ARTICLE 1105

G.R. No. L-30455

September 30, 1982

MARIA LANDAYAN, et al., petitioners,

vs.
HON. ANGEL BACANI, et al., respondents.
Anastacio E. Caoayan for petitioners.
Felipe V. Avenojar for respondents.
VASQUEZ, J.:
In his lifetime, Teodoro Abenojar owned several parcels of land located in
Urdaneta, Pangasinan, and a house and lot in Manila. The said properties were
all covered by Torrens Titles in his name. He died intestate in Urdaneta, on
March 20, 1948.
On February 3, 1949, private respondents Maxima Andrada, the surviving
spouse of Teodoro Abenojar, and Severino Abenojar, executed a public
document, entitled "Extra-Judicial Agreement of Partition" whereby they
adjudicated between themselves the properties left by Teodoro Abenojar.
Severino Abenojar represented himself in said document as "the only forced heir
and descendant" of the late Teodoro Abenojar.
On March 6, 1968, petitioners herein filed a complaint in the Court of First
Instance of Pangasinan presided over by the respondent Judge seeking a
judicial declaration that they are legal heirs of the deceased Teodoro Abenojar,
and that private respondents be ordered to surrender the ownership and
possession of some of the properties that they acquired under the deed of extrajudicial settlement corresponding to the shares of the petitioners and that the
said deed of extra- judicial settlement and the subsequent deed of donation
executed in favor of private respondents, spouses Liberata Abenojar and Jose
Serrano, in consequence thereof be declared nun and void.
In their complaint, petitioners Maria, Segundo, Marcial and Lucio, all surnamed
LANDAYAN (the rest of the petitioners being their respective spouses), alleged
that they are the legitimate children of Guillerma Abenojar, then already
deceased, who was the only child of Teodoro Abenojar with his first wife named
Florencia Bautista; and that while Teodoro Abenojar contracted a second
marriage with Antera Mandap and a third with private respondent Maxima
Andrada, he did not have any offspring in any of the said second and third
marriages. They aver that private respondent Severino Abenojar is an
illegitimate son of Guillerma Abenojar. They accordingly pray that they be
declared as among the legal heirs of the deceased Teodoro Abenojar entitled to
share in his estate.

Private respondents, on the other hand, have alleged in their pleadings that
Teodoro Abenojar married only once, and that was with private respondent
Maxima Andrada. They claimed that private respondent Severino Abenojar is an
acknowledged natural child of Teodoro Abenojar with Florencia Bautista. They
disclaimed the allegation of the petitioners that their mother Guillerma Abenojar
was a legitimate daughter of Teodoro Abenojar and Florencia Bautista, the truth
being allegedly that Guillerma Abenojar, the mother of the Landayans, was
Teodoro Abenojar's spurious child with Antera Mandap who was then married to
another man.
As their affirmative and special defense, the private respondents alleged that the
action of the petitioners had already prescribed, the same having been filed
more than 18 years after the execution of the documents that they seek to
annul.
After a preliminary hearing on said affirmative defense, the respondent Judge
issued an Order sustaining the contention that the action is barred by
prescription and dismissing the case as a consequence thereof.
The finding that prescription had set in was rationalized on two main
considerations, namely; (1) the action for the annulment of the deed of extrajudicial partition and the deed of donation is based on fraud, the prescriptive
period of which is four years from the discovery of the fraud, such discovery
being presumed to have taken place upon the registration of the documents in
the Office of the Registry of Deeds and the issuance of new titles in the names
of the transferees which, in this case, had occurred on November 21, 1951; and
(2) the deed of extra-judicial partition is not an inexistent and void contract the
action for the declaration of which does not prescribe, the said document being
at most a voidable contract, subject to the operation of the statute of limitations.
We find the dismissal of the action filed by the petitioners to be precipitious and
erroneous. Although the principles relied upon by the respondent Judge are
legally correct, he had unqualifiedly assumed the extra-judicial partition to be
merely a voidable contract and not a void one. This question may not be
resolved by determining alone the ground for the annulment of the contract. It
requires an inquiry into the legal status of private respondent Severino Abenojar,
particularly as to whether he may be considered as a "legal heir" of Teodoro
Abenojar and as such entitled to participate in an extra-judicial partition of the
estate of said deceased. This is a most material point on which the parties have
asserted conflicting claims. Understandably so, inasmuch as the question of
whether the question document is void or merely voidable depends largely on
such determination.
As stated above, petitioners contend that Severino Abenojar is not a legal heir of
Teodoro Abenojar, he being only an acknowledged natural child of Guillerma

ARTICLE 1105

Abenojar, the mother of petitioners, whom they claim to be the sole legitimate
daughter in first marriage of Teodoro Abenojar. If this claim is correct, Severino
Abenojar has no rights of legal succession from Teodoro Abenojar in view of the
express provision of Article 992 of the Civil Code, which reads as follows:

SO ORDERED.
Teehankee (Chairman), Makasiar, Melencio-Herrera, Plana, Relova and
Gutierrez, Jr., JJ., concur.

ART. 992.
An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children
or relatives inherit in the same manner from the illegitimate child.
The right of Severino Abenojar to be considered a legal heir of Teodoro Abenojar
depends on the truth of his allegations that he is not an illegitimate child of
Guillerma Abenojar, but an acknowledged natural child of Teodoro Abenojar. On
this assumption, his right to inherit from Teodoro Abenojar is recognized by law
(Art. 998, Civil Code). He even claims that he is the sole legal heir of Teodoro
Abenojar inasmuch as the petitioners Landayans, who are admittedly the
children of the deceased Guillerma Abenojar, have no legal successional rights
from Teodoro Abenojar, their mother being a spurious child of Teodoro Abenojar.
Should the petitioners be able to substantiate their contention that Severino
Abenojar is an illegitimate son of Guillerma Abenojar, he is not a legal heir of
Teodoro Abenojar. The right of representation is denied by law to an illegitimate
child who is disqualified to inherit ab intestato from the legitimate children and
relatives of Ms father. (Art. 992, Civil Code). On this supposition, the subject
deed of extra- judicial partition is one that included a person who is not an heir of
the descendant whose estate is being partitioned. Such a deed is governed by
Article 1105 of the Civil Code, reading as follows:
Art. 1105. A partition which includes a person believed to be an heir, but who is
not, shall be void only with respect to such person.
It could be gathered from the pleadings filed by the petitioners that they do not
seek the nullification of the entire deed of extra-judicial partition but only insofar
as the same deprived them of their shares in the inheritance from the estate of
Teodoro Abenojar; Should it be proved, therefore, that Severino Abenojar is,
indeed, not a legal heir of Teodoro Abenojar, the portion of the deed of extrajudicial partition adjudicating certain properties of Teodoro Abenojar in his favor
shall be deemed inexistent and void from the beginning in accordance with
Articles 1409, par. (7) and 1105 of the Civil Code. By the express provision of
Article 1410 of the Civil Code, the action to seek a declaration of the nullity of
the same does not prescribe.
WHEREFORE, the Order appealed from is hereby REVERSED and SET
ASIDE. The respondent Judge is ordered to try the case on the merits and
render the corresponding judgment thereon. The private respondents shall pay
the costs.

G.R. No. L-63132

July 30, 1987

ARTICLE 1105

ELIAS S. MENDOZA and EUSTIQUIA S. MENDOZA, petitioners,

vs.
HON. INTERMEDIATE APPELLATE COURT, BUENAVENTURA GABUYA and
SEVERA FERNANDEZ, respondents.

