouses
on January 11, 1989, the law that governed the disposal of that lot was already the
Family Code.
In contrast to Article 173 of the Civil Code, Article 124 of the Family Code
does not provide a period within which the wife who gave no consent may assail her
husbands sale of the real property. It simply provides that without the other spouses
written consent or a court order allowing the sale, the same would be void. Article
124 thus provides:
Art. 124. x x x In the event that one spouse is incapacitated or otherwise
unable to participate in the administration of the conjugal properties, the
other spouse may assume sole powers of administration. These powers do not
include the powers of disposition or encumbrance which must have the
authority of the court or the written consent of the other spouse. In the absence
of such authority or consent, the disposition or encumbrance shall be void. x x
x

Under the provisions of the Civil Code governing contracts, a void or

inexistent contract has no force and effect from the very beginning. And this rule
applies to contracts that are declared void by positive provision of law,[20] as in the
case of a sale of conjugal property without the other spouses written consent. A void
contract is equivalent to nothing and is absolutely wanting in civil effects. It cannot
be validated either by ratification or prescription.[21]
But, although a void contract has no legal effects even if no action is taken to
set it aside, when any of its terms have been performed, an action to declare its
inexistence is necessary to allow restitution of what has been given under it.[22] This
action, according to Article 1410 of the Civil Code does not prescribe. Thus:

Art. 1410. The action or defense for the declaration of the inexistence of a
contract does not prescribe.

Here, the Rocas filed an action against the Fuentes spouses in 1997 for
annulment of sale and reconveyance of the real property that Tarciano sold without
their mothers (his wifes) written consent. The passage of time did not erode the right
to bring such an action.
Besides, even assuming that it is the Civil Code that applies to the transaction
as the CA held, Article 173 provides that the wife may bring an action for annulment
of sale on the ground of lack of spousal consent during the marriage within 10 years
from the transaction. Consequently, the action that the Rocas, her heirs, brought in
1997 fell within 10 years of the January 11, 1989 sale. It did not yet prescribe.
The Fuentes spouses of course argue that the RTC nullified the sale to them
based on fraud and that, therefore, the applicable prescriptive period should be that
which applies to fraudulent transactions, namely, four years from its
discovery. Since notice of the sale may be deemed given to the Rocas when it was
registered with the Registry of Deeds in 1989, their right of action already prescribed
in 1993.
But, if there had been a victim of fraud in this case, it would be the Fuentes
spouses in that they appeared to have agreed to buy the property upon an honest
belief that Rosarios written consent to the sale was genuine. They had four years
then from the time they learned that her signature had been forged within which to
file an action to annul the sale and get back their money plus damages. They never
exercised the right.
If, on the other hand, Rosario had agreed to sign the document of consent upon
a false representation that the property would go to their children, not to strangers,
and it turned out that this was not the case, then she would have four years from the
time she discovered the fraud within which to file an action to declare the sale
void. But that is not the case here. Rosario was not a victim of fraud or
misrepresentation. Her consent was simply not obtained at all. She lost nothing since
the sale without her written consent was void. Ultimately, the Rocas ground for

annulment is not forgery but the lack of written consent of their mother to the
sale. The forgery is merely evidence of lack of consent.
Third. The Fuentes spouses point out that it was to Rosario, whose consent
was not obtained, that the law gave the right to bring an action to declare void her
husbands sale of conjugal land. But here, Rosario died in 1990, the year after the
sale.Does this mean that the right to have the sale declared void is forever lost?
The answer is no. As stated above, that sale was void from the
beginning. Consequently, the land remained the property of Tarciano and Rosario
despite that sale. When the two died, they passed on the ownership of the property
to their heirs, namely, the Rocas.[23] As lawful owners, the Rocas had the right, under
Article 429 of the Civil Code, to exclude any person from its enjoyment and disposal.
In fairness to the Fuentes spouses, however, they should be entitled, among
other things, to recover from Tarcianos heirs, the Rocas, the P200,000.00 that they
paid him, with legal interest until fully paid, chargeable against his estate.
Further, the Fuentes spouses appear to have acted in good faith in entering the
land and building improvements on it. Atty. Plagata, whom the parties mutually
entrusted with closing and documenting the transaction, represented that he
gotRosarios signature on the affidavit of consent. The Fuentes spouses had no reason
to believe that the lawyer had violated his commission and his oath. They had no
way of knowing that Rosario did not come to Zamboanga to give her consent. There
is no evidence that they had a premonition that the requirement of consent presented
some difficulty. Indeed, they willingly made a 30 percent down payment on the
selling price months earlier on the assurance that it was forthcoming.
Further, the notarized document appears to have comforted the Fuentes
spouses that everything was already in order when Tarciano executed a deed of
absolute sale in their favor on January 11, 1989. In fact, they paid the balance due
him. And, acting on the documents submitted to it, the Register of Deeds of
Zamboanga City issued a new title in the names of the Fuentes spouses. It was only
after all these had passed that the spouses entered the property and built on it. He is
deemed a possessor in good faith, said Article 526 of the Civil Code, who is not

aware that there exists in his title or mode of acquisition any flaw which invalidates
it.
As possessor in good faith, the Fuentes spouses were under no obligation to
pay for their stay on the property prior to its legal interruption by a final judgment
against them.[24] What is more, they are entitled under Article 448 to indemnity for
the improvements they introduced into the property with a right of retention until the
reimbursement is made. Thus:
Art. 448. The owner of the land on which anything has been built, sown or
planted in good faith, shall have the right to appropriate as his own the works,
sowing or planting, after payment of the indemnity provided for in Articles
546 and 548, or to oblige the one who built or planted to pay the price of the
land, and the one who sowed, the proper rent. However, the builder or planter
cannot be obliged to buy the land if its value is considerably more than that of
the building or trees. In such case, he shall pay reasonable rent, if the owner
of the land does not choose to appropriate the building or trees after proper
indemnity. The parties shall agree upon the terms of the lease and in case of
disagreement, the court shall fix the terms thereof. (361a)

The Rocas shall of course have the option, pursuant to Article 546 of the Civil
Code, of indemnifying the Fuentes spouses for the costs of the improvements or
paying the increase in value which the property may have acquired by reason of such
improvements.
[25]

WHEREFORE, the Court DENIES the petition and AFFIRMS WITH

MODIFICATION the decision of the Court of Appeals in CA-G.R. CV 00531
dated February 27, 2007 as follows:
1. The deed of sale dated January 11, 1989 that Tarciano T. Roca executed in
favor of Manuel O. Fuentes, married to Leticia L. Fuentes, as well as the Transfer
Certificate of Title T-90,981 that the Register of Deeds of Zamboanga City issued
in the names of the latter spouses pursuant to that deed of sale
are DECLARED void;
2. The Register of Deeds of Zamboanga City is DIRECTED to reinstate
Transfer Certificate of Title 3533 in the name of Tarciano T. Roca, married to
Rosario Gabriel;

3. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose Marie R.

Cristobal, and Pilar Malcampo are ORDERED to pay petitioner spouses Manuel
and Leticia Fuentes the P200,000.00 that the latter paid Tarciano T. Roca, with legal
interest from January 11, 1989 until fully paid, chargeable against his estate;
4. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose Marie R.
Cristobal, and Pilar Malcampo are further ORDERED, at their option, to indemnify
petitioner spouses Manuel and Leticia Fuentes with their expenses for introducing
useful improvements on the subject land or pay the increase in value which it may
have acquired by reason of those improvements, with the spouses entitled to the right
of retention of the land until the indemnity is made; and
5. The RTC of Zamboanga City from which this case originated
is DIRECTED to receive evidence and determine the amount of indemnity to which
petitioner spouses Manuel and Leticia Fuentes are entitled.
SO ORDERED.

[14]

A Division of the Court already denied the petition for having been filed late and on other technical grounds.
(Rollo, pp. 7 and 110-111). But it was reinstated on second motion for reconsideration and referred to the En Banc on
a consulta. (Rollo, pp. 199-200).
[16]
Exhibits E to E-21 consisting of personal letters and legal documents signed by Rosario relative to a special
proceedings case tried by another court.
[17]
Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or
is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership
without the wifes consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same.
[23]
Id., Art. 979. Legitimate children and their descendants succeed the parents and other ascendants, without
distinction as to sex or age, and even if they should come from different marriages. x x x
[25]
Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain
the thing until he has been reimbursed therefor. Useful expenses shall be refunded only to the possessor in good faith
with the same right of retention, the person who has defeated him in the possession having the option of refunding the
amount of the expenses or of paying the increase in value which the thing may have acquired by reason thereof. (453a)

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-45038 April 30, 1987
MANOTOK REALTY, INC., petitioner,
vs.
THE HON. COURT OF APPEALS and FELIPE MADLANGAWA, respondents.
Romeo J. Calejo for petitioner.
Mantanggot C. Gunigundo for private respondent.

