SECOND DIVISION

[G.R. No. 116668. July 28, 1997.]

ERLINDA A. AGAPAY, petitioner, vs. CARLINA
(CORNELIA) V. PALANG and HERMINIA P. DELA
CRUZ, respondent.
Simplicio M. Sevilleja for petitioner.
Ray L. Basbas & Fe Fernandez-Bautista for
respondents.
SYNOPSIS
Miguel Palang married on July 16, 1949. It was his
first marriage. Their only child, Herminia, was
born on May 12, 1950.
On July 15, 1973, Miguel, then 63 years old,
contracted his second marriage with Erlinda
Agapay, 19, herein petitioner. Two months earlier,
Miguel and Erlinda purchased a piece of riceland.
Transfer Certificate of Title No. 101736 was issued
in their names.
On September 23, 1975, a house and lot was
purchased allegedly by Erlinda as the sole
vendee. TCT No. 143120 was later issued in her
name.
Miguel and Erlinda's cohabitation produced a son,
Kristoper A. Palang, born on December 6, 1977. In
1979, Miguel and Erlinda were convicted of
concubinage upon Carlina' s complaint. Two years
later, Miguel died.
On July 11, 1981, Carlina Palang and her daughter
Herminia Palang de la Cruz, herein private
respondents, instituted an action for recovery of
ownership and possession with damages against
petitioner. Private respondents sought to get back
the riceland and the house and lot allegedly
purchased by Miguel during his cohabitation with
petitioner.
After trial on the merits, the lower court
dismissed the complaint declaring that there was
little evidence to prove that the subject
properties pertained to the conjugal property of
Carlina and Miguel Palang.
On appeal, the Court of Appeals reversed the trial
court's decision. Hence, this petition.
The sale of the riceland was made in favor of
Miguel and Erlinda. The application law is Art. 148
of the Family Code on the cohabitation of a man
and a woman under a void marriage or without
the benefit of marriage. The marriage of Miguel
and Erlinda was patently void because the earlier
marriage of Miguel and Carlina was still
subsisting. Under Art. 148, only the properties
acquired by both of the parties through their
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actual joint contribution of money, property or

industry shall be owned by them in common in
proportion to their respective contributions.
Actual contribution is required by this provision,
in contrast to Art. 147. If the actual contribution
of the party is not proved, there will be no coownership and no presumption of equal shares.
Since petitioner failed to prove that she
contributed money to the purchase price ,of the
riceland, we find no basis to justify her coownership
with
Miguel
over
the
same.
Consequently, the riceland should revert to the
conjugal partnership property of the deceased
Miguel and private respondent Carlina Palang.
As regards Kristopher Palang's heirship and
filiation, the same should be ventilated in the
proper probate court or in a special proceeding
instituted for the purpose, and cannot be
adjudicated in an ordinary civil action for
recovery of ownership and possession.
The decision of the Court of Appeals is affirmed.
SYLLABUS
1. CIVIL LAW; FAMILY CODE; PROPERTY
REGIME OF UNIONS WITHOUT MARRIAGE;
PROOF OF ACTUAL CONTRIBUTION BY BOTH
PARTIES, REQUIRED; ABSENCE THEREOF IN
CASE AT BAR. The provision of law applicable
here is Article 148 of the Family Code providing
for cases of cohabitation when a man and a
woman who are not capacitated to marry each
other live exclusively with each other as husband
and wife without the benefit of marriage or under
a void marriage. While Miguel and Erlinda
contracted marriage on July 15, 1973, said union
was patently void because the earlier marriage of
Miguel and Carlina was still subsisting and
unaffected by the latter's de facto separation.
Under Article 148, only the properties acquired by
both of the parties through their actual joint
contribution of money, property or industry shall
be owned by them in common in proportion to
their respective contributions. It must be stressed
that actual contribution is required by this
provision, in contrast to Article 147 which states
that efforts in the care and maintenance of the
family and household,
are
regarded as
contributions to the acquisition of common
property by one who has no salary or income or
work or industry. If the actual contribution of the
party is not proved, there will be no co-ownership
and no presumption of equal shares. Even
assuming that the subject property was bought
before cohabitation, the rules of co-ownership
would still apply and proof of actual contribution
would still be essential. Since petitioner failed to
prove that she contributed money to the

purchase price of the riceland in Binalonan,

Pangasinan, we find no basis to justify her coownership
with
Miguel
over
the
same.
Consequently, the riceland should, as correctly
held by the Court of Appeals, revert to the
conjugal partnership property of the deceased
Miguel and private respondent Carlina Palang.
2. ID.; ID.; SEPARATION OF PROPERTY OF
THE SPOUSES DURING MARRIAGE; JUDICIAL
ORDER, REQUIRED. Separation of property
between spouses during the marriage shall not
take place except by judicial order or without
judicial conferment when there is an express
stipulation in the marriage settlements. [Article
134 of the Family Code] The judgment which
resulted from the parties' compromise was not
specifically and expressly for separation of
property and should not be so inferred.
3. ID.; ID.; DONATION; BETWEEN PERSONS
GUILTY OF ADULTERY OR CONCUBINAGE;
VOID; RATIONALE; CASE AT BAR. With
respect to the house and lot, Erlinda allegedly
bought the same for P20,000.00 on September
23, 1975 when she was only 22 years old. The
testimony of the notary public who prepared the
deed of conveyance for the property reveals the
falsehood of this claim. Atty. Constantino Sagun
testified that Miguel Palang provided the money
for the purchase price and directed that Erlinda's
name alone be placed as the vendee. The
transaction was properly a donation made by
Miguel to Erlinda, but one which was clearly void
and inexistent by express provision of law
because it was made between persons guilty of
adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donations
between spouses now applies to donations
between persons living together as husband and
wife without a valid marriage, for otherwise, the
condition of those who incurred guilt would turn
out to be better than those in legal union.
4. ID.; ID.; HEIRSHIP AND FILIATION;
CANNOT BE ADJUDICATED IN AN ORDINARY
CIVIL
ACTION
FOR
RECOVERY
OF
OWNERSHIP; CASE AT BAR. The issue
concerning Kristopher Palang's status and claim
as an illegitimate son and heir to Miguel's estate
is here resolved in favor of respondent court's
correct assessment that the trial court erred in
making pronouncements regarding Kristopher's
heirship and filiation "inasmuch as questions as
to who are the heirs of the decedent, proof of
filiation of illegitimate children and the
determination of the estate of the latter and
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claims thereto should be ventilated in the proper

