G.R. No. 58010. March 31, 1993.

EMILIA O'LACO and HUCO LUNA, petitioners, vs. VALENTIN CO

CHO CHIT, O LAY KIA and COURT OF APPEALS, respondents.
Sergio L. Guadiz for petitioners.
Norberto J . Quisumbing & Associates for private respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; CONDITION
PRECEDENT TO FILING OF SUIT BETWEEN MEMBERS OF THE
SAME FAMILY; EFFECT OF FAILURE TO COMPLY WITH
CONDITION. Admittedly, the present action is between
members of the same family since petitioner Emilia O'Laco
and respondent O Lay Kia are half-sisters. Consequently, there
should be an averment in the compliant that earnest efforts
toward a compromise have been made, pursuant to Art. 222
of the New Civil Code, or a motion to dismiss could have been
filed under Sec. 1, par. (j), Rule 16 of the Rules of Court. For, it
is well-settled that the attempt to compromise as well as the
inability to succeed is a condition precedent to the filing of a
suit between members of the same family. Hence, the defect
in the complaint is assailable at any stage of the proceedings,
even on appeal, for lack of cause of action.
2. ID.; ID.; AMENDMENT TO COMPLAINT; WHEN PROPER;
AMENDMENT TO CONFORM TO EVIDENCE. Plaintiff may be
allowed to amend his complaint to correct the defect if the
amendment does not actually confer jurisdiction on the court
in which the action is filed, i.e., if the cause of action was
originally within that court's jurisdiction. In such case, the
amendment is only to cure the perceived defect in the
complaint, thus may be allowed. In the case before Us, while
respondent-spouses did not formally amend their complaint,
they were nonetheless allowed to introduce evidence
purporting to show that earnest efforts toward a compromise
had been made, that is, respondent O Lay Kia importuned
Emilia O'Laco and pressed her for the transfer of the title of
the Oroquieta property in the name of spouses O Lay Kia and
Valentin Co Cho Chit, just before Emilia's marriage to Hugo
Luna. But, instead of transferring the title as requested, Emilia
sold the property to the Roman Catholic Archbishop of Manila.
This testimony was not objected to by petitioner-spouses.
Hence, the complaint was deemed accordingly amended to
conform to the evidence, pursuant to Sec. 5, Rule 10 of the
Rules of Court which reads "Sec. 5. Amendment to conform
to or authorize presentation of evidence. When issues not
raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects, as
if they had been raised in the pleadings . . ." Indeed, if the
defendant permits evidence to be introduced without
objection and which supplies the necessary allegations of a
defective complaint, then the evidence is deemed to have the
effect of curing the defects of the complaint. The insufficiency
of the allegations in the complaint is deemed ipso facto
rectified.
3. CIVIL LAW; OBLIGATIONS AND CONTRACTS; TRUSTS;
EXPRESS TRUST; DEFINED; IMPLIED TRUST; DEFINED. By
definition, trust relations between parties may either be
express or implied. Express trusts are those which are created
by the direct and positive acts of the parties, by some writing
or deed, or will, or by words evincing an intention to create a
trust. Implied trusts are those which, without being express,
are deducible from the nature of the transaction as matters of
intent, or which are superinduced on the transaction by
operation of law as matters of equity, independently of the
particular intention of the parties.
4. ID.; ID.; ID.; IMPLIED TRUSTS; RESULTING TRUST; BASIS
THEREOF; CONSTRUCTIVE TRUST; BASIS THEREOF. Implied

trust may either be resulting or constructive trusts, both

coming into being by operation of law. Resulting trusts are
based on the equitable doctrine that valuable consideration
and not legal title determines the equitable title or interest
and are presumed always to have been contemplated by the
parties. They arise from the nature or circumstances of the
consideration involved in a transaction whereby one person
thereby becomes invested with legal title but is obligated in
equity to hold his legal title for the benefit of another. On the
other hand, constructive trusts are created by the
construction of equity in order to satisfy the demands of
justice and prevent unjust enrichment. They arise contrary to
intention against one who, by fraud, duress or abuse of
confidence, obtains or holds the legal right to property which
he ought not, in equity and good conscience, to hold.
5. ID.; ID.; ID.; EXPRESS TRUSTS CONCERNING IMMOVABLES
NOT PROVED BY PAROL EVIDENCE; IMPLIED TRUST IN REAL
PROPERTY ESTABLISHED BY PAROL EVIDENCE; PROOF
REQUIRED; CASE AT BAR. Unlike express trusts concerning
immovables or any interest therein which cannot be proved by
parol evidence, implied trusts may be established by oral
evidence. However, in order to establish an implied trust in
real property by parol evidence, the proof should be as fully
convincing as if the acts giving rise to the trust obligation
were proven by an authentic document. It cannot be
established upon vague and inconclusive proof. After a
thorough review of the evidence on record, We hold that a
resulting trust was indeed intended by the parties under Art.
1448 of the New Civil Code which states "Art. 1448. There
is an implied trust when property is sold, and the legal estate
is granted to one party but the price is paid by another for the
purpose of having the beneficial interest of the property. The
former is the trustee, while the latter is the beneficiary . . ." As
stipulated by the parties, the document of sale, the owner's
duplicate copy of the certificate of title, insurance policies,
receipt of initial premium of insurance coverage and real
estate tax receipts were all in the possession of respondentspouses which they offered in evidence. As emphatically
asserted by respondent O Lay Kia, the reason why these
documents of ownership remained with her is that the land in
question belonged to her. Indeed, there can be no persuasive
rationalization for the possession of these documents of
ownership by respondent-spouses for seventeen (17) years
after the Oroquieta property was purchased in 1943 than that
of precluding its possible sale, alienation or conveyance by
Emilia O'Laco, absent any machination or fraud. This
continued possession of the documents, together with other
corroborating evidence spread on record, strongly suggests
that Emilia O'Laco merely held the Oroquieta property in trust
for respondent-spouses.
6. ID.; ID.; ID.; CONSTRUCTIVE TRUST SUBJECT TO
PRESCRIPTION; RESULTING TRUST IMPRESCRIPTIBLE;
RESULTING TRUST CONVERTED TO CONSTRUCTIVE TRUST BY
REPUDIATION; REQUISITES; PRESCRIPTIVE PERIOD FOR
ACTION FOR RECONVEYANCE BASED ON CONSTRUCTIVE
TRUST. As differentiated from constructive trusts, where the
settled rule is that prescription may supervene, in resulting
trust, the rule of imprescriptibility may apply for as long as the
trustee has not repudiated the trust. Once the resulting trust
is repudiated, however, it is converted into a constructive
trust and is subject to prescription. A resulting trust is
repudiated if the following requisites concur: (a) the trustee
has performed unequivocal acts of repudiation amounting to
an ouster of the cestui qui trust; (b) such positive acts of
repudiation have been made known to the cestui qui trust;
and, (c) the evidence thereon is clear and convincing. In Tale
v. Court of Appeals the Court categorically ruled that an action
for reconveyance based on an implied or constructive trust
must perforce prescribe in ten (10) years, and not otherwise,

thereby modifying previous decisions holding that the

prescriptive period was four (4) years. So long as the trustee
recognizes the trust, the beneficiary may rely upon the
recognition, and ordinarily will not be in fault for omitting to
bring an action to enforce his rights. There is no running of the
prescriptive period if the trustee expressly recognizes the
resulting trust. Since the complaint for breach of trust was
filed by respondent-spouses two (2) months after acquiring
knowledge of the sale, the action therefore has not yet
prescribed.

property with her own money; that she left the Deed of
Absolute Sale and the corresponding title with respondentspouses merely for safekeeping; that when she asked for the
return of the documents evidencing her ownership,
respondent-spouses told her that these were misplaced or
lost; and, that in view of the loss, she filed a petition for
issuance of a new title, and on 18 August 1944 the then Court
of First Instance of Manila granted her petition.
On 20 September 1976, finding no trust relation between the
parties, the trial court dismissed the complaint together with
the counterclaim. Petitioners and respondents appealed.
On 9 April 1981, the Court of Appeals set aside the decision of
the trial court thus

DECISION
BELLOSILLO, J p:
History is replete with cases of erstwhile close family relations
put asunder by property disputes. This is one of them. It
involves half-sisters each claiming ownership over a parcel of
land. While petitioner Emilia O'Laco asserts that she merely
left the certificate of title covering the property with private
respondent O Lay Kia for safekeeping, the latter who is the
former's older sister insists that the title was in her possession
because she and her husband bought the property from their
conjugal funds. To be resolved therefore is the issue of
whether a resulting trust was intended by them in the
acquisition of the property. The trial court declared that there
was no trust relation of any sort between the sisters. 1 The
Court of Appeals ruled otherwise. 2 Hence, the instant petition
for review on certiorari of the decision of the appellate court
together with its resolution denying reconsideration. 3
It appears that on 31 May 1943, the Philippine Sugar Estate
Development Company, Ltd., sold a parcel of land, Lot No. 5,
Block No. 10, Plan Psu-10038, situated at Oroquieta St., Sta.
Cruz, Manila, with the Deed of Absolute Sale naming Emilia
O'Laco as vendee; thereafter, Transfer Certificate of Title No.
66456 was issued in her name.
On 17 May 1960, private respondent-spouses Valentin Co Cho
Chit and O Lay Wa learned from the newspapers that Emilia
O'Laco sold the same property to the Roman Catholic
Archbishop of Manila for P230,000.00, with assumption of the
real estate mortgage constituted thereon. 4
On 22 June 1960, respondent-spouses Valentin Co Cho Chit
and O Lay Kia sued petitioner-spouses Emilia O'Laco and Hugo
Luna to recover the purchase price of the land before the then
Court of First Instance of Rizal, respondent-spouses asserting
that petitioner Emilia O'Laco knew that they were the real
vendees of the Oroquieta property sold in 1943 by Philippine
Sugar Estate Development Company, Ltd., and that the legal
title thereto was merely placed in her name. They contend
that Emilia O'Laco breached the trust when she sold the land
to the Roman Catholic Archbishop of Manila. Meanwhile, they
asked the trial court to garnish all the amounts still due and
payable to petitioner-spouses arising from the sale, which was
granted on 30 June 1960. 5
Petitioner-spouses deny the existence of any form of trust
relation. They aver that Emilia O'Laco actually bought the

". . . We set aside the decision of the lower court dated

September 20, 1976 and the order of January 5, 1977 and
another one is hereby entered ordering the defendantsappellees to pay plaintiffs-appellants jointly and severally the
sum of P230,000.00 representing the value of the property
subject of the sale with assumption of mortgage to the Roman
Catholic Archbishop of Manila with legal interest from the
filing of the complaint until fully paid, the sum of P10,000.00
as attorney's fees, plus costs."
On 7 August 1981, the Court of Appeals denied
reconsideration of its decision, prompting petitioners to come
to this Court for relief.
Petitioners contend that the present action should have been
dismissed. They argue that the complaint fails to allege that
earnest efforts toward a compromise were exerted
considering that the suit is between members of the same
family, and no trust relation exists between them. Even
assuming ex argumenti that there is such a relation,
petitioners further argue, respondents are already barred by
laches.
We are not persuaded. Admittedly, the present action is
between members of the same family since petitioner Emilia
O'Laco and respondent O Lay Kia are half-sisters.
Consequently, there should be an averment in the complaint
that earnest efforts toward a compromise have been made,
pursuant to Art. 222 of the New Civil Code, 6 or a motion to
dismiss could have been filed under Sec. 1, par. (j), Rule 16, of
the Rules of Court. 7 For, it is well-settled that the attempt to
compromise as well as the inability to succeed is a condition
precedent to the filing of a suit between members of the same
family. 8 Hence, the defect in the complaint is assailable at
any stage of the proceedings, even on appeal, for lack of
cause of action. 9
But, plaintiff may be allowed to amend his complaint to
correct the defect if the amendment does not actually confer
jurisdiction on the court in which the action is filed, i.e., if the
cause of action was originally within that court's jurisdiction.
10 In such case, the amendment is only to cure the perceived
defect in the complaint, thus may be allowed.
In the case before Us, while respondent-spouses did not
formally amend their complaint, they were nonetheless
allowed to introduce evidence purporting to show that earnest
efforts toward a compromise had been made, that is,
respondent O Lay Kia importuned Emilia O'Laco and pressed
her for the transfer of the title of the Oroquieta property in the
name of spouses O Lay Kia and Valentin Co Cho Chit, just
before Emilia's marriage to Hugo Luna. 11 But, instead of
transferring the title as requested, Emilia sold the property to
the Roman Catholic Archbishop of Manila. This testimony was
not objected to by petitioner-spouses. Hence, the complaint
was deemed accordingly amended to conform to the

evidence, 12 pursuant to Sec. 5, Rule 10 of the Rules of Court

which reads
"SECTION 5. Amendment to conform to or authorize
presentation of evidence. When issues not raised by the
pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects, as, if they had
been raised in the pleadings . . ." (emphasis supplied).
Indeed, if the defendant permits evidence to be introduced
without objection and which supplies the necessary
allegations of a defective complaint, then the evidence is
deemed to have the effect of curing the defects of the
complaint. 13 The insufficiency of the allegations in the
complaint is deemed ipso facto rectified. 14
But the more crucial issue before Us is whether there is a trust
relation between the parties in contemplation of law.
We find that there is. By definition, trust relations between
parties may either be express or implied. 15 Express trusts
are those which are created by the direct and positive acts of
the parties, by some writing or deed, or will, or by words
evincing an intention to create a trust. 16 Implied trusts are
those which, without being express, are deducible from the
nature of the transaction as matters of intent, or which are
superinduced on the transaction by operation of law as
matters of equity, independently of the particular intention of
the parties.17 Implied trusts may either be resulting or
constructive trusts, both coming into being by operation of
law. 18
Resulting trusts are based on the equitable doctrine that
valuable consideration and not legal title determines the
equitable title or interest 19 and are presumed always to have
been contemplated by the parties. They arise from the nature
or circumstances of the consideration involved in a
transaction whereby one person thereby becomes invested
with legal title but is obligated in equity to hold his legal title
for the benefit of another. 20 On the other hand, constructive
trusts are created by the construction of equity in order to
satisfy the demands of justice 21 and prevent unjust
enrichment. They arise contrary to intention against one who,
by fraud, duress or abuse of confidence, obtains or holds the
legal right to property which he ought not, in equity and good
conscience, to hold. 22
Specific examples of resulting trusts may be found in the Civil
Code, particularly Arts. 1448, 1449, 1451,1452 and 1453, 23
while constructive trusts are illustrated in Arts. 1450, 1454,
1455 and 1456. 24
Unlike express trusts concerning immovables or any interest
therein which cannot be proved by parol evidence, 25 implied
trusts may be established by oral evidence. 26 However, in
order to establish an implied trust in real property by parol
evidence, the proof should be as fully convincing as if the acts
giving rise to the trust obligation were proven by an authentic
document. 27 It cannot be established upon vague and
inconclusive proof. 28
After a thorough review of the evidence on record, We hold
that a resulting trust was indeed intended by the parties
under Art. 1448 of the New Civil Code which states
"ARTICLE 1448. There is an implied trust when property is
sold, and the legal estate is granted to one party but the price
is paid by another for the purpose of having the beneficial
interest of the property. The former is the trustee, while the
latter is the beneficiary . . ." (emphasis supplied).
First. As stipulated by the parties, the document of sale, the
owner's duplicate copy of the certificate of title, insurance

policies, receipt of initial premium of insurance coverage and

real estate tax receipts ware all in the possession of
respondent spouses which they offered in evidence. As
emphatically asserted by respondent O Lay Kia, the reason
why these documents of ownership remained with her is that
the land in question belonged to her. 29
Indeed, there can be no persuasive rationalization for the
possession of these documents of ownership by respondentspouses for seventeen (17) years after the Oroquieta property
was purchased in 1943 than that of precluding its possible
sale, alienation or conveyance by Emilia O'Laco, absent any
machination or fraud. This continued possession of the
documents, together with other corroborating evidence
spread on record, strongly suggests that Emilia O'Laco merely
held the Oroquieta property in trust for respondent-spouses.
Second. It may be worth to mention that before buying the
Oroquieta property, respondent-spouses purchased another
property situated in Kusang-Loob, Sta. Cruz, Manila, where the
certificate of title was placed in the name of Ambrosio O'Laco,
older brother of Emilia, under similar or identical
circumstances. The testimony of former counsel for
respondent-spouses, then Associate Justice Antonio G. Lucero
of the Court of Appeals, is enlightening
"Q In the same conversation he told you how he would buy
the property (referring to the Oroquieta property), he and his
wife?
"A Yes, Sir, he did.
"Q What did he say?
xxx xxx xxx
"A He said he and his wife has (sic) already acquired by
purchase a certain property located at Kusang-Loob, Sta. Cruz,
Manila. He told me he would like to place the Oroquieta
Maternity Hospital in case the negotiation materialize(s) in the
name of a sister of his wife (O'Laco)" (emphasis supplied). 30
On the part of respondent-spouses, they explained that the
reason why they did not place these Oroquieta and KusangLoob properties in their name was that being Chinese
nationals at the time of the purchase they did not want to
execute the required affidavit to the effect that they were
allies of the Japanese. 31 Since O Lay Kia took care of Emilia
who was still young when her mother died, 32 respondentspouses did not hesitate to place the title of the Oroquieta
property in Emilia's name.
Quite significantly, respondent-spouses also instituted an
action for reconveyance against Ambrosio O'Laco when the
latter claimed the Kusang-Loob property as his own. A similar
stipulation of facts was likewise entered, i.e., respondentspouses had in their possession documents showing
ownership of the Kusang-Loob property which they offered in
evidence. In that case, the decision of the trial court, now final
and executory, declared respondent-spouses as owners of the
Kusang-Loob property and ordered Ambrosio O'Laco to
reconvey it to them. 33
Incidentally, Ambrosio O'Laco thus charged respondent
spouses Valentin Co Cho Cit and O Lay Kia before the AntiDummy Board, docketed as Case No. 2424, for their
acquisition of the Kusang-Loob and Oroquieta properties. 34
He claimed that respondent-spouses utilized his name in
buying the Kusang-Loob property while that of petitioner
O'Laco was used in the purchase of the Oroquieta property. In
effect, there was an implied admission by Ambrosio that his
sister Emilia, like him, was merely used as a dummy. However,
the Anti-Dummy Board exonerated respondent-spouses since

the purchases were made in 1943, or during World War II,

when the Anti-Dummy Law was not enforceable.
Third. The circumstances by which Emilia O'Laco obtained a
new title by reason of the alleged loss of the old title then in
the possession of respondent-spouses cast serious doubt on
the veracity of her ownership. The petitions respectively filed
by Emilia O'Laco and Ambrosio O'Laco for the Oroquieta and
the Kusang-Loob properties were both granted on the same
day, 18 August 1944, by the then Court of First Instance of
Manila. These orders were recorded in the Primary Entry Book
of the Register of Deeds of Manila at the same time, 2:35
o'clock in the afternoon of 1 September 1944, in consecutive
entries, Entries Nos. 246117-18. 35 This coincidence lends
credence to the position of respondent-spouses that there was
in fact a conspiracy between the siblings Ambrosio and Emilia
to defraud and deprive respondents of their title to the
Oroquieta and Kusang-Loob properties.
Fourth. Until the sale of the Oroquieta property to the Roman
Catholic Archbishop of Manila, petitioner Emilia O'Laco
actually recognized the trust. Specifically, when respondent
spouses learned that Emilia was getting married to Hugo, O
Lay Kia asked her to have the title to the property already
transferred to her and her husband Valentin, and Emilia
assured her that "would be arranged (maaayos na)" after her
wedding. 36 Her answer was an express recognition of the
trust, otherwise, she would have refused the request outright.
Petitioners never objected to this evidence; nor did they
attempt to controvert it.
Fifth. The trial court itself determined that "Valentin Co Cho
Chit and O Lay Kia had some money with which they could
buy the property." 37 In fact, Valentin was the Chief Mechanic
of the Paniqui Sugar Mills, was engaged in the buy and sell
business, operated a gasoline station, and owned an auto
supply store as well as a ten-door apartment in Caloocan City.
38 In contrast, Emilia O'Laco failed to convince the Court that
she was financially capable of purchasing the Oroquieta
property. In fact, she opened a bank account only in 1946 and
likewise began filing income tax returns that same year, 39
while the property in question was bought in 1943.
Respondent-spouses even helped Emilia and her brothers in
their expenses and livelihood. Emilia could only give a vague
account on how she raised the money for the purchase of the
property. Her narration of the transaction of sale abounds with
"I don't know" and "I don't remember." 40

title in 1944 in her name in lieu of the alleged loss of the

original may be made the basis for the commencement of the
prescriptive period. For, the issuance of the Torrens title in the
name of Emilia O'Laco could not be considered adverse, much
less fraudulent. Precisely, although the property was bought
by respondent-spouses, the legal title was placed in the name
of Emilia O'Laco. The transfer of the Torrens title in her name
was only in consonance with the deed of sale in her favor.
Consequently, there was no cause for any alarm on the part of
respondent-spouses. As late as 1959, or just before she got
married, Emilia continued to recognize the ownership of
respondent-spouses over the Oroquieta property. Thus, until
that point, respondent-spouses were not aware of any act of
Emilia which would convey to them the idea that she was
repudiating the resulting trust. The second requisite is
therefore absent. Hence, prescription did not begin to run
until the sale of the Oroquieta property, which was clearly an
act of repudiation.
But immediately after Emilia sold the Oroquieta property
which is obviously a disavowal of the resulting trust,
respondent-spouses instituted the present suit for breach of
trust. Correspondingly, laches cannot lie against them.
After all, so long as the trustee recognizes the trust, the
beneficiary may rely upon the recognition, and ordinarily will
not be in fault for omitting to bring an action to enforce his
rights. 44 There is no running of the prescriptive period if the
trustee expressly recognizes the resulting trust. 45 Since the
complaint for breach of trust was filed by respondent-spouses
two (2) months after acquiring knowledge of the sale, the
action therefore has not yet prescribed.
WHEREFORE, the Petition for Review on Certiorari is DENIED.
The Decision of the Court of Appeals of 9 April 1981, which
reversed the trial court, is AFFIRMED. Costs against
petitioners.
SO ORDERED.
Cruz , Grio-Aquino and Quiason, JJ ., concur.

Having established a resulting trust between the parties, the

next question is whether prescription has set in.
As differentiated from constructive trusts, where the settled
rule is that prescription may supervene, in resulting trust, the
rule of imprescriptibility may apply for as long as the trustee
has not repudiated the trust. 41 Once the resulting trust is
repudiated, however, it is converted into a constructive trust
and is subject to prescription.
A resulting trust is repudiated if the following requisites
concur: (a) the trustee has performed unequivocal acts of
repudiation amounting to an ouster of the cestui qui trust; (b)
such positive acts of repudiation have been made known to
the cestui qui trust; and, (c) the evidence thereon is clear and
convincing. 42
In Tale v. Court of Appeals 43 the Court categorically ruled
that an action for reconveyance based on an implied or
constructive trust must perforce prescribe in ten (10) years,
and not otherwise, thereby modifying previous decisions
holding that the prescriptive period was four (4) years.
Neither the registration of the Oroquieta property in the name
of petitioner Emilia O'Laco nor the issuance of a new Torrens

G.R. No. 109068 January 10, 1994

GAUDENCIO GUERRERO, petitioner,
vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI,
JUDGE LUIS B. BELLO, JR., PRESIDING, and PEDRO G.
HERNANDO, respondents.
Juan Jacito for petitioner.
Alipio V. Flores for private respondent.

The Constitution protects the sanctity of the family and

endeavors to strengthen it as a basic autonomous social
institution. 2 This is also embodied in Art. 149, 3 and given
flesh in Art. 151, of the Family Code, which provides:
Art. 151. No suit between members of the same family shall
prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been
made, but that the same had failed. If it is shown that no such
efforts were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be the
subject of compromise under the Civil Code.

BELLOSILLO, J.:
1

Filed by petitioner as an accion publicana against private

respondent, this case assumed another dimension when it
was dismissed by respondent Judge on the ground that the
parties being brother-in-law the complaint should have alleged
that earnest efforts were first exerted towards a compromise.
Admittedly, the complaint does not allege that the parties
exerted earnest towards a compromise and that the same
failed. However, private respondent Pedro G. Hernando
apparently overlooked this alleged defect since he did not file
any motion to dismiss nor attack the complaint on this ground
in his answer. It was only on 7 December 1992, at the pre-trial
conference, that the relationship of petitioner Gaudencio
Guerrero and respondent Hernando was noted by respondent
Judge Luis B. Bello, Jr., they being married to half-sisters hence
are brothers-in-law, and on the basis thereof respondent Judge
gave petitioner five (5) days "to file his motion and amended
complaint" to allege that the parties were very close relatives,
their respective wives being sisters, and that the complaint to
be maintained should allege that earnest efforts towards a
compromise were exerted but failed. Apparently, respondent
Judge considered this deficiency a jurisdictional defect.
On 11 December 1992, Guerrero moved to reconsider the 7
December 1992 Order claiming that since brothers by affinity
are not members of the same family, he was not required to
exert efforts towards a compromise. Guerrero likewise argued
that Hernando was precluded from raising this issue since he
did not file a motion to dismiss nor assert the same as an
affirmative defense in his answer.
On 22 December 1992, respondent Judge denied the motion
for reconsideration holding that "[f]ailure to allege that
earnest efforts towards a compromise is jurisdictional such
that for failure to allege same the court would be deprived of
its jurisdiction to take cognizance of the case." He warned that
unless the complaint was amended within five (5) days the
case would be dismissed.
On 29 January 1993, the 5-day period having expired without
Guerrero amending his complaint, respondent Judge
dismissed the case, declaring the dismissal however to be
without prejudice.
Guerrero appeals by way of this petition for review the
dismissal by the court a quo. He raises these legal issues: (a)
whether brothers by affinity are considered members of the
same family contemplated in Art. 217, par. (4), and Art. 222 of
the New Civil Code, as well as under Sec. 1, par. (j), Rule 16,
of the Rules of Court requiring earnest efforts towards a
compromise before a suit between them may be instituted
and maintained; and, (b) whether the absence of an allegation
in the complaint that earnest efforts towards a compromise
were exerted, which efforts failed, is a ground for dismissal for
lack of jurisdiction.

Considering that Art. 151 herein-quoted starts with the

negative word "No", the requirement is mandatory 4 that the
complaint or petition, which must be verified, should allege
that earnest efforts towards a compromise have been made
but that the same failed, so that "[i]f it is shown that no such
efforts were in fact made, the case must be dismissed."
Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of
the Rules of Court which provides as a ground for motion to
dismiss "(t)hat the suit is between members of the same
family and no earnest efforts towards a compromise have
been made."
The Code Commission, which drafted the precursor provision
in the Civil Code, explains the reason for the requirement that
earnest efforts at compromise be first exerted before a
complaint is given due course
This rule is introduced because it is difficult to imagine a
sadder and more tragic spectacle than a litigation between
members of the same family. It is necessary that every effort
should be made toward a compromise before a litigation is
allowed to breed hate and passion in the family. It is known
that a lawsuit between close relatives generates deeper
bitterness than between strangers . . . A litigation in a family
is to be lamented far more than a lawsuit between
strangers . . . 5
But the instant case presents no occasion for the application
of the
above-quoted provisions. As early as two decades ago, we
already ruled in Gayon v. Gayon 6 that the enumeration of
"brothers and sisters" as members of the same family does
not comprehend "sisters-in-law". In that case, then Chief
Justice Concepcion emphasized that "sisters-in-law" (hence,
also "brothers-in-law") are not listed under Art. 217 of the New
Civil Code as members of the same family. Since Art. 150 of
the Family Code repeats essentially the same enumeration of
"members of the family", we find no reason to alter existing
jurisprudence on the matter. Consequently, the court a
quo erred in ruling that petitioner Guerrero, being a brother-inlaw of private respondent Hernando, was required to exert
earnest efforts towards a compromise before filing the present
suit.
In his Comment, Hernando argues that ". . . although both
wives of the parties were not impleaded, it remains a truism
that being spouses of the contending parties, and the
litigation involves ownership of real property, the spouses'
interest and participation in the land in question cannot be
denied, making the suit still a suit between half-sisters . . ." 7
Finding this argument preposterous, Guerrero counters in his
Reply that his "wife has no actual interest and participation in
the land subject of the . . . suit, which the petitioner bought,
according to his complaint, before he married his wife." 8 This
factual controversy however may be best left to the court a
quo to resolve when it resumes hearing the case.

As regards the second issue, we need only reiterate our ruling

in
O'Laco v. Co Cho Chit, 9 citing Mendoza v. Court of
Appeals, 10 that the attempt to compromise as well as the
inability to succeed is a condition precedent to the filing of a
suit between members of the same family, the absence of
such allegation in the complaint being assailable at any stage
of the proceeding, even on appeal, for lack of cause of action.
It is not therefore correct, as petitioner contends, that private
respondent may be deemed to have waived the aforesaid
defect in failing to move or dismiss or raise the same in the
Answer. On the other hand, we cannot sustain the proposition
of private respondent that the case was, after all, also
dismissed pursuant to Sec. 3, Rule 17, of the Rules of
Court 11 for failure of petitioner to comply with the court's
order to amend his complaint.
A review of the assailed orders does not show any directive
which Guerrero supposedly defied. The Order of 7 December
1992 merely gave Guerrero five (5) days to file his motion and
amended complaint with a reminder that the complaint failed
to allege that earnest efforts were exerted towards a
compromise. The Order of 22 December 1992, which denied
Guerrero's motion for reconsideration, simply stated that
"Plaintiff if it (sic) so desire must
amend the complaint otherwise, the court will have to dismiss
the case (emphasis supplied) . . ." The Order of 29 January
1993 dismissing the case without prejudice only made
reference to an earlier order "admonishing" counsel for
Guerrero to amend the complaint, and an "admonition" is not
synonymous with "order". Moreover, since the assailed orders
do not find support in our jurisprudence but, on the other
hand, are based on an erroneous interpretation and
application of the law, petitioner could not be bound to
comply with them. 12
WHEREFORE, the petition is GRANTED and the appealed
Orders of
7 December 1992, 22 December 1992 and 29 January 1993
are SET ASIDE. The Regional Trial Court of Laoag City, Branch
16, or whichever branch of the court the case may now be
assigned, is directed to continue with Civil Case
No. 10084-16 with deliberate dispatch.
SO ORDERED.
Cruz, Davide, Jr. and Quiason, JJ., concur.