GUTIERREZ, JR., J.:

This is a petition for certiorari by way of appeal seeking to set aside the decision of the Court of
Appeals which upheld the dismissal of the petitioner's complaint for reinvidicatory action with
damages against the private respondent and ordered the petitioner to accept the payment of the
balance of P2,551.85 from said respondent, and thereafter, to execute the corresponding deed of
sale of Lot 227, Block I in favor of the latter.
The private respondent Felipe Madlangawa claims that he has been occupying a parcel of land in
the Clara de Tambunting de Legarda Subdivision since 1949 upon permission being obtained from
Andres Ladores, then an overseer of the subdivision, with the understanding that the respondent
would eventually buy the lot.
On April 2, 1950, the owner of the lot, Clara Tambunting, died and her entire estate, including her
paraphernal properties which covered the lot occupied by the private respondent were placed
under custodia legis.
On April 22, 1950, the private respondent made a deposit for the said lot in the sum of P1,500.00
which was received by Vicente Legarda, husband of the late owner. As evidenced by the receipt
issued by Vicente Legarda, the lot consisted of an area of 240 square meters and was sold at
P30.00 per square meter. There, thus, remained an unpaid balance of P5,700.00 but the private
respondent did not pay or was unable to pay this balance because after the death of the testatrix,
Clara Tambunting de Legarda, her heirs could not settle their differences. Apart from the initial
deposit, no further payments were made from 1950.
On April 28, 1950, Don Vicente Legarda was appointed as a special administrator of the estate.
Meanwhile the private respondent remained in possession of the lot in question.
Subsequently, the petitioner became the successful bidder and vendee of the Tambunting de
Legarda Subdivision consisting of 44 parcels of land spread out in the districts of Tondo and Sta.
Cruz, Manila, pursuant to the deeds of sale executed in its favor by the Philippine Trust Company on
March 13 and 20, 1959, as administrator of the Testate Estate of Clara Tambunting de Legarda, in
Special Proceeding No. 10809 of the Manila probate court. The lot in dispute was one of those

covered by the sale. The Deed of Sale, among others, provided for the following terms and
conditions:
1. The VENDEE assumes the risk and expenses of ejecting the tenants or
squatters on the said parcels of land if it decides to eject them. Any rentals or
damages that may be due or collectible from the said tenants or squatters for the
period subsequent to the date of this deed of sale shall belong to the VENDEE but
rentals due from the said tenants or squatters prior to the execution of this deed of
sale shall belong to the VENDOR.
xxx xxx xxxx x x
3. The VENDEE renounces the right to warranty in case of eviction with the
knowledge of the risks of eviction and assumes its consequences with respect not
only to the lots subject-of the above mentioned cases and claims but also with
respect to any other lots subject of contracts of sale or promises to sell that may
have been executed by the deceased, Clara Tambunting de Legarda and/or Vicente
L. Legarda, and it hereby relieves the estate of Clara Tambunting de Legarda and
the Philippine Trust Company, in its capacity as Administrator thereof, of any and all
liability with respect thereto in case of eviction. All sums of money that have been
paid to the deceased Clara Tambunting de Legarda and/or Vicente L. Legarda
and/or the administrator of Clara Tambunting de Legarda on account of the purchase
price of said lots shall belong to the estate, but any sums of money that are or may
be due as the balance of the purchase price of said lots shall belong to the VENDEE.
(pp. 27-28, Rollo).
xxx xxx xxx
In its effort to clear the Tambunting Subdivision of its squatters and occupants, the petitioner caused
the publication of several notices in the Manila Times issues of January 1, 1966 and
the Taliba issues of January 2, and March 16, 1966, advising the occupants to vacate their
respective premises, otherwise, court action with damages would follow. In addition to these notices
by publication, the petitioner sent circulars to the occupants to vacate.
The private respondent was one of the many occupants who refused to vacate the lots they were
occupying, so that on April 26, 1968, the petitioner filed the action below to recover the said lot.
The trial court dismissed the petitioner's action after finding that the Identity of the parcel of land
described in the complaint had not been sufficiently established as the very same piece of land in
the material and physical possession of the private respondent.
On appeal, the respondent Court of Appeals found the Identity of the lot sought to be recovered by
the petitioner to be the same as that in the physical possession of the private respondent and ruled
that the only right remaining to the petitioner is to enforce the collection of the balance because
accordingly, it stepped into the shoes of its predecessor; and that since the area now in possession
of the petitioner which is that involved in the present case is only 115 square meters, the balance
after deducting the deposit of P1,500.00 is P2,551.85, and as per order of the Court of First Instance
of Manila, the said balance should be paid in 18 equal monthly installments.
In this petition, the petitioner maintains that the Court of Appeals committed a reversible error in
holding that the sale by Don Vicente Legarda in favor of the private respondent is valid, binding, and
enforceable against the petitioner.

The petitioner contends that since there is no dispute that the property in question was the
paraphernal property of Clara Tambunting, who died on April 2, 1950, Vicente Legarda had no
authority whatsoever to sell the said property to the private respondent on May 12, 1950 since the
former was appointed as administrator of the estate of Clara Tambunting only on August 28, 1950.
Therefore, the questioned sale could not have bound Clara Tambunting's estate because the vendor
Vicente Legarda neither acted as the owner nor the administrator of the subject property when the
alleged sale took place. As regards the provision in the deed of sale which it executed with the
Philippine Trust Company wherein it bound itself to respect the contracts of sale or promises to sell
that may have been executed by Vicente Legarda and renounced the right to warranty in case of
eviction, the petitioner argues that this re-required respect only for those valid sales executed by the
deceased Clara Tambunting and by persons vested with authority to act on behalf of the estate.
On the other hand, the private respondent contends that the aforequoted provisions of the deed of
sale are a declaration or admission against the interest of the petitioner, and shows that the acts of
Vicente Legarda had been ratified by the Philippine Trust Company and approved by the probate
court. The petitioner, therefore, is allegedly estopped from questioning the authority of Vicente
Legarda in selling the property in dispute.
It is an undisputed fact that the lot in dispute is the paraphernal property of Dona Clara Tambunting
and that at the time of the sale thereof, the owner was already dead. Thus, the only question to be
resolved in this petition is: in what capacity did the husband of the deceased, Don Vicente Legarda,
dispose of the lot?
Articles 136 and 137 of the Civil Code of the Philippines provide:
Art. 136. The wife retains the ownership of the paraphernal property.
Art. 137. The wife shall have the administration of the paraphernal property, unless
she delivers the same to the husband by means of a public instrument empowering
him to administer it.
In this case, the public instrument shall be recorded in the Registry of Property. As
for the movables, the husband shall give adequate security.
There is nothing in the records that wig show that Don Vicente Legarda was the administrator of the
paraphernal properties of Dona Clara Tambunting during the lifetime of the latter. Thus, it cannot be
said that the sale which was entered into by the private respondent and Don Vicente Legarda had its
inception before the death of Dona Clara Tambunting and was entered into by the former for and on
behalf of the latter, but was only consummated after her death. Don Vicente Legarda, therefore,
could not have validly disposed of the lot in dispute as a continuing administrator of the paraphernal
properties of Dona Clara Tambunting.
It is also undisputed that the probate court appointed Don Vicente Legarda as administrator of the
estate only on August 28, 1950, more than three months after the questioned sale had taken place.
We are, therefore, led to the inevitable conclusion that the sale between Don Vicente Legarda and
the private respondent is void ab initio, the former being neither an owner nor administrator of the
subject property. Such being the case, the sale cannot be the subject of the ratification by the
Philippine Trust Company or the probate court. As was held in the case of Arsenal v. Intermediate
Appellate Court (143 SCRA 40, 49):