probate court or in a special proceeding instituted
for the purpose and cannot be adjudicated in the
instant ordinary civil action which is for recovery
of ownership and possession." Kristopher, not
having been impleaded, was not a party to the
case at bar. His mother, Erlinda, cannot be called
his guardian ad litem for he was not involved in
the case at bar.
DECISION
ROMERO, J p:
Before us is a petition for review of the decision
of the Court of Appeals in CA-G.R. CV No. 24199
entitled "Erlinda Agapay v. Carlina (Cornelia)
Palang and Herminia P. Dela Cruz" dated June 22,
1994 involving the ownership of two parcels of
land acquired during the cohabitation of
petitioner and private respondent's legitimate
spouse.
Miguel Palang contracted his first marriage on
July 16, 1949 when he took private respondent
Carlina (or Cornelia) Vallesterol as a wife at the
Pozorrubio Roman Catholic Church in Pangasinan.
A few months after the wedding, in October 1949,
he left to work in Hawaii. Miguel and Carlina's
only child, Herminia Palang, was born on May 12,
1950.
Miguel returned in 1954 for a year. His next visit
to the Philippines was in 1964 and during the
entire duration of his year-long sojourn he stayed
in Zambales with his brother, not in Pangasinan
with his wife and child. The trial court found
evidence that as early as 1957, Miguel had
attempted to divorced Carlina in Hawaii. 1 When
he returned for good in 1972, he refused to live
with private respondents, but stayed alone in a
house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old
Miguel contracted his second marriage with
nineteen-year-old
Erlinda
Agapay,
herein
petitioner. 2 Two months earlier, on May 17,
1973, Miguel and Erlinda, as evidenced by the
Deed of Sale, jointly purchased a parcel of
agricultural land located at San Felipe, Binalonan,
Pangasinan with an area of 10,080 square
meters. Consequently, Transfer Certificate of Title
No. 101736 covering said rice land was issued in
their names.
A house and lot in Binalonan, Pangasinan was
likewise purchased on September 23, 1975,
allegedly by Erlinda as the sole vendee. TCT No.
143120 covering said property was later issued in
her name.

On October 30, 1975, Miguel and Cornelia Palang

executed a Deed of Donation as a form of
compromise agreement to settle and end a case
filed by the latter. 3 The parties therein agreed to
donate their conjugal property consisting of six
parcels of land to their only child, Herminia
Palang. 4
Miguel and Erlinda's cohabitation produced a son,
Kristopher A. Palang, born on December 6, 1977.
In 1979, Miguel and Erlinda were convicted of
concubinage upon Carlina's complaint. 5 Two
years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter
Herminia Palang de la Cruz, herein private
respondents, instituted the case at bar, an action
for recovery of ownership and possession with
damages against petitioner before the Regional
Trial Court in Urdaneta, Pangasinan (Civil Case
No. U-4265). Private respondents sought to get
back the riceland and the house and lot both
located at Binalonan, Pangasinan allegedly
purchased by Miguel during his cohabitation with
petitioner.

Binalonan, Pangasinan, as evidenced by TCT No.

143120, Lot 290-B including the old house
standing therein;
3) Confirming the ownership of one half (1/2)
portion of that piece of agricultural land situated
at Balisa, San Felipe, Binalonan, Pangasinan,
consisting of 10,080 square meters and as
evidenced by TCT No. 101736, Lot 1123-A to
Erlinda Agapay;
4) Adjudicating to Kristopher Palang as his
inheritance from his deceased father, Miguel
Palang, the one-half (1/2) of the Agricultural land
situated at Balisa, San Felipe, Binalonan,
Pangasinan, under TCT No. 101736 in the name
of Miguel Palang, provided that the former
(Kristopher) executes, within 15 days after this
decision becomes final and executory, a quitclaim forever renouncing any claims to
annul/reduce the donation to Herminia Palang de
la Cruz of all conjugal properties of her parents,
Miguel Palang and Carlina Vallesterol Palang,
dated October 30, 1975, otherwise, the state of
deceased Miguel Palang will have to be settled in
another separate action;
5) No pronouncement
attorney's fees.

Petitioner, as defendant below, contented that

while the riceland covered by TCT No. 101736 is
registered in their names (Miguel and Erlinda),
she had already given her half of the property to
their son Kristopher Palang. She added that the
house and lot covered by TCT No. 143120 is her
sole property, having bought the same with her
own money. Erlinda added that Carlina is
precluded from claiming aforesaid properties
since the latter had already donated their
conjugal estate to Herminia.
After trial on the merits, the lower court rendered
its decision on June 30, 1989 dismissing the
complaint after declaring that there was little
evidence to prove that the subject properties
pertained to the conjugal property of Carlina and
Miguel Palang. The lower court went on to provide
for the intestate shares of the parties, particularly
of Kristopher Palang, Miguel's illegitimate son.
The dispositive portion of the decision reads:
"WHEREFORE, premises considered, judgment is
hereby rendered
1) Dismissing the complaint, with cost against
plaintiffs;
2) Confirming the ownership of defendant Erlinda
Agapay of the residential lot located at Poblacion,
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as

to

damages

and

SO ORDERED." 6
On appeal, respondent court reversed the trial
court's decision. The Court of Appeals rendered
its decision on July 22, 1994 within the following
dispositive portion:
"WHEREFORE, PREMISES CONSIDERED, the
appealed decision is hereby REVERSED and
another one entered:
1. Declaring plaintiffs-appellants the owner of the
properties in question;
2. Ordering defendant-appellee to vacate and
deliver the properties in question to herein
plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan
to cancel Transfer Certificate of Title Nos. 143120
and 101736 and to issue in lieu thereof another
certificate of title in the name of the plaintiffsappellants.
No pronouncement as to costs." 7
Hence, this petition.

Petitioner claims that the Court of Appeals erred

in not sustaining the validity of two deeds of
absolute sale covering the riceland and the house
and lot, the first in favor of Miguel Palang and
Erlinda Agapay and the second, in favor of Erlinda
Agapay alone. Second, petitioner contends that
respondent appellate court erred in not declaring
Kristopher A. Palang as Miguel Palang's
illegitimate son and thus entitled to inherit from
Miguel's estate. Third, respondent court erred,
according to petitioner, "in not finding that there
is a sufficient pleading and evidence that
Kristoffer A. Palang or Christopher A. Palang
should be considered as party defendant in Civil
Case No. U-4625 before the trial court and in CAG.R. No. 24199. 8
After studying the merits of the instant case, as
well as the pertinent provision of law and
jurisprudence, the Court denies the petition and
affirms the questioned decision of the Court of
Appeals.
The first and principal issue is the ownership of
the two pieces of property subject of this action.
Petitioner assails the validity of the deeds of
conveyance over the same parcels of land. There
is no dispute that the transfer of ownership from
the original owners of the riceland and the house
and lot, Corazon Ilomin and the spouses
Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was
made in favor of Miguel and Erlinda. The
provision of law applicable here is Article 148 of
the Family Code providing for cases of
cohabitation when a man or woman who are not
capacitated to marry each other live exclusively
with each other as husband and wife without the
benefit of marriage or under a void marriage.
While Miguel and Erlinda contracted marriage on
July 15, 1973, said union was patently void
because the earlier marriage of Miguel and
Carlina was still subsisting and unaffected by the
latter's de facto separation.
Under Article 148, only the properties acquired by
both of the parties through their actual joint
contribution of money, property or industry shall
be owned by them in common in proportion to
their respective contributions. It must be stressed
that actual contribution is required by this
provision, in contrast to Article 147 which states
that efforts in the care and maintenance of the
family and household,
are
regarded as
contributions to the acquisition of common
property by one who has no salary or income or
work or industry. If the actual contribution of the
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party is not proved, there will be no co-ownership