G.R. NO. 154132 August 31, 2006

HIYAS SAVINGS and LOAN BANK, INC. Petitioner,
vs.
HON. EDMUNDO T. ACUA, in his capacity as Pairing
Judge of Regional Trial Court, Branch 122, Caloocan
City, and ALBERTO MORENO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari under Rule 65 of
the Rules of Court seeking to nullify the Orders 1 of the
Regional Trial Court (RTC) of Caloocan City, Branch 122, dated
November 8, 2001 2 and May 7, 2002 3denying herein
petitioners Motion to Dismiss and Motion for Partial
Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent)
filed with the RTC of Caloocan City a complaint against Hiyas
Savings and Loan Bank, Inc. (petitioner), his wife Remedios,
the spouses Felipe and Maria Owe and the Register of Deeds
of Caloocan City for cancellation of mortgage contending that
he did not secure any loan from petitioner, nor did he sign or
execute any contract of mortgage in its favor; that his wife,
acting in conspiracy with Hiyas and the spouses Owe, who
were the ones that benefited from the loan, made it appear
that he signed the contract of mortgage; that he could not
have executed the said contract because he was then working
abroad. 4
On May 17, 2001, petitioner filed a Motion to Dismiss on the
ground that private respondent failed to comply with Article
151 of the Family Code wherein it is provided that no suit
between members of the same family shall prosper unless it
should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but
that the same have failed. Petitioner contends that since the
complaint does not contain any fact or averment that earnest
efforts toward a compromise had been made prior to its
institution, then the complaint should be dismissed for lack of
cause of action. 5
Private respondent filed his Comment on the Motion to
Dismiss with Motion to Strike Out and to Declare Defendants
in Default. He argues that in cases where one of the parties is
not a member of the same family as contemplated under
Article 150 of the Family Code, failure to allege in the
complaint that earnest efforts toward a compromise had been
made by the plaintiff before filing the complaint is not a
ground for a motion to dismiss. Alberto asserts that since
three of the party-defendants are not members of his family
the ground relied upon by Hiyas in its Motion to Dismiss is
inapplicable and unavailable. Alberto also prayed that
defendants be declared in default for their failure to file their
answer on time. 6
Petitioner filed its Reply to the Comment with Opposition to
the Motion to Strike and to Declare Defendants in
Default. 7 Private respondent, in turn, filed his Rejoinder. 8
On November 8, 2001, the RTC issued the first of its assailed
Orders denying the Motion to Dismiss, thus:
The court agrees with plaintiff that earnest efforts towards a
compromise is not required before the filing of the instant
case considering that the above-entitled case involves parties
who are strangers to the family. As aptly pointed out in the
cases cited by plaintiff, Magbaleta v. G[o]nong, L-44903, April
25, 1977 and Mendez v. [B]iangon, L-32159, October 28,

1977, if one of the parties is a stranger, failure to allege in the

complaint that earnest efforts towards a compromise had
been made by plaintiff before filing the complaint, is not a
ground for motion to dismiss.
Insofar as plaintiffs prayer for declaration of default against
defendants, the same is meritorious only with respect to
defendants Remedios Moreno and the Register of Deeds of
Kaloocan City. A declaration of default against defendant bank
is not proper considering that the filing of the Motion to
Dismiss by said defendant operates to stop the running of the
period within which to file the required Answer. 9
Petitioner filed a Motion for Partial Reconsideration. 10 Private
respondent filed his Comment, 11 after which petitioner filed
its Reply. 12 Thereafter, private respondent filed his
Rejoinder. 13
On May 7, 2002, the RTC issued the second assailed Order
denying petitioners Motion for Partial Reconsideration. The
trial court ruled:
Reiterating the resolution of the court, dated November 8,
2001, considering that the above-entitled case involves
parties who are strangers to the family, failure to allege in the
complaint that earnest efforts towards a compromise were
made by plaintiff, is not a ground for a Motion to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it
is defendant Remedios Moreno who stands to be benefited by
Art. 151 of the Family Code, being a member of the same
family as that of plaintiff, only she may invoke said Art. 151. 14
xxx
Hence, the instant Petition for Certiorari on the following
grounds:
I. Public respondent committed grave abuse of discretion
amounting to lack or in excess of jurisdiction when he ruled
that lack of earnest efforts toward a compromise is not a
ground for a motion to dismiss in suits between husband and
wife when other parties who are strangers to the family are
involved in the suit. Corollarily, public respondent committed
grave abuse of discretion amounting to lack or in excess of
jurisdiction when he applied the decision in the case
of Magbaleta v. Gonong instead of the ruling in the case of De
Guzman v. Genato.
II. Public respondent committed grave abuse of discretion
amounting to lack or in excess of jurisdiction when he ruled
that a party who is a stranger to the family of the litigants
could not invoke lack of earnest efforts toward a compromise
as a ground for the dismissal of the complaint. 15
At the outset, the Court notes that the instant Petition
for Certiorari should have been filed with the Court of Appeals
(CA) and not with this Court pursuant to the doctrine of
hierarchy of courts. Reiterating the established policy for the
strict observance of this doctrine, this Court held in Heirs of
Bertuldo Hinog v. Melicor 16 that:
Although the Supreme Court, Court of Appeals and the
Regional Trial Courts have concurrent jurisdiction to issue
writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, such concurrence does not give
the petitioner unrestricted freedom of choice of court forum.
As we stated in People v. Cuaresma:
This Court's original jurisdiction to issue writs of certiorari is
not exclusive. It is shared by this Court with Regional Trial
Courts and with the Court of Appeals. This concurrence of
jurisdiction is not, however, to be taken as according to

parties seeking any of the writs an absolute, unrestrained

freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That
hierarchy is determinative of the venue of appeals, and also
serves as a general determinant of the appropriate forum for
petitions for the extraordinary writs. A becoming regard for
that judicial hierarchy most certainly indicates that petitions
for the issuance of extraordinary writs against first level
("inferior") courts should be filed with the Regional Trial Court,
and those against the latter, with the Court of Appeals. A
direct invocation of the Supreme Courts original jurisdiction
to issue these writs should be allowed only when there are
special and important reasons therefor, clearly and
specifically set out in the petition. This is [an] established
policy. It is a policy necessary to prevent inordinate demands
upon the Courts time and attention which are better devoted
to those matters within its exclusive jurisdiction, and to
prevent further over-crowding of the Courts docket.
The rationale for this rule is two-fold: (a) it would be an
imposition upon the precious time of this Court; and (b) it
would cause an inevitable and resultant delay, intended or
otherwise, in the adjudication of cases, which in some
instances had to be remanded or referred to the lower court
as the proper forum under the rules of procedure, or as better
equipped to resolve the issues because this Court is not a trier
of facts.
Thus, this Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts,
and exceptional and compelling circumstances, such as cases
of national interest and of serious implications, justify the
availment of the extraordinary remedy of writ of certiorari,
calling for the exercise of its primary jurisdiction. Exceptional
and compelling circumstances were held present in the
following cases: (a)Chavez vs. Romulo on citizens right to
bear arms; (b) Government of the United States of America
vs. Purgananon bail in extradition proceedings;
(c) Commission on Elections vs. Quijano-Padilla on
government contract involving modernization and
computerization of voters registration list; (d) Buklod ng
Kawaning EIIB vs. Zamoraon status and existence of a public
office; and (e) Fortich vs. Corona on the so-called "Win-Win
Resolution" of the Office of the President which modified the
approval of the conversion to agro-industrial area. 17
In the present case, petitioner failed to advance a satisfactory
explanation as to its failure to comply with the principle of
judicial hierarchy. There is no reason why the instant petition
could not have been brought before the CA. On this basis, the
instant petition should be dismissed.
And even if this Court passes upon the substantial issues
raised by petitioner, the instant petition likewise fails for lack
of merit.
Restating its arguments in its Motion for Partial
Reconsideration, petitioner argues that what is applicable to
the present case is the Courts decision in De Guzman v.
Genato 18 and not in Magbaleta v. Gonong, 19 the former being
a case involving a husband and wife while the latter is
between brothers.
The Court is not persuaded.
Article 151 of the Family Code provides as follows:
No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition
that earnest efforts toward a compromise have been made,
but that the same have failed. If it is shown that no such
efforts were in fact made, the case must be dismissed.

This rule shall not apply to cases which may not be the
subject of compromise under the Civil Code.
Article 222 of the Civil Code from which Article 151 of the
Family Code was taken, essentially contains the same
provisions, to wit:
No suit shall be filed or maintained between members of the
same family unless it should appear that earnest efforts
toward a compromise have been made, but that the same
have failed, subject to the limitations in Article 2035. 20
The Code Commission that drafted Article 222 of the Civil
Code from which Article 151 of the Family Code was taken
explains:
[I]t is difficult to imagine a sadder and more tragic spectacle
than a litigation between members of the same family. It is
necessary that every effort should be made toward a
compromise before a litigation is allowed to breed hate and
passion in the family. It is known that a lawsuit between close
relatives generates deeper bitterness than between
strangers. 21
In Magbaleta, the case involved brothers and a stranger to the
family, the alleged owner of the subject property. The Court,
taking into consideration the explanation made by the Code
Commision in its report, ruled that:
[T]hese considerations do not, however, weigh enough to
make it imperative that such efforts to compromise should be
a jurisdictional pre-requisite for the maintenance of an action
whenever a stranger to the family is a party thereto, whether
as a necessary or indispensable one. It is not always that one
who is alien to the family would be willing to suffer the
inconvenience of, much less relish, the delay and the
complications that wranglings between or among relatives
more often than not entail. Besides, it is neither practical nor
fair that the determination of the rights of a stranger to the
family who just happened to have innocently acquired some
kind of interest in any right or property disputed among its
members should be made to depend on the way the latter
would settle their differences among themselves. 22 x x x.
Hence, once a stranger becomes a party to a suit involving
members of the same family, the law no longer makes it a
condition precedent that earnest efforts be made towards a
compromise before the action can prosper.
In the subsequent case of De Guzman, the case involved
spouses and the alleged paramour of the wife. The Court ruled
that due to the efforts exerted by the husband, through the
Philippine Constabulary, to confront the wife, there was
substantial compliance with the law, thereby implying that
even in the presence of a party who is not a family member,
the requirements that earnest efforts towards a compromise
have been exerted must be complied with, pursuant to Article
222 of the Civil Code, now Article 151 of the Family Code.
While De Guzman was decided after Magbaleta, the principle
enunciated in the Magbaleta is the one that now prevails
because it is reiterated in the subsequent cases of Gonzales v.
Lopez, 23 Esquivias v. Court of Appeals,24 Spouses Hontiveros
v. Regional Trial Court, Branch 25, Iloilo City, 25 and the most
recent case of Martinez v. Martinez. 26 Thus, Article 151 of the
Family Code applies to cover when the suit is exclusively
between or among family members.
The Court finds no cogent reason why the ruling
in Magbaleta as well as in all of the aforementioned cases
should not equally apply to suits involving husband and wife.

Petitioner makes much of the fact that the present case

involves a husband and his wife while Magbaleta is a case
between brothers. However, the Court finds no specific,
unique, or special circumstance that would make the ruling
in Magbaleta as well as in the abovementioned cases
inapplicable to suits involving a husband and his wife, as in
the present case. In the first place, Article 151 of the Family
Code and Article 222 of the Civil Code are clear that the
provisions therein apply to suits involving "members of the
same family" as contemplated under Article 150 of the Family
Code, to wit:
ART. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half
blood.
and Article 217 of the Civil Code, to wit:
ART. 217. Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Petitioner also contends that the trial court committed grave
abuse of discretion when it ruled that petitioner, not being a
member of the same family as respondent, may not invoke
the provisions of Article 151 of the Family Code.
Suffice it to say that since the Court has ruled that the
requirement under Article 151 of the Family Code is applicable
only in cases which are exclusively between or among
members of the same family, it necessarily follows that the
same may be invoked only by a party who is a member of that
same family.
WHEREFORE, the instant Petition
for Certiorari is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ

G.R. No. 200969, August 03, 2015

attorney's fees and costs of suit.

CONSOLACION D. ROMERO AND ROSARIO S.D.

DOMINGO, Petitioners, v. ENGRACIA D.
SINGSON, Respondent.

In their Answer,12 petitioners prayed for dismissal, claiming

that the June 6, 2006 deed of sale was a forgery, and no
certificate of title in her name could be issued; that they thus
remained co-owners of the subject property, and respondent
had no right to evict them; and that the pendency of Civil
Case No. 70898-SJ bars the ejectment suit against them.

DECISION
DEL CASTILLO, J.:
This Petition for Review on Certiorari1 seeks to set aside the
February 29, 2012 Decision2 of the Court of Appeals (CA) in
CA-G.R. SP No. 114363 which granted herein respondent's
Petition for Review, reversed the December 11, 2009 Order 3 of
the Regional Trial Court of Pasig City, Branch 160 (RTC) in SCA
No. 3144, and reinstated the said RTC's April 29, 2009
Decision.4

After proceedings or on September 17, 2007, the MeTC

rendered a Decision,13 decreeing as follows:

Anent the first issue of jurisdiction, the Court answers in the

affirmative xxx.
xxxx

Factual Antecedents
The parties herein - petitioners Consolacion Domingo Romero
and Rosario S.D. Domingo and respondent Engracia Domingo
Singson - are siblings. Their parents, Macario and Felicidad
Domingo, own a 223-square meter piece of property (the
subject property) located at 127 F. Sevilla Street, San Juan
City, Metro Manila covered by Transfer Certificate of Title No.
(32600) (23937) 845-R5 (TCT 845-R) which was issued in
1953. It appears that petitioners and other siblings, Rafael
and Ramon Domingo, are the actual occupants of the subject
property, having stayed there with their parents since birth.
On the other hand, respondent took up residence in
Mandaluyong City after getting married.
On February 22, 1981, Macario passed away, while Felicidad
died on September 14, 1997.6
On June 7, 2006, TCT 845-R was cancelled and a new
certificate of title -Transfer Certificate of Title No. 12575-R 7 or
125758 (TCT 12575) - was issued in respondent's name, by
virtue of a notarized "Absolute Deed of Sale" 9 ostensibly
executed on June 6, 2006 by and between Macario and
Felicidad - as sellers, and respondent - as buyer. And this
despite the fact that Macario and Felicidad were then already
deceased.
Soon thereafter, respondent sent letters to her siblings
demanding that they vacate the subject property, under pain
of litigation.
Petitioners and their other siblings just as soon filed a
Complaint10 against respondent and the Register of Deeds of
San Juan City for annulment and cancellation of TCT 12575
and the June 6, 2006 deed of sale, reconveyance, and
damages, on the claim that the deed of sale is a forgery and
that as heirs of Macario and Felicidad, the true owners of the
subject property, they were entitled to a reconveyance of the
same. The case was docketed as Civil Case No. 70898-SJ and
assigned to Branch 160 of the RTC of Pasig City.
Ruling of the Metropolitan Trial Court (MeTC)
On September 26, 2006, respondent filed an unlawful detainer
suit against petitioners and her brothers Rafael and Ramon
before the MeTC of San Juan City. Docketed as Civil Case No.
9534 and assigned to MeTC Branch 58, respondent in her
Complaint11 sought to evict her siblings from the subject
property on the claim that she is the owner of the same; that
her siblings' stay therein was merely tolerated; and that she
now needed the premises to serve as her daughters'
residence. Thus, she prayed that her siblings be ordered to
vacate the premises and pay monthly rent of P2,000.00 from
date of demand until they vacate the premises, as well as

From the above-quoted verse, the Metropolitan Trial Courts,

Municipal Trial Courts and Municipal Circuit Trial Courts have
the exclusive original jurisdiction over this case. Moreover, in
the case of Hilario vs. Court of Appeals, (260 SCRA 420,426
citing: Refugia, Et al[.] vs. Court of Appeals, Et al[.,] G.R. No.
118284, July 4, 1996) the Supreme Court held: 'xxx inferior
courts retain jurisdiction over ejectment cases even if the
question of possession cannot be resolved without passing
upon the issue of ownership; but this is subject to the caveat
that the issue raised as to ownership be resolved by the Trial
Court for the sole purpose of determining the issue of
possession x x x.' Thus, even where the defendants assert in
their Answer, ownership of or Title to the property, the inferior
Court is not deprived of its jurisdiction, xxx
xxxx
As to the second issue as to whether or not plaintiff may
validly eject the defendants, again this Court answers in the
affirmative, since the plaintiff is a holder of a Torrens Title
which is a right in rem. The defendants in their defense that
they have filed a case before the Regional Trial Court
questioning the Title of the plaintiff is their right and
prerogative, unless however restrained by higher court, this
Court will proceed as mandated by law and jurisprudence.
This action for unlawful detainer is sanctioned by Rule 70 of
the 1997 Rules of Civil Procedure which provides:
xxxx
While the defendants claim that their parents are still the
owner[s] of the subject property in litigation and during their
lifetime have not awarded nor alienated said property to
anybody, why then has plaintiff the Title of said property? If it
was secured fraudulently, the same is of no moment since it
has its own forum to address to [sic]. Moreover, the pendency
of an action questioning the ownership of the property does
not bar the filing or consideration of an ejectment suit nor the
execution of the judgment therein xxx. As correctly pointed
out by the plaintiff, 'ownership may be exercised over things
or rights,' Art. 427 of the New Civil Code. Likewise, Art. 428 of
the same code provides that: 'the owner has the right to enjoy
and dispose of a thing, without other limitations than those
established by law. The owner has also a right of action
against the holder and possessor of the thing in order to
recover it.' Further, Art. 434 states that 'in an action to
recover, the property must be identified, and the plaintiff
must rely on the strength of his Title and not on the weakness
of the defendant's claim.' The defendants therefore can be
validly ejected from the premises in question since this is not
accion publiciana as claimed by the defendants.
Finally, on the third issue of damages and the side issue of

10

reasonable compensation for the use of the subject premises,

the Supreme Court in the case of Balanon-Anicete vs. Balano,
402 SCRA 514 held: 'xxx persons who occupy the land of
another at the latter's tolerance or permission without any
contract between them [are] necessarily bound by an implied
promise that they will vacate the same upon demand, failing
in which a summary action for ejectment is the proper remedy
against them.' Hence, upon demand, plaintiff is entitled to
collect reasonable compensation for the actual occupation of
the subject property which is P2,000.00 per month and the
payment of attorney's fees. Since no evidence was presented
relative to damages, the Court cannot award the same.
WHEREFORE, premises considered, judgment is hereby
rendered as follows:
1. Ordering the defendants and all persons claiming rights
under them to vacate the subject property known as No. 127
F. Sevilla St., San Juan, Metro Manila and to surrender peaceful
possession thereof to the plaintiff in this case;
2. Ordering the defendants to pay plaintiff the amount of
P2,000.00 per month for the actual use and occupation of the
subject property reckoned from date of extrajudicial demand
which is August 7, 2006, until defendants shall have finally
vacated the premises;

of their issuance. Such an attack must be direct and not by a

collateral proceeding. The rationale is this:
xxx [The] public should be able to rely on the registered title.
The Torrens System was adopted in this country because it
was believed to be the most effective measure to guarantee
the integrity of land titles and to protect their indefeasibility
once the claim of ownership is established and recognized.'
For reasons aforestated, the appeal is hereby DENIED.
WHEREFORE, premises considered, judgment is hereby
rendered affirming in toto in [sic] the decision of the lower
court dated September 17, 2007.
With costs against the appellant.
SO ORDERED.16cralawlawlibrary
On motion for reconsideration, however, the RTC reversed
itself. Thus, in a December 11, 2009 Order, 17 it held that -

2. This Court's Findings

SO ORDERED.14cralawlawlibrary

At the outset, it should be mentioned that the court a

quo should have dismissed the complaint outright for failure
to comply with a condition precedent under Section 10, Rule
16 of the Rules of Civil Procedure, the parties being siblings
and there being no allegations in the complaint as regards
efforts at compromise having been exerted, a matter that was
raised in the answer of defendants Consolation Romero and
Rosario D. Domingo.

Ruling of the Regional Trial Court

2.1. The Issue of MeTC Jurisdiction

In an appeal before the RTC docketed as SCA Case No. 3144,

petitioners and their co-defendants argued that the MeTC
erred in not resolving the issue of ownership, in ordering them
to vacate the premises, in deciding issues which were not
framed by the parties, and in not granting them damages and
awarding the same instead to respondent.

The court a quo is correct in ruling that it has jurisdiction over

this case, the allegations in the complaint being so phrased as
to present one apparently for unlawful detainer. It did not
matter that after answers were filed and further proceedings
were had, what emerged were issues of ownership and
possession being intricately interwoven, the court being
clothed with jurisdiction to provisionally adjudicate the issue
of ownership, it being necessary in resolving the question of
possession.

3. Ordering the defendants to pay plaintiff the amount of

P10,000.00 as and by way of attorney's fees; and
4. The costs of suit.

On April, 29, 2009, the RTC rendered its

Decision,15 pronouncing as follows:

Stripped of its non-essentials, the appeal primarily hinges on

the lower court's failure to rule upon the issue on the validity
of Transfer Certificate of Title No. 12575 of the lot, subject of
the ejectment suit.
Upon a judicious consideration of the arguments raised by the
parties in their respective memorandum vis-a-vis the decision
of the court a quo, this court opines and so holds that the said
court did not err in its findings. The validity of a transfer
certificate of title cannot be raised in the said ejectment suit
as it partakes of a collateral attack against the said title. This
is not allowed under the principle of indefeasibility of a Torrens
title. The issue on the validity of title i.e., whether or not it
was fraudulently issued, can only be raised in an action
expressly instituted for that purpose.
The ruling of the Supreme Court in the case of Raymundo and
Perla De Guzman vs. Praxides J. Agbagala, G.R. No. 163566,
February 19, 2008 is revelatory, thus:

'Indeed, a decree of registration or patent and the certificate

of title issued pursuant thereto may be attacked on the
ground of falsification or fraud within one year from the date

2.2. The Issue of Whether or Not Plaintiff Can Eject

Defendants
In Barnachea vs. Court of Appeals, et al., it was held that one
of the features of an unlawful detainer case is possession of
property by defendant being at the start legal, becoming
illegal by reason of the termination of right to possess based
on his contract or other arrangement with plaintiff.
hi this case, the legal possession of subject premises by
defendants-appellants, they being the heirs of original owners
Macario and Felicidad Domingo, has not ceased. The basis for
the claimed ownership by plaintiff-appellee is a deed of
absolute sale dated 06 June 2006 (Exhibit "2") showing the
signatures of vendor Sps. Domingo whose respective death
certificates indicate that Macario died on 22 February 1981
and Felicidad on 14 September 1997. It is clear that the deed
of sale became the basis for the transfer of subject property in
plaintiff-appellee's name under TCT No. 12575 (Exhibit "A"), a
fact that prompted herein defendants-appellants to file a
complaint for annulment of sale and reconveyance of
ownership, docketed as Civil Case No. 70898-SJ earlier than
this subject case.
It appearing that defendants-appellants' occupancy of subject

11

property is premised on their right thereto as co-owners,

being compulsory heirs of their parents, and it not being
established that they had alienated such right in favor of their
sister, herein plaintiff-appellee, the latter cannot eject them
therefrom.
2.3. The Issue of Whether or Not Defendants are Entitled to
Damages
While defendants Rafael and Ramon Domingo allege and pray
for actual and moral damages and attorney's fees in their
answer and all [the] defendants do so in their position paper,
the court can award only the last, it being established that
they were compelled to litigate to protect their right, and such
award being just and equitable. As for actual and moral
damages, there is no sufficient basis for a grant thereof. It is
noted that not a single affidavit of any of the four defendants
is attached to their position paper, as required under Section
10, Rule 70, Rules of Civil Procedure, and Section 9, Revised
Rule on Summary Procedure.
WHEREFORE, the foregoing considered, the court hereby
grants the motion for reconsideration of its decision on appeal
affirming in toto the decision of the Metropolitan Trial Court,
Branch 58, San Juan City. Consequently, it hereby reverses
said decision by decreeing that plaintiff-appellee has no cause
of action against herein defendants-appellants who are
entitled to possession of the subject premises, rendering the
complaint dismissible and hereby dismisses it. Corrolarily,
plaintiff-appellee's motion for execution is hereby denied.
Plaintiff-appellee is hereby ordered to pay defendantsappellants P8,000.00 each in attorney's fees. Costs against
plaintiff-appellee.
18

SO ORDERED. cralawlawlibrary
Respondent filed a Motion for Reconsideration,19 which the
RTC denied in a subsequent Order20 dated May 17, 2010. The
trial court held:

as CA-G.R. SP No. 114363. On February 29, 2012, the CA

rendered judgment, as follows:

Petitioner seeks to reverse and set aside the assailed Orders

since the RTC allegedly erred:

'I.
IN RULING THAT THE RESPONDENTS CANNOT BE EJECTED
FROM THE SUBJECT PREMISES, THEIR OCCUPANCY BEING
PREMISED ON THEIR RIGHT AS CO-OWNERS, BEING
COMPULSORY HEIRS OF THEIR [PETITIONER] PARENTS AND IT
NOT BEING ESTABLISHED THAT THEY HAD ALIENATED SUCH
RIGHT IN FAVOR OF THE PETITIONER.
II.
IN RULING THAT THE RESPONDENTS ARE ENTITLED TO THE
AWARD OF ATTORNEY'S FEES.'
This Court's Ruling
Contending that the RTC erred when it held that respondents
cannot be ejected from the subject lot because they are coowners thereof and heirs of their deceased parents, petitioner
points out that the only issue that should be tackled in an
unlawfol detainer case is the right of a plaintiff to
possession de facto over the property in question.
For their part, respondents argue that they have legal and
actual possession of the subject lot as they are the heirs of
their deceased parents who are the registered owners of said
subject lot. On the other hand, the title to the subject lot that
was registered under petitioner's name is null and void for it
was issued based on a forged deed of absolute sale.
The petition has merit.

In essence, plaintiff argues that possession and not ownership

should have been the central issue in this appealed ejectment
suit. As the subject property is titled in plaintiffs name,
necessarily, she has better right of possession than
defendants.
The court is not persuaded. Germane is Section 16, Rule 70 of
the 1997 Rules of Civil Procedure, to wit:

Section 16. Resolving defense of ownership. - When the

defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession.
Having determined the ownership issue in resolving
defendants' right of possession pursuant to the aforestated
rule, the court hereby finds no cogent reason or sufficient
justification to reconsider its previous ruling dated 11
December 2009.
WHEREFORE, the motion for reconsideration is hereby DENIED
for lack of merit.
SO ORDERED.21cralawlawlibrary

In an unlawful detainer case, the defendant's possession of a

property becomes illegal when he is demanded by the plaintiff
to vacate therefrom due to the expiration or termination of his
right to possess the same under the contract but the
defendant refuses to heed such demand. Thus, the sole issue
to be resolved is who between the parties have [sic] a right to
the physical or material possession of the property involved,
independently of any claim of ownership by any of the parties.
However, where the issue of ownership is raised by any of the
parties, the rule in Sec. 16, Rule 70 of the Revised Rules of
Court is explicit:

Section 16. Resolving defense of ownership. - When the

defendant raises the defense of ownership in his pleadings
and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall
be resolved only to determine the issue of possession.
In other words, while only possession de facto is the issue to
be determined in an ejectment case, the issue of ownership
may be tackled if raised by any of the parties and only for the
purpose of reaching a conclusion on the issue of possession.
Thus, inEsmaquel vs. Coprada, the Supreme Court had the
occasion to once again hold that:

Ruling of the Court of Appeals

Respondent filed a Petition for Review22 with the CA, docketed

12

'The sole issue for resolution in an unlawful detainer case is

physical or material possession of the property involved,
independent of any claim of ownership by any of the
parties. Where the issue of ownership is raised by any of the
parties, the courts may pass upon the same in order to
determine who has the right to possess the property. The
adjudication is, however, merely provisional and would not bar
or prejudice an action between the same parties involving title
to the property. Since the issue of ownership was raised in the
unlawful detainer case, its resolution boils down to which of
the parties' respective evidence deserves more weight.'
In the case at bar, both petitioner and respondents are
claiming ownership over the subject lot. On the part of
petitioner, she maintains that she has a right to possession
because she is the registered owner thereof, as evidenced by
TCT No. 12575-R which was issued in her name in 2006. On
the other hand, respondents maintain that they cannot be
ejected from the subject lot because they are the compulsory
heirs of their deceased parents under whose names the
subject lot was registered, as shown in TCT No. 845-R.
As between the two parties, this Court rules in favor of
petitioner for she holds a more recently-issued certificate of
title, i.e., 2006, than that of their deceased parents whose
certificate of title was issued in 1953. The issuance of the
certificate of title in 2006 may be traced from TCT No. 845-R
wherein at the last page of its Memorandum of
[E]ncumbrances is an entry which explicitly states that the
title was transferred to the name of petitioner on June 6, 2006
for a consideration of Php1,000.000.00. Clearly, the certificate
of title of the deceased parents was effectively cancelled in
favor of petitioner. Hence, petitioner has a better right to the
possession de facto of the subject lot for, as held in Asuncion
Urieta Vda. de Aguilar vs. Alfaro, 'the titleholder is entitled to
all the attributes of ownership of the property, including
possession.'
Respondents' insistence that the Torrens Certificate of
petitioner should not be given any probative weight because it
is null and void is of no moment. The validity of a certificate of
title cannot be collaterally attacked. Rather, the attack should
be made in an action instituted mainly for that purpose, x x x
xxxx
In short, a Torrens Certificate is evidence of the indefeasibility
of the title to the property and the person whose name
appears therein is entitled to the possession of the property
unless and until his title is nullified. The reason being that the
Torrens System was adopted as it is the most effective
measure that will guarantee the integrity of land titles and
protect their indefeasibility once the claim of ownership is
established and recognized. Hence, the age-old rule that 'the
person who has a Torrens Title over a land is entitled to
possession thereof.'
Unless there is already a judgment declaring petitioner's
certificate of title as null and void, the presumption of its
validity must prevail, x x x
xxxx
All said, petitioner's right to possession over the subject lot
must be respected in view of the certificate of title thereto
issued in her name.
WHEREFORE, the petition is GRANTED. The assailed Orders of
the Regional Trial Court, Pasig City, Branch 160 are REVERSED
and SET ASIDE. Its Decision dated April 29, 2009 affirming
the Decision dated September 17, 2007 of the Metropolitan

Trial Court, San Juan City, Branch 58 is REINSTATED.