Under the provisions of the Civil Code, a void contract is inexistent from the
beginning. It cannot be ratified neither can the right to set up the defense of its
illegality be waived. (Art. 1409, Civil Code .
To further distinguish this contract from the other kinds of contract, a commentator
has stated that.
The right to set up the nullity of a void or non-existent contract is not
limited to the parties as in the case of annuable or voidable contracts,
it is extended to third persons who are directly affected by the
contract. (Tolentino, Civil Code of the Philippines, Vol. IV, p. 604,
[1973]).
Any person may invoke the inexistence of the contract whenever
juridical affects founded thereon are asserted against him. (Id. P.
595).
Section 1, Rule 89 of the Revised Rules of Court provides for the procedure on how a property in
custodia legis can be disposed of by sale:
Order of sale of personalty. Upon the application of the executor or administrator,
and on written notice to the heirs and other persons interested, the court may order
the whole or a part of the personal estate to be sold, if it appears necessary for the
purpose of paying debts, expenses of administration, or legacies, or for the
preservation of the property.
After the appointment of Don Vicente Legarda as administrator of the estate of Dona Clara
Tambunting, he should have applied before the probate court for authority to sell the disputed
property in favor of the private respondent. If the probate court approved the request, then Don
Vicente Legarda would have been able to execute a valid deed of sale in favor of the respondent.
Unfortunately, there was no effort on the part of the administrator to comply with the above-quoted
rule of procedure nor on that of the respondent to protect his interests or to pay the balance of the
installments to the court appointed administrator.
As was held in Kline v. Shoup (226 Pacific Reporter 729, 731), which we find applicable in the case
at bar:
There are, however, certain steps to be taken in the administration of an estate which
the law deems of sufficient importance to have placed without the power of the
probate court to effect under the jurisdiction acquired over the general subject matter
by law and over the estate and those interested therein, by the filing and due service
of the petition for the appointment of an administrator and the order of appointment
and issuance of letters, and at least one of such steps is the sale of the real property
of an estate for the payment of the debts of the deceased. C.S. 7603, provides that

No sale of any property of an estate of a decedent is valid unless made under order
of the probate court. ...
From the foregoing, it cannot be denied that the law recognizes the issuance of an
order of sale as an indispensable requisite in effecting a valid sale of the property of
a decedent's estate. ...

Considering the location of the disputed lot, we find a monthly rental of Twenty Centavos (P0.20) per
square meter to be more than fair to the private respondent for his use of the premises. The
petitioner, however, should return the P 1,500.00 received by Mr. Legarda, with legal interest, to the
respondent.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby REVERSED
and SET ASIDE. The private respondent is ordered to SURRENDER the material and physical
possession of Lot No. 277, Block I to the petitioner and to pay the latter the rentals as stated above
from May, 1950 until he surrenders the said lot. The petitioner shall reimburse the private
respondent the amount of P1,500.00 with legal interest from May, 1950 or offset said amount from
the rentals due to it. Costs against the private respondent.
SO ORDERED.
Fernan (Chairman), Paras, Padilla, Bidin and Cortes, JJ , concur.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 82606 December 18, 1992
PRIMA PARTOSA-JO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and
CONSING), respondents.

CRUZ, J.:
The herein private respondent, Jose Jo, admits to having cohabited with three women and fathered
fifteen children. The first of these women, the herein petitioner, claims to be his legal wife whom he
begot a daughter, Monina Jo. The other women and their respective offspring are not parties of
these case.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal property,
docketed as Civil Case No. 51, in addition to an earlier action for support, also against him and
docketed as Civil Case No. 36, in the Regional Trial Court of Negros Oriental, Branch 35.
The two cases were consolidated and tried jointly. On November 29, 1983, Judge German G. Lee,
Jr. rendered an extensive decision, the dispositive portion of which read:
WHEREFORE, in view of all the foregoing arguments and considerations, this court
hereby holds that the plaintiff Prima Partosa was legally married to Jose Jo alias Ho
Hang, alias Consing, and, therefore, is entitled to support as the lawfully wedded wife
and the defendant is hereby ordered to give a monthly support of P500.00 to the
plaintiff Prima Partosa, to be paid on or before the 5th day of every month, and to
give to the plaintiff the amount of P40,000.00 for the construction of the house in
Zamboanguita, Negros Oriental where she may live separately from the defendant
being entitled under the law to separate maintenance being the innocent spouse and
to pay the amount of P19,200.00 to the plaintiff by way of support in arrears and to
pay the plaintiff the amount of P3,000.00 in the concept of attorney's fees.
As will be noticed, there was a definite disposition of the complaint for support but none of the
complaint for judicial separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial court in the
complaint for support. 1 The complaint for judicial separation of conjugal property was dismissed for lack
of a cause of action and on the ground that separation by agreement was not covered by Article 178 of
the Civil Code.

When their motions for reconsideration were denied, both parties came to this Court for relief. The
private respondent's petition for review on certiorari was dismissed for tardiness in our resolution

dated February 17, 1988, where we also affirmed the legality of the marriage between Jose and
Prima and the obligation of the former to support her and her daughter.
This petition deals only with the complaint for judicial separation of conjugal property.
It is here submitted that the Court of Appeals erred in holding that: a) the judicial separation of
conjugal property sought was not allowed under Articles 175, 178 and 191 of the Civil Code; and b)
no such separation was decreed by the trial court in the dispositive portion of its decision.
The private respondent contends that the decision of the trial court can longer be reviewed at this
time because it has a long since become final and executory. As the decretal portion clearly made
no disposition of Civil Case No. 51, that case should be considered impliedly dismissed. The
petitioner should have called the attention of the trial court to the omission so that the proper
rectification could be made on time. Not having done so, she is now concluded by the said decision,
which can no longer be corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in the dispositive portion of the
decision of the trial court, the petitioner argues that a disposition of the case was nonetheless made
in the penultimate paragraph of the decision reading as follows:
It is, therefore, hereby ordered that all properties in question are considered
properties of Jose Jo, the defendant in this case, subject to separation of property
under Article 178, third paragraph of the Civil Code, which is subject of separate
proceedings as enunciated herein.
The petitioner says she believed this to be disposition enough and so did not feel it was necessary
for her to appeal, particularly since the order embodied in that paragraph was in her favor. It was
only when the respondent court observed that there was no dispositive portion regarding that case
and so ordered its dismissal that she found it necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete insofar as it carried no ruling on
the complaint for judicial separation of conjugal property although it was extensively discussed in the
body of the decision. The drafting of the decision was indeed not exactly careful. The petitioner's
counsel, noting this, should have taken immediate steps for the rectification for the omission so that
the ruling expressed in the text of the decision could have been embodied in the decretal portion.
Such alertness could have avoided this litigation on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be allowed to prevail over
considerations of substantive justive. After all, the technical defect is not insuperable. We have said
time and again that where there is an ambiguity caused by an omission or a mistake in the
dispositive portion of the decision, this Court may clarify such an ambiguity by an amendment even
after the judgment have become final. 2 In doing so, the Court may resort to the pleading filed by the
parties and the findings of fact and the conclusions of law expressed in the text or body of the decision.

The trial court made definite findings on the complaint for judicial separation of conjugal property,
holding that the petitioner and the private respondent were legally married and that the properties

mentioned by the petitioner were acquired by Jo during their marriage although they were registered
in the name of the apparent dummy.
There is no question therefore that the penultimate paragraph of the decision of the trial court was a
ruling based upon such findings and so should have been embodied in the dispositive portion. The
respondent court should have made the necessary modification instead of dismissing Civil Case No.
51 and thus upholding mere form over substance.
In the interest of substantive justice, and to expedite these proceedings, we hereby make such
modification.
And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that the separation of the parties was
due to their agreement and not because of abondonment. The respondent court relied mainly on the
testimony of the petitioner, who declared under oath that she left Dumaguete City, where she and Jo
were living together "because that was our agreement." It held that a agreement to live separately
without just cause was void under Article 221 of the Civil Code and could not sustain any claim of
abandonment by the aggrieved spouse. Its conclusion was that the only remedy availabe to the
petitioner was legal separation under Article 175 of the Civil Code, 4 by virtue of which the conjugal
partnership of property would be terminated.

The petitioner contends that the respondent court has misinterpreted Articles 175, 178 and 191 of
the Civil Code. She submits that the agreement between her and the private respondent was for her
to temporarily live with her parents during the initial period of her pregnancy and for him to visit and
support her. They never agreed to separate permanently. And even if they did, this arrangement was
repudiated and ended in 1942, when she returned to him at Dumaguete City and he refused to
accept her.
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and wife without judicial approval,
shall not affect the conjugal partnership, except that:
xxx xxx xxx
(3) If the husband has abandoned the wife without just cause for at least one year,
she may petition the court for a receivership, or administration by her of the conjugal
partnership property or separation of property.
The above-quoted provision has been superseded by Article 128 of the Family Code, which states:
Art. 128. If a spouse without just cause abandons the other or fails to comply with his
or her obligations to the family, the aggrieved spouse may petition the court for
receivership, for judicial separation of property, of for authority to be the sole
administrator of the conjugal partnership property, subject to such precautionary
conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to martial,
parental or property relations.

A spouse is deemed to have abondoned the other when he or she has left the
conjugal dwelling without any intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has failed within the same period to
give any information as to his or her whereabouts shall be prima facie presumed to
have no intention of returning to the conjugal dwelling.
Under the this provision, the aggrieved spouse may petition for judicial separation on either of these
grounds:
1. Abondonment by a spouse of the other without just cause; and
2. Failure of one spouse to comply with his or her obligations to the family without
just cause, even if she said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the avowed intent never to return, followed by
prolonged absence without just cause, and without in the meantime providing in the least for one's
family although able to do so. 5 There must be absolute cessation of marital relations, duties and rights,
with the intention of perpetual separation. 6This idea is clearly expressed in the above-quoted provision,
which states that "a spouse is deemed to have abandoned the other when he or she has left the conjugal
dwelling without any intention of returning."