and no presumption of equal shares. 9 cda
In the case at bar, Erlinda tried to establish by
her testimony that she is engaged in the business
of buy and sell and had a sari-sari store 10 but
failed to persuade to us that she actually
contributed money to buy the subject riceland.
Worth noting is the fact that on the date of the
conveyance, May 17, 1973, petitioner was only
around twenty years of age and Miguel Palang
was already sixty-four and a pensioner of the U.S.
Government. Considering her youthfulness, it is
unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the
purchase price of subject property, 11 there being
no proof of the same.
Petitioner now claims that the riceland was
bought two months before Miguel and Erlinda
actually cohabited. In the nature of an
afterthought, said added assertion was intended
to exclude their case from operation of Article
148 of the Family Code. Proof of the precise date
when
they
commenced
their
adulterous
cohabitation not having been adduced, we cannot
state definitively that the riceland was purchased
even before they started living together. In any
case, even assuming that the subject property
was bought before cohabitation, the rules of coownership would still apply and proof of actual
contribution would still be essential.
Since petitioner failed to prove that she
contributed money to the purchase price of the
riceland in Binalonan, Pangasinan, we find no
basis to justify her co-ownership with Miguel over
the same. Consequently, the riceland should, as
correctly held by the Court of Appeals, revert to
the conjugal partnership property of the
deceased Miguel and private respondent Carlina
Palang.
Furthermore, it is immaterial that Miguel and
Carlina previously agreed to donate their conjugal
property in favor of their daughter Herminia in
1975. The trial court erred in holding that the
decision adopting their compromise agreement
"in effect partakes the nature of judicial
confirmation of the separation of property
between spouses and the termination of the
conjugal partnership." 12 Separation of property
between spouse during the marriage shall not
take place except by judicial order or without
judicial conferment when there is an express
stipulation in the marriage settlements. 13 The
judgment which resulted from the parties'
compromise was not specifically and expressly for

separation of property and should not be so

inferred.
With respect to the house and lot, Erlinda
allegedly bought the same for P20,000.00 on
September 23, 1975 when she was only 22 years
old. The testimony of the notary public who
prepared the deed of conveyance for the property
reveals the falsehood of this claim. Atty.
Constantino Sagun testified that Miguel Palang
provided the money for the purchase price and
directed that Erlinda's name alone be placed as
the vendee. 14
The transaction was properly a donation made by
Miguel to Erlinda, but one which was clearly void
and inexistent by express provision of law
because it was made between persons guilty of
adultery or concubinage at the time of the
donation, under Article 739 of the Civil Code.
Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donation
between spouses now applies to donations
between persons living together as husband and
wife without a valid marriage, 15 for otherwise,
the condition of those who incurred guilt would
turn out to be better than those in legal union. 16
The second issue concerning Kristopher Palang's
status and claim as an illegitimate son and heir to
Miguel's estate is here resolved in favor of
respondent court's correct assessment that the
trial court erred in making pronouncements
regarding Kristopher's heirship and filiation
"inasmuch as questions as to who are the heirs of
the decedent, proof of filiation of illegitimate
children and the determination of the estate of
the latter and claims thereto should be ventilated
in the proper probate court or in a special
proceeding instituted for the purpose and cannot
be adjudicated in the instant ordinary civil action
which is for recovery of ownership and
possession." 17
As regards the third issue, petitioner contends
that Kristopher Palang should be considered as
party-defendant in the case at bar following the
trial court's decision which expressly found that
Kristopher had not been impleaded as party
defendant but theorized that he had submitted to
the
court's
jurisdiction
through
his
mother/guardian ad litem. 18 The trial court erred
gravely. Kristopher, not having been impleaded,
was therefore, not a party to the case at bar. His
mother, Erlinda, cannot be called his guardian ad
litem for he was not involved in the case at bar.
Petitioner adds that there is no need for
Kristopher to file another action to prove that he
is the illegitimate son of Miguel, in order to avoid
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multiplicity of suits. 19 Petitioner's grave error

has been discussed in the preceding paragraph
where the need for probate proceedings to
resolve the settlement of Miguel's estate and
Kristopher's successional rights has been pointed
out.
WHEREFORE, the instant petition is hereby
DENIED. The questioned decision of the Court of
Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado, Puno and Mendoza, JJ ., concur.
Torres, Jr., J ., is on leave.
FIRST DIVISION
[G.R. Nos. L-50127-28. March 30, 1979.]
VICTOR JUANIZA, Heirs of Josefa P. Leus, etc., et
al., plaintiffs and appellees, vs. EUGENIO JOSE,
THE ECONOMIC INSURANCE COMPANY, INC., and
ROSALIA ARROYO, defendants and appellants.
Victoriano O. Javier and Ricardo A. Fabros, Jr. for
appellees.
Luis Viscocho and Francisco E. Rodrigo, Jr. for
appellants.
SYNOPSIS
The trial court rendered a decision in a civil case
for damages arising from a vehicular accident,
ordering Eugenio Jose, the registered owner of
the subject passenger jeepney, and Rosalia
Arroyo to jointly and severally pay damages to
the victims of the accident. Rosalia claims that it
was error for the trial court to consider her a coowner of hte said jeepney, just because she had
cohabited for many years as wife of Eugenio Jose,
a legally married man.
The Supreme Court held that the co-ownership
contemplated in the Civil Code requires that the
man and the woman living together must not be
incapacitated to contract marriage, and that only
the registered owner of a public service vehicle is
responsible for damages that may arise from
consequences incident to its operation, or may be
caused to any of the passengers therein.
Decision modified.
SYLLABUS
1.
MARRIAGE;
PROPERTY
RELATIONS;
COMMON LAW SPOUSES. When a man and
woman live together as husband and wife, but
they are not married, or their marriage is void
from the beginning, the property acquired by
either or both of them through their work or
industry or their wages and salaries shall be
governed by the rules on co-ownership (Article