SO ORDERED.23cralawlawlibrary
Hence, the instant Petition.
In a July 10, 2013 Resolution,24 this Court resolved to give due
course to the Petition.
Issues
Petitioners raise the following issues for resolution:

A
THE COURT OF APPEALS (TWELFTH DIVISION) OBVIOUSLY
ERRED IN FAILING TO DISMISS THE COMPLAINT (ANNEX H)
BECAUSE IT DID NOT COMPLY WITH THE JURISDICTIONAL
ELEMENT REQUIRED BY LAW (SEC. 3, RULE 8, REVISED RULE
OF COURT).
B
THE DECISION GRAVELY ERRED IN NOT HAVING RULED THAT
RESPONDENT'S CAUSE OF ACTION IN HER EJECTMENT
COMPLAINT (ANNEX H) IS INDISPENSABLY INTERTWINED WITH
THE ISSUE OF OWNERSHIP RAISED BY PETITIONERS' DEFENSE,
THUS RENDERING SAID COMPLAINT NOT AN UNLAWFUL
DETAINER CASE OVER WHICH THE MeTC HAS JURISDICTION,
AS DECIDED IN THE ORDER DATED DECEMBER 9, 2009
(ANNEX X).
C
THE DECISION IS SERIOUSLY MISTAKEN IN NOT HAVING
UPHELD THE AWARD OF DAMAGES BY JUDGE MYRNA Y. LMVERANO IN FAVOR OF DEFENDANTS AND AGAINST
RESPONDENT WHO OBVIOUSLY OBAINED HER TITLE (ANNEX F)
USING AN UNDISPUTABLY FRAUDULENT DEED OF ABSOLUTE
SALE (ANNEX G).
D
THE DECISION INCORRECTLY RULED THAT PETITIONERS IN
RAISING OWNERSHIP AS THEIR DEFENSE (SEC. 16 IN
RELATION TO SEC. 18, RULE 70, REVISED RULES OF COURT)
CONSTITUTE A COLLATERAL ATTACK ON THE TITLE OF
RESPONDENT OBVIOUSLY AND UNDENIABLY PROCURED THRU
FRAUD.25cralawlawlibrary
Petitioners' Arguments
In their Petition and Reply26 seeking reversal of the assailed
CA dispositions and reinstatement of the RTC's December 11,
2009 Order dismissing respondent's ejectment case,
petitioners essentially argue that since the parties to the case
are siblings and no attempt at compromise was made by the
respondent prior to the filing of Civil Case No. 9534, then it
should be dismissed for failure to comply with Rule 16, Section
1(j) of the 1997 Rules of Civil Procedure27 in relation to Article
151 of the Family Code28 and Article 222 of the Civil
Code;29 that they could not be evicted from the subject
property since they are co-owners of the same, having
inherited it from their deceased parents; that respondent's
title was derived from a forged deed of sale, which does not
make her the sole owner of the subject property; that as coowners and since respondent's title is void, they have a right

13

of possession over the subject property and they may not be

evicted therefrom; that their defense that respondent
obtained her title through a forged deed of sale does not
constitute a collateral attack on such title, but is allowed in
order to prove their legal right of possession and ownership
over the subject property.
Respondent's Arguments
In her Comment30 seeking denial of the Petition, respondent
claims that the Petition should have been dismissed since only
two of the respondents in CA-G.R. SP No. 114363 filed the
Petition before this Court; that the findings of the CA do not
merit review and modification, the same being correct; and
that the Petition is a mere reiteration of issues and arguments
already passed upon exhaustively below.
Our Ruling
The Court grants the Petition.
The procedural issue of lack of attempts at compromise
should be resolved in respondent's favor. True, no suit
between members of the same family shall prosper unless it
should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made.
However, the failure of a party to comply with this condition
precedent is not a jurisdictional defect. If the opposing party
fails to raise such defect in a motion to dismiss, such defect is
deemed waived.31
hi arriving at its pronouncement, the CA passed upon the
issue or claim of ownership, which both parties raised. While
the procedure taken is allowed -under Section 16, Rule 70 of
the 1997 Rules of Civil Procedure,32 the issue of ownership
may be resolved only to determine the issue of possession the CA nonetheless committed serious and patent error in
concluding that based solely on respondent's TCT 12575
issued in her name, she must be considered the singular
owner of the subject property and thus entitled to possession
thereof- pursuant to the principle that "the person who has a
Torrens Title over a land is entitled to possession
thereof."33 Such provisional determination of ownership should
have been resolved in petitioners' favor.
When the deed of sale in favor of respondent was purportedly
executed by the parties thereto and notarized on June 6,
2006, it is perfectly obvious that the signatures of the vendors
therein, Macario and Felicidad, were forged. They could not
have signed the same, because both were by then long
deceased: Macario died on February 22, 1981, while Felicidad
passed away on September 14, 1997. This makes the June 6,
2006 deed of sale null and void; being so, it is "equivalent to
nothing; it produces no civil effect; and it does not create,
modify or extinguish a juridical relation."34
And while it is true that respondent has in her favor a Torrens
title over the subject property, she nonetheless acquired no
right or title in her favor by virtue of the null and void June 6,
2006 deed. "Verily, when the instrument presented is forged,
even if accompanied by the owner's duplicate certificate of
title, the registered owner does not thereby lose his title, and
neither does the assignee in the forged deed acquire any right
or title to the property."35
In sum, the fact that respondent has in her favor a certificate
of title is of no moment; her title cannot be used to validate
the forgery or cure the void sale. As has been held in the past:

Insofar as a person who fraudulently obtained a

property is concerned, the registration of the property
in said person's name would not be sufficient to vest in
him or her the title to the property. A certificate of title
merely confirms or records title already existing and
vested. The indefeasibility of the Torrens title should
not be used as a means to perpetrate fraud against the
rightful owner of real property. Good faith must concur
with registration because, otherwise, registration would be an
exercise in futility. A Torrens title does not furnish a
shield for fraud, notwithstanding the long-standing
rule that registration is a constructive notice of title
binding upon the whole world. The legal principle is that if
the registration of the land is fraudulent, the person in whose
name the land is registered holds it as a mere
trustee.36 (Emphasis supplied)
Since respondent acquired no right over the subject property,
the same remained in the name of the original registered
owners, Macario and Felicidad. Being heirs of the owners,
petitioners and respondent thus became, and remain coowners - by succession - of the subject property. As such,
petitioners may exercise all attributes of ownership over the
same, including possession - whether de facto or dejure;
respondent thus has no right to exclude them from this right
through an action for ejectment.
With the Court's determination that respondent's title is null
and void, the matter of direct or collateral attack is a foregone
conclusion as well. "An action to declare the nullity of a void
title does not prescribe and is susceptible to direct, as well as
to collateral, attack;"37 petitioners were not precluded from
questioning the validity of respondent's title in the ejectment
case.
It does not appear either that petitioners are claiming
exclusive ownership or possession of the subject property.
Quite the contrary, they acknowledge all this time that the
property belongs to all the Domingo siblings in co-ownership.
In the absence of an allegation - or evidence - that petitioners
are claiming exclusive ownership over the co-owned property,
respondent has no alternative cause of action for ejectment
which should prevent the dismissal of Civil Case No. 9534. The
pronouncement in a previous case applies here:

True it is that under Article 487 of the Civil Code,38 a co-owner

may bring an action for ejectment against a co-owner who
takes exclusive possession and asserts exclusive ownership of
a common property. It bears stressing, however, that in this
case, evidence is totally wanting to establish John's or Juliet's
exclusive ownership of the property in question. Neither did
Juliet obtain possession thereof by virtue of a contract,
express or implied, or thru intimidation, threat, strategy or
stealth. As borne by the record, Juliet was in possession of the
subject structure and the sari-sari store thereat by virtue of
her being a co-owner thereof. As such, she is as much entitled
to enjoy its possession and ownership as
John.39cralawlawlibrary
Indeed, it is respondent who is claiming exclusive ownership
of the subject property owned in common.
Thus, left with no cause of action for ejectment against
petitioners, respondent's ejectment case must be dismissed.
There is likewise no merit to respondent's argument that since
only two of the defendants in the ejectment case filed the
instant Petition, the same must necessarily be dismissed.
There is no rule which requires that all the parties in the
proceedings before the CA must jointly take recourse with this

14

Court or else such recourse would be dismissible. The fact

that Ramon and Rafael did not join in the instant Petition does
not bar petitioners from pursuing their case before this Court.
Moreover, since petitioners, Ramon and Rafael are siblings,
co-heirs, co-owners, and occupants of the subject property,
they all have common interests, and their rights and liabilities
are identical and so interwoven and dependent as to be
inseparable. The reversal of the assailed CA judgment should
therefore inure to the benefit of Ramon and Rafael as well.
The December 11, 2009 Order of the RTC decreeing
dismissal as against petitioners, Ramon, and Rafael, as well as
the payment of attorney's fees to all of them - may be
reinstated in all respects.

xxx This Court has always recognized the general rule that in
appellate proceedings, the reversal of the judgment on appeal
is binding only on the parties in the appealed case and does
not affect or inure to the benefit of those who did not join or
were not made parties to the appeal. An exception to the rule
exists, however, where a judgment cannot be reversed as to
the party appealing without affecting the rights of his codebtor, or where the rights and liabilities of the parties are so
interwoven and dependent on each other as to be
inseparable, in which case a reversal as to one operates as a
reversal as to all. This exception, which is based on a
communality of interest of said parties, is recognized in this
jurisdiction. x x x40cralawlawlibrary
WHEREFORE, the Petition is GRANTED. The February 29,
2012 Decision of the Court of Appeals in CA-G.R. SP No.
114363 is REVERSED and SET ASIDE. The December 11,
2009 Order of the Regional Trial Court of Pasig City, Branch
160 in SCA No. 3144 is REINSTATED and AFFIRMED.
SO ORDERED.
Carpio, (Chairperson), Brion, Mendoza, and Leonen, JJ., concur.

15

G.R. No. 86355 May 31, 1990

JOSE MODEQUILLO, petitioner,
vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS,
FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN
and DEPUTY SHERIFF FERNANDO PLATA respondents.
Josefina Brandares-Almazan for petitioner.
ABC Law Offices for private respondents.

GANCAYCO, J.:
The issue in this petition is whether or not a final judgment of
the Court of Appeals in an action for damages may be
satisfied by way of execution of a family home constituted
under the Family Code.
The facts are undisputed.
On January 29, 1988, a judgment was rendered by the Court
of Appeals in CA-G.R. CV No. 09218 entitled"Francisco Salinas,
et al. vs. Jose Modequillo, et al.," the dispositive part of which
read as follows:
WHEREFORE, the decision under appeal should be, as it is
hereby, reversed and set aside. Judgment is hereby rendered
finding the defendants-appellees Jose Modequillo and Benito
Malubay jointly and severally liable to plaintiffs-appellants as
hereinbelow set forth. Accordingly, defendants-appellees are
ordered to pay jointly and severally to:
1. Plaintiffs-appellants, the Salinas spouses:
a. the amount of P30,000.00 by way of compensation for the
death of their son Audie Salinas;
b. P10,000.00 for the loss of earnings by reason of the death
of said Audie Salinas;
c. the sum of P5,000.00 as burial expenses of Audie Salinas;
and
d. the sum of P5,000.00 by way of moral damages.
2. Plaintiffs-appellants Culan-Culan:
a. the sum of P5,000.00 for hospitalization expenses of Renato
Culan- Culan; and
b. P5,000.00 for moral damages.
3. Both plaintiff-appellants Salinas and Culan-Culan, P7,000.00
for attorney's fees and litigation expenses.
All counterclaims and other claims are hereby dismissed.

The said judgment having become final and executory, a writ

of execution was issued by the Regional Trial Court of Davao
City to satisfy the said judgment on the goods and chattels of
the defendants Jose Modequillo and Benito Malubay at
Malalag, Davao del Sur.
On July 7, 1988, the sheriff levied on a parcel of residential
land located at Poblacion Malalag, Davao del Sur containing
an area of 600 square meters with a market value of
P34,550.00 and assessed value of P7,570.00 per Tax
Declaration No. 87008-01359, registered in the name of Jose
Modequillo in the office of the Provincial Assessor of Davao del
Sur; and a parcel of agricultural land located at Dalagbong
Bulacan, Malalag, Davao del Sur containing an area of 3
hectares with a market value of P24,130.00 and assessed

value of P9,650.00 per Tax Declaration No. 87-08-01848

registered in the name of Jose Modequillo in the office of the
Provincial Assessor of Davao del Sur. 2
A motion to quash and/or to set aside levy of execution was
filed by defendant Jose Modequillo alleging therein that the
residential land located at Poblacion Malalag is where the
family home is built since 1969 prior to the commencement of
this case and as such is exempt from execution, forced sale or
attachment under Articles 152 and 153 of the Family Code
except for liabilities mentioned in Article 155 thereof, and that
the judgment debt sought to be enforced against the family
home of defendant is not one of those enumerated under
Article 155 of the Family Code. As to the agricultural land
although it is declared in the name of defendant it is alleged
to be still part of the public land and the transfer in his favor
by the original possessor and applicant who was a member of
a cultural minority was not approved by the proper
government agency. An opposition thereto was filed by the
plaintiffs.
In an order dated August 26, 1988, the trial court denied the
motion. A motion for reconsideration thereof was filed by
defendant and this was denied for lack of merit on September
2, 1988.
Hence, the herein petition for review on certiorari wherein it is
alleged that the trial court erred and acted in excess of its
jurisdiction in denying petitioner's motion to quash and/or to
set aside levy on the properties and in denying petitioner'
motion for reconsideration of the order dated August 26,
1988. Petitioner contends that only a question of law is
involved in this petition. He asserts that the residential house
and lot was first occupied as his family residence in 1969 and
was duly constituted as a family home under the Family Code
which took effect on August 4, 1988. Thus, petitioner argues
that the said residential house and lot is exempt from
payment of the obligation enumerated in Article 155 of the
Family Code; and that the decision in this case pertaining to
damages arising from a vehicular accident took place on
March 16, 1976 and which became final in 1988 is not one of
those instances enumerated under Article 155 of the Family
Code when the family home may be levied upon and sold on
execution. It is further alleged that the trial court erred in
holding that the said house and lot became a family home
only on August 4, 1988 when the Family Code became
effective, and that the Family Code cannot be interpreted in
such a way that all family residences are deemed to have
been constituted as family homes at the time of their
occupancy prior to the effectivity of the said Code and that
they are exempt from execution for the payment of
obligations incurred before the effectivity of said Code; and
that it also erred when it declared that Article 162 of the
Family Code does not state that the provisions of Chapter 2,
Title V have a retroactive effect.
Articles 152 and 153 of the Family Code provide as follows:
Art. 152. The family home, constituted jointly by the husband
and the wife or by an unmarried head of a family, is the
dwelling house where they and their family reside, and the
land on which it is situated.
Art. 153. The family home is deemed constituted on a house
and lot from the time it is occupied as a family residence.
From the time of its constitution and so long as any of its
beneficiaries actually resides therein, the family home
continues to be such and is exempt from execution, forced
sale or attachment except as hereinafter provided and to the
extent of the value allowed by law.

16

Under the Family Code, a family home is deemed constituted

on a house and lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially
or extrajudicially as required in the Civil Code. If the family
actually resides in the premises, it is, therefore, a family home
as contemplated by law. Thus, the creditors should take the
necessary precautions to protect their interest before
extending credit to the spouses or head of the family who
owns the home.

WHEREFORE, the petition is DISMISSED for lack of merit. No

pronouncement as to costs.
SO ORDERED.
Narvasa (Chairman), Cruz and Medialdea, JJ., concur. GrioAquino, J., is on leave.

Article 155 of the Family Code also provides as follows:

Art. 155. The family home shall be exempt from execution,
forced sale or attachment except:
(1) For non-payment of taxes;
(2) For debts incurred prior to the constitution of the family
home;
(3) For debts secured by mortgages on the premises before or
after such constitution; and
(4) For debts due to laborers, mechanics, architects, builders,
material men and others who have rendered service or
furnished material for the construction of the building.
The exemption provided as aforestated is effective from the
time of the constitution of the family home as such, and lasts
so long as any of its beneficiaries actually resides therein.
In the present case, the residential house and lot of petitioner
was not constituted as a family home whether judicially or
extrajudicially under the Civil Code. It became a family home
by operation of law only under Article 153 of the Family Code.
It is deemed constituted as a family home upon the effectivity
of the Family Code on August 3, 1988 not August 4, one year
after its publication in the Manila Chronicle on August 4, 1987
(1988 being a leap year).
The contention of petitioner that it should be considered a
family home from the time it was occupied by petitioner and
his family in 1969 is not well- taken. Under Article 162 of the
Family Code, it is provided that "the provisions of this Chapter
shall also govern existing family residences insofar as said
provisions are applicable." It does not mean that Articles 152
and 153 of said Code have a retroactive effect such that all
existing family residences are deemed to have been
constituted as family homes at the time of their occupation
prior to the effectivity of the Family Code and are exempt from
execution for the payment of obligations incurred before the
effectivity of the Family Code. Article 162 simply means that
all existing family residences at the time of the effectivity of
the Family Code, are considered family homes and are
prospectively entitled to the benefits accorded to a family
home under the Family Code. Article 162 does not state that
the provisions of Chapter 2, Title V have a retroactive effect.
Is the family home of petitioner exempt from execution of the
money judgment aforecited No. The debt or liability which was
the basis of the judgment arose or was incurred at the time of
the vehicular accident on March 16, 1976 and the money
judgment arising therefrom was rendered by the appellate
court on January 29, 1988. Both preceded the effectivity of
the Family Code on August 3, 1988. This case does not fall
under the exemptions from execution provided in the Family
Code.
As to the agricultural land subject of the execution, the trial
court correctly ruled that the levy to be made by the sheriff
shall be on whatever rights the petitioner may have on the
land.

17

G.R. No. 108532 March 9, 1999

PABLITO TANEO, JR., JOSE TANEO, NENA T. CATUBIG and
HUSBAND, CILIA T. MORING and HUSBAND,petitioners,
vs.
COURT OF APPEALS and ABDON GILIG, respondents.

As counterclaim, private respondent alleged that since

petitioners are still in possession of the subject property, he
has been deprived of acts of ownership and possession and
therefore, prayed for payment of rentals from February, 1968
until possession has been restored to them.
In its decision of March 27, 1989, the RTC dismissed the
complaint.

KAPUNAN, J.:

The dispositive portion thereof reads as follows:

The issues in this case are not novel: whether or not the
conveyance made by way of the sheriff's sale pursuant to the
writ of execution issued by the trial court in Civil Case No. 590
is prohibited under Sec. 118 of Commonwealth Act No. 141;
and whether or not the family home is exempt from execution.

Premises considered, Judgment is hereby rendered in favor of

the defendant and against the plaintiffs, ordering the
dismissal of the complaint filed by the plaintiffs;

As a result of a judgment in Civil Case No. 590 (for recovery of

property) in favor of private respondent, two (2) of petitioners'
properties were levied to satisfy the judgment amount of
about P5,000.00: one was a parcel of land located in Barrio
Igpit, Municipality of Opol, Misamis Oriental with an area of
about five (5) hectares, and the other was the family home
also located at Igpit, Opol, Misamis Oriental. The subject
properties were sold at public auction on February 12, 1966 to
the private respondent as the highest bidder. Consequently,
after petitioners' failure to redeem the same, a final deed of
conveyance was executed on February 9, 1968, definitely
selling, transferring, and conveying said properties to the
private respondent.
To forestall such conveyance, petitioners filed an action on
November 5, 1985 (docketed as Civil Case No. 10407) to
declare the deed of conveyance void and to quiet title over
the land with a prayer for a writ of preliminary injunction. In
their complaint, it was alleged that petitioners are the children
and heirs of Pablo Taneo and Narcisa Valaceras who died on
February 12, 1977 and September 12, 1984, respectively.
Upon their death, they left the subject property covered by
OCT No. P-12820 and Free Patent No. 548906. Considering
that said property has been acquired through free patent,
such property is therefore inalienable and not subject to any
encumbrance for the payment of debt, pursuant to
Commonwealth Act No. 141. Petitioners further alleged that
they were in continuous, open and peaceful possession of the
land and that on February 9, 1968. Deputy Provincial Sheriff
Jose V. Yasay issued a Sheriffs Deed of Conveyance in favor of
the private respondent over the subject property including
their family home which was extrajudicially constituted in
accordance with law. As a result of the alleged illegal deed of
conveyance, private respondent was able to obtain in his
name Tax Declaration No. 851920 over the land, thus casting
a cloud of doubt over the title and ownership of petitioners
over said property.
Private respondent refuted petitioners' contentions alleging
that he lawfully acquired the subject properties described as
Lot No. 5545, Cad. 237 which was a private land, by virtue of
a Sheriffs Sale on February 12, 1996. Said sale has become
final as no redemption was made within one year from the
registration of the Sheriffs Certificate of Sale. The validity of
the sale in favor of Abdon Gilig was even confirmed by the
Court of Appeals in a related case (CA No. 499965-R) entitled
"Arriola v. Gilig," where one Rufino Arriola also claimed
ownership over the subject property.
Private respondent averred that the subject land was
originally owned by Lazaro Ba-a who sold the land to Pablo
Taneo on September 18, 1941, as evidenced by an Escritura
de Venta. Despite it being a private land, Pablo Taneo filed an
application for free patent which was final only in 1979.

a) Declaring OCT No. P-12820 and Free Patent No 548906 both

in the name of Pablo Taneo as null and void and directing the
Register of Deeds to cancel the same, without prejudice
however on the part of the defendant to institute legal
proceedings for the transfer of the said title in the name of
defendant Abdon Gilig;
b) Declaring Abdon Gilig as the absolute and legal owner of
the land covered by OCT No. P-12820, and covered by Tax
Declaration No. 851920, and hence entitled to the possession
of the same and as a necessary concomitant, admonishing
the plaintiffs to refrain from disturbing the peaceful
possession of the defendant over the land in question.
c) Likewise declaring the defendant Abdon Gilig as the true
and absolute owner of the house in question formerly
declared under Tax Declaration No. 4142 in the name of Pablo
Taneo and presently declared under Tax Declaration No
851916 in the name of Abdon Gilig; ordering the plaintiffs or
any of their representatives to vacate and return the
possession of the same to defendant Abdon Gilig;
d) Ordering the plaintiffs, except the nominal parties herein,
to pay to defendant Abdon Gilig the amount of P500.00 a
month as reasonable rental of the house in question to be
reckoned from February 9, 1968 until the possession of the
same is returned to the defendant.
e) To pay to defendant the amount of P5,000.00 as attorney's
fees and to pay the costs.
SO ORDERED.

On appeal, the Court of Appeals affirmed in toto the decision

of the RTC.
Hence, this petition.
The petition is devoid of merit.
In resolving the issues, the lower court made the following
findings of fact which this Court finds no cogent reason to
disturb:
1. That the land in question originally belonged to Lazaro Ba-a
who sold the same to the late Pablito (sic) Taneo father of the
herein plaintiff on September 18, 1941, by virtue of an
Escritura de Venta identified as Reg. Not. 50; pages 53, Foleo
Not. V, Series of 1941 of the Notarial Register of Ernie Pelaez
(Exh. 10);
2. That on July 19, 1951 Abdon Gilig with his wife filed a Civil
Case No. 590 for recovery of property against Pablo
Taneo, et al., wherein Judgment was rendered on June 24,
1964, in favor of Abdon Gilig and against Pablo Taneo ordering
the latter to pay damages in the amount of P5,000.00 (Exh.
2);

18

3. That by virtue of said decision, a writ of Execution was

issued on November 22, 1965 against the properties of Pablo
Taneo and on December 1, 1965, a Notice of Levy was
executed by the Clerk of Court Pedro Perez wherein the
properties in question were among the properties levied by
the Sheriff (Exh 3);
4. That the said properties were sold at public auction wherein
the defendant Abdon Gilig came out as the highest bidder and
on February 12, 1965, a Sheriffs Certificate of Sale was
executed by Ex-Oficio Provincial Sheriff Pedro Perez (Exh. 1)
ceding the said properties in favor of Abdon Gilig and which
Certificate of Sale was registered with the Register of Deeds
on March 2, 1966;

the law impliedly permits alienation of the favor homestead;

but in line with the primordial purpose to favor the
homesteader and his family the statute provides that such
alienation or conveyance (Section 117) shall be subject to the
right of repurchase by the homesteader, his widow of heirs
within five years. This Section 117 is undoubtedly a
complement of Section 116. It aims to preserve and keep in
the family of the homesteader that portion of public land
which the State had gratuitously given to him. It would,
therefore, be in keeping with this fundamental idea to hold, as
we hold, that the right to repurchase exists not only when the
original homesteader makes the conveyance, but also when it
is made by his widow or heirs. This construction is clearly
deducible from the terms of the statute.

5. That for failure to redeem the said property within the

reglementary period, a Sheriffs final Deed of Conveyance was
executed by same Provincial Sheriff Jose V. Yasay on February
1968, (Exhs. 4, 4-A) conveying the property definitely to
Abdon Gilig.

The intent of the law is undisputable but under the facts of the
case, the prohibition invoked by the petitioners under Section
118 does not apply to them.

6. That on April 20, 1966, after his third-party claim which he

filed with the Sheriff in Civil Case No. 590 was not given due
course, Rufino Arriola filed Civil Case No. 2667 entitledArriola
vs. Abdon Gilig, et al., for Recovery of Property and/or
annulment of Sale with Damages;

Except in favor of the Government or any of its branches,

units or institution, or legally constituted banking
corporations, lands acquired under free patent or homestead
provisions shall not be subject to encumbrance or alienation
from the date of the approval of the application and for a term
of five years from and after the date of issuance of the patent
or grant, nor shall they become liable to the satisfaction of
any debt contracted prior to the expiration of said period, but
the improvements or crops on the land may be mortgaged or
pledged to qualified persons, associations, or corporations.

7. That Judgment was rendered by the Court thru Judge

Bernardo Teves dismissing the case with costs on February 21,
1969;
8. That said decision was appealed to the Court of Appeals
which affirmed the decision in toto on June 20, 979, declaring
the alleged Deed of Sale executed by Abdon Gilig in favor of
the plaintiff as null and void for being simulated or fictitious
and executed in fraud or (sic) creditors;
9. That on March 7, 1964, Pablo Taneo constituted the house
in question erected on the land of Plutarco Vacalares as a
family home (Exh. F) but was however, notarized only on May
2, 1965 and registered with the Register of Deeds on June 24,
1966.
10. That in the meanwhile, unknown to the defendant, Pablo
Taneo applied for a free patent on the land in question which
was approved on October 13, 1973, (Exh. B) and the Patent
and Title issued on December 10, 1980 (Oct No. P-12820 Exh. 12);
11. On November 3, 1985, the plaintiff filed the present
action. 2
Petitioners contend that under Section 118 of Commonwealth
Act No. 141, the subject land which they inherited from their
father under free patent cannot be alienated or encumbered
in violation of the law. Citing in particular the cases of Oliveros
v. Porciongcola 3 and Gonzaga v. Court of Appeals, 4 the
execution or auction sale of the litigated land falls within the
prohibited period and is. likewise, a disavowal of the rationale
of the law which is to give the homesteader or patentee every
chance to preserve for himself and his family the land which
the State had gratuitously given to him as a reward for his
labor in cleaning and cultivating it. 5
We are not unmindful of the intent of the law. In fact,
in Republic v. Court of Appeals, 6 the Court elucidated, to wit:
It is well-known that the homestead laws were designed to
distribute disposable agricultural lots of the State to landdestitute citizens for their home and cultivation. Pursuant to
such benevolent intention the State prohibits the sale or
encumbrance of the homestead (Section 116) within five
years after the grant of the patent. After that five-year period

Sec. 118 of Commonwealth Act No. 141 reads:

xxx xxx xxx

The prohibition against alienation of lands acquired by
homestead or free patent commences on the date of the
approval of the application for free patent and the five-year
period is counted from the issuance of the patent. The
reckoning point is actually the date of approval of the
application. In Amper v. Presiding Judge, 7 the Court held that:
. . . The date when the prohibition against the alienation of
lands acquired by homesteads or free patents commences is
"the date of the approval of the application" and the
prohibition embraces the entire five-year period "from and
after the date of issuance of the patent or, grant." As stated
inBeniga v. Bugas, (35 SCRA 111), the provision would make
no sense if the prohibition starting "from the date of the
approval of the application" would have no termination date.
The specific period of five years within which the alienation or
encumbrance of a homestead is restricted starts to be
computed from the date of the issuance of the patent. But the
prohibition of alienation commences from the date the
application is approved which comes earlier. (Emphasis ours.)
Following this ruling, we agree with the respondent court that
the conveyance made by way of the sheriff's sale was not
violative of the law. The judgment obligation of the petitioners
against Abdon Gilig arose on June 24, 1964. The properties
were levied and sold at public auction with Abdon Gilig as the
highest bidder on February 12, 1966. On February 9, 1968,
the final deed of conveyance ceding the subject property to
Abdon Gilig was issued after the petitioners failed to redeem
the property after the reglementary period. Pablo Taneo`s
application for free parent was approved only on October 19,
1973.
The sequence of the events leads us to the inescapable
conclusion that even before the application for homestead
had been approved, Pablo Taneo was no longer the owner of
the land. The deed of conveyance issued on February 9, 1968
finally transferred the property to Abdon Gilig. As of that date,

19

Pablo Taneo did not actually have transferred to herein

petitioners. The petitioners are not the owners of the land and
cannot claim to be such by invoking Commonwealth Act No.
141. The prohibition does not apply since it is clear from the
records that the judgment debt and the execution sale took
place prior to the approval of the application for free patent.
We quote with favor the respondent court's valid observation
on the matter:
. . . the application of Pablo Taneo for a free patent was
approved only on 19 October 1973 and Free Patent was issued
on 10 December 1980. Under the aforecited provision, the
subject land could not be made liable for the satisfaction of
any debt contracted from the time of the application and
during the 5-year period following 10 December 1980, or until
10 December 1985. However, debts contracted prior to the
approval of the application for free patent, that is prior to 18
October 1973, are not covered by the prohibition. This is
because they do not fall within the scope of the prohibited
period. In this case, the judgment debt in favor of defendantappellee was rendered on 24 June 1964, the writ of execution
issued on 22 November 1965, notice of levy made on 1
December 1965, the execution sale held on 12 February 1966,
and the certificate of sale registered on 2 March 1966, all
before Pablo Taneo's application for free patent was approved
on 19 October 1973. The execution, therefore, was not
violative of the law. 8
Anent the second issue, petitioners aver that the house which
their father constituted as family home is exempt from
execution. In a last ditch effort to save their property,
petitioners invoke the benefits accorded to the family home
under the Family Code.
A family home is the dwelling place of a person and his family.
It is said, however, that the family home is a real right, which
is gratuitous, inalienable and free from attachment,
constituted over the dwelling place and the land on which it is
situated, which confers upon a particular family the right to
enjoy such properties, which must remain with the person
constituting it and his heirs. 9 It cannot be seized by creditors
except in certain specials cases.
Under the Civil Code (Articles 224 to 251), a family home may
be constituted judicial and extrajudicially, the former by the
filing of the petition and with the approval of the proper court,
and the latter by the recording of a public instrument in the
proper registry of property declaring the establishment of the
family home. The operative act then which created the family
home extrajudicially was the registration in the Registry of
Property of the declaration prescribed by Articles 240 and 241
of the Civil Code. 10
Under the Family Code, however. registration was no longer
necessary Article 153 of the Family Code provides that the
family home is deemed constituted on a house and lot from
the time it is occupied in the family. It reads:
The family home is deemed constituted on a house and lot
from the time it is occupied as family residence. From the time
of its constitution and so long as its beneficiaries actually
resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment, except as
hereinafter provided and to the extent of the value allowed by
law.
It is under the foregoing provision which petitioners seek
refuge to avert execution of the family home arguing that as
early as 1964, Pablo Taneo had already constituted the house
in question as their family home. However, the retroactive
effect of the Family Code, particularly on the provisions on the

family home has been clearly laid down by the court as

explained in the case of Manacop v. Court of Appeals 11 to wit:
Finally, the petitioner insists that the attached property is a
family home, having been occupied by him and his family
since 1972, and is therefore exempt from attachment.
The contention is not well-taken.
While Article 153 of the Family Code provides that the family
home is deemed constituted on a house and lot from the time
it is occupied as a family residence, it does not mean that said
article has a retroactive effect such that all existing family
residences, petitioner's included, are deemed to have been
constituted as family homes at the time of their occupation
prior to the effectivity of the Family Code and henceforth, are
exempt from execution for the payment of obligations
incurred before the effectivity of the Family Code on August
3, 1988 (Mondequillo vs. Breva, 185 SCRA 766). Neither does
Article 162 of said Code state that the provisions of Chapter 2,
Title V thereof have retroactive effect. It simply means that all
existing family residences at the time of the effectivity of the
Family Code are considered family homes and are
prospectively entitled to the benefits accorded to a family
home under the Family Code (Modequillo vs.
Breva, supra). Since petitioner's debt was incurred as early as
November 25, 1987, it preceded the effectivity of the Family
Code. His property is therefore not exempt from
attachment (Annex "O," Plaintiff's Position Paper and
Memorandum of Authorities, p. 78)." (pp. 5-6, Decision; pp.
64-65, Rollo) (emphasis ours)
The applicable law, therefore. in the case at bar is still the
Civil Code where registration of the declaration of a family
home is a prerequisite. Nonetheless, the law provides certain
instances where the family home is not exempted from
execution, forced sale or attachment.
Art. 243 reads:
The family home extrajudicially formed shall be exempt from
execution, forced sale or attachment,except:
(1) For nonpayment of taxes;
(2) For debts incurred before the declaration was recorded in
the Registry of Property;
(3) For debts secured by mortgages on the premises before or
after such record of the declaration;
(4) For debts due to laborers, mechanics, architects, builders,
material-men and others who have rendered service or
furnished material for the construction of the building. 12
The trial court found that on March 7, 1964, Pablo Taneo
constituted the house in question, erected on the land of
Plutarco Vacalares, as the family home. The instrument
constituting the family home was registered only on January
24, 1966. The money judgment against Pablo Taneo was
rendered on January 24, 1964. Thus, at that time when the
"debt" was incurred, the family home was not yet constituted
or even registered. Clearly, petitioners' alleged family home,
as constituted by their father is not exempt as it falls under
the exception of Article 243 (2).
Moreover, the constitution of the family home by Pablo Taneo
is even doubtful considering that such constitution did not
comply with the requirements of the law. The trial court found
that the house was erected not on the land which the Taneos
owned but on the land of one Plutarco Vacalares. By the very
definition of the law that the "family home is the dwelling
house where a person and his family resides and the land on

20

which it is situated," 13it is understood that the house should

be constructed on a land not belonging to another.
Apparently, the constitution of a family home by Pablo Taneo
in the instant case was merely an afterthought in order to
escape execution of their property but to no avail.
WHEREFORE, the petition is DENIED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Melo and Pardo, JJ., concur.