WHEREFORE, based on all the foregoing considerations, judgment is hereby

rendered in favor of the plaintiff Buenaventura Gabuya in the third case and
against defendant-spouses Modesta Gabuya and Dominador Delima and Atty.
Elias S. Mendoza and Eustiquia S. Mendoza:

FERNAN, J.:
1]
Petitioners-spouses Elias and Eustiquia Mendoza seek a review of the decision
dated September 8, 1982 of the Court of Appeals in CA-G.R. Nos. 5881558816-17-R entitled Elias Mendoza, et al., Plaintiffs-Appellants, versus
Buenaventura Gabuya, et al., Defendants-Appellees" as well as the resolution of
January 3, 1983, denying their motion for reconsideration.
The antecedents are as follows:
Sometime in November and December of 1969, three [3] complaints were filed
before the then Court of First Instance of Cebu; viz: 11 Civil Case No. R-11485
instituted by herein petitioners-spouses Mendoza against private respondentsspouses Buenaventura Gabuya and Severa Fernandez for partition of Lot No.
3597 of the Cadastral Survey of Cebu, located at Pardo, Cebu City, with an area
of 2,992 square meters, more or less, and covered by Transfer Certificate of
Title No. 43910 issued in the names of "Buenaventura Gabuya, married to
Severa Fernandez ... and Elias S. Mendoza, married to Eustiquia S. Mendoza ...
with one-half [1/2] share each"1 and damages; 2) Civil Case No. R-11486
commenced by spouses Modesta Gabuya and Dominador Delima, likewise
against private respondents-spouses Buenaventura Gabuya and Severa
Fernandez for partition of Lot No. 3506 of the Cadastral Survey of Cebu, located
at Pardo, Cebu, with an area of 2,799 square meters, more or less, and covered
by Transfer Certificate of Title No. 43909 issued in the names of Buenaventura
Gabuya, married to Severa Fernandez and Modesta Gabuya, married to
Dominador Delima, and damages; and, 3] Civil Case No. R-1152 filed by private
respondents-spouses Buenaventura Gabuya and Severa Fernandez against the
spouses Modesta Gabuya and Dominador Delima and petitioners-spouses
Mendoza for the annulment of: a) the extra-judicial settlement of the estate of
the late Evaristo Gabuya, dated March 12, 1969 covering Lot Nos. 3506 and
3597, Cebu Cadastre; b) the sale of one-half [1/2] portion of Lot No. 3597 dated
December 31, 1968 in favor of spouses Mendoza; and, c) Transfer Certificates
of Title Nos. 43909 and 43910, covering Lot Nos. 3506 and 3597, respectively;
and damages.
Because they involved the same parties and properties, the cases were heard
and tried jointly.
Thereafter, on September 12, 1972, the trial court rendered a decision, the
dispositive portion of which reads as follows:

Declaring null and void and without force and effect:

a) The Deed of Extrajudicial Settlement of the Estate of Evaristo Gabuya insofar

as the shares of defendant Modesta Gabuya in Lot Nos. 3506 and 3597 are
concerned;
b) The Deed of Absolute Sale Modesta Gabuya executed on December 31,
1968 in favor of her co-defendants-spouses Atty. Elias S. Mendoza and
Eustiquia S. Mendoza, covering Lot No. 3597 without prejudice to the rights of
the latter spouses-vendors to demand from Modesta Gabuya reimbursement of
any amounts they have paid on account of the sale;
c) Transfer Certificates of Title Nos. 43909 and 43910 insofar as the respective
recorded one-half [1/2] undivided shares of the spouses Modesta Gabuya
married to Dominador Delima and Atty. Elias S. Mendoza married to Eustiquia S.
Mendoza in each of Lot Nos. 3506 and 3597 with plaintiff Buenaventura Gabuya
married to Severa Fernandez are concerned;
2]
Condemning the two defendants-spouses to pay jointly and severally to
the plaintiff the amount of P500.00 as moral damages, P750.00 as attorney's
fees; and,
3]

To pay the costs.

The Register of Deeds of Cebu is hereby directed to cancel the recorded onehalf [1/2] share each of the defendants-spouses Modesta Gabuya married to
Dominador Delima and Atty. Elias S. Mendoza married to Eustiquia S. Mendoza
in Lot Nos. 3506 and 3597 covered by Transfer Certificates of Title Nos. 43909
and 43910, respectively. 2
Dissatisfied with said decision, the spouses Mendoza and the spouses Delima
appealed to the Court of Appeals, which, however, affirmed in toto the decision
of the trial court. Their motion for reconsideration likewise proved
unavailing.1awphil
Thus, on February 14, 1983, within the extended period granted, the spouses
Mendoza filed the petition at bar. After private respondents had filed their
comment thereon, and petitioners, their Reply to said comment, the Court, on

ARTICLE 1105

September 19, 1983, gave due course to the petition.3 In due time, the parties
submitted their respective memoranda.
On July 10, 1985, Atty. Paterno S. Compra entered his appearance as counsel
for spouses Modesta Gabuya and Dominador Delima, and on July 19, 1985,
filed a Notice of Death, informing this Court that respondent Buenaventura
Gabuya died on October 21, 1981 and that Severa Fernandez likewise died on
October 14, 1983, allegedly leaving no legal heirs except Modesta Gabuya.4
Acting on said Notice of Death, the Court resolved on September 18, 1985, "to
Direct [1] the legal representatives of the deceased respondents Buenaventura
Gabuya and Severa Fernandez to appear and to be substituted for the latter,
within a period of thirty [30] days from notice; and [2] the petitioners to amend
their petition within ten [10] days from receipt of the notice of appearance and
substitution by the legal representatives of the aforesaid respondents, so as to
conform with the latest development in the case."5
It appears that sometime between September 18, 1985 and November 27,
1985, Venerando Gabuya, a sixth degree collateral relative of Buenaventura
Gabuya, filed a motion dated October 31, 1985 to substitute the latter in the
case at bar. While the motion itself does not appear in the rollo, the same was
granted by the Court in its resolution of November 27, 1985.
Meanwhile, on November 20, 1985, the petitioners filed an Amended Petition,
naming the spouses Modesta Gabuya and Dominador Delima as co-petitioners
therein. Said "petitioners" Modesta Gabuya and Dominador Delima prayed in
the Amended Petition that Modesta Gabuya be declared the sole legal heir of
Buenaventura Gabuya. Said spouses Delima likewise filed a motion for
reconsideration of the resolution of November 27, 1985, which granted
Venerando Gabuya's motion for substitution. However, since the resolution of
the motion for reconsideration would entail going into the merits of the case, its
resolution was held in abeyance.
The sole issue presented by the petition is couched by petitioners, thus:
Whether or not under the Civil Code of Spain, a natural child without any judicial
decree or deed of acknowledgment in his favor by his natural parent may
succeed said natural parent under certain circumstances. 6
The factual backdrop of this legal query, as found by the trial court and
sustained by the appellate court, is as follows:
That Buenaventura, Nicolasa and Teresa, all surnamed Gabuya, are the
legitimate children of the spouses Evaristo Gabuya and Susana Sabandija, who
died intestate many years ago, the first in 1926 and the second in 1912; that

both Nicolasa and Teresa died single, the first in 1943 and the second in 1964;
that Modesta Gabuya is the illegitimate daughter of Nicolasa [Exhs. G & 7-BGabuya]; that Lot Nos. 3506 and 3597 of the Cebu Cadastre were some of the
original properties left by the late Evaristo Gabuya both located at Pardo, Cebu
City, formerly covered by Original Certificate [sic] of Title Nos. 6353 and 6597 in
the name of Evaristo Gabuya and containing 2,799 square meters and 2,992
square meters, respectively; that sometime in February, 1969, Modesta Gabuya
accompanied by Atty. Elias S. Mendoza went to the house of Buenaventura
Gabuya who wanted to see the titles of these two parcels of land and
Buenaventura was instructed by Modesto to look for them so that they be
reconstituted; that some days later the two, Modesta Gabuya and Elias S.
Mendoza visited him again at his house and Mode took the titles but this time
Buenaventura went with them to the Cebu Capitol Building; that Buenaventura
and Modesto signed a document and acknowledged before Atty. Salvador B.
Mendoza but the latter did not read to the signatories the contents of the
document; that this document dated March 12, 1969 turned out to be an
Extrajudicial settlement of the Estate of Evaristo Gabuya [Exhs. A and 1-BGabuya] whereby Buenaventura and Modesto appear to have divided and
partitioned between themselves pro visio and share and share alike [1/2 each]
Lot Nos. 3506 and 3597; that this Extrajudicial settlement of the Estate of
Evaristo Gabuya was duly published [Exh. B] in the Morning Times and
registered with the Register of Deeds [Exhs. B-1 & B-2] and the document itself
was also similarly registered [Exhs. A-1 and A-2]; that on December 31, 1968,
prior to the execution of the Extra-Judicial Settlement document, a Deed of
Absolute Sale [Exhs. 2-B-Gabuya] was executed by Modesta Gabuya in favor of
the spouses Atty. and Mrs. Elias S. Mendoza covering her alleged one-half [1/2]
undivided share in Lot No. 3597 for a consideration of P10,000.00; that pursuant
to the Deed of Extrajudicial Settlement [Exhs. A & 1-B-Gabuya], and the Deed of
Absolute Sale [Exh. 2-B-Gabuya], Original Certificates of Title Nos. 6353 and
6597 in the name of the late Evaristo Gabuya, father of Buenaventura Gabuya,
were cancelled and in liue thereof were issued Transfer Certificates of Title Nos.
43909 and 43910 [Exh. C] The first in the names of spouses Buenaventura
Gabuya married to Severa Fernandez, and Modesta Gabuya married to
Dominador Delima and the second, in the names of Buenaventura Gabuya
married to Severa Fernandez and Atty. Elias S. Mendoza married to Eustiquia S.
Mendoza; that Atty. Elias S. Mendoza and Modesta Gabuya have respectively
asked from Buenaventura Gabuya the partition of the lots which they are coowners of the undivided one-half [1/2] portions; and that Buenaventura refused
to do so claiming that ModestaGabuya is not entitled to inherit from the estate of
his late father Evaristo Gabuya. 7
Under the Civil Code of Spain, the law in force at the time of the death in 1943 of
Nicolasa Gabuya, the mother of Modesta, full successional rights were granted
only to legitimate and legitimated children [Arts. 114 and 122, respectively].
Acknowledged natural children were given limited successional rights in that

ARTICLE 1105

they were entitled to inherit only from the acknowledging parent [Art. 134], while
illegitimate children who did not possess the status of natural children had no
successional rights whatsoever [Art. 139]. The latter were only entitled to
support. Adopted children become heirs of the adopting parents only if the
adopting parents had agreed to confer the adopted children such rights in the
deed of adoption, or had instituted them as heirs in a will.8

A partition which includes a person believed to be an heir, but who is not, shall
be void only with respect to such person.