The record shows that as early as 1942, the private respondent had already rejected the petitioner,
whom he denied admission to their conjugal home in Dumaguete City when she returned from
Zamboanguita. The fact that she was not accepted by Jo demonstrates all too clearly that he had no
intention of resuming their conjugal relationship. Moreover, beginning 1968 until the determination by
this Court of the action for support in 1988, the private respondent refused to give financial support
to the petitioner. The physical separation of the parties, coupled with the refusal by the private
respondent to give support to the petitioner, sufficed to constitute abandonment as a ground for the
judicial separation of their conjugal property.
In addition, the petitioner may also invoke the second ground allowed by Article 128, for the fact is
that he has failed without just cause to comply with his obligations to the family as husband or
parent. Apart form refusing to admit his lawful wife to their conjugal home in Dumaguete City, Jo has
freely admitted to cohabiting with other women and siring many children by them. It was his refusal
to provide for the petitioner and their daughter that prompted her to file the actions against him for
support and later for separation of the conjugal property, in which actions, significantly, he even
denied being married to her. The private respondent has not established any just cause for his
refusal to comply with his obligations to his wife as dutiful husband.
Their separation thus falls also squarely under Article 135 of the Family Code, providing as follows:
Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property:
xxx xxx xxx
(6) That at the time of the petition, the spouse have been separated in fact for at
least one year and reconciliation is highly improbable.
The amendments introduced in the Family Code are applicable to the case before us although they
became effective only on August 3, 1988. As we held in Ramirez v. Court of Appeals: 7

The greater weight of authority is inclined to the view that an appellate court, in
reviewing a judgment on appeal, will dispose of a question according to the law
prevailing at the term of such disposition, and not according to the law prevailing at
the time of rendition of the appealed judgement. The court will therefore reverse a
judgement which was correct at the time it was originally rendered where, by statute,
there has been an intermediate change in the law which renders such judgement
erroneous at the time the case was finally disposed of on appeal.
The order of judicial separation of the properties in question is based on the finding of both the trial
and respondent courts that the private respondent is indeed their real owner. It is these properties
that should now be divided between him and the petitioner, on the assumption that they were
acquired during coverture and so belong to the spouses half and half. As the private respondent is a
Chinese citizen, the division must include such properties properly belonging to the conjugal
partnership as may have been registered in the name of other persons in violation of the AntiDummy Law.
The past has caught up with the private respondent. After his extramarital flings and a succession of
illegitimate children, he must now make an accounting to his lawful wife of the properties he denied
her despite his promise to their of his eternal love and care.
WHEREFORE, the petition is GRANTED and the assailed decision of the respondent court is
MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the petitioner herein, and the
conjugal property of the petitioner and the private respondent is hereby ordered divided between
them, share and share alike. This division shall be implemented by the trial court after determination
of all the properties pertaining to the said conjugal partnership, including those that may have been
illegally registered in the name of the persons.
SO ORDERED.
Padilla, Grio-Aquino and Bellosillo, JJ., concur.

Footnotes
4 Art. 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under Article 191.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 78583-4 March 26, 1990
BENIGNO TODA, JR., petitioner,
vs.
COURT OF APPEALS and ROSE MARIE TUASON-TODA, respondents.
G.R. Nos.78696-7 March 26,1990
ROSE MARIE TUASON-TODA, petitioner,
vs.
BENIGNO TODA, JR., respondent.
Bautista, Picazo, Buyco, Tan & Fider for Benigno Toda, Jr. Belo, Abiera & Associates for
petitioner Rose Marie Tuason Toda.

REGALADO, J.:
These consolidated cases seek a review of the decision of the Court of Appeals promulgated
on January 29,1987 1 in CA-G.R. CV Nos. 06675 and 07936, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. Ordering the payment of the cash dividends declared on July 1, 1981
amounting to P2,191.62 and those declared on July 25, 1981 amounting to
P40,196.12 to Rose Marie Toda as her separate property. The cash dividends
declared on April 25, 1981 amounting to P37,196.30 (sic) are hereby
adjudicated to Benigno Toda, Jr. as his share in the conjugal partnership
assets; the portion of the order dated November 2, 1981 with respect to the
payment of the amount of P360,095.12 to Rose Marie T. Toda is set aside;
2. Ordering the payment of the amount of P4,1623,982.24 to Rose Marie Toda
representing the balance of P15, 749,135.32 obligated to be paid as estate
taxes by Benigno Toda, Jr.;
3. Setting aside the order of the lower court dated June 2, 1982 directing
Benigno Toda, Jr. to pay interest and non-payment penalty of 18% and 5%,
respectively; and
4. Setting aside the order of the lower court directing the annotation of lien on
the property of Benigno Toda, Jr.
SO ORDERED.

Benigno Toda, Jr. (Benigno for brevity) and Rose Marie Tuason-Toda (Rose Marie for brevity)
were married on June 9, 1951 and were blessed with two children. Individual differences and
the alleged infidelity of Benigno, however, marred the conjugal union thereby prompting
Rose Marie to file on December 18, 1979 in the former Court of First Instance of Rizal, 2 as
Civil Case No. 35566, a petition for termination of conjugal partnership for alleged
mismanagement and dissipation of conjugal funds against Benigno.

After hearings were held, the parties in order to avoid further "disagreeable proceedings,"
filed on April 1, 1981 a joint petition forjudicial approval of dissolution of conjugal partnership
under Article 191 of the Civil Code, docketed as Special Proceeding No. 9478, 3 which was
consolidated with the aforesaid civil case. This petition which was signed by the parties on March
30, 1981, embodied a compromise agreement allocating to the spouses their respective shares in
the conjugal partnership assets and dismissing with prejudice the said Civil Case No. 35566, CAG.R. No. 11123-SP of the Court of Appeals and G.R. No. 56121 of this Court. The said petition and
the compromise agreement therein were approved by the trial court in its order of June 9, 1981. 4

Thereafter, several orders were issued by the lower court pertaining to the interpretation and
implementation of the compromise agreement, as follows:
1. Order, dated November 20, 1981, ordering Benigno, inter alia, to pay Rose
Marie the cash dividends on the shares declared on April 25, 1981 amounting
to P37,126.30; that declared on July 25, 1981 amounting to P40,196.12; that
declared on July 1, 1981, given on September 25, 1981 amounting to P2,191.62;
and the payment of P360,095.12 to Rose Marie which is the balance of P2
million paid on April 4, 1981; 5
2. Order, dated June 2, 1982, ordering Benigno to pay Rose Marie interest at
18% per annum on the amounts required to be paid in the order of November
20,1981, as well as 5% non-payment penalty should the said order of
November 20,1981 be sustained on appeal; 6
3. Order, dated December 9, 1982, denying Benigno's motion to inhibit Judge
Rizalina Bonifacio Vera from hearing the case; 7

4. Order, dated March 1, 1983, ordering the annotation of a lien on certain

properties of Benigno as security for any and all amounts that he may finally
be ordered to pay to Rose Marie under the compromise agreement; 8 and
5. Order, dated March 14, 1983, ordering Benigno to pay Rose Marie the
amount of P4,623,929.24, with interest and penalties thereon
at the rates stipulated in the compromise agreement from date of at the rates stipulated in the
compromise agreement from date of demand by Rose Marie. 9
The compromise agreement which, as earlier stated, was incorporated in the petition for
dissolution of the conjugal partnership and was approved by the court below, contains the
following stipulaitons:
xxx xxx xxx
4. For the best interest of each of them, petitioners have agreed to dissolve
their conjugal partnership and to partition the assets thereof, under the