21

G.R. No. 180587

March 20, 2009

SIMEON CABANG, VIRGINIA CABANG and VENANCIO

CABANG ALIAS "DONDON", Petitioners,
vs.
MR. & MRS. GUILLERMO BASAY, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the
Rules of Court seeks to annul and set aside the Decision of the
Court of Appeals in CA-G.R. CV No. 767551 dated May 31,
20072 which reversed the Order3 of the Regional Trial Court of
Molave, Zamboanga Del Sur, Branch 23 in Civil Case No. 9920-127 which denied respondents motion for execution on
the ground that petitioners family home was still subsisting.
Also assailed is the Resolution dated September 21, 2007
denying the motion for reconsideration.
The facts as summarized by the appellate court:
Deceased Felix Odong was the registered owner of Lot No.
7777, Ts- 222 located in Molave, Zamboanga del Sur. Said lot
was covered by Original Certificate of Title No. 0-2,768
pursuant to Decree No. N-64 and issued on March 9, 1966.
However, Felix Odong and his heirs never occupied nor took
possession of the lot.
On June 16, 1987, plaintiff-appellants bought said real
property from the heirs of Felix Odong for P8,000.00.
Consequently, OCT No. 0-2,768 was cancelled and in its stead,
Transfer Certificate of Title No. T-22,048 was issued on August
6, 1987 in the name of plaintiff-appellants. The latter also did
not occupy the said property.
Defendant-appellees, on the other hand, had been in
continuous, open, peaceful and adverse possession of the
same parcel of land since 1956 up to the present. They were
the awardees in the cadastral proceedings of Lot No. 7778 of
the Molave Townsite, Ts-222. During the said cadastral
proceedings, defendant-appellees claimed Lot No. 7778 on
the belief that the area they were actually occupying was Lot
No. 7778. As it turned out, however, when the Municipality of
Molave relocated the townsite lots in the area in 1992 as a big
portion of Lot No. 7778 was used by the government as a
public road and as there were many discrepancies in the areas
occupied, it was then discovered that defendant-appellees
were actually occupying Lot No. 7777.
On June 23, 1992, plaintiff-appellants filed a Complaint
docketed as Civil Case No. 92-20-127 for Recovery of Property
against defendant-appellees.
On July 19, 1996, the trial court rendered its decision, the
dispositive portion of which reads, thus:
WHEREFORE, judgment is hereby rendered in favor of the
defendants and against the plaintiff
1. Holding that the rights of the plaintiffs to recover the land
registered in their names, have been effectively barred by
laches; and

On December 23, 1998, the Court of Appeals, through the

then Second Division, rendered a Decision reversing the
assailed decision and decreed as follows:
WHEREFORE, the judgment herein appealed from is hereby
REVERSED, and judgment is hereby rendered declaring the
plaintiffs-appellants to be entitled to the possession of Lot No.
7777 of the Molave Townsite, subject to the rights of the
defendants-appellees under Article (sic) 448, 546, 547 and
548 of the New Civil Code.
The records of this case are hereby ordered remanded to the
court of origin for further proceedings to determine the rights
of the defendants-appellees under the aforesaid article (sic) of
the New Civil Code, and to render judgment thereon in
accordance with the evidence and this decision.
No pronouncement as to costs.
SO ORDERED.
Defendant-appellees thereafter filed a petition for review on
certiorari under Rule 45 of the Rules of Court before the
Supreme Court docketed as G.R. No. 139601. On October 18,
1999, the Supreme Court issued a Resolution denying the
petition for late filing and lack of appropriate service.
Subsequently, or on February 15, 2000, the Supreme Court
Resolution had become final and executory.
Consequently, the case was remanded to the court a quo and
the latter commissioned the Municipal Assessor of Molave,
Zamboanga del Sur to determine the value of the
improvements introduced by the defendant-appellees.
The Commissioners Report determined that at the time of
ocular inspection, there were three (3) residential buildings
constructed on the property in litigation. During the ocular
inspection, plaintiff-appellants son, Gil Basay, defendantappellee Virginia Cabang, and one Bernardo Mendez, an
occupant of the lot, were present. In the report, the following
appraised value of the improvements were determined, thus:
lawphil.net
Owner

Lot
No.

Area
(sq.m.)

Improvement

Appraised
Value

Virginia
Cabang

7777

32.55

Building

P21,580.65

Jovencio
Capuno

7777

15.75

Building

18,663.75

Amelito
Mata

7777

14.00

Building

5,658.10

Toilet

1,500.00

Plants &
Trees

2,164.00

TOTAL

P49,566.50

2. Ordering the dismissal of the above-entitled case.

No pronouncement as to cost.
SO ORDERED.
Aggrieved, plaintiff-appellants filed an appeal before the Court
of Appeals assailing the above-decision. Said appeal was
docketed as CA-G.R. CV No. 55207.

Thereafter, upon verbal request of defendant-appellees, the

court a quo in its Order declared that the tie point of the
survey should be the BLLM (Bureau of Lands Location

22

Monument) and authorized the official surveyor of the Bureau

of Lands to conduct the survey of the litigated property.
Pursuant to the above Order, the Community Environment
and Natural Resources Office (CENRO) of the Department of
Environment and Natural Resources (DENR)-Region XI
designated Geodetic Engineer Diosdado L. de Guzman to [act]
as the official surveyor. On March 2002, Engr. De Guzman
submitted his survey report which stated, inter alia:
1. That on September 18, 2001, the undersigned had
conducted verification survey of Lot 7777, Ts-222 and the
adjacent lots for reference purposes-with both parties present
on the survey;
2. That the survey was started from BLLM #34, as directed by
the Order, taking sideshots of lot corners, existing concrete
fence, road and going back to BLLM #34, a point of reference;
3. Considering that there was only one BLLM existing on the
ground, the undersigned conducted astronomical observation
on December 27, 2001 in order to check the carried Azimuth
of the traverse;
4. That per result of the survey conducted, it was found out
and ascertained that the area occupied by Mrs. Virginia
Cabang is a portion of Lot 7777, with lot assignment to be
known as Lot 7777-A with an area of 303 square meters and
portion of Lot 7778 with lot assignment to be known as Lot
7778-A with an area of 76 square meters. On the same lot,
portion of which is also occupied by Mr. Bernardo Mendez with
lot assignment to be known as Lot 7777-B with an area of 236
square meters and Lot 7778-B with an area of 243 square
meters as shown on the attached sketch for ready reference;
5. That there were three (3) houses made of light material
erected inside Lot No. 7777-A, which is owned by Mrs. Virginia
Cabang and also a concrete house erected both on portion of
Lot No. 7777-B and Lot No. 7778-B, which is owned by Mr.
Bernardo Mendez. x x x;
6. That the existing road had been traversing on a portion of
Lot 7778 to be know (sic) as Lot 7778-CA-G.R. SP No. with an
area of 116 square meters as shown on attached sketch plan.
During the hearing on May 10, 2002, plaintiff-appellants offer
to pay P21,000.00 for the improvement of the lot in question
was rejected by defendant-appellees. The court a quo
disclosed its difficulty in resolving whether or not the houses
may be subject of an order of execution it being a family
home.
On June 18, 2002, plaintiff-appellants filed their Manifestation
and Motion for Execution alleging therein that defendantappellees refused to accept payment of the improvements as
determined by the court appointed Commissioner, thus, they
should now be ordered to remove said improvements at their
expense or if they refused, an Order of Demolition be issued.
On September 6, 2002, the court a quo issued the herein
assailed Order denying the motion for execution.4
Respondents thereafter elevated their cause to the appellate
court which reversed the trial court in its May 31, 2007
Decision in CA-G.R. CV No. 76755. Petitioners Motion for
Reconsideration was denied by the Court of Appeals in its
Resolution5 dated September 21, 2007.
Hence, this petition.
Petitioners insist that the property subject of the controversy
is a duly constituted family home which is not subject to
execution, thus, they argue that the appellate tribunal erred in
reversing the judgment of the trial court.

The petition lacks merit.

It bears stressing that the purpose for which the records of the
case were remanded to the court of origin was for the
enforcement of the appellate courts final and executory
judgment6 in CA-G.R. CV No. 55207 which, among others,
declared herein respondents entitled to the possession of Lot
No. 7777 of the Molave Townsite subject to the provisions of
Articles 448,7 546,8 5479 an 54810 of the Civil Code. Indeed,
the decision explicitly decreed that the remand of the records
of the case was for the court of origin "[t]o determine the
rights of the defendants-appellees under the aforesaid
article[s] of the New Civil Code, and to render judgment
thereon in accordance with the evidence and this decision."
A final and executory judgment may no longer be modified in
any respect, even if the modification is meant to correct
erroneous conclusions of fact or law and whether it will be
made by the court that rendered it or by the highest court in
the land.11 The only exceptions to this rule are the correction
of (1) clerical errors; (2) the so-called nunc pro tunc entries
which cause no prejudice to any party, and (3) void
judgments.12
Well-settled is the rule that there can be no execution until
and unless the judgment has become final and executory, i.e.
the period of appeal has lapsed without an appeal having
been taken, or, having been taken, the appeal has been
resolved and the records of the case have been returned to
the court of origin, in which event, execution shall issue as a
matter of right.13 In short, once a judgment becomes final, the
winning party is entitled to a writ of execution and the
issuance thereof becomes a courts ministerial duty.14
Furthermore, as a matter of settled legal principle, a writ of
execution must adhere to every essential particulars of the
judgment sought to be executed.15 An order of execution may
not vary or go beyond the terns of the judgment it seeks to
enforce.16 A writ of execution must conform to the judgment
and if it is different from, goes beyond or varies the tenor of
the judgment which gives it life, it is a nullity. 17 Otherwise
stated, when the order of execution and the corresponding
writ issued pursuant thereto is not in harmony with and
exceeds the judgment which gives it life, they have pro tanto
no validity18 to maintain otherwise would be to ignore the
constitutional provision against depriving a person of his
property without due process of law.19
As aptly pointed out by the appellate court, from the inception
of Civil Case No. 99-20-127, it was already of judicial notice
that the improvements introduced by petitioners on the
litigated property are residential houses not family homes.
Belatedly interposing such an extraneous issue at such a late
stage of the proceeding is tantamount to interfering with and
varying the terms of the final and executory judgment and a
violation of respondents right to due process because
As a general rule, points of law, theories and issues not
brought to the attention of the trial court cannot be raised for
the first time on appeal. For a contrary rule would be unfair to
the adverse party who would have no opportunity to present
further evidence material to the new theory, which it could
have done had it been aware of if at the time of the hearing
before the trial court.20lawphil.net
The refusal, therefore, of the trial court to enforce the
execution on the ground that the improvements introduced on
the litigated property are family homes goes beyond the pale
of what it had been expressly tasked to do, i.e. its ministerial
duty of executing the judgment in accordance with its
essential particulars. The foregoing factual, legal and
jurisprudential scenario reduces the raising of the issue of

23

whether or not the improvements introduced by petitioners

are family homes into a mere afterthought.

party whose implementation is mandatory and ministerial on

the court or tribunal issuing the judgment.30

Even squarely addressing the issue of whether or not the

improvements introduced by petitioners on the subject land
are family homes will not extricate them from their
predicament.

The most important phase of any proceeding is the execution

of judgment.31 Once a judgment becomes final, the prevailing
party should not, through some clever maneuvers devised by
an unsporting loser, be deprived of the fruits of the
verdict.32 An unjustified delay in the enforcement of a
judgment sets at naught the role of courts in disposing of
justiciable controversies with finality.33 Furthermore, a
judgment if not executed would just be an empty victory for
the prevailing party because execution is the fruit and end of
the suit and very aptly called the life of the law.34

As defined, "[T]he family home is a sacred symbol of family

love and is the repository of cherished memories that last
during ones lifetime.21 It is the dwelling house where the
husband and wife, or an unmarried head of a family reside,
including the land on which it is situated.22 It is constituted
jointly by the husband and the wife or by an unmarried head
of a family."23 Article 153 of the Family Code provides that
The family home is deemed constituted from the time it is
occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually
resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by
law.
The actual value of the family home shall not exceed, at the
time of its constitution, the amount of P300,000.00 in urban
areas and P200,000.00 in rural areas.24 Under the aforequoted provision, a family home is deemed constituted on a
house and a lot from the time it is occupied as a family
residence. There is no need to constitute the same judicially
or extra-judicially.25
There can be no question that a family home is generally
exempt from execution,26 provided it was duly constituted as
such. It is likewise a given that the family home must be
constituted on property owned by the persons constituting it.
Indeed as pointed out in Kelley, Jr. v. Planters Products,
Inc.27 "[T]he family home must be part of the properties of the
absolute community or the conjugal partnership, or of the
exclusive properties of either spouse with the latters consent,
or on the property of the unmarried head of the family." 28 In
other words:

The issue is moreover factual and, to repeat that trite refrain,

the Supreme Court is not a trier of facts. It is not the function
of the Court to review, examine and evaluate or weigh the
probative value of the evidence presented. A question of fact
would arise in such event. Questions of fact cannot be raised
in an appeal via certiorari before the Supreme Court and are
not proper for its consideration.35 The rationale behind this
doctrine is that a review of the findings of fact of the appellate
tribunal is not a function this Court normally undertakes. The
Court will not weigh the evidence all over again unless there is
a showing that the findings of the lower court are totally
devoid of support or are clearly erroneous so as to constitute
serious abuse of discretion.36 Although there are recognized
exceptions37 to this rule, none exists in this case to justify a
departure therefrom.
WHEREFORE, the petition is DENIED. The Decision of the Court
of Appeals dated May 31, 2007 in CA-G.R. CV No. 76755
declaring respondents entitled to the writ of execution and
ordering petitioners to vacate the subject property, as well as
the Resolution dated September 21, 2007 denying the motion
for reconsideration, are AFFIRMED. Costs against petitioners.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

The family home must be established on the properties of (a)

the absolute community, or (b) the conjugal partnership, or
(c) the exclusive property of either spouse with the consent of
the other. It cannot be established on property held in coownership with third persons. However, it can be established
partly on community property, or conjugal property and partly
on the exclusive property of either spouse with the consent of
the latter.1avvphi1
If constituted by an unmarried head of a family, where there is
no communal or conjugal property existing, it can be
constituted only on his or her own property.29 (Emphasis and
italics supplied)
Therein lies the fatal flaw in the postulate of petitioners. For
all their arguments to the contrary, the stark and immutable
fact is that the property on which their alleged family home
stands is owned by respondents and the question of
ownership had been long laid to rest with the finality of the
appellate courts judgment in CA-G.R. CV No. 55207. Thus,
petitioners continued stay on the subject land is only by mere
tolerance of respondents.
All told, it is too late in the day for petitioners to raise this
issue. Without doubt, the instant case where the family home
issue has been vigorously pursued by petitioners is but a
clear-cut ploy meant to forestall the enforcement of an
otherwise final and executory decision. The execution of a
final judgment is a matter of right on the part of the prevailing

24

G.R. No. 186322

July 8, 2015

ENRICO S. EULOGIO and NATIVIDAD V.

EULOGIO, Petitioners,
vs.
PATERNO C. BELL, SR., ROGELIA CALINGASAN-BELL,
PATERNO WILLIAM BELL, JR., FLORENCE FELICIA
VICTORIA BELL, PATERNO FERDINAND BELL III, and
PATERNO BENERAO BELL IV,Respondents.
DECISION
SERENO, CJ:
This is a Petition for Review on Certiorari assailing the Court of
Appeals (CA) Decision1 in CA-G.R. SP No. 87531 which granted
the Petition for Certiorari filed by respondents and enjoined
the execution sale of their family home for the satisfaction of
the money judgment awarded to petitioners in Civil Case No.
4581, and the Resolution2which denied petitioners Motion for
Reconsideration.
ANTECEDENT FACTS
Respondents Paterno William Bell, Jr., Florence Felicia Victoria
Bell, Paterno Ferdinand Bell III, and Paterno Benerano IV (the
Bell siblings) are the unmarried children of respondent
Spouses Paterno C. Bell and Rogelia Calingasan-Bell (Spouses
Bell). In 1995, the Bell sibling lodged a Complaint for
annulment of documents, reconveyance, quieting of title and
damages against petitioner Enrico S. Eulogio and Natividad
Eulogio (the Eulogios). It was docketed as Civil Case No. 4581
at the Regional Trial Court (RTC) of Batangas City, Branch 84.
The complaint sought the annulment of the contract of sale
executed by Spouses Bell over their 329-square-meter
residential house and lot, as well the as the cancellation of the
title obtained by petitioners by virtue of the Deed.
The RTC granted respondents prayers, but declared Spouses
Bell liable to petitioners in the amount of 1 million plus 12%
interest per annum. The dispositive portion of the Decision
dated 15 July 1998 reads as follows:
WHEREFORE, prescinding from all the foregoing, the Court
hereby declares:
1. That the sale of the subject house and lot under Deed of
Sale marked as Exhibit "F" is only an equitable mortgage in
favor of the defendants Enrico Eulogio and Natividad Eulogio.
However, the mortgage cannot bind the property in question
for being violative of Chapter 2, Title 4 of the Family Code, its
encumbrance not having been consented to in writing by a
majority of the beneficiaries who are the plaintiffs herein;
2. The said equitable mortgage is deemed to be an unsecured
mortgage [sic] for which the Spouses Paterno C. Bell, Sr. and
Rogelia Calingasan Bell as mortgagors are liable to the
defendants-spouses Enrico Eulogio and Natividad Eulogio in
the amount of 1,000,000 plus interest of 12% per annum.
However, under the Fourth Party Complaint Sps. Paterno C.
Bell, Sr. and Rogelia Calingasan Bell have the right of
reimbursement from fourth party defendants Nicolas Morana
and Julieta Morana for whom their loan of 1,000,000 was
secured by Sps. Paterno C. Bell, Sr. and Rogelia Calingasan
Bell. Accordingly, the fourth party defendants Nicolas Morana
and Julieta Morana are hereby ordered to reimburse Paterno C.
Bell, Sr. and Rogelia Calingasan Bell the loan of 1,000,00 plus
interest of 12% per annum to be paid by the latter to
defendants Enrico and Natividad Eulogio;
3. The house and lot in question free from any and all
encumbrances by virtue of said equitable mortgage or the
purported sale; and

4. The Deed of Sale (Exhibit "F") is null and void for being
contrary to law and public policy.
Accordingly, (1) the Register of Deeds of Batangas City is
hereby ordered to cancel Transfer Certificate of Title No. T131472 in the name of defendants Enrico S. Eulogio and
Natividad Eulogio and to re-constitute (sic) Transfer Certificate
of Title No. RT-680-(5997) as "family home" of the plaintiffs
Florence Felicia Victoria C. Bell, Paterno William C. Bell Jr.,
Paterno Ferdinand C. Bell III, Paterno Benerano C. Bell IV and
fourth party plaintiffs Paterno C. Bell Sr. and Rogelia
Calingasan Bell; or in the alternative to issue a new Transfer
Certificate of Title under the same tenor;
2. The City Assessor of Batangas City is hereby directed to
issue a tax declaration covering the said subject property as
family home for the said plaintiffs and fourth party plaintiffs
Paterno C. Bell and Rogelia Calingasan Bell; and
3. Defendants Enrico Eulogio and Natividad Eulogio are
ordered to pay the plaintiffs attorneys fees and litigation
expenses of 35,000.00 as the plaintiffs have been compelled
to litigate to protect their property right, and costs, 3
Both petitioners and respondent appealed to the CA, but the
trial courts Decision was affirmed en too. Spouses Bell later
brought the case to this Court to question their liability to
petitioners in the amount of 1 million plus interest. The Court,
however, dismissed their Petition for failure to show any
reversible error committed by the CA.4 Thereafter, entry of
judgment was made.5
On 9 June 2004 the RTC issued a Writ of Execution as a result
of which respondents property covered by the newly
reconstituted Transfer Certificate of Title (TCT) No. 54208
[formerly RT-680 (5997)] was levied on execution. Upon
motion by respondents, trial court, on 31 August 2004,
ordered the lifting of the writ of the execution on the ground
that the property was a family home.6
Petitioners filed a Motion for Reconsideration of the lifting of
the writ of execution. Invoking Article 160 of the Family Code,
they posited that the current market value of the property
exceeded the statutory limit of 300,000 considering that it
was located in a commercial area, and that Spouses Bell had
even sold it to them for 1million.7
The RTC, on 13 October 2004, set the case for hearing to
determine the present value of the family hoe of respondents.
It also appointed a Board of Appraisers to conduct a study on
the prevailing market value of their house and lot. 8
Respondents sought reconsideration of the above directives
and asked the RTC to cite petitioners for contempt because of
forum-shopping.9 they argued that petitioners bid to
determine the present value of the subject property was just a
ploy to re-litigate an issue that had long been settled with
finality.
The RTC, however, denied the Motion for Reconsideration 10 of
respondents and directed the commissioners to canvass
prospective buyers of their house and lot.11
On 23 November 2004, respondents filed a Petition for
Certiorari and Injunction before the CA.12 where it was
docketed as CA-G.R. SP. No. 87531.
Subsequently, the RTC issued on 25 November 2004 an
Order13 dispensing with the valuation report of the
commissioners and directing the issuance of a writ of
execution. Consequently, respondents filed before the CA a
Supplemental Petition with an urgent prayer for a temporary
restraining order.14

25

The CA eventually enjoined.15 the execution sale set on 22

December 200416 by the RTC.
On 31 July 2008, the CA rendered it Decision granting
respondents Petition for Certiorari, but it rejected their theory
that res judicata had already set in.
The appellate court ruled that the RTC Decision, which had
become final and executory, only declared respondents
house and lot as a family home. Since the issue of whether it
may be sold in execution was incidental to the execution of
the aforesaid Decision, there was as yet no res judicata.
Still, the CA found that the trial court committed grave abuse
of discretion in ordering the execution sale of the subject
family home after finding its present value exceeded the
statutory limit. The basis for the valuation of a family home
under Article 160, according to the appellate court, is its
actual value at the time of its constitution and not the
market/present value; therefore, the trial courts order was
contrary to law.17
On 09 February 2009,18 the CA denied petitioners Motion for
Reconsideration. Hence, this Petition.
ISSUES
The issues to be resolved are: (1) whether petitioners are
guilty of forum-shopping; (2) whether a hearing to determine
the value of respondents family home for purposes of
execution under Article 160 of the Family Code is barred under
the principle of res judicata; and (3) whether respondents
family home may be sold on execution under Article 160 of
the Family Code.
THE COURTS RULING
The Court denies the Petition for lack of merit.
Petitioners are not guilty of forum-shopping.
Forum shopping can be committed in three ways; (1) by filing
multiple cases based on the same cause of action and with
the same prayer, the previous case not having been resolved
yet (where the ground for dismissal is litis pendentia); (2) by
filing multiple cases based on the same cause of action and
with the same prayer, the previous case having been finally
resolved (where the ground for dismissal is res judicata); and
(3) by filing multiple cases based on the same cause of action
but with different prayers, or by splitting of causes of action
(where the ground for dismissal is also either litis pendentia or
res judicata).19
The essence of forum shopping is the filing of multiple suits
involving the same parties for the same cause of action,
either simultaneously or successively, for the purpose of
obtaining a favorable judgment through means other than by
appeal or certiorari.20 Forum shopping does not apply to cases
that arise from an initiatory or original action that has been
elevated by way of appeal or certiorari to higher or appellate
courts or authorities. This is so because the issues in the
appellate courts necessarily differ from those in the lower
court, and the appealed cases are but a continuation of the
original case and treated as only one case. 21
Respondents contend that the Decision in Civil Case No. 4581,
which declared that property in dispute was a family home,
had long attained finality. Accordingly, respondents maintain
that petitioners bid to re-litigate the present value of the
property in the course of the execution proceedings is barred
by res judicata, and that petitioners should be cited for
contempt of court because of forum-shopping.22

Recall that although the trial court had nullified the Deed of
Sale over respondents family home in Civil Case No. 4581 for
lack of a written consent from its beneficiaries as required
under Article 158 of the Family Code,23 the court still
recognized the validity of the transaction as an unsecured
loan. Hence, it declared Spouses Bell liable to petitioners in
the amount of 1 million plus 12% interest per annum.
Petitioners bid to satisfy the above judgment cannot be
considered an act of forum shopping. Simply, the execution of
a decision is just the fruit and end of a suit and is very aptly
called the life of the law.24 It is not separate from the main
case. Similarly, the filing of the instant Petitions as a
continuation of the execution proceedings does not constitute
forum shopping. Seeking a reversal of an adverse judgment or
order by appeal or certiorari does not constitute forum
shopping. Such remedies are sanctioned and provided for the
rules.25
Indeed, as will be presently discussed, the causes of action in
the main proceedings in Civil Case No. 4581 and the
consequent execution proceedings are identical. Suffice it to
say, however, that the danger of a multiplicity of suits upon
one and the same cause of action, which the judicial policy
against forum shopping seeks to prevent, does not exist in
this case.
Re-litigating the issue of the value of respondents family
home is barred by res judicata.
Res judicata (meaning, a "matter adjudged") is a fundamental
principle of law that precludes parties from re-litigating issues
actually litigated and determined by a prior and final
judgment.26 Under the 1997 Rules of Court, there are two
aspects of res judicata, namely: bar by prior judgment.27 and
conclusiveness of judgment.28
There is "bar by prior judgment" when, as between the first
case in which the judgment has been rendered and the
second case that is sought to be barred, there is an identity of
parties, subject matter, and causes of action. In this instance,
the judgment in the first case constitutes an absolute bar to
the second action. The judgment or decree on the merits of
the court of competent jurisdiction concludes the litigation
between the parties, as well as their privies, and constitutes a
bar to a new action or suit involving the same cause of action
before same or any other tribunal.29
On the other hand, there is "conclusiveness of judgment"
where there is an identity of parties in the first and second
cases, but no identity of causes of action. Under this rule, the
first judgment is conclusive only as to those matters actually
and directly controverted and determined and not as to
matters merely involved therein. Stated differently, any right,
fact, or matter in issue directly adjudicated or necessarily
involved in the determination of an action before a competent
court in which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot again
be litigated between the parties and their privies whether or
not the claim, demand, purpose, or subject matter of the two
actions is the same.30
In this case, the trial courts final decision in Civil Case No.
4581 bars petitioners move to have the property is dispute
levied on execution.
There is no question that the main proceedings in Civil Case
No. 4581 and the subsequent execution proceedings in Civil
Case No. 4581 and the subsequent execution proceedings
involved the same parties31 and subject matter.32 for these
reasons, respondents argue that the execution sale of the
property in dispute under Article 170 of the Family Code is
barred by res judicata, since the trial court has already

26

determined that the value of the property fell within the

statutory limit.

respondents family home to be levied on execution was

solely based on the price stated in the nullified Deed of Sale.

The CA held that the trial courts Decision which is

indisputably final, only settled the issue of whether the
property in dispute was a family home. The CA ruled thus:

Res judicata applies, considering that the parties are litigating

over the same property. Moreover, the same contentions and
evidence advanced by the petitioners to substantiate their
claim over respondents family home have already been used
to support their arguments in the main proceedings.

We rule that there is no res judicata.