Recognition or acknowledgment of a natural child under said Code must be

made in a record of birth, a will, a statement before a court of record, or in some
other public document.9 In the case at bar, the only document presented by
Modesta Gabuya to prove that she was recognized by her mother was the
certificate of birth and baptism signed by Rev. Fr. Filomeno Singson, Assistant
Parish Priest of Pardo, Cebu City, stating therein that Modesta Gabuya is an
illegitimate daughter of Nicolasa Gabuya.10 However, Philippine jurisprudence
is consistent and uniform in ruling that the canonical certificate of baptism is not
sufficient to prove recognition.11 The rationale for this ruling, enunciated in the
case of Civ v. Burnaman, 24 SCRA 434, is that while the baptismal certificate in
the parish records was a public document before the effectivity of General Order
No. 68 and Act 190, this certificate did not constitute a sufficient act of
acknowledgment, since the latter must be executed by the child's father or
mother, and the parish priest can not acknowledge in their stead.

One last point. During the pendency of this case, the spouses Modesta Gabuya
and Dominador Delima joined the spouses Mendoza as petitioners in this case
by submitting an amended petition, ostensibly in compliance with Our resolution
of September 18, 1985. In said Amended Petition, aforementioned spouses
Delima prayed that Modesta Gabuya Delima be declared the sole heir of the
deceased private respondent Buenaventura Gabuya, to the exclusion of
substitute Venerando Gabuya. It must be remembered, however, that the Delima
spouses not having joined petitioners-spouses Mendoza in the instant petition
for review. the decision of the Court of Appeals in CA-G.R. Nos. 58815-5881617-R has become final and executory as to said spouses Delima. With the
pronouncement of the appellate court that Modesta Gabuya-Delima was not
entitled to inherit from her mother, in conjunction with our affirmance thereof, it is
clear that her prayer in the amended petition cannot be granted.

Neither could the alleged continuous possession by Modesta Gabuya of the

status of a natural child improve her condition. In Alabat v. vda. de Alabat, 21
SCRA 1479, 1481, it was stressed that:

Since the ownership of the one-half [1/2] pro indiviso portion of Lot No. 3597
never passed on to Modesta Gabuya, it follows that the sale thereof to
petitioners-spouses Elias and Eustiquia Mendoza is likewise null and void.12

WHEREFORE, the instant petition is hereby denied. The decision of the

appellate court in CA-G.R. Nos. 58815-5881617-R, is affirmed in toto. Costs
against petitioners.
SO ORDERED.

It is an elementary and basic principle in our law of succession that the rights of
a natural child spring not from the filiation itself but from the child's
acknowledgment by the natural parent, made voluntarily or by court decree.
Equally basic and elementary . . . is the fact that possession or enjoyment of the
status of natural child is per se not a sufficient operative acknowledgment but
only a ground to compel the parent to acknowledge the child.
The case of Ramos, et al. v. Ramos, et al., 61 SCRA 284, heavily relied upon by
petitioners, does not apply to the case at bar. Unlike in said case, Modesta
Gabuya failed to prove by clear and convincing evidence that she was in
continuous possession of the status of a natural child.
That this petition must fail is a foregone conclusion. Modesta Gabuya, not
having been acknowledged in the manner provided by law by her mother,
Nicolasa, was not entitled to succeed the latter. The extrajudicial settlement of
the estate of Evaristo Gabuya is, therefore, null and void insofar as Modesta
Gabuya is concerned per Article 1105 of the New Civil Code which states:

Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur

ARTICLE 1105

G.R. No. 128102

March 7, 2000

AZNAR BROTHERS REALTY COMPANY, petitioner,

vs.
COURT OF APPEALS, LUIS AYING, DEMETRIO SIDA, FELOMINO
AUGUSTO, FEDERICO ABING, and ROMEO AUGUSTO, respondents.
DAVIDE, JR., C.J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of
Court seeking to reverse and set aside the 26 March 1996 Decision1 of the
Court of Appeals declaring the private respondents the rightful possessors de
facto of the subject lot and permanently enjoining Sheriff Juan Gato or his
representative from effecting the demolition of private respondents' houses.
Culled from the evidence proffered by petitioner Aznar Brothers Realty Co.
(hereafter AZNAR), it appears that Lot No. 4399 containing an area of 34,325
square meters located at Brgy. Mactan, Lapu-Lapu City, was acquired by
AZNAR from the heirs of Crisanta Maloloy-on by virtue of an Extrajudicial
Partition of Real Estate with Deed of Absolute Sale dated 3 March 1964. This
deed was registered with the Register of Deeds of Lapu-Lapu City on 6 March
1964 as shown on the face thereof. After the sale, petitioner AZNAR declared
this property under its name for taxation purposes and regularly paid the taxes
thereon. Herein private respondents were allegedly allowed to occupy portions
of Lot No. 4399 by mere tolerance provided that they leave the land in the event
that the company would use the property for its purposes. Later, AZNAR entered
into a joint venture with Sta. Lucia Realty Development Corporation for the
development of the subject lot into a multi-million peso housing subdivision and
beach resort. When its demands for the private respondents to vacate the land
failed, AZNAR filed with the Municipal Trial Court (MTCC) of Lapu-Lapu City a
case for unlawful detainer and damages, which was docketed as Civil Case No.
R-1027.
On the other hand, the private respondents alleged that they are the successors
and descendants of the eight children of the late Crisanta Maloloy-on, whose
names appear as the registered owners in the Original Certificate of Title No.
RC-2856. They had been residing and occupying the subject portion of the land
in the concept of owner since the time of their parents and grandparents, except
for Teodorica Andales who was not a resident in said premises. Private
respondents claimed that the Extrajudicial Partition of Real Estate with Deed of
Absolute Sale is void ab initio for being simulated and fraudulent, and they came
to know of the fraud only when AZNAR entered into the land in the last quarter
of 1991 and destroyed its vegetation. They then filed with the Regional Trial
Court (RTC) of Lapu-Lapu City a complaint seeking to declare the subject
document null and void. This case was docketed as Civil Case No. 2930-L.

On 1 February 1994, the MTCC rendered a decision ordering the private

respondents to (a) vacate the land in question upon the finality of the judgment;
and (b) pay P8,000 as attorney's fees and P2,000 as litigation expenses, plus
costs.2
The MTCC delved into the issue of ownership in order to resolve the issue of
possession. It found that petitioner AZNAR acquired ownership of Lot No. 4399
by virtue of the Extrajudicial Partition of Real Estate with Deed of Absolute Sale
executed by the Heirs of Crisanta Maloloy-on on 3 March 1964, which was
registered with the Register of Deeds of Lapu-Lapu City on 6 March 1964 as
appearing on the face thereof. Private respondents' allegation that two of the
signatories were not heirs of the registered owners; that some of the signatories
were already dead at the date of the execution of the deed; and that many heirs
were not parties to the extrajudicial partition is a form of a negative pregnant,
which had the effect of admitting that the vendors, except those mentioned in
the specific denial, were heirs and had the legal right to sell the subject land to
petitioner. The fact that some or most heirs had not signed the deed did not
make the document null and void ab initio but only annullable, unless the action
had already prescribed. Since the private respondents occupied the land merely
by tolerance, they could be judicially ejected therefrom. That the Deed has not
been annotated on OCT RO-2856 is of no moment, since said title was
reconstituted only on 25 August 1988, while the subject Deed was executed on
3 March 1964. Lastly, the reconstituted title has not as yet been transferred to a
purchaser for value.
Aggrieved by the decision of the MTCC, private respondents appealed to the
RTC.
During the pendency of the appeal, or on 8 March 1994, the RTC, upon Aznar's
ex parte motion, issued an order granting the issuance of a writ of execution
pursuant to Section 8, Rule 70 of the Revised Rules of Court in view of the
failure of private respondents to put up a supersedeas bond. A week later, a writ
of execution was issued. The sheriff then served upon private respondents the
said writ of execution together with a notice to vacate. On 11 April 1994, the
sheriff padlocked their houses, but later in the day, private respondents reentered their houses. Thus, on 6 May 1994, AZNAR filed an omnibus motion for
the issuance of a writ of demolition, which private respondents opposed. This
motion was set for hearing three times, but the parties opted to submit a
consolidated memorandum and agreed to submit the same for resolution.3
On 22 July 1994, the RTC affirmed the decision of the MTCC and ordered the
issuance of a writ of demolition directing the sheriff to demolish private
respondents' houses and other improvements which might be found on the
subject premises. 4