following terms and conditions this document, a pleading, being intended

by them to embody and evidence their agreement;
(a) Petitioners as the parties hereto agree upon the dissolution of their
conjugal partnership during the marriage and further agree to obtain judicial
approval of their said agreement as provided by Article 191 of the Civil Code.
(b) The following shall be adjudicated to petitioner Rose Marie Tuason-Toda:
(1) Forty Million Peson (P40,000,000.00) to be paid as follows:
(a) Petitioner Benigno Toda, Jr. shall assume the
payment of the estate taxes, interest and penalties
thereon, pertaining to the estate of petitioner
Rose Marie Tuason Toda's late brother Manuel
Tuason, Jr. in the sum of P15,749,135.32 as of
March 31, 1981 all interest and penalty charges
after March 31, 1981 to be the responsibility of
petitioner Benigno Toda, Jr.
(b) P2,000,000.00 to be paid within 30 days after
signing of this agreement.
(c) The balance shall be paid within six (6) months
after date of signing of this agreement. If not paid
when due, the balance shall bear interest at 18%
per annum until paid and there shall be a 5% nonpayment penalty. The proceeds from any sale of
or loss with respect to, Rubicon's shares in
Philippine Air Lines, Inc., shares of Cibeles
Insurance Corporation or Hermana Mayor shall be
applied when received against the aforesaid
balance, except to the extent such proceeds are
used to satisfy any other obligation under this
agreement.
(2) All shares of stock in San Nguel Corporation registered
solely in the name of petitioner Rose Marie Tuason Toda
whether stock dividends or stocks acquired on pre-emptive
rights including those acquired in the names of both petitioners
Benigno Toda, Jr. and Rose Marie Tuason Toda (whetherjointly
or alternately 'and/or'), free from all liens and encumbrances.
(3) All shares of stock in San Miguel Corporation acquired
whether as stock dividends of or on pre-emptive zighta
pertaining to the shares of stock in said corporation of petitioner
Rose Marie Tuason Toda's brother the late Manuel Tuason, Jr.
(of course, the original shares of the latter pertain to petitioner
Rose Marie Tuason Toda also), free from all liens and
encumbrances except for the estate tax lien. Petitioner Rose
Marie Tuason Toda hereby grants petitioner Benigno Toda, Jr.
an irrevocable proxy, for three years through the 1983

stockholders' meeting whether annual or special to elect

directors for all shares of stock she owns directly or indirectly
including those from the late Manuel Tuason, Jr. in San Miguel
Corporation.
(4) The Banaba Forbes Park conjugal dwelling and its contents
free from all liens and encumbrances except that petitioner
Benigno Toda, Jr. shall remove therefrom his personal effects
including furniture and appliances in his study room and T.V.
room and, from the family rooin, all antiques, rugs, paintings of
Old Fort Manila, books and mementos. Petitioner Benigno Toda,
Jr. commits that no servant now living in the Tolentino street
apartments shall be evicted.
(5) The San Francisco apartment at Apartment 905, No. 1750
Taylor Street, San Francisco, California, U.SA., and its contents,
free from all liens and encumbrances, except that petitioner
Benigno Toda, Jr. shall remove therefrom his personal effects.
(6) The artifacts already removed by petitioner Rose Marie
Tuason Toda from the Madrid Apartment at No. 4 San Pedro de
Valdivia. She shall return to it its silver ware, china ware,
paintings and etchings. She may retain the three fans encased in
glass and may remove her clothes, perfumes and toiletries, the
Sansa painting ofa shell dedicated to her, the painting of the
Madonna and tapestry hanging in her bedroom, 5 Persian rugs,
1 writing desk and chair and the 2 lamps thereon and 1 lamp on
the night table, and the statuette given her by Hagedorn.
(7) Jewelry.
(8) Motor vehicles registered in her name.
(9) Within forty-five (45) days from signing of this agreement,
One Million Pesos (Pl,000,000.00) as attorneys' fees petitioner
Rose Marie Tuason Toda agreeing to hold petitioner Benigno
Toda, Jr. harmless from any claim fo attorneys' fees and
expenses that may be filed against the conjugal partnership or
herself for services rendered to her in the prosecution of her
claims against said conjugal partnership or against petitioner
Benigno Toda, Jr. or to secure her paraphernal estate.
(10) Two shares with two lots in Valley Golf & Country Club.
(11) One share in Club Puerta de Hierro in Madrid, Spain if there
is one registered in petitioner Rose Marie Tuason Toda's name.
(12) Share in Montemar Beach Club in Bagac, Bataan
petitioner Rose Marie Tuason Toda agreeing to assume the
balance of the acquisition cost thereof.

(c) All other properties of the conjugal partnership of whatever and wherever
located shall be adjudicated to petitioner Benigno Toda, Jr. even though
acquired in the name of petitioner Rose Marie Tuason Toda or both of them
she undertaking to execute the corresponding deeds of conveyances.
(d) Petitioner Benigno Toda, Jr. shall assume the payment of all conjugal
obligations, petitioner Rose Marie Tuason Toda representing and warranting
that she has no pending obligation or incurred no obligation chargeable to the
conjugal partnership except those listed in Annex 'A' hereof.
If the Rosaria Apartment is subject to a mortgage loan and such loan is a
conjugal debt, petitioner Benigno Toda, Jr. shall assume such loan and shall
obtain the discharge of the mortgage.
(e) After the signing of this document:
(1) Each of them shall own, dispose of, possess, administer and
enjoy his or her separate estate, present and future, without the
consent of the other;
(2) All earnings from any profession business or industry shall
likewise belong to each of them respectively;
(3) All expenses and obligations incurred by each of them shall
be their respective and separate responsibilities.
(f) With the signing of this document, Civil Case No. 35566 of this same Court,
CA-G.R. No. 11123-SP and SC-G.R. No. L-56121 shall be deemed dismissed
with prejudice as between the parties hereto. 10
The parties then prayed that judgment be rendered:
(a) Approving the agreement for voluntary dissolution and partition of the
conjugal partnership;
(b) declaring the conjugal partnership of petitioners dissolved and adjudicating
to each of them his or her share in the properties and assets of said conjugal
partnership in accordance with the agreement embodied in paragraph 4
hereof; and
(c) enjoining the parties to comply with the terms and conditions of the
aforesaid agreement.11
Ironically, the said agreement failed to fully subserve the intended amicable settlement of all
the disputes of the spouses. Instead, as lamented by the counsel of one of them, the
compromise agreement which was designed to terminate a litigation spawned two new
petitions, with each party initiating one against the other. Thus, illustrative of the saying that
a solution which creates another problem is no solution, the contradictory interpretations
placed by the parties on some provisions of the agreement resulted in appeals to respondent
court and, eventually, the present recourse to us.

Benigno appealed from the aforestated orders of the trial court of November 20, 1981, June 2,
1982, December 9, 1982, March 1, 1983 and March 14, 1983 containing the directives
hereinbefore respectively set out. The same were disposed of by the Court of Appeals as
explained at the start of this decision.
Rose Marie now submits that the Court of Appeals erred:
1. In holding that the compromise agreement of the parties herein became
effective only after its judicial approval on June 9, 1981 and not upon its
execution on March 30,1981;
2. In setting aside the order of the lower court dated June 2, 1981 directing
Benigno to pay interest of eighteen percent and non-payment penalty of five
percent; and
3. In setting aside the order of the lower court directing the annotation of Rose
Marie's lien on Benigno's property. 12
On the other hand, Benigno contends in his present petition before us that:
1. The Court of Appeals erred on a question of law when it affirmed the lower
court's award of P4,623,929.24 without trial and evidence-taking and overruled
petitioner's claim of violation of his due process right;
2. The Court of Appeals erred on a question of law and due process when it
upheld the lower court's denial of petitioner's motion for her
inhibition/disqualification;
3. Since the document (the parties' compromise agreement) explicitly provided
for assumption of liability rather than agency to pay and since there was no
evidence-taking, the Court of Appeals finding of an agency to pay is reviewable
as a question of law; and
4. The Court of Appeals on a question of law involving the parol evidence
rule. 13
The award of cash dividends basically depends on the date of effectivity of the compromise
agreement as this will determine whether the same is conjugal property or separate property
of the spouses.
We are in agreement with the holding of the Court of Appeals that the compromise agreement
became effective only on June 9, 1981, the date when it was approved by the trial court, and
not on March 30,1981 when it was signed by the parties. Under Article 190 of the Civil
Code, 14 "(i)n the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place save in virtue of a judicial
order." Hence, the separation of property is not effected by the mere execution of the contract or
agreement of the parties, but by the decree of the court approving the same. It, therefore,
becomes effective on y upon judicial approval, without which it is void. 15 Furthermore, Article 192
of said Code explicitly provides that the conjugal partnership is dissolved only upon the issuance
of a decree of separation of property.

Consequently, the conjugal partnership of Benigno and Rose Marie should be considered
dissolved only on June 9, 1981 when the trial court approved their joint petition for voluntary
dissolution of their conjugal partnership. Conformably thereto, the cash dividends declared
on July 1, 1981 and July 25,1981 in the amount of P2,191.62 and P40,196.12, respectively,
should pertain to Rose Marie; and that declared on April 2,5, 1981 in the amount of P37,126.30
ought to be paid to Benigno, pursuant to Paragraph 4 (c) of the compromise agreement which
awards to Benigno the conjugal assets not otherwise specifically assigned to Rose Marie.
With respect to the amount of P360,095.12 which Benigrio deducted from the P2 million
supposed to be paid to Rose Marie, it is not clear from the records where said amount came
from. The Court of Appeals, in holding that it is conjugal and therefore belongs to Benigno,
presumed it to be in the nature of cash dividends declared prior to the approval of the
compromise agreement by reason of the fact that the amount was deducted by Benigno from
the P2 million which he paid on April 14,1981. While no sufficient proof was adduced to
conclusively explain such deduction, there exists the legal presumption that all property of
the marriage belongs to the conjugal partnership absent any proof that it is the exclusive
property of either spouse. 16 Since Rose Marie failed to prove that the amount forms part of her
paraphernal property, it is presumed to be conjugal property. Consequently, Benigno is entitled to
the said amount of P360,095.12, hence he rightfully deducted the same from the amount due to
Rose Marie.