At the outset, let it be emphasized that the decision of the
trial court dated July 15, 1998, which has become final and
executor, only declared the subject property as a family
home. As a matter of fact, private respondents never
questioned that such property is a family home, and
consequently, the issue as to whether or not the property is
family home is settled and res judicata lies only with respect
to this issue.
But the issue as to whether or not a family home could be the
subject of an execution sale was not resolved by the trial
court. This issue[was] raised only when the writ of execution
was issued and hence, [was not] resolved with finality. Thus,
the issue before this Court is whether or not the [f]amily
[h]ome of petitioners under the facts and circumstances of
the case could be the subject of a writ execution sold at public
auction.33
The Court disagrees with the CA.
"Cause of action" is the act or omission by which a party
violates the right of another.34 It may be argued that the cause
of action the main proceedings was the sale of the property in
dispute, while in the execution proceedings it was the
indebtedness of Spouses Bell to petitioners.
The settled rule, however, is that identity of causes of action
does not mean absolute identity. Otherwise, a party could
easily escape the operation of res judicata by changing the
form of the action or the relief sought.35 The test to determine
whether the causes of action are identical is to ascertain
whether the same evidence will sustain both actions, or
whether is an identity of the facts essential to the
maintenance of the two actions. If the same facts or evidence
would sustain both, the two actions considered the same, and
a judgment in the first case would be a bar to the subsequent
action. Hence, party cannot, by varying the form of action or
adopting a different method of presenting the case, escape
the operation of the principle that one and the same cause of
action shall not be twice litigated between the same parties or
their privies.36
Among several tests resorted to in ascertaining whether two
suits relate to a single or common cause of action are: (1)
whether the same evidence would support and sustain both
the first and the second causes of action and (2) whether the
defenses in one case may be used to substantiate the
complaint in the other. Also fundamental is the test for
determining whether the cause of action in the second case
existed at the time of the filing of the first complaint.37
Applying the above guidelines, the Court finds that the
entirety of Civil Case No. 4581 including the bid of
petitioners to execute the money judgment awarded to them
by the trial court is founded on a common cause of action.
Records show that the sole evidence submitted by petitioners
during the execution proceedings was the Deed of Sale, which
the trial court had nullified in the main proceedings.
Concomitantly, the very sane defense raised by petitioners in
the main proceedings, i.e., that they had bought the property
from Spouses Bell for 1 million was utilized to substantiate
the claim that the current value of respondents family home
was actually 1 million. In fact, the trial courts order for

Any lingering doubt on the application of res judicata to this

case should be put to rest by the trial courts discussion of the
nature and alienability of the property in dispute, to wit;
The second issue is about the allegation of the plaintiffs that
the family home which has been constituted on the house and
lot in question is exempt from alienation and that its value
does not exceed 300,000. Paterno Bell, Sr. testified that the
two-storey house was built in 1947 and was made of wood
and hollow blocks. He inherited it in 1976 from his parents
and has been living there with his family. In 1976, when an
extra- judicial settlement was made of the estate of his
parents, the fair market value of the house was 70,000.
City Assessor Rodezinda Pargas testified and presented Tax
Declaration and others, (Exhibit "J", Tax Declaration No. 005047) beginning 1985 showing that the subject lot with an area
of 329 sq. m. had a fair market value of 76,000.00 and the
residential house located thereon of 50,000.00, for a total
value of 126,000.00. She testified that during the prior years
the assessed values were lower. This shows that the limit of
the value of 300,000.00 under Article 157, Title 5 of the
Family Code has not been exceeded. The testimonies of the
plaintiffs who are children of Sps. Paterno Bell, Sr. and Rogela
Calingasan Bell show that they had lived in that house
together with their said parents. The Court therefore
concludes that the said house is a family home under Chapter
2, Title 5 of the Family Code. Its alienation by the said Spouses
without the written consent of the majority of the
children/plaintiffs is null and void for being contrary to law and
public policy as enunciated in Art. 158 of the Family
Code.38 [underscoring supplied]
The foregoing points plainly show that the issue of whether
the property in dispute exceeded the statutory limit of
300,000 has already been determined with finality by the trial
court. Its finding necessarily meant that the property is
exempt from execution. Assuming for the sake of argument
that causes of action in the main proceedings and in the
execution proceedings are different, the parties are still barred
from litigating the issue of whether respondents family home
may be sold on execution sale under the principle of
conclusiveness of judgment.
Respondents family home cannot be sold on execution under
Article 160 of Family Code.
Unquestionably, the family home is exempt from execution as
expressly provided for in Article 153 of the Family Code. 39
It has been said that the family home is a real right that is
gratuitous, inalienable and free from attachment.40 The great
controlling purpose and policy of the Constitution is the
protection or the preservation of the homestead - the dwelling
place. A houseless, homeless population is a burden upon the
energy, industry, and morals of the community to which it
belongs. No greater calamity, not tainted with crime, can
befall a family than to be expelled from the roof under which it
has been gathered and sheltered.41 The family home cannot
be seized by creditors except in special cases. 42
The nature and character of the property that debtors may
claim to be exempt, however, are determined by the
exemption statute. The exemption is limited to the particular

27

kind of property of the specific articles prescribed by the

statute; the exemption cannot exceed the statutory limit.43
Articles 155 and 160 of the Family Code specify the
exceptions mentioned in Article 153, to wit:
ARTICLE 155. the family home shall be exempt from
execution, forced sale or attachment except;
1. For nonpayment of taxes;
2. For debts incurred prior to the constitution of the family
home;
3. For debts secured by mortgages on the premises before or
after such constitution; and
4. For debts due to laborers, mechanics, architects, builders,
materialmen and others who have rendered service or
furnished material for the construction of the building.
ARTICLE 160. when a creditor whose claims is not among
those mentioned in Article 155 obtains a judgment in his
favor, and he has reasonable grounds to believe that the
family home is actually worth more than the maximum
amount fixed in Article 157, he may apply to the court which
rendered the judgment for an order directing the sale of the
property under execution. The court shall so order if it finds
that the actual value of the family home exceeds the
maximum amount allowed by law as of the time of its
constitution. If the increased actual value exceeds the
maximum allowed in Article 157 and results from subsequent
voluntary improvements introduced by the person or persons
constituting the family home, by the owners of the property,
or by any of the beneficiaries, the same rule and procedure
shall apply.
At the execution sale, no bid below the value allowed for a
family home shall be considered. The proceeds shall be
applied first to the amount mentioned in Article 157, and then
to the liabilities under the judgment and the costs. The
excess, is any, shall be delivered to the judgment debtor.
Related to the foregoing is Article 157 of the Family Code,
which provides:
ARTICLE 157. the actual value of the family home shall not
exceed, at the same time of its constitution, the amount of
three hundred thousand pesos in urban areas, and two
hundred thousand pesos in rural areas, or such amounts as
may hereafter be fixed by law.
In any event, if the value of the currency changes after the
adoption of this Code, the value most favorable for the
constitutions of a family home shall be the basis of evaluation.
For purposes of the Article, urban areas are deemed to include
chartered cities and municipalities whose annual income at
least equals that legally required for chartered cities. All
others are deemed to be rural area. [underscoring supplied]
The minutes of the deliberation by the drafters of Family Code
on Article 160 are enlightening, to wit:
Justice Puno inquired if the above Article [160] is still
necessary. In reply, Judge Diy opined that the above Article is
intended to cover a situation where the family home is
already worth 500,000 or IM.
Justice Reyes stated that it is possible that a family home,
originally valued at 300,000, later appreciated to almost IM
because of improvements made, like roads and plazas. Justice
Caguioa, however, made a distinction between voluntary and
involuntary improvements in the sense that if the value of the

family home exceeded the maximum amount because of

voluntary improvements by the one establishing the family
home, the Article will apply; but if it is through an involuntary
improvement, like conversion into a residential area or the
establishment of roads and other facilities, the one
establishing the family home should not be punished by
making his home liable to creditors. He suggested that the
matter be clarified in the provision.
Prof. Bautista objected to the phrase "is worth" since if they
will specify that the family home is worth more than the
maximum amount at the time it was constituted, they will
avoid the suit because the creditor will be given proper
warning. Justice Puno opined that this is a question of fact.
Justice Caguioa added that, under the second sentence, there
will be a preliminary determination as to whether the family
home exceeds the maximum amount allowed by the law.
Justice Caguia accordingly modified the last sentence as
follows:
If the excess in actual value over that allowed in Article 157 is
due to subsequent voluntary improvements by the person or
persons constituting the family home or by the owner or
owners of the property, the same rules and procedure shall
apply.
Prof. Bautista objected to the above provision, because it will
in effect penalize the owner for improving the family home.
On the other hand, Justice Puno opined that the provision
covers only the excess in actual value over that allowed by
law. Judge Diy added that the owner may improve the family
home up to 300,000. Justice Caguioa stated that without the
above provision, one can borrow money, put it all on
improvement of the family home even beyond the maximum
value of a family home and, thereby, exempt it from levy on
the part of the creditor. He added that anyway, if one
voluntarily improves his family home out of his money,
nobody can complain because there are no creditors.
Justice Puno posed the question: what is "due to the
subsequent improvement?" is it the "excess" or is it the
"increase", or is it the "increase", which constitutes the
"excess"? in reply, Justice Reyes opined that it is the
"increase" which constituted the "excess". Justice Puno,
Justice Reyes and Justice Caguioa modified the last sentence
as follows:
If the increase in actual value exceeds that maximum allowed
in Article 157 and results from subsequent voluntary
improvements introduced by the person or persons
constituting the family home or by the owner or owners of the
property, the same rule and procedure shall apply.
Prof. Bautista commented that the phrase "increase in actual
value" does not include the original value. Justice Puno
suggested that they just say "increased actual value", which
the Committee approved.44
To summarize, the exemption of the family home from
execution, forced sale or attachment is limited to 300,000 in
urban areas and 200,000 in rural areas, unless those
maximum values are adjusted by law. If it is shown, though,
that those amounts do not match the present value of the
peso because of currency fluctuations, the amount of
exemption shall be based on the value that is most favorable
to the constitution of a family home. Any amount in excess of
those limits can be applied to the payment of any of the
obligations specified in Articles 155 and 160.
Any subsequent improvement or enlargement of the family
home by the persons constituting it, its owners, or any of its
beneficiaries will still be exempt from execution, forced sale or

28

attachment provided the following conditions obtain: (a) the

actual value of the property at the time of its constitution has
been determined to fall below the statutory limit; and (b) the
improvement or enlargement does not result in an increase in
its value exceeding the statutory limit.45 Otherwise, the family
home can be the subject of a forced sale, and any amount
above the statutory limit is applicable to the obligations under
Articles 155 and 160.

court from proceeding with the sale of the family home of

respondents, is AFFIRMED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Chief Justice, Chairperson

Certainly, the humane considerations for which the law

surrounds the family home with immunities from levy do not
include the intent to enable debtors to thwart the just claims
of their creditors.46
Petitioners maintain that this case falls under the exceptions
to the exemption of the family home from execution or forced
sale. They claim that the actual value of respondents family
home exceeds the 300,000 limit in urban areas. This fact is
supposedly shown by the Deed of Sale whereby private
respondents agreed to sell the property for 1 million way back
in 1995. Therefore, the RTC only properly ordered the
execution sale of the property under Article 160 to satisfy the
money judgment awarded to them in Civil Case No. 4581.47
As earlier discussed, it has been judicially determined with
finality that the property in dispute is a family home, and that
its value at the time of its constitution was within the
statutory limit. Moreover, respondents have timely claimed
the exemption of the property from execution. 48 On the other
hand, there is no question that the money judgment awarded
to petitioners falls under the ambit of Article 160.
Notwithstanding petitioners right to enforce the trial courts
money judgment, however, they cannot obtain its satisfaction
at the expense of respondents rights over their family home.
It is axiomatic that those asserting the protection of an
exception from an exemption must bring themselves clearly
within the terms of the exception and satisfy any statutory
requirement for its enforcement.49
To warrant the execution sale of respondents family home
under Article 160, petitioners needed to establish these facts:
(1) there was an increase in its actual value; (2) the increase
resulted from voluntary improvements on the property
introduced by the persons constituting the family home, its
owners or any of its beneficiaries; and (3) the increased actual
value exceeded the maximum allowed under Article 157.
During the execution proceedings, none of those facts was
alleged much less proven by petitioners.1wphi1 The sole
evidence presented was the Deed of Sale, but the trial court
had already determined with finality that the contract was
null, and that the actual transaction was an equitable
mortgage. Evidently, when petitioners and Spouses Bells
executed the Deed of Sale in 1990, the price stated therein
was not the actual value of the property in dispute.
The court thus agrees with the CAs conclusion that the trial
court committed grave abuse of discretion in ordering the sale
on execution of the property in dispute under Article 160. The
trial court had already determined with finality that the
property was a family home, and there was no proof that is
value had increased beyond the statutory limit due to
voluntary improvements by respondents. Yet, it ordered the
execution sale of the property. There is grave abuse of
discretion when one acts in a capricious, whimsical, arbitrary
or despotic manner in the exercise of ones judgment, as in
this case in which the assailed order is bereft of any factual or
legal justification.50
WHEREFORE, the Petitioner for Review on Certiorari is hereby
DENIED for lack of merit. Accordingly, the Decision of the
Court of Appeals in CA-GG.R SP No. 87531, enjoining the trial

29

G.R. No. 105625 January 24, 1994

MARISSA BENITEZ-BADUA, petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND
FEODOR BENITEZ AGUILAR, respondents.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.

PUNO, J.:
This is a petition for review of the Decision of the 12th
Division of the Court of Appeals in CA-G.R. No. CV No. 30862
dated May 29, 1992. 1
The facts show that the spouses Vicente Benitez and Isabel
Chipongian owned various properties especially in Laguna.
Isabel died on April 25, 1982. Vicente followed her in the
grave on November 13, 1989. He died intestate.
The fight for administration of Vicente's estate ensued. On
September 24, 1990, private respondents Victoria BenitezLirio and Feodor Benitez Aguilar (Vicente's sister and nephew,
respectively) instituted Sp. Proc. No. 797 (90) before the RTC
of San Pablo City, 4th Judicial Region, Br. 30. They prayed for
the issuance of letters of administration of Vicente's estate in
favor of private respondent Aguilar. They alleged, inter
alia, viz.:

On December 17, 1990, the trial court decided in favor of the

petitioner. It dismissed the private respondents petition for
letters and administration and declared petitioner as the
legitimate daughter and sole heir of the spouses Vicente O.
Benitez and Isabel Chipongian. The trial court relied on
Articles 166 and 170 of the Family Code.
On appeal, however, the Decision of the trial court was
reversed on May 29, 1992 by the 17th Division of the Court of
Appeals. The dispositive portion of the Decision of the
appellate court states:
WHEREFORE, the decision appealed from herein is REVERSED
and another one entered declaring that appellee Marissa
Benitez is not the biological daughter or child by nature of the
spouse Vicente O. Benitez and Isabel Chipongian and,
therefore, not a legal heir of the deceased Vicente O. Benitez.
Her opposition to the petition for the appointment of an
administrator of the intestate of the deceased Vicente O.
Benitez is, consequently, DENIED; said petition and the
proceedings already conducted therein reinstated; and the
lower court is directed to proceed with the hearing of Special
proceeding No. SP-797 (90) in accordance with law and the
Rules.
Costs against appellee.
SO ORDERED.
In juxtaposition, the appellate court held that the trial court
erred in applying Articles 166 and 170 of the Family Code.

xxx xxx xxx

In this petition for review, petitioner contends:

4. The decedent is survived by no other heirs or relatives be

they ascendants or descendants, whether legitimate,
illegitimate or legally adopted; despite claims or
representation to the contrary, petitioners can well and truly
establish, given the chance to do so, that said decedent and
his spouse Isabel Chipongian who pre-deceased him, and
whose estate had earlier been settled extra-judicial, were
without issue and/or without descendants whatsoever, and
that one Marissa Benitez-Badua who was raised and cared by
them since childhood is, in fact, not related to them by blood,
nor legally adopted, and is therefore not a legal heir; . . .

1. The Honorable Court of Appeals committed error of law and

misapprehension of facts when it failed to apply the
provisions, more particularly, Arts. 164, 166, 170 and 171 of
the Family Code in this case and in adopting and upholding
private respondent's theory that the instant case does not
involve an action to impugn the legitimacy of a child;

On November 2, 1990, petitioner opposed the petition. She

alleged that she is the sole heir of the deceased Vicente
Benitez and capable of administering his estate. The parties
further exchanged reply and rejoinder to buttress their legal
postures.
The trial court then received evidence on the issue of
petitioner's heirship to the estate of the deceased. Petitioner
tried to prove that she is the only legitimate child of the
spouses Vicente Benitez and Isabel Chipongian. She
submitted documentary evidence, among others: (1) her
Certificate of Live Birth (Exh. 3); (2) Baptismal Certificate
(Exh. 4); (3) Income Tax Returns and Information Sheet for
Membership with the GSIS of the late Vicente naming her as
his daughter (Exhs. 10 to 21); and (4) School Records (Exhs. 5
& 6). She also testified that the said spouses reared an
continuously treated her as their legitimate daughter. On the
other hand, private respondents tried to prove, mostly thru
testimonial evidence, that the said spouses failed to beget a
child during their marriage; that the late Isabel, then thirty six
(36) years of age, was even referred to Dr. Constantino
Manahan, a noted obstetrician-gynecologist, for treatment.
Their primary witness, Victoria Benitez-Lirio, elder sister of the
late Vicente, then 77 years of age, 2 categorically declared
that petitioner was not the biological child of the said spouses
who were unable to physically procreate.

2. Assuming arguendo that private respondents can question

or impugn directly or indirectly, the legitimacy of Marissa's
birth, still the respondent appellate Court committed grave
abuse of discretion when it gave more weight to the
testimonial evidence of witnesses of private respondents
whose credibility and demeanor have not convinced the trial
court of the truth and sincerity thereof, than the documentary
and testimonial evidence of the now petitioner Marissa
Benitez-Badua;
3. The Honorable Court of Appeals has decided the case in a
way not in accord with law or with applicable decisions of the
supreme Court, more particularly, on prescription or laches.
We find no merit to the petition.
Petitioner's insistence on the applicability of Articles 164, 166,
170 and 171 of the Family Code to the case at bench cannot
be sustained. These articles provide:
Art. 164. Children conceived or born during the marriage of
the parents are legitimate.
Children conceived as a result of artificial insemination of the
wife with sperm of the husband or that of a donor or both are
likewise legitimate children of the husband and his wife,
provided, that both of them authorized or ratified such
insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be
recorded in the civil registry together with the birth certificate
of the child.

30

Art. 166. Legitimacy of child may be impugned only on the

following grounds:
1) That it was physically impossible for the husband to have
sexual intercourse with his wife within the first 120 days of the
300 days which immediately preceded the birth of the child
because of:
a) the physical incapacity of the husband to have sexual
intercourse with his wife;
b) the fact that the husband and wife were living separately in
such a way that sexual intercourse was not possible; or
c) serious illness of the husband, which absolutely prevented
sexual intercourse.
2) That it is proved that for biological or other scientific
reasons, the child could not have been that of the husband
except in the instance provided in the second paragraph of
Article 164; or
3) That in case of children conceived through artificial
insemination, the written authorization or ratification of either
parent was obtained through mistake, fraud, violence,
intimidation, or undue influence.
Art. 170. The action to impugn the legitimacy of the child shall
be brought within one year from the knowledge of the birth or
its recording in the civil register, if the husband or, in a proper
case, any of his heirs, should reside in the city or municipality
where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside
at the place of birth as defined in the first paragraph or where
it was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth
of the child has been concealed from or was unknown to the
husband or his heirs, the period shall be counted from the
discovery or knowledge of the birth of the child or of the fact
of registration of said birth, which ever is earlier.
Art. 171. The heirs of the husband may impugn the filiation of
the child within the period prescribed in the preceding Article
only in the following case:
1) If the husband should die before the expiration of the
period fixed for bringing his action;
2) If he should die after the filing of the complaint, without
having desisted therefrom; or
3) If the child was born after the death of the husband.
A careful reading of the above articles will show that they do
not contemplate a situation, like in the instant case, where a
child is alleged not to be the child of nature or biological child
of a certain couple. Rather, these articles govern a situation
where a husband (or his heirs) denies as his own a child of his
wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was
physically impossible for him to have sexual intercourse, with
his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived through
artificial insemination, the written authorization or ratification
by either parent was obtained through mistake, fraud,
violence, intimidation or undue influence. Articles 170 and
171 reinforce this reading as they speak of the prescriptive
period within which the husband or any of his heirs should file
the action impugning the legitimacy of said child. Doubtless
then, the appellate court did not err when it refused to apply
these articles to the case at bench. For the case at bench is

not one where the heirs of the late Vicente are contending
that petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and
Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate
Court, 166 SCRA 451, 457 cited in the impugned decision is
apropos, viz.:
Petitioners' recourse to Article 263 of the New Civil Code [now
Article 170 of the Family Code] is not well-taken. This legal
provision refers to an action to impugn legitimacy. It is
inapplicable to this case because this is not an action to
impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their
childless deceased aunt. They do not claim that petitioner
Violeta Cabatbat Lim is an illegitimate child of the deceased,
but that she is not the decedent's child at all. Being neither
legally adopted child, nor an acknowledged natural child, nor
a child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased.
We now come to the factual finding of the appellate court that
petitioner was not the biological child or child of nature of the
spouses Vicente Benitez and Isabel Chipongian. The appellate
court exhaustively dissected the evidence of the parties as
follows:
. . . And on this issue, we are constrained to say that
appellee's evidence is utterly insufficient to establish her
biological and blood kinship with the aforesaid spouses, while
the evidence on record is strong and convincing that she is
not, but that said couple being childless and desirous as they
were of having a child, the late Vicente O. Benitez took
Marissa from somewhere while still a baby, and without he
and his wife's legally adopting her treated, cared for, reared,
considered, and loved her as their own true child, giving her
the status as not so, such that she herself had believed that
she was really their daughter and entitled to inherit from them
as such.
The strong and convincing evidence referred to us are the
following:
First, the evidence is very cogent and clear that Isabel
Chipongian never became pregnant and, therefore, never
delivered a child. Isabel's own only brother and sibling, Dr.
Lino Chipongian, admitted that his sister had already been
married for ten years and was already about 36 years old and
still she has not begotten or still could not bear a child, so that
he even had to refer her to the late Dr. Constantino Manahan,
a well-known and eminent obstetrician-gynecologist and the
OB of his mother and wife, who treated his sister for a number
of years. There is likewise the testimony of the elder sister of
the deceased Vicente O. Benitez, Victoria Benitez Lirio, who
then, being a teacher, helped him (he being the only boy and
the youngest of the children of their widowed mother) through
law school, and whom Vicente and his wife highly respected
and consulted on family matters, that her brother Vicente and
his wife Isabel being childless, they wanted to adopt her
youngest daughter and when she refused, they looked for a
baby to adopt elsewhere, that Vicente found two baby boys
but Isabel wanted a baby girl as she feared a boy might grow
up unruly and uncontrollable, and that Vicente finally brought
home a baby girl and told his elder sister Victoria he would
register the baby as his and his wife's child. Victoria Benitez
Lirio was already 77 years old and too weak to travel and
come to court in San Pablo City, so that the taking of her
testimony by the presiding judge of the lower court had to be
held at her residence in Paraaque, MM. Considering, her
advanced age and weak physical condition at the time she
testified in this case, Victoria Benitez Lirio's testimony is
highly trustworthy and credible, for as one who may be called
by her Creator at any time, she would hardly be interested in

31

material things anymore and can be expected not to lie,

especially under her oath as a witness. There were also
several disinterested neighbors of the couple Vicente O.
Benitez and Isabel Chipongian in Nagcarlan, Laguna (Sergio
Fule, Cecilia Coronado, and Benjamin C. Asendido) who
testified in this case and declared that they used to see Isabel
almost everyday especially as she had drugstore in the
ground floor of her house, but they never saw her to have
been pregnant, in 1954 (the year appellee Marissa Benitez
was allegedly born, according to her birth certificate Exh. "3")
or at any time at all, and that it is also true with the rest of
their townmates. Ressureccion A. Tuico, Isabel Chipongian's
personal beautician who used to set her hair once a week at
her (Isabel's) residence, likewise declared that she did not see
Isabel ever become pregnant, that she knows that Isabel
never delivered a baby, and that when she saw the baby
Marissa in her crib one day she went to Isabel's house to set
the latter's hair, she was surprised and asked the latter where
the baby came from, and "she told me that the child was
brought by Atty. Benitez and told me not to tell about it" (p.
10, tsn, Nov. 29, 1990).
The facts of a woman's becoming pregnant and growing big
with child, as well as her delivering a baby, are matters that
cannot be hidden from the public eye, and so is the fact that a
woman never became pregnant and could not have,
therefore, delivered a baby at all. Hence, if she is suddenly
seen mothering and caring for a baby as if it were her own,
especially at the rather late age of 36 (the age of Isabel
Chipongian when appellee Marissa Benitez was allegedly
born), we can be sure that she is not the true mother of that
baby.
Second, appellee's birth certificate Exh. "3" with the late
Vicente O. Benitez appearing as the informant, is highly
questionable and suspicious. For if Vicente's wife Isabel, who
wads already 36 years old at the time of the child's supposed
birth, was truly the mother of that child, as reported by
Vicente in her birth certificate, should the child not have been
born in a hospital under the experienced, skillful and caring
hands of Isabel's obstetrician-gynecologist Dr. Constantino
Manahan, since delivery of a child at that late age by Isabel
would have been difficult and quite risky to her health and
even life? How come, then, that as appearing in appellee's
birth certificate, Marissa was supposedly born at the Benitez
home in Avenida Rizal, Nagcarlan, Laguna, with no physician
or even a midwife attending?
At this juncture, it might be meet to mention that it has
become a practice in recent times for people who want to
avoid the expense and trouble of a judicial adoption to simply
register the child as their supposed child in the civil registry.
Perhaps Atty. Benitez, though a lawyer himself, thought that
he could avoid the trouble if not the expense of adopting the
child Marissa through court proceedings by merely putting
himself and his wife as the parents of the child in her birth
certificate. Or perhaps he had intended to legally adopt the
child when she grew a little older but did not come around
doing so either because he was too busy or for some other
reason. But definitely, the mere registration of a child in his or
her birth certificate as the child of the supposed parents is not
a valid adoption, does not confer upon the child the status of
an adopted child and the legal rights of such child, and even
amounts of simulation of the child's birth or falsification of his
or her birth certificate, which is a public document.
Third, if appellee Marissa Benitez is truly the real, biological
daughter of the late Vicente O. Benitez and his wife Isabel
Chipongian, why did he and Isabel's only brother and sibling
Dr. Nilo Chipongian, after Isabel's death on April 25, 1982,
state in the extrajudicial settlement
Exh. "E" that they executed her estate, "that we are the sole

heirs of the deceased ISABEL CHIPONGIAN because she died

without descendants or ascendants?" Dr. Chipongian, placed
on a witness stand by appellants, testified that it was his
brother-in-law Atty. Vicente O. Benitez who prepared said
document and that he signed the same only because the
latter told him to do so (p. 24, tsn, Nov. 22, 1990). But why
would Atty. Benitez make such a statement in said document,
unless appellee Marissa Benitez is not really his and his wife's
daughter and descendant and, therefore, not his deceased
wife's legal heir? As for Dr. Chipongian, he lamely explained
that he signed said document without understanding
completely the meaning of the words "descendant and
ascendant" (p. 21, tsn, Nov. 22, 1990). This we cannot
believe, Dr. Chipongian being a practicing pediatrician who
has even gone to the United States (p. 52, tsn, Dec. 13,
1990). Obviously,
Dr. Chipongian was just trying to protect the interests of
appellee, the foster-daughter of his deceased sister and
brother-in-law, as against those of the latter's collateral blood
relatives.
Fourth, it is likewise odd and strange, if appellee Marissa
Benitez is really the daughter and only legal heir of the
spouses Vicente O. Benitez and Isabel Chipongian, that the
latter, before her death, would write a note to her husband
and Marissa stating that:
even without any legal papers, I wish that my husband and
my child or only daughter will inherit what is legally my own
property, in case I die without a will,
and in the same handwritten note, she even implored her
husband
that any inheritance due him from my property when he die
to make our own daughter his sole heir. This do [sic] not
mean what he legally owns or his inherited property. I leave
him to decide for himself regarding those.
(Exhs. "F-1", "F-1-A" and "F-1-B")
We say odd and strange, for if Marissa Benitez is really the
daughter of the spouses Vicente O. Benitez and Isabel
Chipongian, it would not have been necessary for Isabel to
write and plead for the foregoing requests to her husband,
since Marissa would be their legal heir by operation of law.
Obviously, Isabel Chipongian had to implore and supplicate
her husband to give appellee although without any legal
papers her properties when she dies, and likewise for her
husband to give Marissa the properties that he would inherit
from her (Isabel), since she well knew that Marissa is not truly
their daughter and could not be their legal heir unless her
(Isabel's) husband makes her so.
Finally, the deceased Vicente O. Benitez' elder sister Victoria
Benitez Lirio even testified that her brother Vicente gave the
date
December 8 as Marissa's birthday in her birth certificate
because that date is the birthday of their (Victoria and
Vicente's) mother. It is indeed too much of a coincidence for
the child Marissa and the mother of Vicente and Victoria to
have the same birthday unless it is true, as Victoria testified,
that Marissa was only registered by Vicente as his and his
wife's child and that they gave her the birth date of Vicente's
mother.
We sustain these findings as they are not unsupported by the
evidence on record. The weight of these findings was not
negated by documentary evidence presented by the
petitioner, the most notable of which is her Certificate of Live
Birth (Exh. "3") purportedly showing that her parents were the
late
Vicente Benitez and Isabel Chipongian. This Certificate

32

registered on December 28, 1954 appears to have been

signed by the deceased Vicente Benitez. Under Article 410 of
the New Civil Code, however, "the books making up the Civil
Registry and all documents relating thereto shall be
considered public documents and shall be prima
facie evidence of the facts therein stated." As related above,
the totality of contrary evidence, presented by the private
respondents sufficiently rebutted the truth of the content of
petitioner's Certificate of Live Birth. of said rebutting
evidence, the most telling was the Deed of Extra-Judicial
Settlement of the Estate of the Deceased Isabel Chipongian
(Exh. "E") executed on July 20, 1982 by Vicente Benitez, and
Dr. Nilo Chipongian, a brother of Isabel. In their notarized
document, they stated that "(they) are the sole heirs of the
deceased Isabel Chipongian because she died without
descendants or ascendants". In executing this Deed, Vicente
Benitez effectively repudiated the Certificate of Live Birth of
petitioner where it appeared that he was petitioner's father.
The repudiation was made twenty-eight years after he signed
petitioner's Certificate of Live Birth.
IN VIEW WHEREOF, the petition for review is dismissed for
lack of merit. Costs against petitioner.
SO ORDERED.