ARTICLE 1105

On 29 July 1994, a writ of demolition was issued, and notices of demolition were
served upon private respondents. Per Sheriff's Report,5 private respondents'
houses were demolished on 3 August 1994, except for two houses which were
moved outside the premises in question upon the plea of the owners thereof.
On appeal by the private respondents, the Court of Appeals reversed and set
aside the decision of the RTC; declared the private respondents as the rightful
possessors de facto of the land in question; and permanently enjoined Sheriff
Juan Gato or whoever was acting in his stead from effectuating the demolition of
the houses of the private respondents.
In arriving at its challenged decision, the Court of Appeals noted that at the time
AZNAR entered the property, the private respondents had already been in
possession thereof peacefully, continuously, adversely and notoriously since
time immemorial. There was no evidence that petitioner was ever in possession
of the property. Its claim of ownership was based only on an Extrajudicial
Partition with Deed of Absolute Sale, which private respondents, however,
claimed to be null and void for being simulated and fraudulently obtained. The
Court of Appeals further held that where not all the known heirs had participated
in the extrajudicial agreement of partition, the instrument would be null and void
and therefore could not be registered.6 Moreover, AZNAR was estopped to
assert ownership of the property in question, since it had admitted in a pleading
in the reconstitution proceedings that the property had never been conveyed by
the decreed owners. Additionally, from 1988 up to the filing of the ejectment
case on 4 August 1993, AZNAR never registered the extrajudicial partition
despite opportunities to do so. Its allegation that private respondents occupied
the property by mere tolerance was not proved. Pursuant to the ruling in Vda. de
Legazpi v. Avendano, 7 the fact that the right of the private respondents was so
seriously placed in issue and the execution of the decision in the ejectment case
would have meant demolition of private respondents' houses constituted an
equitable reason to suspend the enforcement of the writ of execution and order
of demolition.
AZNAR then elevated the case to this Court, via this petition for review on
certiorari, contending that respondent Court of Appeals erred in
1. . . . reversing the judgments of the Municipal Trial Court and the Regional Trial
Court of Lapu-Lapu City despite the finality of the judgments and the full
implementation thereof;
2. . . . invoking lack of prior physical possession over the land in question by the
petitioner as one ground in its Decision sought to be reviewed;
3. . . . holding that the Extrajudicial Partition with Deed of Absolute Sale was null
and void;

4. . . . holding that petitioner was in estoppel in pais when it made the allegation
that the property was not sold or encumbered in its petition for reconstitution of
title;
5. . . . applying the ruling in the case of Vda. de Legazpi vs. Avendano (79 SCRA
135 [1977]).
We shall jointly discuss the first and fifth assigned errors for being interrelated
with each other.
In its first assigned error, petitioner argues that the decision of the MTCC of
Lapu-Lapu City had become final and immediately executory in view of the
undisputed failure of the private respondents to post a supersedeas bond as
required by Section 8, Rule 70 of the Revised Rules of Court.
We do not agree. Since the private respondents had seasonably filed an appeal
with the RTC of Lapu-Lapu City, the judgment of the MTCC of Lapu-Lapu City
did not become final. And for reasons hereunder stated, the perfection of the
appeal was enough to stay the execution of the MTCC decision.
Under the former Section 8, Rule 70 of the Rules of Court,8 if the judgment of
the municipal trial court in an ejectment case is adverse to the defendant,
execution shall issue immediately. To stay the immediate execution of the
judgment, the defendant must (1) perfect his appeal; (2) file a supersedeas bond
to answer for the rents, damages, and costs accruing down to the time of the
judgment appealed from; and (3) periodically deposit the rentals falling due
during the pendency of the appeal. 9
As a rule, the filing of a supersedeas bond is mandatory and if not filed, the
plaintiff is entitled as a matter of right to the immediate execution of the
judgment. An exception is where the trial court did not make any findings with
respect to any amount in arrears, damages or costs against the defendant, 10 in
which case no bond is necessary to stay the execution of the judgment. Thus, in
Once v. Gonzales, 11 this Court ruled that the order of execution premised on
the failure to file a supersedeas bond was groundless and void because no such
bond was necessary there being no back rentals adjudged in the appealed
judgment.
Similarly, in the instant case, there was no need for the private respondents to
file a supersedeas bond because the judgment of the MTCC did not award
rentals in arrears or damages. The attorney's fees of P8,000 and the litigation
expenses of P2,000 awarded in favor of the petitioner need not be covered by a
bond, as these are not the damages contemplated in Section 8 of Rule 70 of the
Rules of Court. The damages referred to therein are the reasonable
compensation for the use and occupation of the property which are generally

ARTICLE 1105

measured by its fair rental value and cannot refer to other damages which are
foreign to the enjoyment or material possession of the property. 12 Neither were
the private respondents obliged to deposit the rentals falling due during the
pendency of the appeal in order to secure a stay of execution because the
appealed judgment did not fix the reasonable rental or compensation for the use
of the premises. 13 Hence, it was error for the RTC to order the execution of the
judgment of the MTCC.
At any rate, pursuant to Section 21 of the Revised Rules of Summary
Procedure, the decision of the RTC affirming the decision of the MTCC has
become immediately executory, without prejudice to the appeal before the Court
of Appeals. The said Section repealed Section 10 of the Rules of Court allowing
during the pendency of the appeal with the Court of Appeals a stay of execution
of the RTC judgment with respect to the restoration of possession where the
defendant makes a periodic deposit of rentals. Thus, immediate execution of the
judgment becomes a ministerial duty of the court. No new writ of execution was,
however, issued. Nevertheless, the writ of demolition thereafter issued was
sufficient to constitute a writ of execution, as it substantially complied with the
form and contents of a writ of execution as provided for under Section 8 of Rule
39 of the Rules of Court. Moreover, private respondents were duly notified and
heard on the omnibus motion for the issuance of the writ of demolition and were
given five days to remove their houses. 14

houses. Hence, any relevant issue arising from the issuance or enforcement of
the writ had been rendered moot and academic. Injunction would not lie
anymore, as the acts sought to have been enjoined had already become a fait
accompli or an accomplished or consummated act.
Now on the applicability to unlawful detainer cases of the requirement of prior
physical possession of the disputed property. Contrary to the ruling of the Court
of Appeals, prior physical possession by the plaintiff of the subject property is
not an indispensable requirement in unlawful detainer cases, although it is
indispensable in an action for forcible entry. 16 The lack of prior physical
possession on the part of AZNAR is therefore of no moment, as its cause of
action in the unlawful detainer case is precisely to terminate private
respondents' possession of the property in question. 17
We now come to the issue of the validity of the Extrajudicial Partition with Deed
of Absolute Sale.
In an action for ejectment, the only issue involved is possession de facto.
However, when the issue of possession cannot be decided without resolving the
issue of ownership, the court may receive evidence upon the question of title to
the property but solely for the purpose of determining the issue of possession.
18

Invoking Legaspi v. Avendao, 15 the Court of Appeals held that there was an
equitable reason to suspend the enforcement of the writ of execution and order
of demolition until after the final determination of the civil case for the nullification
of the Extrajudicial Partition with Deed of Absolute Sale.

In the instant case, private respondents have set up the defense of ownership
and questioned the title of AZNAR to the subject lot, alleging that the
Extrajudicial Partition with Deed of Absolute Sale upon which petitioner bases its
title is null and void for being simulated and fraudulently made.

In Legaspi, this Court held:

First, private respondents claim that not all the known heirs of Crisanta Maloloyon participated in the extrajudicial partition, and that two persons who
participated and were made parties thereto were not heirs of Crisanta. This
claim, even if true, would not warrant rescission of the deed. Under Article 1104
of the Civil Code, "[a] partition made with preterition of any of the compulsory
heirs shall not be rescinded, unless it be proved that there was bad faith or fraud
on the part of the persons interested; but the latter shall be proportionately
obliged to pay to the person omitted the share which belongs to him." In the
present case, no evidence of bad faith or fraud is extant from the records. As to
the two parties to the deed who were allegedly not heirs, Article 1105 is in point;
it provides: "A partition which includes a person believed to be an heir, but who
is not, shall be void only with respect to such person." In other words, the
participation of non-heirs does not render the partition void in its entirety but only
to the extent corresponding to them.