144, New Civil Code). The co-ownership

contemplated, however, requires that both
parties are not in anyway incapacitated to
contract marriage.
2. TORTS AND DAMAGES; REGISTERED
OWNER OF PUBLIC SERVICE VEHICLE SOLELY
LIABLE. It is settled in our jurisprudence that
only the registered owner of a public service is
responsible for damages that may arise from
consequences incident to its operation, or may be
caused to any of the passengers therein.
DECISION
DE CASTRO, J p:
This case was certified by the Court of Appeals to
this Court on the ground that the questions raised
in the appeal of the decision of the Court of First
Instance of Laguna are purely questions of law.
Eugenio Jose was the registered owner and
operator of the passenger jeepney involved in an
accident of collision with a freight train of the
Philippine National Railways that took place on
November 23, 1969 which resulted in the death
to seven (7) and physical injuries to five (5) of its
passengers. At the time of the accident, Eugenio
Jose was legally married to Socorro Ramos but
had been cohabiting with defendant-appellant,
Rosalia Arroyo, for sixteen (16) years in a
relationship akin to that of husband and wife.
prcd
In the resulting cases for damages filed in the
Court of First Instance of Laguna, decision was
rendered, the dispositive part of which reads as
follows:
"(4) In Civil Case No. SP-867 ordering defendants
Eugenio Jose and Rosalia Arroyo jointly and
severally to pay plaintiff Victor Juaniza the sum of
P1,500.00 plus legal interest from date of
complaint until fully paid and costs of suit;
(5) In Civil Case No. SP-872, ordering defendants
Eugenio Jose and Rosalia Arroyo jointly and
severally to pay the respective heirs of the
deceased Josefa P. Leus, Fausto Leus Retrita,
Nestor del Rosario Aonuevo and Arceli de la
Cueva in the sum of P12,000.00 for the life of
each of said deceased, with legal interest from
date of complaint, and costs of suit." (pp. 47-48,
Rollo).
Motion for reconsideration was filed by Rosalia
Arroyo praying that the decision be reconsidered
insofar as it condemns her to pay damages jointly
and severally with her co-defendant, but was
denied. The lower court based her liability on the
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provision of Article 144 of the Civil Code which

reads:
"When a man and woman living together as
husband and wife, but they are not married, or
their marriage is void from the beginning, the
property acquired by either or both of them
through their work or industry or their wages and
salaries shall be governed by the rules on coownership."
Rosalia Arroyo then filed her appeal with the
Court of Appeals which, as previously stated,
certified the same to Us, the question raised
being purely legal as may be seen from the lone
assigned error as follows:
"The lower court erred in holding defendantappellant Rosalia Arroyo liable 'for damages
resulting from the death and physical injuries
suffered by the passengers' of the jeepney
registered in the name of Eugenio Jose, on the
erroneous theory that Eugenio Jose and Rosalia
Arroyo, having lived together as husband and
wife, without the benefit of marriage, are coowners of said jeepney." (p. 2, Appellant's Brief).
The issues thus to be resolved are as follows: (1)
whether or not Article 144 of the Civil Code is
applicable in a case where one of the parties in a
common-law relationship is incapacitated to
marry, and (2) whether or not Rosalia who is not
a registered owner of the jeepney can be held
jointly and severally liable for damages with the
registered owner of the same.
It has been consistently ruled by this Court that
the co-ownership contemplated in Article 144 of
the Civil Code requires that the man and the
woman living together must not in any way be
incapacitated
to
contract
marriage.
(Camporedondo vs. Aznar, L-11483, February 4,
1958, 102 Phil. 1055, 1068; Osmea vs.
Rodriguez, 54 OG 5526; Malajacan vs. Rubi, 42
OG 5576). Since Eugenio Jose is legally married to
Socorro Ramos, there is an impediment for him to
contract marriage with Rosalia Arroyo. Under the
aforecited provision of the Civil Code, Arroyo
cannot be a co-owner of the jeepney. The jeepney
belongs to the conjugal partnership of Jose and
his legal wife. There is therefore no basis for the
liability of Arroyo for damages arising from the
death of, and physical injuries suffered by, the
passengers of the jeepney which figured in the
collision.
Rosalia Arroyo, who is not the registered owner of
the jeepney can neither be liable for damages
caused by its operation. It is settled in our

jurisprudence that only the registered owner of a

public service vehicle is responsible for damages
that may arise from consequences incident to its
operation, or maybe caused to any of the
passengers therein. (De Peralta vs. Mangusang, L18110, July 31, 1964, 11 SCRA 598; Tamayo vs.
Aquino, L-12634 and L-12720, May 29, 1959;
Roque vs. Malibay Transit, L-8561, November 18,
1955; Montoya vs. Ignacio, L-5868, December 29,
1953).
WHEREFORE, in view of the foregoing, Rosalia
Arroyo is hereby declared free from any liability
for damages and the appealed decision is hereby
modified accordingly. No costs. prcd
Teehankee (Chairman), Makasiar, Fernandez,
Guerrero and Melencio Herrera, JJ., concur.
THIRD DIVISION
[G.R. No. 137650. April 12, 2000.]
GUILLERMA TUMLOS, petitioner, vs. SPOUSES
MARIO FERNANDEZ and LOURDES FERNANDEZ,
respondents.
Del Prado Diaz & Associates for petitioner.
I. P. Liwanag Law Office for respondents.
SYNOPSIS
Private respondents spouses Mario Fernandez and
Lourdes Fernandez filed a complaint for
ejectment against herein petitioner Guillerma
Tumlos, Toto Tumlos and Gina Tumlos. Petitioner
Guillerma Tumlos, who was the only one who filed
an answer to the complaint, averred that the
Fernandez spouses had no cause of action
against her since she is a co-owner of the subject
premises as evidenced by a Contract to Sell. She
then asked for the dismissal of the complaint. The
Municipal Trial Court (MTC) ruled in favor of
private respondents. On appeal to the Regional
Trial Court (RTC), petitioner and the two other
defendants alleged in their memorandum on
appeal that respondent Mario Fernandez and
petitioner Guillerma had an amorous relationship,
and that they acquired the property in question
as their 'love nest.' It was further alleged that
they lived together in the said apartment building
with their two (2) children for around ten (10)
years, and that Guillerma administered the
property by collecting rentals from the lessees of
the other apartments, until she discovered that
respondent Mario deceived her as to the
annulment of his marriage. The RTC rendered a
decision affirming in toto the judgment of the
MTC. The court further ruled that Guillerma and
respondent Mario acquired the property during
their cohabitation as husband and wife, although
without the benefit of marriage. The trial court
concluded that petitioner Guillerma Tumlos was a
7|Family