The issue regarding the annotation of the lien on Benigno's properties has been mooted by
our resolution dated Aprjl 3, 1989 wherein, at his instance, we ordered the cancellation
thereof upon his posting of the corresponding bond. In our resolution of February 26, 1990,
we noted Benigno's comphance, approved the bond he filed, and ordered the cancellation of
the hens annotated on the certificates of title of the propertiesinvolved.
Likewise, the order denying the motion to inhibit Judge Rizalina Bonifacio Vera has become
academic considering that she no longer presides over the court where the case was filed.
Besides, as correctly explained by respondent court, the groundfor inhibition raised by
Benigno is not valid it being merely on the basis of the judge having acquired knowledge of
the facts surrounding the agreement of the parties, hence she would be a material witness to
the issue of the true agreement which is contested by the parties. However, those facts came
to the knowledge of the judge in the course of her efforts to effect a compromise between
parties and are also known to the parties.This is not a ground for disqualification; on the
contrary, said, acts of the judge were in accord with the rule encouraging compromises in
litigations, especially between members of the same family.
Anent the tax savings of P4,623,982.24 obtained by Benigno, we hold that this forms part of
the P40 million allocated to Rose Marie under paragraph 4 (b) (1) of the compromise
agreement.We give credit to the ratiocination thereon of the trial court as quoted with
approval by respondent court:
The records show that petitioner Benigno Toda, Jr. paid only Pl,125,152.48 in
estate taxes, although the amount stated in the m Compromise Agreement was
P15,749,135.32. The balance of P4,623,929.24 is now being claimed by both
parties as aforestated. In the opinion of this court, the pertinent terms of the
Agreement as quoted, are clear and do not require any interpretation. In brief,
under, the Agreement, petitioner Rose Marie T. Toda is adjudicated the fixed
sum of P40 million, to be paid as follows: (a) Payment by petitioner Benigno
Toda, Jr. of the estate taxes, interests and penalties thereon, pertaining to the
estate of the late Manuel Tuason, Jr. in the amount of Pl5,749,135.32 as of
March 31, 1982; (b) P2 million within 30 days after signing of the Agreement;

(c) the balance within six months after date of signing of the Agreement. This
Court notes that the amount of taxes, interests and penalties is fixed at
P15,749,135.32 and this figure was provided by Benigno Toda, Jr. There is no
provision as contended by petitioner Benigno Toda, Jr. that the amount was
only an assumed liability and that he could attempt to reduce it by suit or
compromise. It is clear that if the amount of P4,623,929.24 is to be credited to
Benigno Toda, Jr. then the P40 million which petitioner Rose Marie T. Toda is
to receive would be short by that amount. This Court is also of the opinion that
under the Agreement, petitioner Benigno Toda, Jr. was constituted as agent to
pay to the government the liability of the estate of the late Manuel Tuason, Jr.
in the fixed amount of P15,749,135.32 and if he was able to secure a reduction
thereof, then he should deliver to his principal such reduction... 17
We do not believe that Benigno was denied due process when the trial court resolved the
motion of Rose Marie for the payment of P4,623,982.24 without the benefit of a hearing. The
records disclose that the hearing thereon was postponed twice at the instance of Benigno,
which prompted the court to thereafter consider the motion submitted for resolution on the
basis of the allegations therein and the answer filed by counsel for both parties. Benigno
cannot now be heard to claim that he was deprived of his day in court. Furthermore,
respondent court correctly held that the issue involved was more of a question of
interpretation of a contract rather than a determination of facts. Benigno failed to make a
plausible showing that the supposed evidence he had intended to present, if any, would not
be merely collateral matters.
Considering that the amount of P4,623,982.24 actually forms an integral part of the P40
million (minus the lawful and authorized deductions that may be made therefrom) which
Benigno categorically undertook to pay to Rose Marie, the same must earn interest at the rate
of 18% per annum and 5% non-payment penalty, the same being included in and within the
contemplation of Paragraph 4 (b) (1) (c) of the compromise agreement. Said provision of the
agrdement provides for the payment of the interest and penalty upon non-payment of the
balance of the P40 million after the specific authorized deductions therefrom. Since the
amount of P4,623,982.24 was not to be lawfully deducted by Benigno, as hereinbefore
explained, it constitutes part of the contemplated contingent balance which might tum out to
be due to Rose Marie and, therefore, subject to the imposition of said increments on
Benigno's liability.
WHEREFORE, the judgment appealed from is hereby AFFIRMED, with the modification that
Benigno Toda, Jr. is hereby ordered to pay Rose Marie Tuason Toda interest at the rate of a
18% per annum and 5% non-payment penalty on the tax savings of P4,623,982.24 from date of
formal demand until the same is fully paid.
SO ORDERED.
Melencio-Herrrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68873 March 31, 1989
LUCILDA DAEL, EVERGISTO DAEL, DOMINGO DAEL, JR., CONRADO DAEL, FEDERICO
DURANA, JR., FREDISVINDA DURANA, FLEURDELIZADA DURANA, FABIAN DURANA and FE
PATRICIO DURANA,petitioners,
vs.
INTERMEDIATE APPELLATE COURT, CARMENCITA CABUTIHAN, NONILON CABUTIHAN,
ROMULO CABUTIHAN, LERMO CABUTIHAN, and BIENVENIDO CABUTIHAN, respondents.
Ismael T. Porles for petitioners.
Primo L. Marquez for respondents.
Bienvenido C. Vera Cruz collaborating counsel for respondents.
Roman R. Ulendioro for respondent Administratrix Carmencita Cabutihan.

REGALADO, J.:
The reversal of the decision of the then Intermediate Appellate Court promulgated on February 29,
1984 in AC-G.R. CV No. 69711, 1 which affirmed in toto the decision, dated December 3, 1980, of the quondam Court of First
Instance of Quezon, Branch II, in Special Proceeding No. 4374 thereof, 2 as well as the former's resolution of September 14, 1984 denying
the motion for reconsideration of the oppositors-appellants therein, are the twin objectives of the present appeal by certiorari.

The assailed decision of the court a quo sets out the revelant background facts and the dramatis
personae in this controversy, thus:
It is not disputed that Victorina Durana died intestate on August 1, 1977 in Manila;
she was the wife of the deceased Cesario Cabutihan who died earlier on June 9,
1972; Cesario Cabutihan was first married to Bienvenida Durana in February, 1942;
the latter died on May 2, 1957; it was less than a year thereafter or particularly on
April 6, 1958 that Cesario Cabutihan married Victorina Durana, sister of his first wife,
Bienvenida Durana.
The first marriage of Cesario Cabutihan produced the following legitimate children:
Nonilon Carmencita, Romulo, Lermo and Bienvenido all surnamed Cabutihan and
who are the intervenors in this case although Carmencita Cabutihan instituted the
case as petitioner; the second marriage of Cesario Cabutihan with Victorina Durana
did not produce any issue; however, the latter's heirs are the children of her two
sisters and a brother namely: Bienvenida Durana, Soledad Durana and Federico
Durana Sr.; the latter is the father of the oppositors, Federico, Jr., Flordelizada (sic),
Fredizvinda, Fabian and Fe Patricio, all surnamed Durana; while Soledad Durana is
the mother of the other oppsitors, Evaristo, Domingo Jr., Lucilda and Conrado, all

surnamed Dael; the other heirs of Vitorina Durana are the petitioner herself and the
intervenors who are all the children of Bienvenida Durana.
It is claimed by all the oppositors that they are entitled to 213 portion of the estate of
Victorina Durana considering that their predecessors-in-interest are the brother and
sister of Victorina Durana; while the remaining 1/3 portion should devolve to the
petitioner and the intervenors who represent their mother Bienvenida Durana and the
other sister of Victorina Durana.
There is, therefore, no dispute concerning the relationship of the petitioner,
oppositors and the intervenors to the decedent Victorina Durana; there is neither any
question concerning the right of all the parties in this case to inherit from the
deceased Victorina Durana; 3
Likewise established is the fact that during the second marriage of Cesario and Victorina, they were
engaged in a copra business and a public transportation business, with Victorina managing the
former. After the demise of Cesario, Victorina and the private respondents entered into a extrajudicial settlement of his estate on December 30, 1973. Part of the properties adjudicated to
Victorina include the copra business abovementioned, as well as some of the vehicles used in the
transportation business. 4 Subsequently, however, the vehicles were transferred to the private respondents by virtue of a "deed of
sale" dated July 24, 1978. 5