Where the action . . . is one of illegal detainer . . . and the right of the plaintiff to
recover the premises is seriously placed in issue in a proper judicial proceeding,
it is more equitable and just and less productive of confusion and disturbance of
physical possession, with all its concomitant inconvenience and expense [f]or
the court in which the issue of legal possession, whether involving ownership or
not, is brought to restrain, should a petition for preliminary injunction be filed with
it, the effects of any order or decision in the unlawful detainer case in order to
await the final judgment in the more substantive case involving legal possession
or ownership.
In the instant case, private respondents' petition for review with prayer for the
immediate issuance of a temporary restraining order (TRO) or preliminary
injunction was mailed on 2 August 1994 but was received by the Court of
Appeals only on 30 August 1994. Meanwhile, on 3 August 1994, the writ of
demolition was implemented, resulting in the demolition of private respondents'

Private respondents also allege that some of the persons who were made
parties to the deed were already dead, while others were still minors. Moreover,

ARTICLE 1105

the names of some parties thereto were misspelled, and others who knew how
to read and write their names were made to appear to have affixed only their
thumbmark in the questioned document. Likewise, the signatures of those who
were made parties were forged.
The foregoing are bare allegations with no leg to stand on. No birth or death
certificates were presented before the MTCC to support the allegations that
some of the parties to the deed were minors and others were already dead at
the time of the execution of the deed. What private respondents adduced as
evidence was merely a family tree, which was at most self-serving. It was only
when the case was on appeal with the RTC that the private respondents
presented as Annex "B" of their Memorandum and Appeal Brief a photocopy of
the certificate of death of Francisco Aying, 19 son of Crisanta Maloloy-on, who
reportedly died on 7 March 1963. This certificate was allegedly issued on 17
January 1992 by the Parish Priest of Virgen de Regla Parish, Lapu-Lapu City.
The fact remains, however, that this photocopy was not certified to be a true
copy.
It is worthy to note that the Extrajudicial Partition with Deed of Absolute Sale is a
notarized document.1wphi1 As such, it has in its favor the presumption of
regularity, and it carries the evidentiary weight conferred upon it with respect to
its due execution. 20 It is admissible in evidence without further proof of
authenticity 21 and is entitled to full faith and credit upon its face. 22 He who
denies its due execution has the burden of proving that contrary to the recital in
the Acknowledgment he never appeared before the notary public and
acknowledged the deed to be his voluntary act. 23 It must also be stressed that
whoever alleges forgery has the burden of proving the same. Forgery cannot be
presumed but should be proved by clear and convincing evidence. 24 Private
respondents failed to discharge this burden of proof; hence, the presumption in
favor of the questioned deed stands.
Private respondents contend that there was violation of the Notarial Law
because the lawyer who prepared and notarized the document was AZNAR's
representative in the execution of the said document. Under Section 22 of the
Spanish Notarial Law of 1889, a notary public could not authenticate a contract
which contained provisions in his favor or to which any of the parties interested
is a relative of his within the fourth civil degree or second degree of affinity;
otherwise, pursuant to Section 28 thereof, the document would not have any
effect. This rule on notarial disqualification no longer holds true with the
enactment of Act No. 496, which repealed the Spanish Notarial Law. 25 Under
the Notarial Law in force at the time of the notarization of the questioned deed,
Chapter 11 of the Revised Administrative Code, only those who had been
convicted of any crime involving moral turpitude were disqualified to notarize
documents. Thus, a representative of a person in whose favor a contract was
executed was not necessarily so disqualified. Besides, there is no proof that

Atty. Ramon Igaa was a representative of petitioner in 1964; what appears on

record is that he was the Chief of the petitioner's Legal Department in 1993.
Additionally, this alleged violation of the Notarial Law was raised only now.
Anent the non-annotation of the Extrajudicial Partition with Deed of Absolute
Sale in the reconstituted Original Certificate of Title No. RO-2856, the same
does not render the deed legally defective. It must be borne in mind that the act
of registering a document is never necessary to give the conveyance legal effect
as between the parties 26 and the vendor's heirs. As between the parties to a
sale, registration is not indispensable to make it valid and effective. The peculiar
force of a title is exhibited only when the purchaser has sold to innocent third
parties the land described in the conveyance. The purpose of registration is
merely to notify and protect the interests of strangers to a given transaction, who
may be ignorant thereof, and the non-registration of the deed evidencing said
transaction does not relieve the parties thereto of their obligations thereunder.
27 Here, no right of innocent third persons or subsequent transferees of the
subject lot is involved; thus, the conveyance executed in favor of AZNAR by
private respondents and their predecessors is valid and binding upon them, and
is equally binding and effective against their heirs. 28
The principle that registration is the operative act that gives validity to the
transfer or creates a lien upon the land "refers to cases involving conflicting
rights over registered property and those of innocent transferees who relied on
the clean title of the properties." 29 This principle has no bearing on the present
case, as no subsequent transfer of the subject lot to other persons has been
made either by private respondents or their predecessors-in-interest. 30
By and large, it appears on the face of the Extrajudicial Partition with Deed of
Absolute Sale that the same was registered on 6 March 1964. The registration
was under Act No. 3344 on unregistered lands allegedly because at the time, no
title was existing in the files of the Register of Deeds of Lapu-Lapu City, as it
was allegedly lost during the last world war. It was only on 8 August 1988 that
the title was reconstituted at the instance of the petitioner.
As to the fourth assigned error, we do not agree with the Court of Appeals and
the private respondents that petitioner is in estoppel to assert ownership over
the subject property because of petitioner's own allegation in the petition for
reconstitution, to wit:
That certificates of title were issued thereto but were lost during the last world
war. That the same were not conveyed much less offered as a collateral for any
debt contracted or delivered for the security of payment of any obligation in favor
of any person or lending institution.

ARTICLE 1105

The words "the same" in the second sentence of the afore-quoted paragraph
clearly refers to the certificates of title. This means that the certificates of title,
not necessarily the subject lot, were not conveyed or offered as a collateral but
were lost during the last world war. Indeed, as petitioner contends, it would be
very absurd and self-defeating construction if we were to interpret the abovequoted allegation in the manner that the Court of Appeals and the private
respondents did, for how could petitioner, who is claiming ownership over the
subject property, logically allege that the property was not sold to it?
It bears repeating that petitioner's claim of possession over the subject lot is
anchored on its claim of ownership on the basis of the Extrajudicial Partition with
Deed of Absolute Sale. Our ruling on the issue of the validity of the questioned
deed is solely for the purpose of resolving the issue of possession and is to be
regarded merely as provisional, without prejudice, however, to the final
determination of the issue in the other case for the annulment or cancellation of
the Extrajudicial Partition with Deed of Absolute Sale.
WHEREFORE, the petition is GRANTED. The challenged decision of public
respondent Court of Appeals in CA-G.R. SP No. 35060 is hereby REVERSED,
and the decision of the Regional Trial Court, Branch 27, Lapu-Lapu City, is
REINSTATED.
No pronouncement as to costs.1wphi1.nt
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur

10

ARTICLE 1105

G.R. No. 143256

August 28, 2001

RODOLFO FERNANDEZ and MERCEDES CARANTO FERNANDEZ,

HUSBAND and WIFE, EDDIE C. FERNANDEZ and LUZ FERNANDEZ,
SPOUSES, petitioners,
vs.
ROMEO FERNANDEZ, POTENCIANO FERNANDEZ, FRANCISCO
FERNANDEZ, JULITA FERNANDEZ, WILLIAM FERNANDEZ, MARY
FERNANDEZ, ALEJANDRO FERNANDEZ, GERARDO FERNANDEZ,
RODOLFO FERNANDEZ and GREGORIO FERNANDEZ, respondents.

(b)
"A two (2) storey residential building made of concrete and wood, G. I.
roofing with a floor area of 154 square meters and 126 square meters of the first
and second floor, respectively. Declared under Tax Decl. No. 22- 592-1 and
assessed therein at P26,000.00."
On August 31, 1989, appellant and Generosa de Venecia executed a Deed of
Extra-judicial Partition dividing and allocating to themselves the following:
To:

Generosa de Venecia Vda. De Fernandez

(a)

119.5 sq. m. located on the southwestern portion of the land;

(b)

Whole residential house above-mentioned;

To:

Rodolfo V. Fernandez

74.5

square meters to be taken on the northeastern portion of the land.