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co-owner of the subject property and could not be

ejected therefrom. On appeal, the Court of
Appeals reversed the RTC. Hence, the present
petition filed by Guillerma Tumlos only.
The Supreme Court denied the petition and
affirmed the Decision of the Court of Appeals. The
Court ruled that petitioner is not a co-owner
under Article 144 of the Civil Code because said
provision applies only to a relationship between a
man and a woman who are not incapacitated to
marry each other, or to one in which the marriage
of the parties is void from the beginning. The
relationship between petitioner and respondent
Mario Fernandez is governed by Article 148 of the
Family Code which filled the hiatus in Article 144
of the Civil Code by expressly regulating in its
Article 148 the property relations of couples living
in a state of adultery or concubinage. The Court
also considered the fact that petitioner failed to
present any evidence that she had made an
actual contribution to purchase the subject
property. The Court also dismissed petitioner's
contention that her children's right to support,
which necessarily includes shelter, prevails over
the right of respondents to eject her because said
issue is not relevant to the ejectment case which
deals solely with the issue of possession of the
property in dispute.
The appealed decision of the Court of Appeals
was affirmed.
SYLLABUS
1.REMEDIAL
LAW;
CIVIL
PROCEDURE;
APPEALS; ISSUES NOT RAISED DURING
TRIAL; CASE AT BAR. In ruling that the RTC
erred in considering on appeal the evidence
presented by petitioner, the CA relied on the
doctrine that issues not raised during trial could
not be considered for the first time during appeal.
We disagree. In the first place, there were no new
matters or issues belatedly raised during the
appeal before the RTC. The defense invoked by
petitioner at the very start was that she was a coowner. To support her claim, she presented a
Contract to Sell dated November 14, 1986, which
stated that Mario Fernandez was legally married
to her. The allegation that she was cohabiting
with him was a mere elaboration of her initial
theory. In the second place, procedural rules are
generally premised on considerations of fair play.
Respondents never objected when the assailed
evidence was presented before the RTC. Thus,
they cannot claim unfair surprise or prejudice.
2.CIVIL LAW; FAMILY CODE; PROPERTY
REGIME OF UNIONS WITHOUT MARRIAGE;
APPLICABLE PROVISION OF LAW IN CASE AT

BAR; PETITIONER NOT A CO-OWNER UNDER

ARTICLE 144 OF THE CIVIL CODE. Even
considering the evidence presented before the
MTC and the RTC, we cannot accept petitioner's
submission that she is a co-owner of the disputed
property pursuant to Article 144 of the Civil Code.
As correctly held by the CA, the applicable law is
not Article 144 of the Civil Code, but Article 148
of the Family Code. Article 144 of the Civil Code
applies only to a relationship between a man and
a woman who are not incapacitated to marry
each other, or to one in which the marriage of the
parties is void from the beginning. It does not
apply to a cohabitation that amounts to adultery
or concubinage, for it would be absurd to create a
co-ownership where there exists a prior conjugal
partnership or absolute community between the
man and his lawful wife. Based on evidence
presented by respondents, as well as those
submitted by petitioner herself before the RTC, it
is clear that Mario Fernandez was incapacitated
to marry petitioner because he was legally
married to Lourdes Fernandez. It is also clear
that, as readily admitted by petitioner, she
cohabited with Mario in a state of concubinage.
Therefore, Article 144 of the Civil Code is
inapplicable.
3.ID.; ID.; ID.; LAWS CAN BE APPLIED
RETROACTIVELY IF IT DOES NOT PREJUDICE
VESTED OR ACQUIRED RIGHTS. The
relationship between petitioner and Respondent
Mario Fernandez is governed by Article 148 of the
Family Code. Justice Alicia V. Sempio-Diy points
out that "[t]he Family Code has filled the hiatus in
Article 144 of the Civil Code by expressly
regulating in its Article 148 the property relations
of couples living in a state of adultery or
concubinage." Hence, petitioner's argument
that the Family Code is inapplicable because the
cohabitation and the acquisition of the property
occurred before its effectivity deserves scant
consideration. Suffice it to say that the law itself
states that it can be applied retroactively if it
does not prejudice vested or acquired rights. In
this case, petitioner failed to show any vested
right over the property in question. Moreover, to
resolve similar issues, we have applied Article
148 of the Family Code retroactively.
4.ID.; ID.; ID.; EVIDENCE OF CLAIM OF COOWNERSHIP; ACTUAL CONTRIBUTION TO
PURCHASE THE SUBJECT PROPERTY. In this
case, petitioner fails to present any evidence that
she had made an actual contribution to purchase
the subject property. Indeed, she anchors her
claim of co-ownership merely on her cohabitation
with Respondent Mario Fernandez. Likewise, her
claim of having administered the property during
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the cohabitation is unsubstantiated. In any event,

this fact by itself does not justify her claim, for
nothing in Article 148 of the Family Code provides
that the administration of the property amounts
to a contribution in its acquisition. Clearly, there
is no basis for petitioner's claim of co-ownership.
The property in question belongs to the conjugal
partnership of respondents. Hence, the MTC and
the CA were correct in ordering the ejectment of
petitioner from the premises. SIDEaA
5.REMEDIAL LAW; SPECIAL CIVIL ACTIONS;
FORCIBLE ENTRY AND UNLAWFUL DETAINER;
EJECTMENT; DEALS SOLELY WITH THE ISSUE
OF POSSESSION OF THE PROPERTY IN
DISPUTE. It should be emphasized that this is
an ejectment suit whereby respondents seek to
exercise their possessory right over their
property. It is summary in character and deals
solely with the issue of possession of the property
in dispute. Here, it has been shown that they
have a better right to possess it than does the
petitioner, whose right to possess is based merely
on their tolerance. Moreover, Respondent Mario
Fernandez'
alleged
failure
to
repudiate
petitioner's claim of filiation is not relevant to the
present case. Indeed, it would be highly improper
for us to rule on such issue. Besides, it was not
properly taken up below. In any event, Article 298
of the Civil Code requires that there should be an
extrajudicial demand. None was made here. The
CA was correct when it said: "Even assuming
arguendo that the said evidence was validly
presented, the RTC failed to consider that the
need for support cannot be presumed. Article
[298] of the [New Civil Code] expressly provides
that the obligation to give support shall be
demandable from the time the person who has a
right to receive the same need it for
maintenance, but it shall not be paid except from
the date of judicial and extrajudicial demand."
DECISION
PANGANIBAN, J p:
Under Article 148 of the Family Code, a man and
a woman who are not legally capacitated to
marry each other, but who nonetheless live
together conjugally, may be deemed co-owners
of a property acquired during the cohabitation
only upon proof that each made an actual
contribution to its acquisition. Hence, mere
cohabitation without proof of contribution will not
result in a co-ownership. prcd
The Case
Before us is a Petition for Review under Rule 45 of
the Rules of Court, assailing the November 19,
1998 Decision of the Court of Appeals 1 (CA),
which reversed the October 7, 1997 Order of the

Regional Trial Court (RTC). 2 The dispositive part

of the CA Decision reads:

to pay the stated unpaid rentals, as well as to

jointly pay P30,000.00 in attorneys fees.