33

G.R. No. 138493

June 15, 2000

TEOFISTA BABIERA, petitioner,

vs.
PRESENTACION B. CATOTAL, respondent.
PANGANIBAN, J.:
A birth certificate may be ordered cancelled upon adequate
proof that it is fictitious. Thus, void is a certificate which shows
that the mother was already fifty-four years old at the time of
the child's birth and which was signed neither by the civil
registrar nor by the supposed mother. Because her
inheritance rights are adversely affected, the legitimate child
of such mother is a proper party in the proceedings for the
cancellation of the said certificate.
Statement of the Case
Submitted for this Court's consideration is a Petition for
Review on Certiorari1 under Rule 45 of the Rules of Court,
seeking reversal of the March 18, 1999 Decision2 of the Court
of Appeals3 (CA) in CA-GR CV No. 56031. Affirming the
Regional Trial Court of Lanao del Norte in Special Proceedings
No. 3046, the CA ruled as follows:
IN VIEW HEREOF, the appealed decision is hereby AFFIRMED.
Accordingly, the instant appeal is DISMISSED for lack of merit.
Costs against the defendant-appellant, TEOFISTA BABIERA,
a.k.a. Teofista Guinto.4
The dispositive portion of the affirmed RTC Decision reads:
WHEREFORE, in view of the foregoing findings and
pronouncements of the Court, judgment is hereby rendered,
to wit[:]
1) Declaring the Certificate of Birth of respondent Teofista
Guinto as null and void "ab initio";
2) Ordering the respondent Local Civil Registrar of Iligan to
cancel from the registry of live birth of Iligan City BIRTH
CERTIFICATE recorded as Registry No. 16035;
Furnish copies of this-decision to the Local Civil Registrar of
Iligan City, the City Prosecutor, counsel for private respondent
Atty. Tomas Cabili and to counsel for petitioner.
SO ORDERED.
The Facts
The undisputed facts are summarized by the Court of Appeals
in this wise:
Presentacion B. Catotal (hereafter referred to as
PRESENTACION) filed with the Regional Trial Court of Lanao del
Node, Branch II, Iligan City, a petition for the cancellation of
the entry of birth of Teofista Babiera (herafter referred to as
TEOFISTA) in the Civil Registry of Iligan City. The case was
docketed as Special Proceedings No. 3046.
From the petition filed, PRESENTACION asserted "that she is
the only surviving child of the late spouses Eugenio Babiera
and Hermogena Cariosa, who died on May 26, 1996 and July
6, 1990 respectively; that on September 20, 1996 a baby girl
was delivered by "hilot" in the house of spouses Eugenio and
Hermogena Babiera and without the knowledge of said
spouses, Flora Guinto, the mother of the child and a
housemaid of spouses Eugenio and Hermogena Babiera,
caused the registration/recording of the facts of birth of her
child, by simulating that she was the child of the spouses
Eugenio, then 65 years old and Hermogena, then 54 years
old, and made Hermogena Babiera appear as the mother by

forging her signature . . .; that petitioner, then 15 years old,

saw with her own eyes and personally witnessed Flora Guinto
give birth to Teofista Guinto, in their house, assisted by "hilot";
that the birth certificate . . . of Teofista Guinto is void ab initio,
as it was totally a simulated birth, signature of informant
forged, and it contained false entries, to wit: a) The child is
made to appear as the legitimate child of the late spouses
Eugenio Babiera and Hermogena Cariosa, when she is not; b)
The signature of Hermogena Cariosa, the mother, is
falsified/forged. She was not the informant; c) The family
name BABIERA is false and unlawful and her correct family
name is GUINTO, her mother being single; d) Her real mother
was Flora Guinto and her status, an illegitimate child; The
natural father, the carpenter, did not sign it; that the
respondent Teofista Barbiera's birth certificate is void ab initio,
and it is patently a simulation of birth, since it is clinically and
medically impossible for the supposed parents to bear a child
in 1956 because: a) Hermogena Cariosa Babiera, was
already 54 years old; b) Hermogena's last child birth was in
the year 1941, the year petitioner was born; c) Eugenio was
already 65 years old, that the void and simulated birth
certificate of Teofista Guinto would affect the hereditary rights
of petitioner who inherited the estate of cancelled and
declared void and theretofore she prays that after publication,
notice and hearing, judgment [be] render[ed] declaring . . .
the certificate of birth of respondent Teofista Guinto as
declared void, invalid and ineffective and ordering the
respondent local civil registrar of Iligan to cancel from the
registry of live birth of Iligan City BIRTH CERTIFICATE recorded
as Registry No. 16035.
Finding the petition to be sufficient in form and substance, the
trial court issued an order directing the publication of the
petition and the date of hearing thereof in a newspaper, the
Local Civil Registrar of Iligan City, the office of the City
Prosecutor of Iligan City and TEOFISTA.
TEOFISTA filed a motion to dismiss on the grounds that "the
petition states no cause of action, it being an attack on the
legitimacy of the respondent as the child of the spouses
Eugenio Babiera and Hermogena Cariosa Babiera; that
plaintiff has no legal capacity to file the instant petition
pursuant to Article 171 of the Family Code; and finally that the
instant petition is barred by prescription in accordance with
Article 170 of the Family Code." The trial court denied the
motion to dismiss.
Subsequently, "Attys. Padilla, Ulindang and Padilla appeared
and filed an answer/opposition in behalf of private respondent
Teofista Babiera, [who] was later on substituted by Atty. Cabili
as counsel for private respondent."
In the answer filed, TEOFISTA averred "that she was always
known as Teofista Babiera and not Teofista Guinto; that
plaintiff is not the only surviving child of the late spouses
Eugenio Babiera and Hermogena C. Babiera, for the truth of
the matter [is that] plantiff Presentacion B. V. Catotal and
[defendant] Teofista Babiera are sisters of the full-blood. Her
Certificate of Birth, signed by her mother Hermogena Babiera,
. . . Certificate of Baptism, . . . Student's Report Card . . . all
incorporated in her answer, are eloquent testimonies of her
filiation. By way of special and affirmative defenses,
defendant/respondent contended that the petition states no
cause of action, it being an attack on the legitimacy of the
respondent as the child of the spouses Eugenio Babiera and
Hermogena Carioza Babiera; that plaintiff has no legal
capacity to file the instant petition pursuant to Article 171 of
the Family Code; and finally that the instant petition is barred
by prescription in accordance with Article 170 of the Family
Code.5
Ruling of the Court of Appeals

34

The Court of Appeals held that the evidence adduced during

trial proved that petitioner was not the biological child of
Hermogena Babiera. It also ruled that no evidence was
presented to show that Hermogena became pregnant in 1959.
It further observed that she was already 54 years old at the
time, and that her last pregnancy had occurred way back in
1941. The CA noted that the supposed birth took place at
home, notwithstanding the advanced age of Hermogena and
its concomitant medical complications. Moreover, petitioner's
Birth Certificate was not signed by the local civil registrar, and
the signature therein, which was purported to be that of
Hermogena, was different from her other signatures.
The CA also deemed inapplicable Articles 170 and 171 of the
Family Code, which stated that only the father could impugn
the child's legitimacy, and that the same was not subject to a
collateral attack. It held that said provisions contemplated a
situation wherein the husband or his heirs asserted that the
child of the wife was not his. In this case, the action involved
the cancellation of the child's Birth Certificate for being
void ab initio on the ground that the child did not belong to
either the father or the mother.
Hence, this appeal.6
Issues
Petitioner presents the following assignment of errors:
1) Respondent (plaintiff in the lower court a quo) does not
have the legal capacity to file the special proceeding of
appeal under CA GR No. CV-56031 subject matter of this
review on certiorari;
2) The special proceeding on appeal under CA GR No. CV56031 is improper and is barred by [the] statute of limitation
(prescription); [and]
3) The Honorable Court of Appeals, the fifteenth division
utterly failed to hold, that the ancient public record of
petitioner's birth is superior to the self-serving oral testimony
of respondent.7
The Court's Ruling
The Petition is not meritorious.
First Issue: Subject of
the Present Action
Petitioner contends that respondent has no standing to sue,
because Article 1718 of the Family Code states that the child's
filiation can be impugned only by the father or, in special
circumstances, his heirs. She adds that the legitimacy of a
child is not subject to a collateral attack.
This argument is incorrect. Respondent has the requisite
standing to initiate the present action. Section 2, Rule 3 of the
Rules of Court, provides that a real party in interest is one
"who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit." 9 The
interest of respondent in the civil status of petitioner stems
from an action for partition which the latter filed against the
former. 10 The case concerned the properties inherited by
respondent from her parents.
Moreover, Article 171 of the Family Code is not applicable to
the present case. A close reading of this provision shows that
it applies to instances in which the father impugns the
legitimacy of his wife's child. The provision, however,
presupposes that the child was the undisputed offspring of the
mother. The present case alleges and shows that Hermogena
did not give birth to petitioner. In other words, the prayer

herein is not to declare that petitioner is an illegitimate child

of Hermogena, but to establish that the former is not the
latter's child at all. Verily, the present action does not impugn
petitioner's filiation to Spouses Eugenio and Hermogena
Babiera, because there is no blood relation to impugn in the
first place.
In Benitez-Badua v. Court of Appeals,

11

the Court ruled thus:

Petitioner's insistence on the applicability of Articles 164, 166,

170 and 171 of the Family Code to the case at bench cannot
be sustained. These articles provide:
xxx

xxx

xxx

A careful reading of the above articles will show that they do

not contemplate a situation, like in the instant case, where a
child is alleged not to be the child of nature or biological child
of a certain couple. Rather, these articles govern a situation
where a husband (or his heirs) denies as his own a child of his
wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was
physically impossible for him to have sexual intercourse, with
his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for
biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived
insemination, the written authorization or ratification by either
parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce
this reading as they speak of the prescriptive period within
which the husband or any of his heirs should file the action
impugning the legitimacy of said child. Doubtless then, the
appellate court did not err when it refused to apply these
articles to the case at bench. For the case at bench is not one
where the heirs of the late Vicente are contending that
petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not horn to Vicente and
Isabel. Our ruling in Cabatbat-Lim vs. Intermediate Appellate
Court, 166 SCRA 451, 457 cited in the impugned decision is
apropos, viz:
"Petitioners" recourse to Article 263 of the New Civil Code
[now Art. 170 of the Family Code] is not well-taken. This legal
provision refers to an action to impugn legitimacy. It is
inapplicable to this case because this is not an action to
impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their
childless deceased aunt. They do not claim that petitioner
Violeta Cabatbat Lim is an illegitimate child of the deceased,
but that she is not the decedent's child at all. Being neither
[a] legally adopted child, nor an acknowledged natural child,
nor a child by legal fiction of Esperanza Cabatbat, Violeta is
not a legal heir of the deceased. 12(Emphasis supplied.)
Second Issue: Prescription
Petitioner next contends that the action to contest her status
as a child of the late Hermogena Babiera has already
prescribed. She cites Article 170 of the Family Code which
provides the prescriptive period for such action:
Art. 170. The action to impugn the legitimacy of the child shall
be brought within one year from the knowledge of the birth or
its recording in the civil register, if the husband or, in a proper
case, any of his heirs, should reside in the city or municipality
where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside
at the place of birth as defined in the first paragraph or where
it was recorded, the period shall be two years if they should
reside in the Philippines; and three years if abroad. If the birth
of the child has been concealed from or was unknown to the

35

husband or his heirs, the period shall be counted from the

discovery or knowledge of the birth of the child or of the fact
of registration of said birth, whichever is earlier.
This argument is bereft of merit. The present action involves
the cancellation of petitioner's Birth Certificate; it does not
impugn her legitimacy. Thus, the prescriptive period set forth
in Article 170 of the Family Code does not apply. Verily, the
action to nullify the Birth Certificate does not prescribe,
because it was allegedly void ab initio. 1
Third Issue:
Presumption in Favor of the Birth Certificate
Lastly, petitioner argues that the evidence presented,
especially Hermogena's testimony that petitioner was not her
real child, cannot overcome the presumption of regularity in
the issuance of the Birth Certificate.

Relying merely on the assumption of validity of the Birth

Certificate, petitioner has presented no other evidence other
than the said document to show that she is really
Hermogena's child; Neither has she provided any reason why
her supposed mother would make a deposition stating that
the former was not the latter's child at all.
All in all, we find no reason to reverse or modify the factual
finding of the trial and the appellate courts that petitioner was
not the child of respondent's parents.
WHEREFORE, the Petition is hereby DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.

While it is true that an official document such as petitioner's

Birth Certificate enjoys the presumption of regularity, the
specific facts attendant in the case at bar, as well as the
totality of the evidence presented during trial, sufficiently
negate such presumption. First, there were already
irregularities regarding the Birth Certificate itself. It was not
signed by the local civil registrar. 14 More important, the Court
of Appeals observed that the mother's signature therein was
different from her signatures in other documents presented
during the trial.
Second, the circumstances surrounding the birth of petitioner
show that Hermogena is not the former's real mother. For one,
there is no evidence of Hermogena's pregnancy, such as
medical records and doctor's prescriptions, other than the
Birth Certificate itself. In fact, no witness was presented to
attest to the pregnancy of Hermogena during that
time.1awphil Moreover, at the time of her supposed birth,
Hermogena was already 54 years old. Even if it were possible
for her to have given birth at such a late age, it was highly
suspicious that she did so in her own home, when her
advanced age necessitated proper medical care normally
available only in a hospital.
The most significant piece of evidence, however, is the
deposition of Hermogena Babiera which states that she did
not give birth to petitioner, and that the latter was not hers
nor her husband Eugenio's. The deposition reads in part:
q Who are your children?
a Presentation and Florentino Babiera.
q Now, this Teofista Babiera claims that she is your legitimate
child with your husband Eugenio Babiera, what can you say
about that?
a She is not our child.
xxx

xxx

xxx

q Do you recall where she was born?

a In our house because her mother was our house helper.
q Could you recall for how long if ever this Teofista Babiera
lived with you in your residence?
a Maybe in 1978 but she [would] always go ou[t] from time to
time.
q Now, during this time, do you recall if you ever assert[ed]
her as your daughter with your husband?
a No, sir.

15

36

G.R. No. 142877

October 2, 2001

JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE

JESUS minors, represented by their mother, CAROLINA
A. DE JESUS, petitioners,
vs.
THE ESTATE OF DECEDENT JUAN GAMBOA DIZON,
ANGELINA V. DIZON, CARLOS DIZON, FELIFE DIZON,
JUAN DIZON, JR. and MARYLIN DIZON and as proper
parties: FORMS MEDIA CORP., QUAD MANAGEMENT
CORP., FILIPINAS PAPER SALES CO., INC. and AMITY
CONSTRUCTION & INDUSTRIAL ENTERPRISES,
INC. respondents.
VITUG, J.:
The petitioner involves the case of the illegitimate children
who, having been born in lawful wedlock, claim to be the
illegitimate scions of the decedent in order to enforce their
respective shares in the latter's estate under the rules of
succession.
Danilo B. de Jesus and Carolina Aves de Jesus got married
on 23 August 1964. It was during this marriage that Jacqueline
A. de Jesus and Jinkie Christie A. de Jesus, herein petitioners,
were born, the former on 01 March 1979 and the latter on 06
July 1982.
In a notarized document, dated 07 June 1991, Juan G.
Dizon acknowledged Jacqueline and Jinkie de Jesus as being
his own illegitimate children by Carolina Aves de Jesus. Juan G.
Dizon died intestate on 12 March 1992, leaving behind
considerable assets consisting of shares of stock in various
corporations and some real property. It was on the strength of
his notarized acknowledgement that petitioners filed a
complaint on 01 July 1993 for "Partition with Inventory and
Accounting" of the Dizon estate with the Regional Trial Court,
Branch 88, of Quezon City.
Respondent, the surviving spouse and legitimate children of
the decedent Juan G. Dizon, including the corporations of
which the deceased was a stockholder, sought the dismissal
of the case, arguing that the complaint, even while
denominated as being one for partition, would nevertheless
call for altering the status of petitioners from being the
legitimate children of the spouses Danilo de Jesus and
Carolina de Jesus to instead be the illegitimate children of
Carolina de Jesus and deceased Juan Dizon. The trial court
denied, due to lack of merit, the motion to dismiss and
subsequent motion for reconsideration on, respectively, 13
September 1993 and 15 February 1994. Respondents assailed
the denial of said motions before the Court of Appeals.
On 20 May 1994, the appellate court upheld the decision of
the lower court and ordered the case to be remanded to the
trial court for further proceedings. It ruled that the veracity of
the conflicting assertions should be threshed out at the trial
considering that the birth certificates presented by
respondents appeared to have effectively contradicted
petitioners' allegation of illegitimacy.1wphi1.nt
On 03 January 2000, long after submitting their answer, pretrial brief and several other motions, respondents filed an
omnibus motion, again praying for the dismissal of the
complaint on the ground that the action instituted was, in fact,
made to compel the recognition of petitioners as being the
illegitimate children of decedent Juan G. Dizon and that the
partition sought was merely an ulterior relief once petitioners
would have been able the establish their status as such heirs.
It was contended, in fine that an action for partition was not
an appropriate forum to likewise ascertain the question of
paternity and filiation, an issue that could only be taken up in
an independent suit or proceeding.

Finding credence in the argument of respondents, the trial

court, ultimately, dismissed the complaint of petitioners for
lack of cause of action and for being improper.1 It decreed that
the declaration of heirship could only be made in a special
proceeding in asmuch as petitioners were seeking the
establishment of a status or right.
Petitioners assail the foregoing order of the trial court in the
instant petition for review on certiorari. Basically, petitioners
maintain that their recognition as being illegitimate children of
the decedent, embodied in an authentic writing, is in itself
sufficient to establish their status as such and does not
require a separate action for judicial approval following the
doctrine enunciated in Divinagracia vs. Bellosillo.2
In the comment, respondents submit that the rule
in Divinagracia being relied by petitioners is inapplicable to
the case because there has been no attempt to impugn
legitimate filiation in Divinagracia. In praying for the
affirmance of dismissal of the complaint, respondents count
on the case of Sayson vs. Court of Appeals,3 which has ruled
that the issue of legitimacy cannot be questioned in a
complaint for partition and accounting but must be
seasonably brought up in direct action frontally addressing the
issue.
The controversy between the parties has been pending for
much too long, and it is time that this matter draws to a close.
The filiation of illegitimate children, like legitimate children, is
established by (1) the record of birth appearing the civil
register or a final judgement; or (2) an admission of legitimate
filiation in a public document or a private handwritten and
signed by the parent concerned. In the absence thereof,
filiation shall be proved by (1) the open and continuos
possession of the status of a legitimate child; or (2) any other
means allowed by the Rules of Court and special laws. 4 The
due recognition of an illegitimate child in a record of
birth, a will, a statement before a court or record, or in
any authentic writing is, in itself, a consummated act
of acknowledgement of the child, and no further court
action is required.5 In fact, any writing is treated not just a
ground for compulsory recognition; it is in itself voluntary
recognition that does not require a separate action for judicial
approval.6 Where, instead, a claim for recognition is
predicted on other evidence merely tending to prove
paternity, i.e., outside of a record of birth, a will, a
statement before a court or record or an authentic
writing, judicial action within the applicable statue of
limitations is essential in order to establish the child's
acknowledgement.7
A scrutiny of the records would show that petitioners were
born during the marriage of their parents. The certificates of
live would also identify Danilo de Jesus as being their father.
There is perhaps no presumption of the law more firmly
established and founded on sounder morality and more
convincing reason than the presumption that children born in
wedlock are legitimate.8 this presumption indeed
becomes conclusive in the absence of proof that there is
physical impossibility of access between the spouses during
the first 120 days of the 300 days which immediately
precedes the birth of the child due to (a) the physical
incapacity of the husband to have sexual intercourse with his
wife; (b) the fact the husband and wife are living separately in
such a way that sexual intercourse is not possible; or (c)
serious illness of the husband, which absolutely prevents
sexual intercourse.9 Quite remarkably, upon the expiration of
the periods set forth in Article 170,10 and in proper cases
Article 171,11 of the Family Code (which took effect on 03
August 1988), the action to impugn the legitimacy of a child

37

would no longer be legally feasible and the status conferred

by the presumption becomes fixed and unassailable, 12
Succinctly, in an attempt to establish their illegitimate filiation
to the late Juan G. Dizon, petitioners, in effect, would impugn
their legitimate status as being children of Danilo de Jesus and
Carolina Aves de Jesus. This step cannot be aptly done
because the law itself establishes the legitimacy of children
conceived or born during the marriage of the parents. The
presumption of legitimacy fixes a civil status for the
child born in wedlock, and only the father, 13 or in
exceptional instances the latter's heirs,14 can contest in
an appropriate action the legitimacy of a child born to
his wife. Thus, it is only when the legitimacy of a child
has been successfully impugned that the paternity of
the husband can be rejected.
Respondents correctly argued that petitioners hardly could
find succor in Divinagracia. In said case, the Supreme Court
remanded to the trial court for further proceedings the action
for partition filed by an illegitimate child who had claimed to
be an acknowledgement spurious child by virtue of a private
document. Signed by the acknowledging parent, evidencing
such recognition. It was not a case of legitimate children
asserting to be somebody else's illegitimate children.
Petitioners totally ignored the fact that it was not for them,
given the attendant circumstances particularly, to declare that
they could not have been the legitimate children, clearly
opposed to the entries in their respective birth certificates, of
Danilo and Carolina de Jesus.
The rule that the written acknowledgement made by the
deceased Juan G. Dizon establishes petitioners' alleged
illegitimate filiation to the decedent cannot be validly invoked
to be of any relevance in this instance. This issue, i.e whether
petitioners are indeed the acknowledge illegitimate offsprings
of the decedent, cannot be aptly adjudicated without an
action having been first instituted to impugn their legitimacy
as being the children of Danilo B. de Jesus and Carolina Aves
de Jesus born in lawful wedlock. Jurisprudence is strongly
settled that the paramount declaration of legitimacy by law
cannot be attacked collaterally,15 one that can only be
repudiated or contested in a direct suit specifically brought for
that purpose.16 Indeed, a child so born in such wedlock shall
be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced
as having been an adulteress.17
WHEREFORE, the foregoing disquisitions considered, the
instant petition is DENIED. No costs.
SO ORDERED.

38

G.R. No. 138961

March 7, 2002

WILLIAM LIYAO, JR., represented by his mother Corazon

Garcia, petitioner,
vs.
JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN,
TITA ROSE L. TAN AND LINDA CHRISTINA
LIYAO,respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the
decision dated June 4, 1999 of the Court of Appeals in CA-G.R.
C.V. No. 453941 which reversed the decision of the Regional
Trial Court (RTC) of Pasig, Metro Manila, Branch 167 in
declaring William Liyao, Jr. as the illegitimate (spurious) son of
the deceased William Liyao and ordering Juanita Tanhoti-Liyao,
Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina
Liyao to recognize and acknowledge William Liyao, Jr. as a
compulsory heir of the deceased William Liyao and entitled to
all successional rights as such and to pay the costs of the suit.
On November 29,1976, William Liyao, Jr., represented by his
mother Corazon G. Garcia, filed Civil Case No. 24943 before
the RTC of Pasig, Branch 167 which is an action for
compulsory recognition as "the illegitimate (spurious) child of
the late William Liyao" against herein respondents, Juanita
Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda
Christina Liyao.2 The complaint was later amended to include
the allegation that petitioner "was in continuous possession
and enjoyment of the status of the child of said William Liyao,"
petitioner having been "recognized and acknowledged as
such child by the decedent during his lifetime."3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately
from Ramon M. Yulo for more than ten (10) years at the time
of the institution of the said civil case. Corazon cohabited with
the late William Liyao from 1965 up to the time of Williams
untimely demise on December 2, 1975. They lived together in
the company of Corazons two (2) children from her subsisting
marriage, namely:
Enrique and Bernadette, both surnamed Yulo, in a succession
of rented houses in Quezon City and Manila. This was with the
knowledge of William Liyaos legitimate children, Tita Rose L.
Tan and Linda Christina Liyao-Ortiga, from his subsisting
marriage with Juanita Tanhoti Liyao. Tita Rose and Christina
were both employed at the Far East Realty Investment, Inc. of
which Corazon and William were then vice president and
president, respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co.
which required the signature of her husband, Ramon Yulo, to
show his consent to the aforesaid sale. She failed to secure his
signature and, had never been in touch with him despite the
necessity to meet him. Upon the advice of William Liyao, the
sale of the parcel of land located at the Valle Verde
Subdivision was registered under the name of Far East Realty
Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the
Cardinal Santos Memorial Hospital. During her three (3) day
stay at the hospital, William Liyao visited and stayed with her
and the new born baby, William, Jr. (Billy). All the medical and
hospital expenses, food and clothing were paid under the
account of William Liyao. William Liyao even asked his
confidential secretary, Mrs. Virginia Rodriguez, to secure a
copy of Billys birth certificate. He likewise instructed Corazon
to open a bank account for Billy with the Consolidated Bank

and Trust Company4 and gave weekly amounts to be

deposited therein.5 William Liyao would bring Billy to the
office, introduce him as his good looking son and had their
pictures taken together.6
During the lifetime of William Liyao, several pictures were
taken showing, among others, William Liyao and Corazon
together with Billys godfather, Fr. Julian Ruiz, William Liyaos
legal staff and their wives while on vacation in
Baguio.7 Corazon also presented pictures in court to prove
that that she usually accompanied William Liyao while
attending various social gatherings and other important
meetings.8 During the occasion of William Liyaos last birthday
on November 22, 1975 held at the Republic Supermarket,
William Liyao expressly acknowledged Billy as his son in the
presence of Fr. Ruiz, Maurita Pasion and other friends and
said, "Hey, look I am still young, I can still make a good
looking son."9 Since birth, Billy had been in continuous
possession and enjoyment of the status of a recognized
and/or acknowledged child of William Liyao by the latters
direct and overt acts. William Liyao supported Billy and paid
for his food, clothing and other material needs. However, after
William Liyaos death, it was Corazon who provided sole
support to Billy and took care of his tuition fees at La Salle,
Greenhills. William Liyao left his personal belongings,
collections, clothing, old newspaper clippings and laminations
at the house in White Plains where he shared his last
moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she
knew both Corazon G. Garcia and William Liyao who were
godparents to her children. She used to visit Corazon and
William Liyao from 1965-1975. The two children of Corazon
from her marriage to Ramon Yulo, namely, Bernadette and
Enrique (Ike), together with some housemaids lived with
Corazon and William Liyao as one family. On some occasions
like birthdays or some other celebrations, Maurita would sleep
in the couples residence and cook for the family. During these
occasions, she would usually see William Liyao in sleeping
clothes. When Corazon, during the latter part of 1974, was
pregnant with her child Billy, Maurita often visited her three
(3) to four (4) times a week in Greenhills and later on in White
Plains where she would often see William Liyao. Being a close
friend of Corazon, she was at the Cardinal Santos Memorial
Hospital during the birth of Billy. She continuously visited
them at White Plains and knew that William Liyao, while living
with her friend Corazon, gave support by way of grocery
supplies, money for household expenses and matriculation
fees for the two (2) older children, Bernadette and Enrique.
During William Liyaos birthday on November 22, 1975 held at
the Republic Supermarket Office, he was carrying Billy and
told everybody present, including his two (2) daughters from
his legal marriage, "Look, this is my son, very guapo and
healthy."10He then talked about his plan for the baptism of
Billy before Christmas. He intended to make it "engrande" and
"make the bells of San Sebastian Church
ring."11 Unfortunately, this did not happen since William Liyao
passed away on December 2, 1975. Maurita attended Mr.
Liyaos funeral and helped Corazon pack his clothes. She even
recognized a short sleeved shirt of blue and gray12 which Mr.
Liyao wore in a photograph13 as well as another shirt of lime
green14 as belonging to the deceased. A note was also
presented with the following inscriptions: "To Cora, Love From
William."15 Maurita remembered having invited the couple
during her mothers birthday where the couple had their
pictures taken while exhibiting affectionate poses with one
another. Maurita knew that Corazon is still married to Ramon
Yulo since her marriage has not been annulled nor is Corazon
legally separated from her said husband. However, during the
entire cohabitation of William Liyao with Corazon Garcia,

39

Maurita had not seen Ramon Yulo or any other man in the
house when she usually visited Corazon.
Gloria Panopio testified that she is the owner of a beauty
parlor and that she knew that Billy is the son of her neighbors,
William Liyao and Corazon Garcia, the latter being one of her
customers. Gloria met Mr. Liyao at Corazons house in Scout
Delgado, Quezon City in the Christmas of 1965. Gloria had
numerous occasions to see Mr. Liyao from 1966 to 1974 and
even more so when the couple transferred to White Plains,
Quezon City from 1974-1975. At the time Corazon was
conceiving, Mr. Liyao was worried that Corazon might have
another miscarriage so he insisted that she just stay in the
house, play mahjong and not be bored. Gloria taught Corazon
how to play mahjong and together with Atty. Brillantes wife
and sister-in-law, had mahjong sessions among themselves.
Gloria knew that Mr. Liyao provided Corazon with a rented
house, paid the salary of the maids and food for Billy. He also
gave Corazon financial support. Gloria knew that Corazon is
married but is separated from Ramon Yulo although Gloria
never had any occasion to see Mr. Yulo with Corazon in the
house where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his
father, Ramon Yulo, from the time that the latter abandoned
and separated from his family. Enrique was about six (6) years
old when William Liyao started to live with them up to the
time of the latters death on December 2, 1975. Mr. Liyao was
very supportive and fond of Enriques half brother, Billy. He
identified several pictures showing Mr. Liyao carrying Billy at
the house as well as in the office. Enriques testimony was
corroborated by his sister, Bernadette Yulo, who testified that
the various pictures showing Mr. Liyao carrying Billy could not
have been superimposed and that the negatives were in the
possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of
the story.
Linda Christina Liyao-Ortiga stated that her parents, William
Liyao and Juanita Tanhoti-Liyao, were legally married. 16 Linda
grew up and lived with her parents at San Lorenzo Village,
Makati, Metro Manila until she got married; that her parents
were not separated legally or in fact and that there was no
reason why any of her parents would institute legal separation
proceedings in court. Her father lived at their house in San
Lorenzo Village and came home regularly. Even during out of
town business trips or for conferences with the lawyers at the
office, her father would change his clothes at home because
of his personal hygiene and habits. Her father reportedly had
trouble sleeping in other peoples homes. Linda described him
as very conservative and a strict disciplinarian. He believed
that no amount of success would compensate for failure of a
home. As a businessman, he was very tough, strong, fought
for what he believed in and did not give up easily. He suffered
two strokes before the fatal attack which led to his death on
December 2, 1975. He suffered a stroke at the office
sometime in April-May 1974 and was attended by Dr. Santiago
Co. He then stayed in the house for two (2) to three (3)
months for his therapy and acupuncture treatment. He could
not talk, move, walk, write or sign his name. In the meantime,
Linda and her sister, Tita Rose Liyao-Tan, ran the office. She
handled the collection of rents while her sister referred legal
matters to their lawyers. William Liyao was bedridden and had
personally changed. He was not active in business and had
dietary restrictions. Mr. Liyao also suffered a milder stroke
during the latter part of September to October 1974. He
stayed home for two (2) to three (3) days and went back to
work. He felt depressed, however, and was easily bored. He
did not put in long hours in the office unlike before and tried
to spend more time with his family.

Linda testified that she knew Corazon Garcia is still married to

Ramon Yulo. Corazon was not legally separated from her
husband and the records from the Local Civil Registrar do not
indicate that the couple obtained any annulment17 of their
marriage. Once in 1973, Linda chanced upon Ramon Yulo
picking up Corazon Garcia at the company garage.
Immediately after the death of Lindas father, Corazon went to
Lindas office for the return of the formers alleged
investments with the Far East Realty Investment, Inc.
including a parcel of land sold by Ortigas and Company. Linda
added that Corazon, while still a Vice-President of the
company, was able to take out documents, clothes and
several laminated pictures of William Liyao from the office.
There was one instance when she was told by the guards,
"Mrs. Yulo is leaving and taking out things again."18 Linda then
instructed the guards to bring Mrs. Yulo to the office upstairs
but her sister, Tita Rose, decided to let Corazon Garcia go.
Linda did not recognize any article of clothing which belonged
to her father after having been shown three (3) large suit
cases full of mens clothes, underwear, sweaters, shorts and
pajamas.
Tita Rose Liyao-Tan testified that her parents were legally
married and had never been separated. They resided at No.
21 Hernandez Street, San Lorenzo Village, Makati up to the
time of her fathers death on December 2, 1975. 19 Her father
suffered two (2) minor cardio-vascular arrests (CVA) prior to
his death. During the first heart attack sometime between
April and May 1974, his speech and hands were affected and
he had to stay home for two (2) to three (3) months under
strict medication, taking aldomet, serpadil and cifromet which
were prescribed by Dr. Bonifacio Yap, for high blood pressure
and cholesterol level control.20 Tita Rose testified that after the
death of Mr. Liyao, Corazon Garcia was paid the amount of
One Hundred Thousand Pesos (P100,000.00) representing her
investment in the Far East Realty Investment Inc. Tita Rose
also stated that her family never received any formal demand
that they recognize a certain William Liyao, Jr. as an
illegitimate son of her father, William Liyao. After assuming
the position of President of the company, Tita Rose did not
come across any check signed by her late father representing
payment to lessors as rentals for the house occupied by
Corazon Garcia. Tita Rose added that the laminated
photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latters
office.
The last witness who testified for the respondents was Ramon
Pineda, driver and bodyguard of William Liyao from 1962 to
1974, who said that he usually reported for work at San
Lorenzo Village, Makati to pick up his boss at 8:00 oclock in
the morning. At past 7:00 oclock in the evening, either Carlos
Palamigan or Serafin Villacillo took over as night shift driver.
Sometime between April and May 1974, Mr. Liyao got sick. It
was only after a month that he was able to report to the
office. Thereafter, Mr. Liyao was not able to report to the office
regularly. Sometime in September 1974, Mr. Liyao suffered
from another heart attack. Mr. Pineda added that as a driver
and bodyguard of Mr. Liyao, he ran errands for the latter
among which was buying medicine for him
like capasid and aldomet. On December 2, 1975, Mr. Pineda
was called inside the office of Mr. Liyao. Mr. Pineda saw his
employer leaning on the table. He tried to massage Mr.
Liyaos breast and decided later to carry and bring him to the
hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao and
her daughter, Linda Liyao-Ortiga were the first to arrive at the
hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be
one of the employees of the Republic Supermarket. People in
the office knew that she was married. Her husband, Ramon
Yulo, would sometimes go to the office. One time, in 1974, Mr.