This case was commenced in the aforementioned Court of First Instance of Quezon by Carmencita
Cabutihan, one of the private respondents herein, who filed a petition for the settlement of the
intestate estate of Victorina Durana, wherein she also prayed for her appointment as
administratrix. 6 Petitioners herein filed an opposition, asking that the letters of administration be issued instead to herein petitioner
Lucilda Dael. 7 The other private respondents, on their motion, intervened in the case. 8

On December 22, 1977, Honesto Cabutihan, Democrito Cabutihan and David Cabutihan filed their
claim against the estate for the payment of the harvest of their property which had been entrusted to
Victorina Durana for purposes of her copra business but which obligation she failed to pay due to her
untimely death. 9 Said claim, in the amount of P70,350.82, was approved by the probate court on December 2, 1980. 10
Meanwhile, the court below appointed Amado Zoleta as special administrator of the estate of the late
Victorina Durana on May 24, 1978. 11 Said special administrator, upon order of the probate court, submitted an inventory of
the properties of the estate on August 30, 1978, consisting of twenty (20) parcels of land valued at P69,340.00, cash in bank amounting to
P140,079.41, cattle and livestock valued at P7,200.00, furniture valued at P5,120.00, fixtures in the amount of P1,300.00, equipment worth
P11,863.00, and other miscellaneous items valued at P3,038.00. The total value of the properties included in this inventory is
P237,940.41. 12

On January 16, 1979, a "Supplementary Inventory" was filed by the special administrator covering
other real properties of the estate of Victorina, consisting of the undivided shares in the inheritance
of Cesario Cabutihan from his parents, Bartolome Cabutihan and Natividad Daelo. The total value of
the properties listed in the supplementary inventory is P4,700.82. 13 It may be mentioned that the properties that
were adjudicated to Victorina in the extrajudicial settlement of the estate of Cesario were included in the inventory submitted by the special
administrator. 14

Private respondents moved for the disapproval of said inventories claiming that the properties listed
therein were either acquired during the first marriage of Cesario Cabutihan or were merely the
products or fruits of the properties of said first union or otherwise acquired through the funds
thereof. 15
In due course, the trial court rendered a decision holding that Victorina Durana had no paraphernal
properties brought or contributed to her marriage with Cesario Cabutihan; that the copra business

was formed in 1949 during the first marriage; that Victorina used the same facilities, credit and
capital in managing the business; and that the main source of income not only of Cesario Cabutihan
and also of Victorina during their respective lifetimes was the copra business. 16
On such factual findings, the lower court came up with the following conclusions:
Not having any personal property which she brought to her marriage with Cesario
Cabutihan and the copra business not being her own or of her conjugal partnership
with her husband, the conclusion is inescapable; that all the properties listed in the
inventories in her name or jointly with Cesario Cabutihan do not belong to her
exclusively; these properties in Exhibits 'A- SPA' and 'B-SPA' are either the assets of
Bienvenida Durana as her paraphernal property or as the conjugal partnership
assets of spouses Cesario Cabutihan (sic) or the latter's capital inasmuch as the
properties in the name of Victorina a Durana or those jointly with her husband were
acquired or purchased out of the fruits or produce of the properties of Bienvenida
Durana and/or Cesario Cabutihan or out of the income of the copra business of the
first marriage which was merely managed and administered by Victorina Durana
after the owners' deaths.
xxx xxx xxx
To determine, therefore, the extent of the estate of Victorina Durana from the list of
properties, real and personal, enumerated in the Inventories (Exhibits 'A-SPA' and BSPA') which erroneously include even the Estate of the First Marriage, the conjugal
estate of Cesario Cabutihan and Bienvenida Durana must be settled or liquidated
first; one-half of the conjugal estate shall be inherited by Cesario Cabutihan and his
five (5) children, namely: Nonilon Carmencita, Romulo, Lermo and Bienvenido, all
surnamed CABUTIHAN, share and share alike; the inheritance of Cesario Cabutihan
in the Estate of Bienvenida Durana in addition to the other one (1/2) half which is his
share in the conjugal partnership with his wife Bienvenida shall constitute Cesario's
estate which shall be inherited by his heirs, namely: Victorina Durana, his second
wife, and his legitimate children by his first wife, namely: Nonilon Carmencita,
Romulo, Lermo and Bienvenido, all surnamed CABUTIHAN, share and share alike.
xxx xxx xxx
Hence, the extent of the Estate of Victorina Durana shall consist only of her share in
the inheritance of the Estate of Cesario Cabutihan.
Unless any of the properties listed in Exhibits 'A-SPA' and B-SPA' exclusively belong
to Bienvenida Durana, all of said properties shall be presumed to be the conjugal
(sic) and/or the fruits and income of said partnership or of the copra business of said
partnership; therefore, the properties in said inventories shall be computed, divided
and partitioned as follows: five (5/12) twelve over the one (1/2) half thereof to be
adjudicated to Nonilon Carmencita, Romulo, Lermo and Bienvenido, all surnamed
CABUTIHAN as their shares in the inheritance of their mother; the one (1/6) sixth
portion out of the one (1/2) half of said properties shall pertain to Cesario Cabutihan
as his share in the inheritance of his first wife; this share and the remaining one (1/2)
half of the properties in the Inventories which comprise his estate shall be inherited
by his second wife Victorina Durana with (whom he had no child) and his five
children by his first marriage, Nonilon Carmencita, Romulo, Lermo and Bienvenido,
all surnamed CABUTIHAN, at the proportion of one (1/6) sixth each of the said

properties over the seven (7/12) twelfth thereof; therefore, one (1/6) sixth out of the
said seven (7/12) twelfth of the said properties (Estate of Cesario) shall be the extent
of the Estate of Victorina Durana which she inherited from her husband; this (1/6 of
7/12) portion shall be inherited by Durana's heirs; one (1/3) third thereof to be
adjudicated to petitioner and the Intervenors and the remaining two (2/3) thirds
thereof to the oppositors. 17
The probate court thereby disapproved both inventories and annulled the extrajudicial settlement
and deed of sale (Exhibit 1 Dael and Exhibit 3-Dael) mentioned earlier. The latter two were annulled
for being simulated or fictitious and for involving conjugal properties of the first marriage, including
properties of Bienvenida, to which Victorina is not an heir. 18
As a consequence, petitioners appealed to the former Intermediate Appellate Court on December 8,
1980. 19 On the same day, respondent Carmencita Cabutihan filed a "motion for authority to withdraw funds" from the estate, in the
amount of P90,000.00 to be partitioned among the heirs in accordance with the proportion provided for in the aforesaid decision of the
probate court. 20 On December 11, 1980, this motion was granted, 21 despite opposition thereto. 22

Thereafter, on December 12, 1980, petitioners herein filed a motion asking the lower court to order
the return of the amount of P70,350.82 allegedly paid to the claimants Democrito Honesto and David
Cabutihan, submitting as proof a receipt allegedly signed on December 30, 1980 by Democrito
Cabutihan in behalf of all said claimants and assisted by their counsel, Euclides A. Abcede.
On February 9, 1984, respondent court promulgated its decision which, as already stated, affirmed
the decision of the lower court, hence this petition assigning four errors which we will
resolve seriatim.
1. Petitioners submit that both the respondent and lower courts erred in concluding that the copra
business, as well as the properties listed in the inventories as acquired during the second marriage,
are assets of the conjugal partnership of the first marriage between Cesario and Bienvenida. They
argued that to so hold would, in effect, maintain the theory that the marital community of proprietary
interest continued to exist even after the Cesario-Bienvenida conjugal partnership had been
dissolved by the death of Bienvenida.
It may be conceded that the factual findings of the trial court were based on substantial documentary
and testimonial evidence and are entitled to the corresponding weight and respect.
Such established facts notwithstanding, We are not as equally disposed to yield assent to the
conclusions drawn by both the court a quo and the respondent court which Would so simplistically
adjudicate and consider the properties involved as belonging in their entirety to the first marriage.
When Bienvenida Durana died on May 2, 1957, the first conjugal partnership was automatically
dissolved. 23 That conjugal partnership was then converted into an implied ordinary co-ownership. 24 It was also at this point in time that
the inheritance was transmitted to the heirs of Bienvenida. 25 Thus, her heirs, Cesario, Nonilon Carmencita Romulo, Lermo and Bienvenido,
acquired respective and definite rights over one-half (1/2) of the conjugal partnership property which pertained to Bienvinida. Consequently,
whatever fruits or income may thereafter be derived from the properties, including the copra business, would no longer be conjugal but would
belong in part to the heirs in proportion to their respective shares. The fruits and income of the other half of the property of the conjugal
partnership would exclusively belong to Cesario.