"WHEREFORE, the instant petition is GRANTED,

and the questioned orders of the court a quo
dated October 7, 1997 and November 11, 1997,
are hereby REVERSED and SET ASIDE. The
judgment of the court a quo dated June 5, 1997 is
hereby REINSTATED. Costs against the private
respondents." 3

"[Petitioner] Guillerma Tumlos was the only one

who filed an answer to the complaint. She
averred therein that the Fernandez spouses had
no cause of action against her, since she is a coowner of the subject premises as evidenced by a
Contract to Sell wherein it was stated that she is
a co-vendee of the property in question together
with [Respondent] Mario Fernandez. She then
asked for the dismissal of the complaint.

The assailed Order of the RTC disposed as follows:

"Wherefore, the decision of this Court rendered
on June 5, 1997 affirming in toto the appealed
judgment of the [MTC] is hereby reconsidered and
a new one is entered reversing said decision of
the [MTC] and dismissing the complaint in the
above-entitled case." 4
Petitioner also assails the February 14, 1999 CA
Resolution
denying
the
Motion
for
Reconsideration.

The Facts
The Court of Appeals narrates the facts as
follows:
"[Herein respondents] were the plaintiffs in Civil
Case No. 6756, an action for ejectment filed
before Branch 82 of the MTC of Valenzuela, Metro
Manila against [herein Petitioner] Guillerma
Tumlos, Toto Tumlos, and Gina Tumlos. In their
complaint dated July 5, 1996, the said spouses
alleged that they are the absolute owners of an
apartment building located at ARTE SUBDIVISION
III, Lawang Bato, Valenzuela, Metro Manila; that
through tolerance they had allowed the
defendants-private respondents to occupy the
apartment building for the last seven (7) years,
since 1989, without the payment of any rent; that
it was agreed upon that after a few months,
defendant Guillerma Tumlos will pay P1,600.00 a
month while the other defendants promised to
pay P1,000.00 a month, both as rental, which
agreement was not complied with by the said
defendants; that they have demanded several
times [that] the defendants . . . vacate the
premises, as they are in need of the property for
the construction of a new building; and that they
have also demanded payment of P84,000.00 from
Toto and Gina Tumlos representing rentals for
seven (7) years and payment of P143,600.00
from Guillerma Tumlos as unpaid rentals for
seven (7) years, but the said demands went
unheeded. They then prayed that the defendants
be ordered to vacate the property in question and
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"After an unfruitful preliminary conference on

November 15, 1996, the MTC required the parties
to submit their affidavits and other evidence on
the factual issues defined in their pleadings
within ten (10) days from receipt of such order,
pursuant to section 9 of the Revised Rule on
Summary
Procedure.
[Petitioner]
Guillerma
Tumlos submitted her affidavit/position paper on
November 29, 1996, while the [respondents] filed
their position paper on December 5, 1996,
attaching thereto their marriage contract, letters
of demand to the defendants, and the Contract to
Sell over the disputed property. The MTC
thereafter promulgated its judgment on January
22, 1997[.]
xxx xxx xxx
"Upon appeal to the [RTC], [petitioner and the
two
other]
defendants
alleged
in
their
memorandum on appeal that [Respondent] Mario
Fernandez and [Petitioner] Guillerma had an
amorous relationship, and that they acquired the
property in question as their love nest. It was
further alleged that they lived together in the
said apartment building with their two (2)
children for around ten(10) years, and that
Guillerma administered the property by collecting
rentals from the lessees of the other apartments,
until she discovered that [Respondent Mario]
deceived her as to the annulment of his marriage.
It was also during the early part of 1996 when
[Respondent Mario] accused her of being
unfaithful and demonstrated his baseless
[jealousy].
"In the same memorandum, [petitioner and the
two other] defendants further averred that it was
only recently that Toto Tumlos was temporarily
accommodated in one of the rooms of the subject
premises while Gina Tumlos acted as a nanny for
the children. In short, their presence there [was]
only transient and they [were] not tenants of the
Fernandez spouses.

"On June 5, 1997, the [RTC] rendered a decision

affirming in toto the judgment of the MTC.
"The [petitioner and the two other defendants]
seasonably filed a motion for reconsideration on
July 3, 1997, alleging that the decision of
affirmance by the RTC was constitutionally flawed
for failing to point out distinctly and clearly the
findings of facts and law on which it was based
vis- -vis the statements of issues they have
raised in their memorandum on appeal. They also
averred that the Contract to Sell presented by the
plaintiffs which named the buyer as Mario P.
Fernandez, of legal age, married to Lourdes P.
Fernandez, should not be given credence as it
was falsified to appear that way. According to
them, the Contract to Sell originally named
Guillerma Fernandez as the spouse of
[Respondent Mario]. As found by the [RTC] in its
judgment, a new Contract to Sell was issued by
the sellers naming the [respondents] as the
buyers after the latter presented their marriage
contract and requested a change in the name of
the vendee-wife. Such facts necessitate the
conclusion that Guillerma was really a co-owner
thereof, and that the [respondents] manipulated
the evidence in order to deprive her of her rights
to enjoy and use the property as recognized by
law.
xxx xxx xxx
"The [RTC], in determining the question of
ownership in order to resolve the issue of
possession, ruled therein that the Contract to Sell
submitted by the Fernandez spouses appeared
not to be authentic, as there was an alteration in
the name of the wife of [Respondent] Mario
Fernandez. Hence, the contract presented by the
[respondents] cannot be given any weight. The
court
further
ruled
that
Guillerma
and
[Respondent Mario] acquired the property during
their cohabitation as husband and wife, although
without the benefit of marriage. From such
findings, the court concluded that [Petitioner]
Guillerma Tumlos was a co-owner of the subject
property and could not be ejected therefrom.
"The [respondents] then filed a motion for
reconsideration of the order of reversal, but the
same was denied by the [RTC]." 5
As earlier stated, the CA reversed the RTC. Hence,
this Petition filed by Guillerma Tumlos only. 6
Ruling of the Court of Appeals
The CA rejected petitioners claim that she and
Respondent Mario Fernandez were co-owners of
the disputed property. The CA ruled:
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"From the inception of the instant case, the only