GONZAGA-REYES, J.:
Before Us is a petition for review on certiorari assailing the decision1 of the
respondent Court of Appeals dated December 22, 1999 affirming the decision2
of the Regional Trial Court Branch 40, Dagupan City in an action for nullity of
contracts, partition, recovery of possession and damages in favor of plaintiffsappellees, herein respondents.
The facts as found by the respondent Court of Appeals, are as follows:3

On the same day, Generosa de Venecia executed a Deed of Absolute Sale in

favor of Eddie Fernandez, appellant's son over the following:

"The late Spouses Dr. Jose K. Fernandez, and Generosa A. de Venecia were
the registered owners of a parcel of land located at Dagupan City covered by
TCT No. T-9267 (525) consisting of 194 sq. meters, and the two-storey building
constructed thereon covered by Tax Declaration 22-592-1. It is undisputed that
Generosa gave birth to a baby boy named Rogelio who died when he was only
twelve (12) years old as paralytic. In the testimony of Romeo Fernandez (TSN,
Aug. 31, 1994, pp. 9-14) it was revealed that the late Spouses being childless by
the death of their son, purchased from a certain Miliang for P20.00 a one (1)
month baby boy. The boy being referred to was later on identified as Rodolfo
Fernandez, the herein appellant. Appellant was taken care of by the couple and
was sent to school and became a dental technician. He lived with the couple
until they became old and disabled.

"A portion of One Hundred Nineteen and One-Half (119.5) Square meters
including the building and/or all existing thereon to be taken from the
southwestern portion of the parcel of land described as follows, to wit:

On July 20, 1982, Jose K. Fernandez died thereby leaving his wife Generosa A.
de Venecia and Rodolfo Fernandez and an estate consisting of the following:

After learning the transaction, Romeo, Potenciano, Francisco, Julita, William,

Mary, Alejandro, Gerardo, Rodolfo and Gregorio, all surnamed Fernandez, being
nephews and nieces of the deceased Jose K. Fernandez, their father Genaro
being a brother of Jose, filed on September 21, 1994, an action to declare the
Extra-Judicial Partition of Estate and Deed of Sale void ab initio (docketed as
Civil Case No. 94-00016-D).

(a)
"A parcel of land (Lot 9132, before Lot No. 444-C, of the Cadastral
Survey of Dagupan, Cadastral Case No. 41, G.L.R.O. Cadastral Record No.
925), situated in the Barrio of Pantal, City of Dagupan. Bounded on the NE. by
Lot No. 447; on the SE. by Lot No. 9134; on the SW. by the Arellano Street; and
on the NW. by Lot No. 9131. Containing an area of One Hundred Ninety Four
(194) square meters, more or less. Covered by Transfer Certificate of Title No.
525 (T-9267) Pangasinan Registry of Deeds."

'A parcel of land (Lot No. 9132, before Lot No. 444-C, of the Cadastral Survey of
Dagupan, Cadastral Case No. 41, G.L.R.O. Cadastral Record No. 925), situated
in the Barrio of Pantal, City of Dagupan. Bounded on the NE. by Lot No. 447; on
the SE by Lot No. 9134; on the SW. by the Arellano Street; and on the NW. by
Lot No. 9131. Containing an area of One Hundred and Ninety-Four (194),
Square Meters, more or less, covered by TRANSFER CERTIFICATE OF TITLE
NO. 525 (T-9267) Pangasinan Registry of Deeds" (Exh. "8", Exhibits for the
Defendants)

The complaint alleged that defendants (herein appellants), motivated by

unmitigated greed, deliberate and malicious acts of depriving the plaintiff and
other heirs (herein appellees) of the deceased spouses, without basis of heirship
or any iota of rights to succession or inheritance, taking advantage of the total

11

ARTICLE 1105

physical and mental incapacity of the deceased Generosa de Venecia

aggravated by unlawful scheme confederated, colluded and conspired with each
other in causing the fake, simulated grossly inauthentic contracts purporting to
be executed on August 31, 1989 and jointly on the same date, caused the
execution of the deed of absolute sale purportedly signed by Generosa de
Venecia covering the same property described in the deed of extra-judicial
partition and by virtue of the said acts, appellants were able to secure new land
titles in their favor (Records, pp. 3-4, Complaint). Appellees thus prayed that the
Deed of Extra-judicial Partition, Deed of Absolute Sale and Transfer Certificate
of Title No. 54641 be declared void from the beginning.
Significantly, in their answer, defendants alleged:
"16.
That the deceased Sps. Jose K. Fernandez and Generosa were
husband and wife blessed with one child the herein defendant Rodolfo V.
Fernandez whom they acknowledged during their lifetime. (italics supplied)
18.
That the Deed of Extrajudicial Partition and Deed of Absolute Sale
executed by the late Generosa de Venecia and defendant Rodolfo V. Fernandez
which are now in question were all made with the full knowledge, consent and
approval of the parties thereto and for value." (Records, pp. 20-21, Answer)."
On May 10, 1996, the Regional Trial Court rendered a decision in favor of the
plaintiffs, the dispositive portion reads:4
"WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against
the defendants;
1.
Declaring the Deed of Extra-Judicial Partition dated August 31, 1989
(Exh. "3 ), the Deed of Absolute Sale dated August 31, 1989 (Exh. 8"), the TCT
No. 54641, and the TCT No. 54693 null and void;
2.
Ordering the defendants to reconvey to, and to peacefully surrender to
the plaintiffs the possession of the house and lot in question;
3.
Ordering the defendants, jointly and severally to pay to plaintiffs the
following:
(a)

P50,000.00 as compensatory damages;

(b)

P100,000.00 as moral damages;

(c)

P20,000.00 as attorney's fees; and

(d)

P2,000.00 as litigation costs.

SO ORDERED."
In so ruling, the trial court found that defendant Rodolfo Fernandez was not a
legitimate nor a legally adopted child of spouses Dr. Jose Fernandez and
Generosa de Venecia Fernandez, hence Rodolfo could not inherit from the
spouses. Rodolfo's claim as a son of the deceased spouses Fernandez was
negated by the fact that (1) he only reached high school and was told to stop
studying so that he could help in the clinic of Dr. Fernandez, (2) he failed to
present any birth certificate, (3) the book entitled Fercolla clan which was
compiled and edited by respected people such as Ambassador Armando
Fernandez, Justice Jorge Coquia and Teresita Coquia-Sison, showed the
geneology of the family of Dr. Jose and Generosa Fernandez without a child; a
pedigree may be admitted in evidence to prove the facts of genealogy and that
entries in a family bible or other family books or charts, engravings or rings,
family portraits and the like, may be received as evidence of pedigree,5 (4) the
certification issued by the Records Management and Archives Office that there
was no available information about the birth of petitioner Rodolfo to the spouses
Fernandez, (5) the application of Dr. Jose Fernandez for backpay certificate
naming petitioner Rodolfo as his son was doubtful considering that there were
blemishes or alteration in the original copy; (6) that Rodolfo's baptismal
certificate was spurious and falsified since there were no available records of
baptism with the parish from June 7, 1930 to August 8, 1936, while Rodolfo's
baptismal certificate which was issued in 1989 showed that he was baptized on
November 24, 1934. The court found that the extra-judicial partition and the
deed of absolute sale were prepared and executed under abnormal, unusual
and irregular circumstances which rendered the documents null and void.
Defendants Rodolfo Fernandez et. al appealed to the respondent Court of
Appeals which affirmed the trial court's judgment in its assailed decision dated
December 22, 1999.
In resolving the appeal, the respondent court delved into the legitimacy of
defendant-appellant Rodolfo Fernandez' filiation with the deceased spouses. It
found that appellants' evidence which consisted of a certificate of baptism
stating that he was a child of the spouses Fernandez and the application for
recognition of rights to back pay under RA 897 filed by Dr. Jose Fernandez,
wherein the latter referred to Rodolfo as his son, did not acquire evidentiary
weight to prove his filiation. The appellate court concluded that while baptismal
certificates may be considered public documents, they were evidence only to
prove the administration of the sacraments on the dates therein specified, but
not the veracity of the statements or declarations made therein with respect to
his kinsfolk; that while the application for back pay was a public document, it
was not executed to admit the filiation of Jose K. Fernandez with Rodolfo V.
Fernandez, the herein appellant; that the public document contemplated in
Article 172 of the Family Code referred to the written admission of filiation

12

ARTICLE 1105

embodied in a public document purposely executed as an admission of filiation

and not as obtaining in this case wherein the public document was executed as
an application for the recognition of rights to back pay under Republic Act No.
897.
Appellants Rodolfo Fernandez et al filed their motion for reconsideration which
was denied in a resolution dated May 17, 2000.6
Rodolfo Fernandez et al filed the instant petition for review with the following
issues:

III
THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT'S
FINDING THAT THE PETITIONER RODOLFO FERNANDEZ WAS NOT THE
CHILD OF SPOUSES DR. JOSE K. FERNANDEZ AND GENEROSA DE
VENECIA BECAUSE
(a)
THE FILIATION OF PETITIONER RODOLFO FERNANDEZ COULD
NOT BE COLLATERALLY ATTACKED IN AN ACTION FOR DECLARATION OF
NULLITY OF DOCUMENTS, PARTITION, RECOVERY OF POSSESSION AND
DAMAGES, AND;