40

Pineda saw Ramon Yulo at the office garage as if to fetch

Corazon Garcia. Mr. Yulo who was also asking about cars for
sale, represented himself as car dealer.
Witness Pineda declared that he did not know anything about
the claim of Corazon. He freely relayed the information that
he saw Mr. Yulo in the garage of Republic Supermarket once in
1973 and then in 1974 to Atty. Quisumbing when he went to
the latters law office. Being the driver of Mr. Liyao for a
number of years, Pineda said that he remembered having
driven the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes,
Atty. Magno and Atty. Laguio to Baguio for a vacation together
with the lawyers wives. During his employment, as driver of
Mr. Liyao, he does not remember driving for Corazon Garcia
on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the
dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants as follows:
(a) Confirming the appointment of Corazon G. Garcia as the
guardian ad litem of the minor William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate
(spurious) son of the deceased William Liyao;
(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl
Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to
recognize, and acknowledge the minor William Liyao, Jr. as a
compulsory heir of the deceased William Liyao, entitled to all
succesional rights as such; and
(d) Costs of suit.21
In ruling for herein petitioner, the trial court said it was
convinced by preponderance of evidence that the deceased
William Liyao sired William Liyao, Jr. since the latter was
conceived at the time when Corazon Garcia cohabited with
the deceased. The trial court observed that herein petitioner
had been in continuous possession and enjoyment of the
status of a child of the deceased by direct and overt acts of
the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez;
openly and publicly acknowledging petitioner as his son;
providing sustenance and even introducing herein petitioner
to his legitimate children.
The Court of Appeals, however, reversed the ruling of the trial
court saying that the law favors the legitimacy rather than the
illegitimacy of the child and "the presumption of legitimacy is
thwarted only on ethnic ground and by proof that marital
intimacy between husband and wife was physically impossible
at the period cited in Article 257 in relation to Article 255 of
the Civil Code." The appellate court gave weight to the
testimonies of some witnesses for the respondents that
Corazon Garcia and Ramon Yulo who were still legally married
and have not secured legal separation, were seen in each
others company during the supposed time that Corazon
cohabited with the deceased William Liyao. The appellate
court further noted that the birth certificate and the baptismal
certificate of William Liyao, Jr. which were presented by
petitioner are not sufficient to establish proof of paternity in
the absence of any evidence that the deceased, William Liyao,
had a hand in the preparation of said certificates and
considering that his signature does not appear thereon. The
Court of Appeals stated that neither do family pictures
constitute competent proof of filiation. With regard to the
passbook which was presented as evidence for petitioner, the
appellate court observed that there was nothing in it to prove
that the same was opened by William Liyao for either

petitioner or Corazon Garcia since William Liyaos signature

and name do not appear thereon.
His motion for reconsideration having been denied, petitioner
filed the present petition.
It must be stated at the outset that both petitioner and
respondents have raised a number of issues which relate
solely to the sufficiency of evidence presented by petitioner to
establish his claim of filiation with the late William Liyao.
Unfortunately, both parties have consistently overlooked the
real crux of this litigation: May petitioner impugn his own
legitimacy to be able to claim from the estate of his supposed
father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a
valid marriage is presumed to be legitimate.22The
presumption of legitimacy of children does not only flow out
from a declaration contained in the statute but is based on the
broad principles of natural justice and the supposed virtue of
the mother. The presumption is grounded in a policy to protect
innocent offspring from the odium of illegitimacy.23
The presumption of legitimacy of the child, however, is not
conclusive and consequently, may be overthrown by evidence
to the contrary. Hence, Article 255 of the New Civil
Code24 provides:
Article 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other
than that of the physical impossibility of the husband having
access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the
child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in
such a way that access was not possible;
3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been
living separately for ten (10) years from her husband, Ramon
Yulo, at the time that she cohabited with the late William Liyao
and it was physically impossible for her to have sexual
relations with Ramon Yulo when petitioner was conceived and
born. To bolster his claim, petitioner presented a document
entitled, "Contract of Separation,"25 executed and signed by
Ramon Yulo indicating a waiver of rights to any and all claims
on any property that Corazon Garcia might acquire in the
future.26
The fact that Corazon Garcia had been living separately from
her husband, Ramon Yulo, at the time petitioner was
conceived and born is of no moment. While physical
impossibility for the husband to have sexual intercourse with
his wife is one of the grounds for impugning the legitimacy of
the child, it bears emphasis that the grounds for impugning
the legitimacy of the child mentioned in Article 255 of the Civil
Code may only be invoked by the husband, or in proper cases,
his heirs under the conditions set forth under Article 262 of
the Civil Code.27Impugning the legitimacy of the child is a
strictly personal right of the husband, or in exceptional cases,
his heirs for the simple reason that he is the one directly
confronted with the scandal and ridicule which the infidelity of

41

his wife produces and he should be the one to decide whether

to conceal that infidelity or expose it in view of the moral and
economic interest involved.28 It is only in exceptional cases
that his heirs are allowed to contest such legitimacy. Outside
of these cases, none - even his heirs - can impugn legitimacy;
that would amount o an insult to his memory. 29
It is therefor clear that the present petition initiated by
Corazon G. Garcia as guardian ad litem of the then minor,
herein petitioner, to compel recognition by respondents of
petitioner William Liyao, Jr, as the illegitimate son of the late
William Liyao cannot prosper. It is settled that a child born
within a valid marriage is presumed legitimate even though
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.30 We cannot allow
petitioner to maintain his present petition and subvert the
clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the
legitimacy of a child born in a valid and subsisting marriage.
The child himself cannot choose his own filiation. If the
husband, presumed to be the father does not impugn the
legitimacy of the child, then the status of the child is fixed,
and the latter cannot choose to be the child of his mothers
alleged paramour. On the other hand, if the presumption of
legitimacy is overthrown, the child cannot elect the paternity
of the husband who successfully defeated the presumption. 31
Do the acts of Enrique and Bernadette Yulo, the undisputed
children of Corazon Garcia with Ramon Yulo, in testifying for
herein petitioner amount to impugnation of the legitimacy of
the latter?
We think not. As earlier stated, it is only in exceptional cases
that the heirs of the husband are allowed to contest the
legitimacy of the child. There is nothing on the records to
indicate that Ramon Yulo has already passed away at the time
of the birth of the petitioner nor at the time of the initiation of
this proceedings. Notably, the case at bar was initiated by
petitioner himself through his mother, Corazon Garcia, and
not through Enrique and Bernadette Yulo. It is settled that the
legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties and within the
period limited by law.1wphi1
Considering the foregoing, we find no reason to discuss the
sufficiency of the evidence presented by both parties on the
petitioners claim of alleged filiation with the late William
Liyao. In any event, there is no clear, competent and positive
evidence presented by the petitioner that his alleged father
had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed
decision of the Court of Appeals in CA-G.R. CV No. 45394 is
hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ.,
concur.

42

G.R. No. 123450. August 31, 2005

GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA
ALMONTE, Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity,
needs special safeguard and care, including appropriate legal
protection before as well as after birth.1 In case of assault on
his rights by those who take advantage of his innocence and
vulnerability, the law will rise in his defense with the singleminded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and
private respondent Ma. Theresa Almonte, and a child named
Jose Gerardo. Gerardo and Ma. Theresa were married on
December 29, 1989.2 After their marriage, they lived with Ma.
Theresas parents in Fairview, Quezon City. 3 Almost a year
later, on December 8, 1990, Ma. Theresa gave birth to Jose
Gerardo.4
Gerardo and Ma. Theresas relationship turned out to be shortlived, however. On December 19, 1991, Gerardo filed a
petition to have his marriage to Ma. Theresa annulled on the
ground of bigamy.5 He alleged that nine years before he
married Ma. Theresa on December 10, 1980, she had married
one Mario Gopiao, which marriage was never
annulled.6 Gerardo also found out that Mario was still alive
and was residing in Loyola Heights, Quezon City. 7
Ma. Theresa did not deny marrying Mario when she was
twenty years old. She, however, averred that the marriage
was a sham and that she never lived with Mario at all. 8
The trial court ruled that Ma. Theresas marriage to Mario was
valid and subsisting when she married Gerardo and annulled
her marriage to the latter for being bigamous. It declared Jose
Gerardo to be an illegitimate child as a result. The custody of
the child was awarded to Ma. Theresa while Gerardo was
granted visitation rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had
their marriage annulled. She held him responsible for the
bastardization of Gerardo. She moved for the reconsideration
of the above decision "INSOFAR ONLY as that portion of the
decision which grant(ed) to the petitioner so-called visitation
rights between the hours of 8 in the morning to 12:00 p.m.
of any Sunday."10 She argued that there was nothing in the
law granting "visitation rights in favor of the putative father of
an illegitimate child."11 She further maintained that Jose
Gerardos surname should be changed from Concepcion to
Almonte, her maiden name, following the rule that an
illegitimate child shall use the mothers surname.
Gerardo opposed the motion. He insisted on his visitation
rights and the retention of Concepcion as Jose Gerardos
surname.
Applying the "best interest of the child" principle, the trial
court denied Ma. Theresas motion and made the following
observations:
It is a pity that the parties herein seem to be using their son
to get at or to hurt the other, something they should never do
if they want to assure the normal development and well-being
of the boy.
The Court allowed visitorial rights to the father knowing that
the minor needs a father, especially as he is a boy, who must

have a father figure to recognize something that the mother

alone cannot give. Moreover, the Court believes that the
emotional and psychological well-being of the boy would be
better served if he were allowed to maintain relationships with
his father.
There being no law which compels the Court to act one way or
the other on this matter, the Court invokes the provision of
Art. 8, PD 603 as amended, otherwise known as the Child and
Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and
property of the child, his welfare shall be the paramount
consideration."
WHEREFORE, the respondents Motion for Reconsideration has
to be, as it is hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals,
assigning as error the ruling of the trial court granting
visitation rights to Gerardo. She likewise opposed the
continued use of Gerardos surname (Concepcion) despite the
fact that Jose Gerardo had already been declared illegitimate
and should therefore use her surname (Almonte). The
appellate court denied the petition and affirmed in toto the
decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in
the law that granted a putative father visitation rights over his
illegitimate child, the appellate court affirmed the "best
interest of the child" policy invoked by the court a quo. It ruled
that "[a]t bottom, it (was) the childs welfare and not the
convenience of the parents which (was) the primary
consideration in granting visitation rights a few hours once a
week."14
The appellate court likewise held that an illegitimate child
cannot use the mothers surname motu proprio. The child,
represented by the mother, should file a separate proceeding
for a change of name under Rule 103 of the Rules of Court to
effect the correction in the civil registry. 15
Undaunted, Ma. Theresa moved for the reconsideration of the
adverse decision of the appellate court. She also filed a
motion to set the case for oral arguments so that she could
better ventilate the issues involved in the controversy.
After hearing the oral arguments of the respective counsels of
the parties, the appellate court resolved the motion for
reconsideration. It reversed its earlier ruling and held that Jose
Gerardo was not the son of Ma. Theresa by Gerardo but by
Mario during her first marriage:
It is, therefore, undeniable established by the evidence in
this case that the appellant [Ma. Theresa] was married to
Mario Gopiao, and that she had never entered into a lawful
marriage with the appellee [Gerardo] since the so-called
"marriage" with the latter was void ab initio. It was [Gerardo]
himself who had established these facts. In other words, [Ma.
Theresa] was legitimately married to Mario Gopiao when the
child Jose Gerardo was born on December 8, 1990. Therefore,
the child Jose Gerardo under the law is the legitimate child
of the legal and subsisting marriage between [Ma. Theresa]
and Mario Gopiao; he cannot be deemed to be the illegitimate
child of the void and non-existent marriage between [Ma.
Theresa] and [Gerardo], but is said by the law to be the child
of the legitimate and existing marriage between [Ma. Theresa]
and Mario Gopiao (Art. 164, Family Code). Consequently, [she]
is right in firmly saying that [Gerardo] can claim neither
custody nor visitorial rights over the child Jose Gerardo.
Further, [Gerardo] cannot impose his name upon the child.
Not only is it without legal basis (even supposing the child to
be his illegitimate child [Art. 146, The Family Code]); it would

43

tend to destroy the existing marriage between [Ma. Theresa]

and Gopiao, would prevent any possible rapproachment
between the married couple, and would mean a judicial seal
upon an illegitimate relationship.16
The appellate court brushed aside the common admission of
Gerardo and Ma. Theresa that Jose Gerardo was their son. It
gave little weight to Jose Gerardos birth certificate showing
that he was born a little less than a year after Gerardo and
Ma. Theresa were married:
We are not unaware of the movants argument that various
evidence exist that appellee and the appellant have judicially
admitted that the minor is their natural child. But, in the same
vein, We cannot overlook the fact that Article 167 of the
Family Code mandates:
"The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been
sentenced as an adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor
cannot be deprived of his/her legitimate status on the bare
declaration of the mother and/or even much less, the
supposed father. In fine, the law and only the law
determines who are the legitimate or illegitimate
children for ones legitimacy or illegitimacy cannot
ever be compromised. Not even the birth certificate of the
minor can change his status for the information contained
therein are merely supplied by the mother and/or the
supposed father. It should be what the law says and not
what a parent says it is.17 (Emphasis supplied)
Shocked and stunned, Gerardo moved for a reconsideration of
the above decision but the same was denied. 18Hence, this
appeal.
The status and filiation of a child cannot be
compromised.19 Article 164 of the Family Code is clear. A child
who is conceived or born during the marriage of his parents is
legitimate.20
As a guaranty in favor of the child21 and to protect his status
of legitimacy, Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although
the mother may have declared against its legitimacy or may
have been sentenced as an adulteress.
The law requires that every reasonable presumption be made
in favor of legitimacy.22 We explained the rationale of this rule
in the recent case of Cabatania v. Court of Appeals23:
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles
of natural justice and the supposed virtue of the mother. It is
grounded on the policy to protect the innocent offspring from
the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He
cannot. He has no standing in law to dispute the status of Jose
Gerardo. Only Ma. Theresas husband Mario or, in a proper
case,25 his heirs, who can contest the legitimacy of the child
Jose Gerardo born to his wife.26 Impugning the legitimacy of a
child is a strictly personal right of the husband or, in
exceptional cases, his heirs.27 Since the marriage of Gerardo
and Ma. Theresa was void from the very beginning, he never
became her husband and thus never acquired any right to
impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union
in marriage, particularly during the period of conception.28 To
overthrow this presumption on the basis of Article 166 (1)(b)

of the Family Code, it must be shown beyond reasonable

doubt that there was no access that could have enabled the
husband to father the child.29 Sexual intercourse is to be
presumed where personal access is not disproved, unless
such presumption is rebutted by evidence to the contrary. 30
The presumption is quasi-conclusive and may be refuted only
by the evidence of physical impossibility of coitus between
husband and wife within the first 120 days of the 300 days
which immediately preceded the birth of the child. 31
To rebut the presumption, the separation between the
spouses must be such as to make marital intimacy
impossible.32 This may take place, for instance, when they
reside in different countries or provinces and they were never
together during the period of conception.33 Or, the husband
was in prison during the period of conception, unless it
appears that sexual union took place through the violation of
prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were
living together in Fairview, Quezon City, Mario was living in
Loyola Heights which is also in Quezon City. Fairview and
Loyola Heights are only a scant four kilometers apart.
Not only did both Ma. Theresa and Mario reside in the same
city but also that no evidence at all was presented to disprove
personal access between them. Considering these
circumstances, the separation between Ma. Theresa and her
lawful husband, Mario, was certainly not such as to make it
physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence
sufficient to defeat the assumption should be presented by
him who asserts the contrary. There is no such evidence here.
Thus, the presumption of legitimacy in favor of Jose Gerardo,
as the issue of the marriage between Ma. Theresa and Mario,
stands.
Gerardo relies on Ma. Theresas statement in her answer 35 to
the petition for annulment of marriage36 that she never lived
with Mario. He claims this was an admission that there was
never any sexual relation between her and Mario, an
admission that was binding on her.
Gerardos argument is without merit.
First, the import of Ma. Theresas statement is that Jose
Gerardo is not her legitimate son with Mario but her
illegitimate son with Gerardo. This declaration an avowal by
the mother that her child is illegitimate is the very
declaration that is proscribed by Article 167 of the Family
Code.
The language of the law is unmistakable. An assertion by the
mother against the legitimacy of her child cannot affect the
legitimacy of a child born or conceived within a valid
marriage.
Second, even assuming the truth of her statement, it does not
mean that there was never an instance where Ma. Theresa
could have been together with Mario or that there occurred
absolutely no intercourse between them. All she said was that
she never lived with Mario. She never claimed that nothing
ever happened between them.
Telling is the fact that both of them were living in Quezon City
during the time material to Jose Gerardos conception and
birth. Far from foreclosing the possibility of marital intimacy,
their proximity to each other only serves to reinforce such
possibility. Thus, the impossibility of physical access was
never established beyond reasonable doubt.

44

Third, to give credence to Ma. Theresas statement is to allow

her to arrogate unto herself a right exclusively lodged in the
husband, or in a proper case, his heirs.37 A mother has no
right to disavow a child because maternity is never
uncertain.38 Hence, Ma. Theresa is not permitted by law to
question Jose Gerardos legitimacy.
Finally, for reasons of public decency and morality, a married
woman cannot say that she had no intercourse with her
husband and that her offspring is illegitimate.39 The
proscription is in consonance with the presumption in favor of
family solidarity. It also promotes the intention of the law to
lean toward the legitimacy of children.40
Gerardos insistence that the filiation of Jose Gerardo was
never an issue both in the trial court and in the appellate
court does not hold water. The fact that both Ma. Theresa and
Gerardo admitted and agreed that Jose Gerardo was born to
them was immaterial. That was, in effect, an agreement that
the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the
mother to make a declaration against the legitimacy of her
child and consenting to the denial of filiation of the child by
persons other than her husband. These are the very acts from
which the law seeks to shield the child.
Public policy demands that there be no compromise on the
status and filiation of a child.41 Otherwise, the child will be at
the mercy of those who may be so minded to exploit his
defenselessness.
The reliance of Gerardo on Jose Gerardos birth certificate is
misplaced. It has no evidentiary value in this case because it
was not offered in evidence before the trial court. The rule is
that the court shall not consider any evidence which has not
been formally offered.42
Moreover, the law itself establishes the status of a child from
the moment of his birth.43 Although a record of birth or birth
certificate may be used as primary evidence of the filiation of
a child,44 as the status of a child is determined by the law
itself, proof of filiation is necessary only when the legitimacy
of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is
sought to be established.45
Here, the status of Jose Gerardo as a legitimate child was not
under attack as it could not be contested collaterally and,
even then, only by the husband or, in extraordinary cases, his
heirs. Hence, the presentation of proof of legitimacy in this
case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of
the facts contained therein.46 As prima facieevidence, the
statements in the record of birth may be rebutted by more
preponderant evidence. It is not conclusive evidence with
respect to the truthfulness of the statements made therein by
the interested parties.47Between the certificate of birth which
is prima facie evidence of Jose Gerardos illegitimacy and the
quasi-conclusive presumption of law (rebuttable only by proof
beyond reasonable doubt) of his legitimacy, the latter shall
prevail. Not only does it bear more weight, it is also more
conducive to the best interests of the child and in consonance
with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would
doggedly press for Jose Gerardos illegitimacy while claiming
that they both had the childs interests at heart. The law,
reason and common sense dictate that a legitimate status is
more favorable to the child. In the eyes of the law, the
legitimate child enjoys a preferred and superior status. He is
entitled to bear the surnames of both his father and mother,
full support and full inheritance.48 On the other hand, an

illegitimate child is bound to use the surname and be under

the parental authority only of his mother. He can claim
support only from a more limited group and his legitime is
only half of that of his legitimate counterpart.49 Moreover
(without unwittingly exacerbating the discrimination against
him), in the eyes of society, a bastard is usually regarded as
bearing a stigma or mark of dishonor. Needless to state, the
legitimacy presumptively vested by law upon Jose Gerardo
favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the
bitter squabble between the very persons who were
passionately declaring their concern for him. The paradox was
that he was made to suffer supposedly for his own sake. This
madness should end.
This case has been pending for a very long time already. What
is specially tragic is that an innocent child is involved. Jose
Gerardo was barely a year old when these proceedings began.
He is now almost fifteen and all this time he has been a victim
of incessant bickering. The law now comes to his aid to write
finis to the controversy which has unfairly hounded him since
his infancy.
Having only his best interests in mind, we uphold the
presumption of his legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear
the surnames of his father Mario and mother Ma. Theresa, in
conformity with the provisions of the Civil Code on
surnames.50 A persons surname or family name identifies the
family to which he belongs and is passed on from parent to
child.51 Hence, Gerardo cannot impose his surname on Jose
Gerardo who is, in the eyes of the law, not related to him in
any way.
The matter of changing Jose Gerardos name and effecting the
corrections of the entries in the civil register regarding his
paternity and filiation should be threshed out in a separate
proceeding.
In case of annulment or declaration of absolute nullity of
marriage, Article 49 of the Family Code grants visitation rights
to a parent who is deprived of custody of his children. Such
visitation rights flow from the natural right of both parent and
child to each others company. There being no such parentchild relationship between them, Gerardo has no legally
demandable right to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of
PD 603, otherwise known as the Child and Youth Welfare
Code, is clear and unequivocal:
Article 8. Childs Welfare Paramount. In all questions
regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of
a Child of which the Philippines is a signatory is similarly
emphatic:
Article 3
1. In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
The State as parens patriae affords special protection to
children from abuse, exploitation and other conditions
prejudicial to their development. It is mandated to provide
protection to those of tender years.52 Through its laws, the
State safeguards them from every one, even their own

45

parents, to the end that their eventual development as

responsible citizens and members of society shall not be
impeded, distracted or impaired by family acrimony. This is
especially significant where, as in this case, the issue
concerns their filiation as it strikes at their very identity and
lineage.
WHEREFORE, the petition is hereby DENIED. The September
14, 1995 and January 10, 1996 resolutions of the Court of
Appeals in CA-G.R. CV No. 40651 are hereby AFFIRMED.
Costs against petitioner.
SO ORDERED.

46

G.R. No. 171713

December 17, 2007

ESTATE OF ROGELIO G. ONG, petitioner,

vs.
Minor JOANNE RODJIN DIAZ, Represented by Her
Mother and Guardian, Jinky C. Diaz, respondent.
DECISION
CHICO-NAZARIO, J.:
This is a petition for Review on Certiorari under Rule 45 of the
Revised Rules of Civil Procedure assailing (1) the Decision 1 of
the Court of Appeals dated 23 November 2005 and (2) the
Resolution2 of the same court dated 1 March 2006 denying
petitioners Motion for Reconsideration in CA-G.R. CV No.
70125.
A Complaint3 for compulsory recognition with prayer for
support pending litigation was filed by minor Joanne Rodjin
Diaz (Joanne), represented by her mother and guardian, Jinky
C. Diaz (Jinky), against Rogelio G. Ong (Rogelio) before the
Regional Trial Court (RTC) of Tarlac City. In her Complaint, Jinky
prayed that judgment be rendered:
(a) Ordering defendant to recognize plaintiff Joanne Rodjin
Diaz as his daughter.
(b) Ordering defendant to give plaintiff monthly support
of P20,000.00 pendente lite and thereafter to fix monthly
support.
(c) Ordering the defendant to pay plaintiff attorneys fees in
the sum of P100,000.00.
(d) Granting plaintiff such other measure of relief as maybe
just and equitable in the premises.4
As alleged by Jinky in her Complaint in November 1993 in
Tarlac City, she and Rogelio got acquainted. This developed
into friendship and later blossomed into love. At this time,
Jinky was already married to a Japanese national, Hasegawa
Katsuo, in a civil wedding solemnized on 19 February 1993 by
Municipal Trial Court Judge Panfilo V. Valdez.5
From January 1994 to September 1998, Jinky and Rogelio
cohabited and lived together at Fairlane Subdivision, and later
at Capitol Garden, Tarlac City.
From this live-in relationship, minor Joanne Rodjin Diaz was
conceived and on 25 February 1998 was born at the Central
Luzon Doctors Hospital, Tarlac City.
Rogelio brought Jinky to the hospital and took minor Joanne
and Jinky home after delivery. Rogelio paid all the hospital bills
and the baptismal expenses and provided for all of minor
Joannes needs recognizing the child as his.
In September 1998, Rogelio abandoned minor Joanne and
Jinky, and stopped supporting minor Joanne, falsely alleging
that he is not the father of the child.
Rogelio, despite Jinkys remonstrance, failed and refused and
continued failing and refusing to give support for the child and
to acknowledge her as his daughter, thus leading to the filing
of the heretofore adverted complaint.
After summons had been duly served upon Rogelio, the latter
failed to file any responsive pleading despite repeated
motions for extension, prompting the trial court to declare him
in default in its Order dated 7 April 1999. Rogelios Answer
with Counterclaim and Special and Affirmative Defenses was
received by the trial court only on 15 April 1999. Jinky was
allowed to present her evidence ex parte on the basis of

which the trial court on 23 April 1999 rendered a decision

granting the reliefs prayed for in the complaint.
In its Decision6 dated 23 April 1999, the RTC held:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to recognize plaintiff as his natural
child;
2. Ordering defendant to provide plaintiff with a monthly
support of P10,000.00 and further
3. Ordering defendant to pay reasonable attorneys fees in the
amount of P5,000.00 and the cost of the suit.
On 28 April 1999, Rogelio filed a motion to lift the order of
default and a motion for reconsideration seeking the courts
understanding, as he was then in a quandary on what to do to
find a solution to a very difficult problem of his life. 7
On 29 April 1999, Rogelio filed a motion for new trial with
prayer that the decision of the trial court dated 23 April 1999
be vacated and the case be considered for trial de novo
pursuant to the provisions of Section 6, Rule 37 of the 1997
Rules of Civil Procedure.8
On 16 June 1999, the RTC issued an Order granting Rogelios
Motion for New Trial:
WHEREFORE, finding defendants motion for new trial to be
impressed with merit, the same is hereby granted.
The Order of this court declaring defendant in default and the
decision is this court dated April 23, 1999 are hereby set aside
but the evidence adduced shall remain in record, subject to
cross-examination by defendant at the appropriate stage of
the proceedings.
In the meantime defendants answer is hereby admitted,
subject to the right of plaintiff to file a reply and/or answer to
defendants counterclaim within the period fixed by the Rules
of Court.
Acting on plaintiffs application for support pendente lite
which this court finds to be warranted, defendant is hereby
ordered to pay to plaintiff immediately the sum of P2,000.00 a
month from January 15, 1999 to May 1999 as support
pendente lite in arrears and the amount of P4,000.00 every
month thereafter as regular support pendente lite during the
pendency of this case.9
The RTC finally held:
The only issue to be resolved is whether or not the defendant
is the father of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiffs mother Jinky Diaz
was married at the time of the birth of Joanne Rodjin Diaz, the
law presumes that Joanne is a legitimate child of the spouses
Hasegawa Katsuo and Jinky Diaz (Article 164, Family Code).
The child is still presumed legitimate even if the mother may
have declared against her legitimacy (Article 167, Ibid).
The legitimacy of a child may be impugned only on the
following grounds provided for in Article 166 of the same
Code. Paragraph 1 of the said Article provides that there must
be physical impossibility for the husband to have sexual
intercourse with the wife within the first 120 days of the 300
days following the birth of the child because of
a) physical incapacity of the husband to have sexual
intercourse with his wife;

47

b) husband and wife were living separately in such a way that

sexual intercourse was not possible;
c) serious illness of the husband which prevented sexual
intercourse.
It was established by evidence that the husband is a Japanese
national and that he was living outside of the country (TSN,
Aug. 27, 1999, page 5) and he comes home only once a year.
Both evidence of the parties proved that the husband was
outside the country and no evidence was shown that he ever
arrived in the country in the year 1997 preceding the birth of
plaintiff Joanne Rodjin Diaz.
While it may also be argued that plaintiff Jinky had a
relationship with another man before she met the defendant,
there is no evidence that she also had sexual relations with
other men on or about the conception of Joanne Rodjin.
Joanne Rodjin was her second child (see Exh. "A"), so her first
child, a certain Nicole (according to defendant) must have a
different father or may be the son of Hasegawa K[u]tsuo.
The defendant admitted having been the one who shouldered
the hospital bills representing the expenses in connection with
the birth of plaintiff. It is an evidence of admission that he is
the real father of plaintiff. Defendant also admitted that even
when he stopped going out with Jinky, he and Jinky used to go
to motels even after 1996. Defendant also admitted that on
some instances, he still used to see Jinky after the birth of
Joanne Rodjin. Defendant was even the one who fetched Jinky
after she gave birth to Joanne.
On the strength of this evidence, the Court finds that Joanne
Rodjin is the child of Jinky and defendant Rogelio Ong and it is
but just that the latter should support plaintiff. 10
On 15 December 2000, the RTC rendered a decision and
disposed:
WHEREFORE, judgment is hereby rendered declaring Joanne
Rodjin Diaz to be the illegitimate child of defendant Rogelio
Ong with plaintiff Jinky Diaz. The Order of this Court awarding
support pendente lite dated June 15, 1999, is hereby affirmed
and that the support should continue until Joanne Rodjin Diaz
shall have reached majority age.11
Rogelio filed a Motion for Reconsideration, which was denied
for lack of merit in an Order of the trial court dated 19 January
2001.12 From the denial of his Motion for Reconsideration,
Rogelio appealed to the Court of Appeals. After all the
responsive pleadings had been filed, the case was submitted
for decision and ordered re-raffled to another Justice for study
and report as early as 12 July 2002.13
During the pendency of the case with the Court of Appeals,
Rogelios counsel filed a manifestation informing the Court
that Rogelio died on 21 February 2005; hence, a Notice of
Substitution was filed by said counsel praying that Rogelio be
substituted in the case by the Estate of Rogelio Ong,14 which
motion was accordingly granted by the Court of Appeals. 15
In a Decision dated 23 November 2005, the Court of Appeals
held:
WHEREFORE, premises considered, the present appeal is
hereby GRANTED. The appealed Decision dated December 15,
2000 of the Regional Trial Court of Tarlac, Tarlac, Branch 63 in
Civil Case No. 8799 is hereby SET ASIDE. The case is hereby
REMANDED to the court a quo for the issuance of an order
directing the parties to make arrangements for DNA analysis
for the purpose of determining the paternity of plaintiff minor
Joanne Rodjin Diaz, upon consultation and in coordination with
laboratories and experts on the field of DNA analysis.