defense presented by private respondent
Guillerma is her right as a co-owner of the subject
property[.]
xxx xxx xxx
This claim of co-ownership was not satisfactorily
proven by Guillerma, as correctly held by the trial
court. No other evidence was presented to
validate such claim, except for the said
affidavit/position paper. As previously stated, it
was only on appeal that Guillerma alleged that
she cohabited with the petitioner-husband
without the benefit of marriage, and that she
bore him two (2) children. Attached to her
memorandum on appeal are the birth certificates
of the said children. Such contentions and
documents should not have been considered by
the . . . (RTC), as they were not presented in her
affidavit/position paper before the trial court
(MTC).
xxx xxx xxx
"However, even if the said allegations and
documents could be considered, the claim of coownership must still fail. As [herein Respondent]
Mario
Fernandez
is
validly
married
to
[Respondent] Lourdes Fernandez (as per Marriage
Contract dated April 27, 1968, p. 45, Original
Record), Guillerma and Mario are not capacitated
to marry each other. Thus, the property relations
governing their supposed cohabitation is that
found in Article 148 of Executive Order No. 209,
as amended, otherwise known as the Family Code
of the Philippines[.]
xxx xxx xxx
"It is clear that actual contribution is required by
this provision, in contrast to Article 147 of the
Family Code which states that efforts in the care
and maintenance of the family and household are
regarded as contributions to the acquisition of
common property by one who has no salary or
income or work or industry (Agapay v. Palang,
276 SCRA 340). The care given by one party [to]
the home, children, and household, or spiritual or
moral inspiration provided to the other, is not
included in Article 148 (Handbook on the Family
Code of the Philippines by Alicia V. Sempio-Diy,
1988 ed., p. 209). Hence, if actual contribution of
the party is not proved, there will be no coownership and no presumption of equal shares
(Agapay, supra at p. 348, citing Commentaries
and Jurisprudence on the Civil Code of the

Philippines Volume I by Arturo M. Tolentino, 1990

ed., p. 500).
"In the instant case, no proof of actual
contribution by Guillerma Tumlos in the purchase
of the subject property was presented. Her only
evidence was her being named in the Contract to
Sell as the wife of [Respondent] Mario Fernandez.
Since she failed to prove that she contributed
money to the purchase price of the subject
apartment building, We find no basis to justify her
co-ownership with [Respondent Mario]. The said
property is thus presumed to belong to the
conjugal partnership property of Mario and
Lourdes Fernandez, it being acquired during the
subsistence of their marriage and there being no
other proof to the contrary (please see Article 116
of the Family Code).
"The court a quo (RTC) also found that
[Respondent Mario] has two (2) children with
Guillerma who are in her custody, and that to
eject them from the apartment building would be
to run counter with the obligation of the former to
give support to his minor illegitimate children,
which indispensably includes dwelling. As
previously discussed, such finding has no leg to
stand on, it being based on evidence presented
for the first time on appeal.
xxx xxx xxx
"Even assuming arguendo that the said evidence
was validly presented, the RTC failed to consider
that the need for support cannot be presumed.
Article 203 of the Family Code expressly provides
that the obligation to give support shall be
demandable from the time the person who has a
right to receive the same needs it for
maintenance, but it shall not be paid except from
the date of judicial or extrajudicial demand . . .

"In contrast to the clear pronouncement of the

Supreme Court, the RTC instead presumed that
Guillerma and her children needed support from
[Respondent Mario]. Worse, it relied on evidence
not properly presented before the trial court
(MTC).
"With regard to the other [defendants], Gina and
Toto Tumlos, a close perusal of the records shows
that they did not file any responsive pleading.
Hence, judgment may be rendered against them
as may be warranted by the facts alleged in the
complaint and limited to what is prayed for
therein, as provided for in Section 6 of the
Revised Rules on Summary Procedure. There was
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no basis for the public respondent to dismiss the

complaint against them." 7 (emphasis in the
original)
The Issues
In her Memorandum, petitioner submits the
following issues for the consideration of the
Court:
"I.The Court of Appeals gravely erred and abused
its discretion in not outrightly dismissing the
petition for review filed by respondents.
"II.The Court of Appeals erred in finding that
petitioner is not the co-owner of the property in
litis.
"III.Corollary thereto, the Court of Appeals erred
in applying Art. 148 of the Family Code in the
case at bar.
"IV.The Court of Appeals erred in disregarding the
substantive right of support vis- -vis the remedy
of ejectment resorted to by respondents." 8
In resolving this case, we shall answer two
questions: (a) Is the petitioner a co-owner of the
property? (b) Can the claim for support bar this
ejectment suit? We shall also discuss these
preliminary matters: (a) whether the CA was
biased in favor of respondents and (b) whether
the MTC had jurisdiction over the ejectment suit.
The Courts Ruling
The Petition has no merit.
Preliminary Matters
Petitioner submits that the CA exhibited partiality
in favor of herein respondents. This bias, she
argues, is manifest in the following:
1.The CA considered the respondents Petition for
Review 9 despite their failure to attach several
pleadings as well as the explanation for the proof
of service, despite the clear mandate of Section
11 10 of Rule 13 of the Revised Rules of Court
and
despite
the
ruling
in Solar
Team
Entertainment, Inc. v. Ricafort. 11
2.It allowed respondents to submit the pleadings
that were not attached. LLphil
3.It considered respondents' Reply dated May 20,
1998, which had allegedly been filed out of time.
4.It declared that the case was submitted for
decision without first determining whether to give
due course to the Petition, pursuant to Section 6,
Rule 42 of the Rules of Court. 12

The CA, for its part, succinctly dismissed these

arguments in this wise:
"It is too late in the day now to question the
alleged procedural error after we have rendered
the decision. More importantly, when the private
respondent filed their comment to the petition on
April 26, 1998, they failed to question such
alleged procedural error. Neither have they
questioned all the resolutions issued by the Court
after their filing of such comment. They should,
therefore, be now considered in estoppel to
question the same." 13
We agree with the appellate court. Petitioner
never raised these matters before the CA. She
cannot be allowed now to challenge its Decision
on grounds of alleged technicalities being
belatedly raised as an afterthought. In this light,
she cannot invoke Solar 14 because she never
raised this issue before the CA.
More important, we find it quite sanctimonious
indeed on petitioner's part to rely, on the one
hand, on these procedural technicalities to
overcome the appealed Decision and, on the
other hand, assert that the RTC may consider the
new evidence she presented for the first time on
appeal. Such posturing only betrays the futility of
petitioner's assertion, if not its absence of merit.
One other preliminary matter. Petitioner implies
that the court of origin, the Municipal Trial Court
(MTC), did not have jurisdiction over the "nature
of the case," alleging that the real question
involved is one of ownership. Since the issue of
possession cannot be settled without passing
upon that of ownership, she maintains that the
MTC should have dismissed the case.
This contention is erroneous. The issue of
ownership may be passed upon by the MTC to
settle the issue of possession. 15 Such
disposition, however, is not final insofar as the
issue of ownership is concerned, 16 which may be
the subject of another proceeding brought
specifically to settle that question.
Having resolved these preliminary matters, we
now move on to petitioners substantive
contentions.
First Issue: Petitioner as Co-owner
Petitioner's central theory and main defense
against respondents' action for ejectment is her
claim of co-ownership over the property with
Respondent Mario Fernandez. At the first instance
before the MTC, she presented a Contract to Sell
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indicating that she was his spouse. The MTC