I
THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE
TRIAL COURT ORDERING THE DEFENDANTS, PETITIONERS HEREIN, TO
RECONVEY TO, AND PEACEFULLY SURRENDER TO THE PLAINTIFFS,
RESPONDENTS HEREIN, THE POSSESSION OF THE HOUSE AND LOT IN
QUESTION BECAUSE THE SAID ORDER IS PALPABLY CONTRARY TO THE
ADMITTED FACTS THE LAW AND JURISPRUDENCE, FOR THE FOLLOWING
REASONS:
(a)
THE HOUSE AND LOT IN QUESTION ARE ADMITTED BY THE
PARTIES TO BE CONJUGAL PROPERTIES OF THE SPOUSES DR. JOSE K.
FERNANDEZ AND GENEROSA DE VENECIA, AND
(b)
RESPONDENTS, WHO ARE NOT RELATED TO GENEROSA DE
VENECIA BY CONSANGUINITY, ARE NOT HER INTESTATE HEIRS AND
CANNOT SUCCEED AB INTESTATO TO HER INTESTATE ESTATE.
II
THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE
TRIAL COURT DECLARING (1) THE DEED OF EXTRA-JUDICIAL PARTITION
DATED AUGUST 31, 1989 (EXH. '3'), THE DEED OF ABSOLUTE SALE ALSO
DATED AUGUST 31, 1989 (EXH. '8'), TCT NO. 54641, AND TCT NO. 54693
NULL AND VOID FOR THE FOLLOWING REASONS:
(a)
IT HAS NO FACTUAL BASIS DULY ESTABLISHED BY THE
EVIDENCE ON RECORD, AND
(b)
RESPONDENTS, NOT BEING PARTIES TO THE QUESTIONED
DEEDS, HAVE NO PERSONALITY TO CONTEST THE VALIDITY OF SAID
DOCUMENTS.

(b)
THE DECISION AS AFFIRMED BY THE COURT OF APPEALS DID
NOT DECLARE IN THE DISPOSITIVE PORTION THEREOF THAT
PETITIONER RODOLFO FERNANDEZ IS NOT THE CHILD OF SPOUSES DR.
JOSE FERNANDEZ AND GENEROSA FERNANDEZ.
IV
THE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF
DAMAGES AND ATTORNEY'S FEES TO THE RESPONDENTS, THERE
BEING NO FACTUAL BASIS IN THE AFFIRMED DECISION TO JUSTIFY
SUCH AWARD.
The principal issue for resolution in this case concerns the rights of the parties to
the conjugal property of the deceased spouses Fernandez.
Petitioners allege that the respondent court found the extra-judicial partition
executed by petitioner Rodolfo Fernandez and Generosa Fernandez, widow of
Dr. Jose Fernandez, null and void because the former allegedly failed to prove
legitimate filiation to his putative father, the late Dr. Jose Fernandez. Petitioners,
contend, however, that the burden of proof lies with the respondents because
they were the ones contesting the filiation of Rodolfo Fernandez. They insist that
both lower courts had no power to pass upon the matter of filiation because it
could not be collaterally attacked in the present action but in a separate and
independent action directly impugning such filiation.
We are not persuaded.
It must be noted that the respondents' principal action was for the declaration of
absolute nullity of two documents, namely: deed of extra-judicial partition and
deed of absolute sale, and not an action to impugn one's legitimacy. The
respondent court ruled on the filiation of petitioner Rodolfo Fernandez in order to
determine Rodolfo's right to the deed of extra-judicial partition as the alleged
legitimate heir of the spouses Fernandez. While we are aware that one's

13

ARTICLE 1105

legitimacy can be questioned only in a direct action seasonably filed by the

proper party, this doctrine has no application in the instant case considering that
respondents' claim was that petitioner Rodolfo was not born to the deceased
spouses Jose and Generosa Fernandez; we do not have a situation wherein
they (respondents) deny that Rodolfo was a child of their uncle's wife. The case
of Benitez-Badua vs. Court of Appeals,7 which has a similar factual backdrop is
instructive:
"A careful reading of the above articles8 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 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 Art. 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 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.""
Thus, it is necessary to pass upon the relationship of petitioner Rodolfo
Fernandez to the deceased spouses Fernandez for the purpose of determining
what legal right Rodolfo has in the property subject of the extra-judicial partition.
In fact, the issue of whether or not Rodolfo Fernandez was the son of the
deceased spouses Jose Fernandez and Generosa de Venecia was squarely

raised by petitioners in their pre-trial brief9 filed before the trial court, hence they
are now estopped from assailing the trial court's ruling on Rodolfo's status.
We agree with the respondent court when it found that petitioner Rodolfo failed
to prove his filiation with the deceased spouses Fernandez. Such is a factual
issue which has been thoroughly passed upon and settled both by the trial court
and the appellate court. Factual findings of the Court of Appeals are conclusive
on the parties and not reviewable by this Court and they carry even more
weight10 when the Court of Appeals affirms the factual findings of the trial
court.11 We accordingly find no cogent reason to disagree with the respondent
court's evaluation of the evidence presented, thus:12
"The Records Management and Archives Office is bereft of any records of the
birth of appellant Rodolfo Fernandez. On October 11, 1995, it issued a
certification worded as follows:
"This is to certify that the Register of Births for the Municipality of Dagupan,
Pangasinan in the year 1984 is not on file with the National Archives, hence,
there is no available information about the birth of Rodolfo V. Fernandez alleged
to have been born on November 24, 1934 to the spouses Jose K. Fernandez
and Generosa de Venecia in Dagupan, Pangasinan" (Records, p. 146)
Appellant nonetheless, contends that the Application for Recognition of Back
Pay Rights Under Act No. 897 is a public document and a conclusive proof of
the legitimate filiation between him and the deceased spouses (Rollo, p. 41,
Appellants' Brief). We do not agree.
It may be conceded that the Application for Recognition of Back Pay Rights
Under Act No. 897 is a public document nevertheless, it was not executed to
admit the filiation of Jose K. Fernandez with Rodolfo V. Fernandez, the herein
appellant. The public document contemplated in Article 172 of the Family Code
refer to the written admission of filiation embodied in a public document
purposely executed as an admission of filiation and not as obtaining in this case
wherein the public document was executed as an application for the recognition
of rights to back pay under Republic Act No. 897. Section 23, Rule 132 of the
Revised Rules on Evidence provides:
"SECTION 32. Public documents as evidence Documents consisting of
entries in public records made in the performance of a duty by a public officer
are prima facie evidence of the facts therein stated. All other public documents
are evidence, even against a third person, of the fact which gave rise to their
execution and of the date of the latter."
The rule is not absolute in the sense that the contents of a public document are
conclusive evidence against the contracting parties as to the truthfulness of the

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ARTICLE 1105

statements made therein. They constitute only prima facie evidence of the facts
which give rise to their execution and of the date of the latter. Thus, a baptismal
certificate issued by a Spanish priest under the Spanish regime constitutes
prima facie evidence of the facts certified to by the parish priest from his own
knowledge such as the administration of the sacrament on the day and in the
place and manner set forth in the certificate; but it does not constitute proof of
the statements made therein concerning the parentage of the person baptized
(Francisco, Evidence, 1994 ed., p. 516, citing Garcia vs. Gajul, 53 Phil. 642;
Adriano vs. de Jesus, 23 Phil. 350; Buan vs. Arquiza, 5 Phil. 193; Siguion vs.
Siguion, 8 Phil. 7). Public documents are perfect evidence of the fact which give
rise to their execution and of the date of the latter if the act which the officer
witnessed and certified to or the date written by him are not shown to be false;
but they are not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties (Martin, Rules of Court in the
Philippines with Note and Comments, vol. 4, p. 577).
Corollarily, the Application for Recognition of Back Pay Rights Under Act No. 897
is only a proof that Jose K. Fernandez filed said application on June 5, 1954 in
Dagupan City but it does not prove the veracity of the declaration and statement
contained in the said application that concern the relationship of the applicant
with herein appellant. In like manner, it is not a conclusive proof of the filiation of
appellant with his alleged father, Jose K. Fernandez the contents being, only
prima facie evidence of the facts stated therein.

with respect to his kinsfolk (Reyes vs. Court of Appeals, 135 SCRA 439). It may
be argued that a baptismal certificate is one of the other means allowed by the
Rules of Court and special laws of proving filiation but in this case, the
authenticity of the baptismal certificate was doubtful when Fr. Raymundo Q. de
Guzman of St. John the Evangelist Parish of Lingayen-Dagupan, Dagupan City
issued a certification on October 16, 1995 attesting that the records of baptism
on June 7, 1930 to August 8, 1936 were all damaged (Records, p. 148, Exh.
"G"). Neither the family portrait offered in evidence establishes a sufficient proof
of filiation Pictures do not constitute proof of filiation (Reyes vs. Court of
Appeals) (supra). In fine, the evidence presented by appellant did not acquire
evidentiary weight to prove his filiation. Consequently the Extra-Judicial Partition
dated August 31, 1989 executed by appellant Rodolfo Fernandez and Generosa
de Venecia is null and void."
Considering the foregoing findings, petitioner Rodolfo is not a child by nature of
the spouses Fernandez and not a legal heir of Dr. Jose Fernandez, thus the
subject deed of extra-judicial settlement of the estate of Dr. Jose Fernandez
between Generosa vda. de Fernandez and Rodolfo is null and void insofar as
Rodolfo is concerned13 pursuant to Art. 1105 of the New Civil Code which
states:
"A partition which includes a person believed to be an heir, but who is not, shall
be void only with respect to such person."