The marriage of Cesario and Victorina on April 6, 1952 also produced the corresponding legal
consequences. From that moment on, the fruits or income of the separate properties of the spouses
would be conjugal, including those acquired through their industry. 26 Hence, the fruits and income of Cesario's
share in the inheritance from Bienvenida and of his conjugal share in the property of the first conjugal partnership would form part of the
conjugal partnership properties of the second marriage. The fruits and income derived or acquired through these last-mentioned properties
would likewise be conjugal in nature.

It would have been ideal had there been a liquidation of the conjugal partnership properties of the
first marriage between Cesario and Bienvenida. Unfortunately, We cannot determine from the
records the amount of such properties at the time of Bienvenida's demise. There is a dearth of proof
on this matter. What appears evident, however, is that, considering the continuity in the operation of
the two businesses during the marital coverture between Cesario and Victorina which spanned a
period of fourteen (14) years, and the fact that after Cesario's death Victorina still actively engaged in
the same business until her own death five (5) years later, the properties enumerated in the
aforesaid inventories submitted to the probate court could not all have been properties of the first
marriage.
Inevitably, the problem is how to apportion the properties involved between the two conjugal
partnerships. On this score, guidance should be sought from the provisions of the Civil Code to the
effect that whenever the liquidation of the partnership of two or more marriages contracted by the
same person should be carried out at the same time and there is no evidence to show the capital or
the conjugal property belonging to each of the partnerships to be liquidated, the total mass of the
partnership property shall be divided between the different partnerships in proportion to the duration
of each and to the property belonging to the respective spouses. 27
The first marriage existed for approximately fifteen (15) years (1942 to 1957), while the second
marriage lasted for about fourteen (14) years (1958 to 1972). Applying the aforestated rule, the first
conjugal partnership will be prorated a share of fifteen twenty-ninths (15/29) of the properties
included in the inventory submitted on August 30, 1978, while the second conjugal partnership will
get fourteen twenty-ninths (14/29) thereof. Not to be included, however, are the real properties listed
in the supplementary inventory filed on January 16, 1979, because they definitely belong to the
estate of Cesario as the latter's inheritance from his parents, Bartolome Cabutihan and Natividad
Daelo.
One-half (1/2) of the properties that pertain to the first conjugal partnership belong to Cesario as his
conjugal share therein, while the other half shall be considered as inherited by him and his five
children as the heirs of Bienvenida.
The properties pertaining to the second partnership shall also be equally divided, one-half (1/2) to
belong to Cesario and the other to Victorina as their respective shares in their conjugal partnership
properties. The share of Cesario should then be divided among his heirs, namely, Victorina and his
five (5) children.
To recapitulate, the estate of Victorina for distribution to her heirs shall consist of her one-half (1/2)
share in the conjugal properties of the aforesaid second marriage and her one-sixth (1/6) share in
the estate of Cesario as an heir.
2. Petitioners also question the approval of the claims of Democrito Honesto and David Cabutihan.
Petitioners' effete opposition is anchored on their allegation that said claim "was approved primarily
on the basis of the testimony of claimant Democrito Cabutihan" which, according to them, is
inadmissible under the Dead Man's Statute or the survivorship disqualification rule. 28 While petitioners'
arguments may have a juris tantum plausibility if considered alone, We see no reason to dwell on this issue. It would be pointless since, as
correctly observed by the trial court, "even assuming the applicability of the dead man's rule concerning the testimony of Democrito
Cabutihan, the testimony of Urbano Prado and Tirso Linosa are more than sufficient to establish the claim and to bolster the documentary
evidence in support thereof as indicated on Exhibits 'B', 'B-1', to 'B-82-claim', 'C' and 'C-1' inclusive." 29

3. Also challenged by petitioners is the order of the court below, dated December 11, 1980, allowing
the withdrawal of funds for distribution to the heirs as advance inheritance. Said order is, however,
within the contemplation and authority of Rule 109, Section 2 whereof provides that
"(n)otwithstanding a pending controversy or appeal in proceedings to settle the estate of a decedent,

the court may, in its discretion and upon such terms as it may deem proper and just, permit that such
part of the estate as may not be affected by the controversy or appeal be distributed among the heirs
or legatees, upon compliance with the conditions set forth in Rule 90 of these rules'. Said Rule 90,
on the other hand, provides in part that "(n)o distribution shall be allowed until the payment of the
obligations above mentioned has been made or provided for, unless the distributees or any of them,
give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within
such time as the court directs."
It is true that "partial distribution of the decedent's estate pending the final termination of the testate
or intestate proceedings should as much as possible be discouraged by the courts and, unless in
extreme cases, such form of advances of inheritance should not be countenanced. The reason for
this strict rule is obvious courts should guard with utmost zeal and jealousy the estate of the
decedent to the end that the creditors thereof be adequately protected and all the rightful heirs
assured of their shares in the inheritance." 30
Nevertheless, after duly considering the foregoing rules, We sustain the validity of the questioned
order. The respondent court correctly held than "(i)f oppositors would stand to share more in the
inheritance than what was fixed for them in the appealed judgment, We believe the estate has
sufficient assets to ensure an equitable distribution of the inheritance in accordance with law and
final judgment in the proceedings." 31 Also, it does not appear that there are unpaid obligations, as contemplated in Rule 90,
for which provisions should have been made or a bond required. It is clear that the provisions of the Rules of Court, as well as the
jurisprudence thereon, were followed in this particular incident.

4. With respect to the propriety of the alleged payment of the claims of the Cabutihan brothers
before the decision is this case became final and executory, We are not in a position to rule on such
issue because this Court is not a trier of facts. Such issue requires the prior resolution of basic
factual questions, that is, whether or not such payment had actually been made to the claimants and
the circumstances under which the same was effected.
The probate court had not yet ruled on petitioners' "Motion to Order the Return of the Amount Paid
for Claim", when the instant petition was filed. Based on the records of this appeal, the last action
taken in the lower court was its order that the private respondents comment on said motion, but no
response thereto or any subsequent development on this matter is reflected or reported. If the
petitioners have sufficient basis to complain on this matter, the same should consequently be
pursued and threshed out in the court below.
WHEREFORE, the decision of respondent court, which affirmed and adopted in toto the decision of
the court a quo, is MODIFIED and judgment is hereby rendered as follows:
1. So much of the judgments of both lower courts as declare that all the properties listed in the two
inventories, marked as Exhibits "A-SPA"and "B-SPA" in Special Proceeding No. 4374 of the court of
origin, are conjugal partnership assets of the deceased spouses Cesario Cabutihan and Bienvenida
Durana are hereby SET ASIDE;
2. The properties therein enumerated shall be divided in the following manner: (a) Seven-twelfths
(7/12) of fifteen twenty-ninths (15/29), and one-half (1/2) of fourteen twenty-ninths (14/29), of the
properties listed in the inventory dated August 30, 1978, as well as all the properties listed in the
supplementary inventory dated January 16, 1979, shall constitute the estate of Cesario Cabutihan.
This estate shall be divided equally among his six (6) heirs, namely, his second wife, Victorina, and
his five (5) children, Nonilon Carmencita, Romulo, Lermo and Bienvenido, all surnamed Cabutihan;
and (b) The remaining five-twelfths (5/12) of fifteen twenty-ninths (15/29) of the properties in said
inventory of August 30, 1978 shall belong to the said five (5) children, share and share alike, as their
respective participations in their mother's inheritance;

3. The estate of Victorina Durana, which shall be the subject of settlement and distribution in said
Special Proceeding No. 4374, shall consist of one-half (1/2) of the other portion constituting fourteen
twenty-ninths (14/29) of the properties in the inventory of August 30, 1978, which represents her
share in the conjugal properties of the second marriage, and one-sixth (1/6) of the estate of Cesario
Cabutihan as fixed herein, and said properties shall be divided among her heirs enumerated and in
the proportion allotted by the probate court as qouted at the outset of this decision;
4. The other pronouncements in the dispositive portion of the appealed judgment of the court below
and adopted by the respondent court, insofar as the are not inconsistent with the foregoing
dispositions; the order of the said lower court, dated December 2, 1980, approving the claims of
Honesto, Democrito and David Cabutihan; and its order of December 11, 1980 allowing the
withdrawal of funds for distribution among the heirs are AFFIRMED; and
5. All other incidents not otherwise disposed of herein shall be pursued by the parties in and shall be
resolved by the court a quo in accordance with the terms of this judgment.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.