found this document insufficient to support her
claim. The RTC, however, after considering her
allegation that she had been cohabiting with
Mario Fernandez as shown by evidence presented
before it, 17 ruled in her favor.
On the other hand, the CA held that the pieces of
evidence adduced before the RTC could no longer
be considered because they had not been
submitted before the MTC. Hence, the appellate
court concluded that "[t]he claim of co-ownership
was not satisfactorily proven . . ." 18
We agree with the petitioner that the RTC did not
err in considering the evidence presented before
it. Nonetheless, we reject her claim that she was
a co-owner of the disputed property.
Evidence Presented on Appeal Before the RTC
In ruling that the RTC erred in considering on
appeal the evidence presented by petitioner, the
CA relied on the doctrine that issues not raised
during trial could not be considered for the first
time during appeal. 19
We disagree. In the first place, there were no new
matters or issues belatedly raised during the
appeal before the RTC. The defense invoked by
petitioner at the very start was that she was a coowner. To support her claim, she presented a
Contract to Sell dated November 14, 1986, which
stated that Mario Fernandez was legally married
to her. The allegation that she was cohabiting
with him was a mere elaboration of her initial
theory.
In the second place, procedural rules are
generally premised on considerations of fair play.
Respondents never objected when the assailed
evidence was presented before the RTC. Thus,
they cannot claim unfair surprise or prejudice.
Petitioner Not a Co-Owner Under Article 144 of
the Civil Code
Even considering the evidence presented before
the MTC and the RTC, we cannot accept
petitioner's submission that she is a co-owner of
the disputed property pursuant to Article 144 of
the Civil Code. 20 As correctly held by the CA, the
applicable law is not Article 144 of the Civil Code,
but Article 148 of the Family Code which
provides:
"ARTICLE 148.In cases of cohabitation not falling
under the preceding Article, 21 only the
properties acquired by both of the parties through
their actual joint contribution of money, property,
or industry shall be owned by them in common in

proportion to their respective contributions. In the

absence of proof to the contrary, their
contributions and corresponding shares are
presumed to be equal. The same rule and
presumption shall apply to joint deposits of
money and evidences of credit.
"If one of the parties is validly married to another,
his or her share in the co-ownership shall accrue
to the absolute community or conjugal
partnership existing in such valid marriage. If the
party who acted in bad faith is not validly married
to another, his or her share shall be forfeited in
the manner provided in the last paragraph of the
preceding Article.
"The foregoing rules on forfeiture shall likewise
apply even if both parties are in bad faith."
Article 144 of the Civil Code applies only to a
relationship between a man and a woman who
are not incapacitated to marry each other, 22 or
to one in which the marriage of the parties is void
23 from the beginning. 24 It does not apply to a
cohabitation that amounts to adultery or
concubinage, for it would be absurd to create a
co-ownership where there exists a prior conjugal
partnership or absolute community between the
man and his lawful wife. 25
Based on evidence presented by respondents, as
well as those submitted by petitioner herself
before the RTC, it is clear that Mario Fernandez
was incapacitated to marry petitioner because he
was legally married to Lourdes Fernandez. It is
also clear that, as readily admitted by petitioner,
she cohabited with Mario in a state of
concubinage. Therefore, Article 144 of the Civil
Code is inapplicable.
As stated above, the relationship between
petitioner and Respondent Mario Fernandez is
governed by Article 148 of the Family Code.
Justice Alicia V. Sempio-Diy points out 26 that
"[t]he Family Code has filled the hiatus in Article
144 of the Civil Code by expressly regulating in
its Article 148 the property relations of couples
living in a state of adultery or concubinage."
Hence, petitioners argument that the Family
Code is inapplicable because the cohabitation
and the acquisition of the property occurred
before
its
effectivity

deserves
scant
consideration. Suffice it to say that the law itself
states that it can be applied retroactively if it
does not prejudice vested or acquired rights. 27
In this case, petitioner failed to show any vested
right over the property in question. Moreover, to
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resolve similar issues, we have applied Article

148 of the Family Code retroactively. 28
No Evidence of Actual Joint Contribution
Another
consideration
militates
against
petitioners claim that she is a co-owner of the
property. In Agapay, 29 the Court ruled:
"Under Article 148, only the properties acquired
by both of the parties through their actual joint
contribution of money, property or industry shall
be owned by them in common in proportion to
their respective contributions. It must be stressed
that the actual contribution is required by this
provision, in contrast to Article 147 which states
that efforts in the care and maintenance of the
family and household,
are
regarded as
contributions to the acquisition of common
property by one who has no salary or income or
work or industry. If the actual contribution of the
party is not proved, there will be no co-ownership
and no presumption of equal shares." (emphasis
ours)

In this case, petitioner fails to present any

evidence that she had made an actual
contribution to purchase the subject property.
Indeed, she anchors her claim of co-ownership
merely on her cohabitation with Respondent
Mario Fernandez.
Likewise, her claim of having administered the
property
during
the
cohabitation
is
unsubstantiated. In any event, this fact by itself
does not justify her claim, for nothing in Article
148 of the Family Code provides that the
administration of the property amounts to a
contribution in its acquisition.
Clearly, there is no basis for petitioners claim of
co-ownership. The property in question belongs
to the conjugal partnership of respondents.
Hence, the MTC and the CA were correct in
ordering the ejectment of petitioner from the
premises.
Second Issue: Support versus Ejectment
Petitioner contends that since Respondent Mario
Fernandez failed to repudiate her claim regarding
the filiation of his alleged sons, Mark Gil and
Michael Fernandez, his silence on the matter
amounts to an admission. Arguing that Mario is
liable for support, she advances the theory that
the children's right to support, which necessarily
includes shelter, prevails over the right of
respondents to eject her.

We disagree. It should be emphasized that this is

an ejectment suit whereby respondents seek to
exercise their possessory right over their
property. It is summary in character and deals
solely with the issue of possession of the property
in dispute. Here, it has been shown that they
have a better right to possess it than does the
petitioner, whose right to possess is based merely
on their tolerance.

"Even assuming arguendo that the said evidence

was validly presented, the RTC failed to consider
that the need for support cannot be presumed.
Article [298] of the [New Civil Code] expressly
provides that the obligation to give support shall
be demandable from the time the person who has
a right to receive the same need it for
maintenance, but it shall not be paid except from
the date of judicial and extrajudicial demand." 33

Moreover, Respondent Mario Fernandez' alleged

failure to repudiate petitioners claim of filiation is
not relevant to the present case. Indeed, it would
be highly improper for us to rule on such issue.
Besides, it was not properly taken up below. 30 In
any event, Article 298 31 of the Civil Code
requires that there should be an extrajudicial
demand. 32 None was made here. The CA was
correct when it said:

WHEREFORE, the Petition is DENIED and the

appealed Decision AFFIRMED. Costs against
petitioner. cdphil

14 | F a m i l y

Code

Art148

cases

SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ.,concur.
Vitug, J., is abroad on official business.