No pronouncement as to costs.16
Petitioner filed a Motion for Reconsideration which was denied
by the Court of Appeals in a Resolution dated 1 March 2006.
In disposing as it did, the Court of Appeals justified its
Decision as follows:
In this case, records showed that the late defendant-appellant
Rogelio G. Ong, in the early stage of the proceedings
volunteered and suggested that he and plaintiffs mother
submit themselves to a DNA or blood testing to settle the
issue of paternity, as a sign of good faith. However, the trial
court did not consider resorting to this modern scientific
procedure notwithstanding the repeated denials of defendant
that he is the biological father of the plaintiff even as he
admitted having actual sexual relations with plaintiffs mother.
We believe that DNA paternity testing, as current
jurisprudence affirms, would be the most reliable and effective
method of settling the present paternity dispute. Considering,
however, the untimely demise of defendant-appellant during
the pendency of this appeal, the trial court, in consultation
with out laboratories and experts on the field of DNA analysis,
can possibly avail of such procedure with whatever remaining
DNA samples from the deceased defendant alleged to be the
putative father of plaintiff minor whose illegitimate filiations is
the subject of this action for support.17
Hence, this petition which raises the following issues for
resolution:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
DID NOT DISMISS RESPONDENTS COMPLAINT FOR
COMPULSORY RECOGNITION DESPITE ITS FINDING THAT THE
EVIDENCE PRESENTED FAILED TO PROVE THAT ROGELIO G.
ONG WAS HER FATHER.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
DID NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD
OF JINKY C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING
THAT RESPONDENT FAILED TO REBUT THE PRESUMPTION OF
HER LEGITIMACY.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
REMANDED THE CASE TO THE COURT A QUO FOR DNA
ANALYSIS DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE
DUE TO THE DEATH OF ROGELIO G. ONG.18
Petitioner prays that the present petition be given due course
and the Decision of the Court of Appeals dated November 23,
2005 be modified, by setting aside the judgment remanding
the case to the trial court for DNA testing analysis, by
dismissing the complaint of minor Joanne for compulsory
recognition, and by declaring the minor as the legitimate child
of Jinky and Hasegawa Katsuo.19
From among the issues presented for our disposition, this
Court finds it prudent to concentrate its attention on the third
one, the propriety of the appellate courts decision remanding
the case to the trial court for the conduct of DNA testing.
Considering that a definitive result of the DNA testing will
decisively lay to rest the issue of the filiation of minor Joanne,
we see no reason to resolve the first two issues raised by the
petitioner as they will be rendered moot by the result of the
DNA testing.

48

As a whole, the present petition calls for the determination of

filiation of minor Joanne for purposes of support in favor of the
said minor.
Filiation proceedings are usually filed not just to adjudicate
paternity but also to secure a legal right associated with
paternity, such as citizenship, support (as in the present
case), or inheritance. The burden of proving paternity is on
the person who alleges that the putative father is the
biological father of the child. There are four significant
procedural aspects of a traditional paternity action which
parties have to face: a prima facie case, affirmative defenses,
presumption of legitimacy, and physical resemblance between
the putative father and child.20
A child born to a husband and wife during a valid marriage is
presumed legitimate.21 As a guaranty in favor of the child and
to protect his status of legitimacy, Article 167 of the Family
Code provides:
Article 167. The children shall be considered legitimate
although the mother may have declared against its legitimacy
or may have been sentenced as an adulteress.
The law requires that every reasonable presumption be made
in favor of legitimacy. We explained the rationale of this rule in
the recent case of Cabatania v. Court of Appeals 22:
The presumption of legitimacy does not only flow out of a
declaration in the statute but is based on the broad principles
of natural justice and the supposed virtue of the mother. The
presumption is grounded on the policy to protect the innocent
offspring from the odium of illegitimacy.
The presumption of legitimacy of the child, however, is not
conclusive and consequently, may be overthrown by evidence
to the contrary. Hence, Article 255 of the New Civil
Code23 provides:
Article 255. Children born after one hundred and eighty days
following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the
spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other
than that of the physical impossibility of the husbands having
access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the
child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in
such a way that access was not possible;
3) By the serious illness of the husband.24
The relevant provisions of the Family Code provide as follows:
ART. 172. The filiation of legitimate children is established by
any of the following:
(1) The record of birth appearing in the civil register or a final
judgment; or
(2) An admission of legitimate filiation in a public document or
a private handwritten instrument and signed by the parent
concerned.
In the absence of the foregoing evidence, the legitimate
filiation shall be proved by:

(1) The open and continuous possession of the status of a

legitimate child; or
(2) Any other means allowed by the Rules of Court and special
laws.
ART. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as
legitimate children.
There had been divergent and incongruent statements and
assertions bandied about by the parties to the present
petition. But with the advancement in the field of genetics,
and the availability of new technology, it can now be
determined with reasonable certainty whether Rogelio is the
biological father of the minor, through DNA testing.
DNA is the fundamental building block of a persons entire
genetic make-up. DNA is found in all human cells and is the
same in every cell of the same person. Genetic identity is
unique. Hence, a persons DNA profile can determine his
identity.25
DNA analysis is a procedure in which DNA extracted from a
biological sample obtained from an individual is examined.
The DNA is processed to generate a pattern, or a DNA profile,
for the individual from whom the sample is taken. This DNA
profile is unique for each person, except for identical twins.
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except
in the rare occurrence of identical twins that share a single,
fertilized egg), and DNA is unchanging throughout life. Being a
component of every cell in the human body, the DNA of an
individuals blood is the very DNA in his or her skin cells, hair
follicles, muscles, semen, samples from buccal swabs, saliva,
or other body parts.
The chemical structure of DNA has four bases. They are
known as A (Adenine), G (guanine), C (cystosine) and T
(thymine). The order in which the four bases appear in an
individuals DNA determines his or her physical make up. And
since DNA is a double stranded molecule, it is composed of
two specific paired bases, A-T or T-A and G-C or C-G. These are
called "genes."
Every gene has a certain number of the above base pairs
distributed in a particular sequence. This gives a person his or
her genetic code. Somewhere in the DNA framework,
nonetheless, are sections that differ. They are known as
"polymorphic loci," which are the areas analyzed in DNA
typing (profiling, tests, fingerprinting). In other words, DNA
typing simply means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample obtained
or extracted, a molecular biologist may proceed to analyze it
in several ways. There are five (5) techniques to conduct DNA
typing. They are: the RFLP (restriction fragment length
polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which
was used in 287 cases that were admitted as evidence by 37
courts in the U.S. as of November 1994; DNA process; VNTR
(variable number tandem repeats); and the most recent which
is known as the PCR-([polymerase] chain reaction) based STR
(short tandem repeats) method which, as of 1996, was availed
of by most forensic laboratories in the world. PCR is the
process of replicating or copying DNA in an evidence sample a
million times through repeated cycling of a reaction involving
the so-called DNA polymerize enzyme. STR, on the other
hand, takes measurements in 13 separate places and can
match two (2) samples with a reported theoretical error rate
of less than one (1) in a trillion.

49

Just like in fingerprint analysis, in DNA typing, "matches" are

determined. To illustrate, when DNA or fingerprint tests are
done to identify a suspect in a criminal case, the evidence
collected from the crime scene is compared with the "known"
print. If a substantial amount of the identifying features are
the same, the DNA or fingerprint is deemed to be a match.
But then, even if only one feature of the DNA or fingerprint is
different, it is deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show
variations between people. In each of these regions, a person
possesses two genetic types called "allele," one inherited from
each parent. In [a] paternity test, the forensic scientist looks
at a number of these variable regions in an individual to
produce a DNA profile. Comparing next the DNA profiles of the
mother and child, it is possible to determine which half of the
childs DNA was inherited from the mother. The other half
must have been inherited from the biological father. The
alleged fathers profile is then examined to ascertain whether
he has the DNA types in his profile, which match the paternal
types in the child. If the mans DNA types do not match that of
the child, the man is excluded as the father. If the DNA types
match, then he is not excluded as the father.26
In the newly promulgated rules on DNA evidence it is
provided:
SEC. 3 Definition of Terms. For purposes of this Rule, the
following terms shall be defined as follows:
xxxx
(c) "DNA evidence" constitutes the totality of the DNA profiles,
results and other genetic information directly generated from
DNA testing of biological samples;
(d) "DNA profile" means genetic information derived from DNA
testing of a biological sample obtained from a person, which
biological sample is clearly identifiable as originating from
that person;
(e) "DNA testing" means verified and credible scientific
methods which include the extraction of DNA from biological
samples, the generation of DNA profiles and the comparison
of the information obtained from the DNA testing of biological
samples for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from two or more
distinct biological samples originates from the same person
(direct identification) or if the biological samples originate
from related persons (kinship analysis); and
(f) "Probability of Parentage" means the numerical estimate
for the likelihood of parentage of a putative parent compared
with the probability of a random match of two unrelated
individuals in a given population.
Amidst the protestation of petitioner against the DNA analysis,
the resolution thereof may provide the definitive key to the
resolution of the issue of support for minor Joanne. Our
articulation in Agustin v. Court of Appeals27 is particularly
relevant, thus:
Our faith in DNA testing, however, was not quite so steadfast
in the previous decade. In Pe Lim v. Court of Appeals (336 Phil.
741, 270 SCRA 1), promulgated in 1997, we cautioned against
the use of DNA because "DNA, being a relatively new science,
(had) not as yet been accorded official recognition by our
courts. Paternity (would) still have to be resolved by such
conventional evidence as the relevant incriminating
acts,verbal and written, by the putative father."

In 2001, however, we opened the possibility of admitting DNA

as evidence of parentage, as enunciated inTijing v. Court of
Appeals [G.R. No. 125901, 8 March 2001, 354 SCRA 17]:
x x x Parentage will still be resolved using conventional
methods unless we adopt the modern and scientific ways
available. Fortunately, we have now the facility and expertise
in using DNA test for identification and parentage testing. The
University of the Philippines Natural Science Research
Institute (UP-NSRI) DNA Analysis Laboratory has now the
capability to conduct DNA typing using short tandem repeat
(STR) analysis. The analysis is based on the fact that the DNA
of a child/person has two (2) copies, one copy from the
mother and the other from the father. The DNA from the
mother, the alleged father and child are analyzed to establish
parentage. Of course, being a novel scientific technique, the
use of DNA test as evidence is still open to challenge.
Eventually, as the appropriate case comes, courts should not
hesitate to rule on the admissibility of DNA evidence. For it
was said, that courts should apply the results of science when
competently obtained in aid of situations presented, since to
reject said results is to deny progress.
The first real breakthrough of DNA as admissible and
authoritative evidence in Philippine jurisprudence came in
2002 with out en banc decision in People v. Vallejo [G.R. No.
144656, 9 May 2002, 382 SCRA 192] where the rape and
murder victims DNA samples from the bloodstained clothes of
the accused were admitted in evidence. We reasoned that
"the purpose of DNA testing (was) to ascertain whether an
association exist(ed) between the evidence sample and the
reference sample. The samples collected (were) subjected to
various chemical processes to establish their profile.
A year later, in People v. Janson [G.R. No. 125938, 4 April
2003, 400 SCRA 584], we acquitted the accused charged with
rape for lack of evidence because "doubts persist(ed) in our
mind as to who (were) the real malefactors. Yes, a complex
offense (had) been perpetrated but who (were) the
perpetrators? How we wish we had DNA or other scientific
evidence to still our doubts."
In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434,
161634 and 161824, 3 March 2004, 424 SCRA 277], where the
Court en banc was faced with the issue of filiation of then
presidential candidate Fernando Poe, Jr., we stated:
In case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body
cells of the illegitimate child and any physical residue of the
long dead parent could be resorted to. A positive match would
clear up filiation or paternity. In Tijing v. Court of Appeals, this
Court has acknowledged the strong weight of DNA testing...
Moreover, in our en banc decision in People v. Yatar [G.R. No.
150224, 19 May 2004, 428 SCRA 504], we affirmed the
conviction of the accused for rape with homicide, the principal
evidence for which included DNA test results. x x x.
Coming now to the issue of remand of the case to the trial
court, petitioner questions the appropriateness of the order by
the Court of Appeals directing the remand of the case to the
RTC for DNA testing given that petitioner has already died.
Petitioner argues that a remand of the case to the RTC for
DNA analysis is no longer feasible due to the death of Rogelio.
To our mind, the alleged impossibility of complying with the
order of remand for purposes of DNA testing is more
ostensible than real. Petitioners argument is without basis
especially as the New Rules on DNA Evidence28 allows the
conduct of DNA testing, either motu proprio or upon

50

application of any person who has a legal interest in the

matter in litigation, thus:
SEC. 4. Application for DNA Testing Order. The appropriate
court may, at any time, either motu proprio or on application
of any person who has a legal interest in the matter in
litigation, order a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to
the type of DNA testing now requested; or (ii) was previously
subjected to DNA testing, but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;

x x x [F]or too long, illegitimate children have been

marginalized by fathers who choose to deny their existence.
The growing sophistication of DNA testing technology finally
provides a much needed equalizer for such ostracized and
abandoned progeny. We have long believed in the merits of
DNA testing and have repeatedly expressed as much in the
past. This case comes at a perfect time when DNA testing has
finally evolved into a dependable and authoritative form of
evidence gathering. We therefore take this opportunity to
forcefully reiterate our stand that DNA testing is a valid means
of determining paternity.
WHEREFORE, the instant petition is DENIED for lack of
merit. The Decision of the Court of Appeals dated 23
November 2005 and its Resolution dated 1 March 2006
are AFFIRMED. Costs against petitioner.
SO ORDERED.

(d) The DNA testing has the scientific potential to produce

new information that is relevant to the proper resolution of the
case; and
(e) The existence of other factors, if any, which the court may
consider as potentially affecting the accuracy or integrity of
the DNA testing.
From the foregoing, it can be said that the death of the
petitioner does not ipso facto negate the application of DNA
testing for as long as there exist appropriate biological
samples of his DNA.
As defined above, the term "biological sample" means any
organic material originating from a persons body, even if
found in inanimate objects, that is susceptible to DNA testing.
This includes blood, saliva, and other body fluids, tissues,
hairs and bones.29
Thus, even if Rogelio already died, any of the biological
samples as enumerated above as may be available, may be
used for DNA testing. In this case, petitioner has not shown
the impossibility of obtaining an appropriate biological sample
that can be utilized for the conduct of DNA testing.
And even the death of Rogelio cannot bar the conduct of DNA
testing. In People v. Umanito,30 citing Tecson v. Commission on
Elections,31 this Court held:
The 2004 case of Tecson v. Commission on Elections [G.R. No.
161434, 3 March 2004, 424 SCRA 277] likewise reiterated the
acceptance of DNA testing in our jurisdiction in this wise: "[i]n
case proof of filiation or paternity would be unlikely to
satisfactorily establish or would be difficult to obtain, DNA
testing, which examines genetic codes obtained from body
cells of the illegitimate child and any physical residue of
the long dead parent could be resorted to."
It is obvious to the Court that the determination of whether
appellant is the father of AAAs child, which may be
accomplished through DNA testing, is material to the fair and
correct adjudication of the instant appeal. Under Section 4 of
the Rules, the courts are authorized, after due hearing and
notice, motu proprio to order a DNA testing. However, while
this Court retains jurisdiction over the case at bar, capacitated
as it is to receive and act on the matter in controversy, the
Supreme Court is not a trier of facts and does not, in the
course of daily routine, conduct hearings. Hence, it would be
more appropriate that the case be remanded to the RTC for
reception of evidence in appropriate hearings, with due notice
to the parties. (Emphasis supplied.)
As we have declared in the said case of Agustin v. Court of
Appeals32:

51

G.R. No. 170829

November 20, 2006

PERLA G. PATRICIO, Petitioner,

vs.
MARCELINO G. DARIO III and THE HONORABLE COURT
OF APPEALS, Second Division, Respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the
Rules of Court seeks to annul and set aside the Resolution of
the Court of Appeals dated December 9, 20051 in CA-G.R. CV
No. 80680, which dismissed the complaint for partition filed
by petitioner for being contrary to law and evidence.
On July 5, 1987, Marcelino V. Dario died intestate. He was
survived by his wife, petitioner Perla G. Patricio and their two
sons, Marcelino Marc Dario and private respondent Marcelino
G. Dario III. Among the properties he left was a parcel of land
with a residential house and a pre-school building built
thereon situated at 91 Oxford corner Ermin Garcia Streets in
Cubao, Quezon City, as evidenced by Transfer Certificate of
Title (TCT) No. RT-30731 (175992) of the Quezon City Registry
of Deeds, covering an area of seven hundred fifty five (755)
square meters, more or less.2
On August 10, 1987, petitioner, Marcelino Marc and private
respondent, extrajudicially settled the estate of Marcelino V.
Dario. Accordingly, TCT No. RT-30731 (175992) was cancelled
and TCT No. R-213963 was issued in the names of petitioner,
private respondent and Marcelino Marc.
Thereafter, petitioner and Marcelino Marc formally advised
private respondent of their intention to partition the subject
property and terminate the co-ownership. Private respondent
refused to partition the property hence petitioner and
Marcelino Marc instituted an action for partition before the
Regional Trial Court of Quezon City which was docketed as
Civil Case No. Q-01-44038 and raffled to Branch 78.
3

On October 3, 2002, the trial court ordered the partition of

the subject property in the following manner: Perla G. Patricio,
4/6; Marcelino Marc G. Dario, 1/6; and Marcelino G. Dario III,
1/6. The trial court also ordered the sale of the property by
public auction wherein all parties concerned may put up their
bids. In case of failure, the subject property should be
distributed accordingly in the aforestated manner.4
Private respondent filed a motion for reconsideration which
was denied by the trial court on August 11, 2003, 5hence he
appealed before the Court of Appeals, which denied the same
on October 19, 2005. However, upon a motion for
reconsideration filed by private respondent on December 9,
2005, the appellate court partially reconsidered the October
19, 2005 Decision. In the now assailed Resolution, the Court of
Appeals dismissed the complaint for partition filed by
petitioner and Marcelino Marc for lack of merit. It held that the
family home should continue despite the death of one or both
spouses as long as there is a minor beneficiary thereof. The
heirs could not partition the property unless the court found
compelling reasons to rule otherwise. The appellate court also
held that the minor son of private respondent, who is a
grandson of spouses Marcelino V. Dario and Perla G. Patricio,
was a minor beneficiary of the family home.6
Hence, the instant petition on the following issues:
I.
THE HONORABLE COURT OF APPEALS PATENTLY ERRED IN
REVERSING ITS EARLIER DECISION OF OCTOBER 19, 2005

WHICH AFFIRMED IN TOTO THE DECISION OF THE TRIAL

COURT DATED 03 OCTOBER 2002 GRANTING THE PARTITION
AND SALE BY PUBLIC AUCTION OF THE SUBJECT PROPERTY.
II.
COROLLARILY, THE HONORABLE COURT OF APPEALS PATENTLY
ERRED IN APPLYING ARTICLE 159 IN RELATION TO ARTICLE 154
OF THE FAMILY CODE ON FAMILY HOME INSTEAD OF ARTICLE
494 IN RELATION TO ARTICLES 495 AND 498 OF THE NEW
CIVIL CODE ON CO-OWNERSHIP.7
The sole issue is whether partition of the family home is
proper where one of the co-owners refuse to accede to such
partition on the ground that a minor beneficiary still resides in
the said home.
Private respondent claims that the subject property which is
the family home duly constituted by spouses Marcelino and
Perla Dario cannot be partitioned while a minor beneficiary is
still living therein namely, his 12-year-old son, who is the
grandson of the decedent. He argues that as long as the
minor is living in the family home, the same continues as such
until the beneficiary becomes of age. Private respondent
insists that even after the expiration of ten years from the
date of death of Marcelino on July 5, 1987, i.e., even after July
1997, the subject property continues to be considered as the
family home considering that his minor son, Marcelino Lorenzo
R. Dario IV, who is a beneficiary of the said family home, still
resides in the premises.
On the other hand, petitioner alleges that the subject property
remained as a family home of the surviving heirs of the late
Marcelino V. Dario only up to July 5, 1997, which was the 10th
year from the date of death of the decedent. Petitioner argues
that the brothers Marcelino Marc and private respondent
Marcelino III were already of age at the time of the death of
their father,8 hence there is no more minor beneficiary to
speak of.
The family home is a sacred symbol of family love and is the
repository of cherished memories that last during ones
lifetime.9 It is the dwelling house where husband and wife, or
by an unmarried head of a family, reside, including the land
on which it is situated.10 It is constituted jointly by the
husband and the wife or by an unmarried head of a
family.11 The family home is deemed constituted from the time
it is occupied as a family residence. From the time of its
constitution and so long as any of its beneficiaries actually
resides therein, the family home continues to be such and is
exempt from execution, forced sale or attachment except as
hereinafter provided and to the extent of the value allowed by
law.12
The law explicitly provides that occupancy of the family home
either by the owner thereof or by "any of its beneficiaries"
must be actual. That which is "actual" is something real, or
actually existing, as opposed to something merely possible, or
to something which is presumptive or constructive. Actual
occupancy, however, need not be by the owner of the house
specifically. Rather, the property may be occupied by the
"beneficiaries" enumerated in Article 154 of the Family Code,
which may include the in-laws where the family home is
constituted jointly by the husband and wife. But the law
definitely excludes maids and overseers. They are not the
beneficiaries contemplated by the Code.13
Article 154 of the Family Code enumerates who are the
beneficiaries of a family home: (1) The husband and wife, or
an unmarried person who is the head of a family; and (2)
Their parents, ascendants, descendants, brothers and sisters,
whether the relationship be legitimate or illegitimate, who are

52

living in the family home and who depend upon the head of
the family for legal support.
To be a beneficiary of the family home, three requisites must
concur: (1) they must be among the relationships enumerated
in Art. 154 of the Family Code; (2) they live in the family
home; and (3) they are dependent for legal support upon the
head of the family.
Moreover, Article 159 of the Family Code provides that the
family home shall continue despite the death of one or both
spouses or of the unmarried head of the family for a period of
10 years or for as long as there is a minor beneficiary, and the
heirs cannot partition the same unless the court finds
compelling reasons therefor. This rule shall apply regardless of
whoever owns the property or constituted the family home.
Article 159 of the Family Code applies in situations where
death occurs to persons who constituted the family
home.1wphi1 Dr. Arturo M. Tolentino comments on the effect
of death of one or both spouses or the unmarried head of a
family on the continuing existence of the family home:
Upon the death of the spouses or the unmarried family head
who constituted the family home, or of the spouse who
consented to the constitution of his or her separate property
as family home, the property will remain as family home for
ten years or for as long as there is a minor beneficiary living in
it. If there is no more beneficiary left at the time of
death, we believe the family home will be dissolved or
cease, because there is no more reason for its
existence. If there are beneficiaries who survive living
in the family home, it will continue for ten years,
unless at the expiration of the ten years, there is still a
minor beneficiary, in which case the family home
continues until that beneficiary becomes of age.
After these periods lapse, the property may be partitioned by
the heirs. May the heirs who are beneficiaries of the family
home keep it intact by not partitioning the property after the
period provided by this article? We believe that although
the heirs will continue in ownership by not partitioning
the property, it will cease to be a family
home.14 (Emphasis supplied)
Prof. Ernesto L. Pineda further explains the import of Art. 159
in this manner:
The family home shall continue to exist despite the death of
one or both spouses or of the unmarried head of the family.
Thereafter, the length of its continued existence
is dependent upon whether there is still a minorbeneficiary residing therein. For as long as there is one
beneficiary even if the head of the family or both
spouses are already dead, the family home will
continue to exist (Arts. 153, 159). If there is no minorbeneficiary, it will subsist until 10 years and within this
period, the heirs cannot partition the same except
when there are compelling reasons which will justify
the partition. This rule applies regardless of whoever owns
the property or who constituted the family home.15 (Emphasis
supplied)
The rule in Article 159 of the Family Code may thus be
expressed in this wise: If there are beneficiaries who survive
and are living in the family home, it will continue for 10 years,
unless at the expiration of 10 years, there is still a minor
beneficiary, in which case the family home continues until
that beneficiary becomes of age.
It may be deduced from the view of Dr. Tolentino that as a
general rule, the family home may be preserved for a
minimum of 10 years following the death of the spouses or

the unmarried family head who constituted the family home,

or of the spouse who consented to the constitution of his or
her separate property as family home. After 10 years and
a minor beneficiary still lives therein, the family home shall be
preserved only until that minor beneficiary reaches the age of
majority. The intention of the law is to safeguard and protect
the interests of theminor beneficiary until he reaches legal
age and would now be capable of supporting
himself. However, three requisites must concur before a minor
beneficiary is entitled to the benefits of Art. 159: (1) the
relationship enumerated in Art. 154 of the Family Code; (2)
they live in the family home, and (3) they are dependent for
legal support upon the head of the family.
Thus, the issue for resolution now is whether Marcelino
Lorenzo R. Dario IV, the minor son of private respondent, can
be considered as a beneficiary under Article 154 of the Family
Code.
As to the first requisite, the beneficiaries of the family home
are: (1) The husband and wife, or an unmarried person who is
the head of a family; and (2) Their parents, ascendants,
descendants, brothers and sisters, whether the relationship be
legitimate or illegitimate. The term "descendants"
contemplates all descendants of the person or persons who
constituted the family home without distinction; hence, it
must necessarily include the grandchildren and great
grandchildren of the spouses who constitute a family
home. Ubi lex non distinguit nec nos distinguire debemos.
Where the law does not distinguish, we should not distinguish.
Thus, private respondents minor son, who is also the
grandchild of deceased Marcelino V. Dario satisfies the first
requisite.
As to the second requisite, minor beneficiaries must be
actually living in the family home to avail of the benefits
derived from Art. 159. Marcelino Lorenzo R. Dario IV, also
known as Ino, the son of private respondent and grandson of
the decedent Marcelino V. Dario, has been living in the family
home since 1994, or within 10 years from the death of the
decedent, hence, he satisfies the second requisite.
However, as to the third requisite, Marcelino Lorenzo R. Dario
IV cannot demand support from his paternal grandmother if
he has parents who are capable of supporting him. The
liability for legal support falls primarily on Marcelino Lorenzo
R. Dario IVs parents, especially his father, herein private
respondent who is the head of his immediate family. The law
first imposes the obligation of legal support upon the
shoulders of the parents, especially the father, and only in
their default is the obligation imposed on the grandparents.
Marcelino Lorenzo R. Dario IV is dependent on legal support
not from his grandmother, but from his father.1wphi1Thus,
despite residing in the family home and his being a
descendant of Marcelino V. Dario, Marcelino Lorenzo R. Dario
IV cannot be considered as beneficiary contemplated under
Article 154 because he did not fulfill the third requisite of
being dependent on his grandmother for legal support. It is his
father whom he is dependent on legal support, and who must
now establish his own family home separate and distinct from
that of his parents, being of legal age.
Legal support, also known as family support, is that which is
provided by law, comprising everything indispensable for
sustenance, dwelling, clothing, medical attendance, education
and transportation, in keeping with the financial capacity of
the family.16 Legal support has the following characteristics:
(1) It is personal, based on family ties which bind the obligor
and the obligee; (2) It is intransmissible; (3) It cannot be
renounced; (4) It cannot be compromised; (5) It is free from

53

attachment or execution; (6) It is reciprocal; (7) It is variable

in amount.17

commissioners to sell the real estate at public sale, and the

commissioners shall sell the same accordingly.21

Professor Pineda is of the view that grandchildren cannot

demand support directly from their grandparents if they have
parents (ascendants of nearest degree) who are capable of
supporting them. This is so because we have to follow the
order of support under Art. 199.18 We agree with this view.

The partition of the subject property should be made in

accordance with the rule embodied in Art. 996 of the Civil
Code.22 Under the law of intestate succession, if the widow
and legitimate children survive, the widow has the same share
as that of each of the children. However, since only one-half of
the conjugal property which is owned by the decedent is to be
allocated to the legal and compulsory heirs (the other half to
be given exclusively to the surviving spouse as her conjugal
share of the property), the widow will have the same share as
each of her two surviving children. Hence, the respective
shares of the subject property, based on the law on intestate
succession are: (1) Perla Generosa Dario, 4/6; (2) Marcelino
Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III, 1/6.

The reasons behind Art. 199 as explained by Pineda and

Tolentino: the closer the relationship of the relatives, the
stronger the tie that binds them. Thus, the obligation to
support under Art. 199 which outlines the order of liability for
support is imposed first upon the shoulders of the closer
relatives and only in their default is the obligation moved to
the next nearer relatives and so on.
There is no showing that private respondent is without means
to support his son; neither is there any evidence to prove that
petitioner, as the paternal grandmother, was willing to
voluntarily provide for her grandsons legal support. On the
contrary, herein petitioner filed for the partition of the
property which shows an intention to dissolve the family
home, since there is no more reason for its existence after the
10-year period ended in 1997.
With this finding, there is no legal impediment to partition the
subject property.
The law does not encourage co-ownerships among individuals
as oftentimes it results in inequitable situations such as in the
instant case. Co-owners should be afforded every available
opportunity to divide their co-owned property to prevent
these situations from arising.
As we ruled in Santos v. Santos,19 no co-owner ought to be
compelled to stay in a co-ownership indefinitely, and may
insist on partition on the common property at any time. An
action to demand partition is imprescriptible or cannot be
barred by laches. Each co-owner may demand at any time the
partition of the common property.20
Since the parties were unable to agree on a partition, the
court a quo should have ordered a partition by commissioners
pursuant to Section 3, Rule 69 of the Rules of Court. Not more
than three competent and disinterested persons should be
appointed as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party
in interest such part and proportion of the property as the
court shall direct.
When it is made to appear to the commissioners that the real
estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court may order it
assigned to one of the parties willing to take the same,
provided he pays to the other parties such sum or sums of
money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the

In Vda. de Daffon v. Court of Appeals,23 we held that an action

for partition is at once an action for declaration of coownership and for segregation and conveyance of a
determinate portion of the properties involved. If the court
after trial should find the existence of co-ownership among
the parties, the court may and should order the partition of
the properties in the same action.24
WHEREFORE, the petition is GRANTED. The Resolution of
the Court of Appeals in CA-G.R. CV No. 80680 dated
December 9, 2005, is REVERSED and SET ASIDE. The case
is REMANDED to the Regional Trial Court of Quezon City,
Branch 78, who is directed to conduct a PARTITION BY
COMMISSIONERS and effect the actual physical partition of
the subject property, as well as the improvements that lie
therein, in the following manner: Perla G. Dario, 4/6; Marcelino
Marc G. Dario, 1/6 and Marcelino G. Dario III, 1/6. The trial
court is DIRECTED to appoint not more than three (3)
competent and disinterested persons, who should determine
the technical metes and bounds of the property and the
proper share appertaining to each heir, including the
improvements, in accordance with Rule 69 of the Rules of
Court. When it is made to the commissioners that the real
estate, or a portion thereof, cannot be divided without great
prejudice to the interest of the parties, the court a quo may
order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such sum or sums
of money as the commissioners deem equitable, unless one of
the parties interested ask that the property be sold instead of
being so assigned, in which case the court shall order the
commissioners to sell the real estate at public sale, and the
commissioners shall sell the same accordingly, and thereafter
distribute the proceeds of the sale appertaining to the just
share of each heir. No pronouncement as to costs.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

54