Additionally, appellant claims that he enjoyed and possessed the status of being
a legitimate child of the spouses openly and continuously until they died (Rollo,
p. 42; Appellants' Brief). Open and continuous possession of the status of a
legitimate child is meant the enjoyment by the child of the position and privileges
usually attached to the status of a legitimate child such as bearing the paternal
surname, treatment by the parents and family of the child as legitimate, constant
attendance to the child's support and education, and giving the child the
reputation of being a child of his parents (Sempio-Diy, The Family Code of the
Philippines, pp. 245-246). However, it must be noted that, as was held in
Quismundo vs. WCC, 132 SCRA 590, possession of status of a child does not in
itself constitute an acknowledgment; it is only a ground for a child to compel
recognition by his assumed parent.

Petitioners next contend that respondents admitted that the property in question
was the conjugal property of the late spouses Dr. Jose Fernandez and
Generosa de Venecia, thus when Dr. Jose Fernandez died intestate in 1982, his
estate consisted solely of pro indiviso of the conjugal property and the other
half belonged to his wife Generosa de Venecia; that granting Dr. Jose
Fernandez was only survived by his wife, the respondents nephews and nieces
of Dr. Jose are entitled to inherit the share of the decedent's estate while the
share of the conjugal property will still belong to Generosa as the widow of Dr.
Jose Fernandez, hence the trial court's order reconveying the possession of the
subject lot and building to respondents was contrary to the admitted facts and
law since respondents are not related by consanguinity to Generosa vda de
Fernandez.

Lastly, to substantiate his claim of being a legitimate child appellant presented a

baptismal certificate issued by Fr. Rene Mendoza of the St. John Metropolitan
Cathedral of Dagupan City on August 10, 1989 stating therein that appellant is a
child of the late spouses having been born on November 15, 1934 and baptized
on November 24, 1934 (Exh. "1" Exhibits for the Defendants). As stated, while
baptismal certificates may be considered public documents, they are evidence
only to prove the administration of the sacraments on the dates therein
specified, but not the veracity of the statements or declarations made therein

We agree.
Article 1001 of the Civil Code provides:
"Should brothers and sisters or their children survive with the widow or widower,
the latter shall be entitled to one half of the inheritance and the brothers and
sisters or their children to the other half."

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ARTICLE 1105

Generosa was the widow of Dr. Jose Fernandez and as provided in the abovequoted Article 1001, she is entitled to the of the inheritance and the
respondents to the other . In effect, pro indiviso is the share of Generosa as
the surviving spouse, i.e., as her share of the conjugal property estate and
of the remaining as share as heir from her husband's estate. Thus, we find
well taken the petitioners' assertion that the annulment of the extra-judicial
partition between Generosa and petitioner Rodolfo does not necessarily result in
respondents' having exclusive right to the conjugal property, as erroneously
found by the respondent court. Generosa, during her lifetime, had the right to
enjoy and dispose of her property without other limitations than those
established by law,14 which right she exercised by executing a deed of sale in
favor of petitioner Eddie Fernandez.
Petitioners assails respondents' right, not being heirs of Generosa, to question
the validity of the deed of sale since the action for the annulment of contracts
may only be instituted by all who are thereby obliged principally or
subsidiarily.15
We disagree.
As a rule, a contract cannot be assailed by one who is not a party obliged
principally or subsidiarily under a contract. However, when a contract prejudices
the rights of a third person, he may exercise an action for nullity of the contract if
he is prejudiced in his rights with respect to one of the contracting parties, and
can show detriment which would positively result to him from the contract in
which he had no intervention.16 As we have discussed above, respondents are
entitled to the of the entire conjugal property, i.e., lot and building; however
considering that widow Generosa, during her lifetime, sold the entire building to
petitioner Eddie Fernandez, respondents had been deprived of their share
therein, thus the deed of sale was prejudicial to the interest of respondents as
regards their share in the building. Respondents therefore, have a cause of
action to seek the annulment of said deed of sale.
Petitioners further allege that the respondent court erred in declaring null and
void the deed of sale executed between Generosa and petitioner Eddie
Fernandez concluding that the same was simulated or false and in affirming the
trial court's findings that the deed was prepared and executed under abnormal,
unusual and irregular circumstances without however, particularly stating the
circumstances.
We agree.
Respondents allege that the deed of sale was fictitious and simulated because
there was no consideration for the sale. However, this assertion was
controverted by vendee petitioner Eddie Fernandez' declaration, that the money

he paid for the sale came from his savings as overseas contract worker in Saudi
Arabia from 1982-1989 which respondents failed to controvert by presenting
evidence to the contrary. The presumption that a contract has sufficient
consideration cannot be overthrown by a mere assertion that it has no
consideration.17 Under Art. 1354 of the Civil Code, consideration is presumed
unless the contrary is proven.
Respondents also claim that the signature appearing in the deed of sale was not
that of Generosa because she was already bedridden with both legs amputated
before she died. Forgery cannot be presumed; it must be proved by clear,
positive and convincing evidence18 and whoever alleges it has the burden of
proving the same;19 a burden respondents failed to discharge. The respondents
had not presented any convincing proof to override the evidentiary value of the
duly notarized deed of sale. A notarial document is evidence of the facts in the
clear unequivocal manner therein expressed. It has in its favor the presumption
of regularity. To contradict all these, there must be evidence that is clear,
convincing and more than merely preponderant.20
We note however, that Generosa sold the entire 2 storey building to petitioner
Eddie Fernandez, i.e. she did not only sell her undivided share in the building
but also the share of the respondents. We rule, that such a sale of the entire
building without the consent of the respondents is not null and void as only the
rights of the co-owner seller are transferred, thereby making the buyer, petitioner
Eddie, a co-owner of the share of the building together with the respondents
who owned the share therein.21
Finally, anent the issue of actual and moral damages and attorney's fees
awarded by the trial court, we find them to be bereft of factual basis. A party is
entitled to an adequate compensation for such pecuniary loss actually suffered
by him as he has duly proven.22 Such damages, to be recoverable, must not
only be capable of proof, but must actually be proved with a reasonable degree
of certainty.23 Courts cannot simply rely on speculation, conjecture or
guesswork in determining the fact and amount of damages.24 The testimony of
respondent Romeo Fernandez that he suffered around P100,000 actual
damages was not supported by any documentary or other admissible evidence.
We also agree with the petitioners that the respondent court should not have
awarded moral damages in the amount of P100,000 since they also failed to
show proof of moral suffering, mental anguish, serious anxiety, besmirched
reputation, wounded feelings and social humiliation. Attorney's fees should
likewise be deleted for lack of factual basis and legal justification. Both the lower
courts did not cite specific factual basis to justify the award of attorney's fees,
which is in violation of the proscription against the imposition of a penalty on the
right to litigate.25

16

ARTICLE 1105

WHEREFORE, premises considered, the assailed judgment is hereby Affirmed

with Modification, as follows:
1.
Respondents as legitimate heirs of Dr. Jose Fernandez are entitled to
the share of the conjugal lot and building of the deceased spouses Jose and
Generosa Fernandez who died childless and intestate;
2.
The deed of extra-judicial partition is nullified insofar as the share of
petitioner Rodolfo in the conjugal lot is concerned and the title issued pursuant
thereto in the name of Rodolfo Fernandez;
3.
Considering that the deed of sale is valid insofar as the share of
Generosa sold to petitioner Eddie Fernandez, TCT No. 54693 is cancelled and a

new title should be issued in the names of petitioner Eddie Fernandez and
respondents as co-owners of the and shares respectively in the conjugal
building.
4.
The awards of actual and moral damages and attorney's fees are
deleted.
SO ORDERED.
Melo, Vitug, Panganiban and Sandoval-Gutierrez, JJ ., concur.

17