1

FIRST DIVISION

DECISION

CHICO-NAZARIO, J.:
JOSEFA BAUTISTA FERRER,
Petitioner,

- versus -

SPS. MANUEL M. FERRER &

VIRGINIA FERRER and SPS.
ISMAEL M. FERRER and
FLORA FERRER,

G.R. No. 166496

Present:

PANGANIBAN, C.J.

Before this Court is an Appeal by Certiorari which assails the

Decision[1] of the Court of Appeals dated 16 August 2004 in CA-G.R.
SP No. 78525, reversing and setting aside the Order [2] dated 16
December
2002 of
the
Regional
Trial
Court
(RTC), Mandaluyong City, Branch 212 in Civil Case No. MC021780. The Court of Appeals ordered the dismissal of the
Complaint[3] filed by petitioner Josefa Bautista Ferrer against
respondents Sps. Manuel M. Ferrer and Virginia Ferrer, and Sps.
Ismael M. Ferrer and Flora Ferrer in the aforesaid Civil Case No.
MC02-1780.

In her Complaint for payment of conjugal improvements,

sum of money, and accounting with prayer for injunction and
damages, petitioner alleged that she is the widow of Alfredo Ferrer
YNARES-SANTIAGO,(Alfredo), a half-brother of respondents Manuel M. Ferrer (Manuel)
Respondents.
and Ismael M. Ferrer (Ismael). Before her marriage to Alfredo, the
AUSTRIA-MARTINEZ,
latter acquired a piece of lot, covered by Transfer Certificate of Title
CALLEJO, SR., and (TCT) No. 67927.[4] He applied for a loan with the Social Security
CHICO-NAZARIO, System (SSS) to build improvements thereon, including a residential
house and a two-door apartment building. However, it was during
their marriage that payment of the loan was made using the couples
Promulgated:
conjugal funds. From their conjugal funds, petitioner posited, they
November 9, 2006
constructed a warehouse on the lot. Moreover, petitioner averred that
respondent Manuel occupied one door of the apartment building, as
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
well as the warehouse; however, in September 1991, he stopped
paying rentals thereon, alleging that he had acquired ownership over
the property by virtue of a Deed of Sale executed by Alfredo in favor
of respondents, Manuel and Ismael and their spouses. TCT No.
Chairperson,

2
67927 was cancelled, and TCT. No. 2728 was issued and registered
in the names of respondents.
It is petitioners contention that on 2 October 1989, when her
husband was already bedridden, respondents Ismael and Flora Ferrer
made him sign a document, purported to be his last will and
testament. The document, however, was a Deed of Sale covering
Alfredos lot and the improvements thereon. Learning of this
development, Alfredo filed with the RTC of Pasig, a Complaint for
Annulment of the said sale against respondents, docketed as Civil
Case No. 61327.[5] On 22 June 1993, the RTC dismissed the same.
[6]
The RTC found that the terms and conditions of the Deed of Sale
are not contrary to law, morals, good customs, and public policy, and
should be complied with by the parties in good faith, there being no
compelling reason
under the law to do otherwise. The dismissal was affirmed by the
Court of Appeals. Subsequently, on 7 November 1994, this Court, in
G.R. No. L-117067, finding no reversible error committed by the
appellate court in affirming the dismissal of the RTC, affirmed the
Decision of the Court of Appeals.[7]
Further, in support of her Complaint, petitioner alluded to a portion
of the Decision dated 22 June 1993 of the RTC in Civil Case No.
61327, which stated, to wit:

of [the] conjugal partnership. Clearly, Alfredo has all

the rights to sell the subject property by himself
without need of Josefas consent.[8]
According to petitioner, the ruling of the RTC shows that,
when Alfredo died on 29 September 1999, or at the time of the
liquidation of the conjugal partnership, she had the right to be
reimbursed for the cost of the improvements on Alfredos lot. She
alleged that the cost of the improvements amounted to P500,000.00;
hence, one-half thereof should be reimbursed and paid by
respondents as they are now the registered owners of Alfredos
lot. She averred that respondents cannot claim lack of knowledge
about the fact that the improvements were constructed using conjugal
funds as they had occupied one of the apartment buildings on
Alfredos lot, and even paid rentals to petitioner. In addition,
petitioner prayed that respondents be ordered to render an accounting
from September, 1991, on the income of the boarding house
constructed thereon which they had appropriated for themselves, and
to remit one-half thereof as her share. Finally, petitioner sought from
respondents moral and exemplary damages, litigation and incidental
expenses.
For their part, respondents filed a Motion to Dismiss,
contending that petitioner had no cause of action against them, and
that the cause of action was barred by prior judgment.
[9]

In determining which property is the principal and

which is the accessory, the property of greater value
shall be considered the principal. In this case, the lot
is the principal and the improvements the
accessories. Since Article 120 of the Family Code
provides the rule that the ownership of accessory
follows the ownership of the principal, then the
subject lot with all its improvements became an
exclusive and capital property of Alfredo with an
obligation to reimburse the conjugal partnership of
the cost of improvements at the time of liquidation

On 16 December 2002, the RTC rendered an Order,

denying the Motion to Dismiss. According to the RTC, no
pronouncement as to the improvements constructed on Alfredos lot
has been made in Civil Case No. 61327, and the payment of
petitioners share in the conjugal partnership constitutes a separate
cause of action. A subsequent Order[11] dated 17 January 2003 was
issued by the RTC, denying respondents Motion for Reconsideration.
[10]

3
Aggrieved, respondents elevated the case to the Court of
Appeals by way of a Petition for Certiorari, alleging grave abuse of
discretion amounting to lack or excess of jurisdiction on the RTC in
denying the dismissal.
On 16 August 2004, the Court of Appeals rendered a Decision
granting the Petition. It held that petitioners Complaint failed to state
a cause of action. The appellatecourt rationalized as follows:
[W]e believe that the instant complaint is not the
proper action for the respondent to enforce her right
of reimbursement of the cost of the improvement[s]
on the subject property. As correctly pointed out by
the petitioners, the same should be made and
directed in the settlement of estate of her deceased
husband Alfredo Ferrer pursuant to Article 129 [12] of
the Family Code. Such being the case, it appears that
the complaint herein fails to state a cause of action
against the petitioners, the latter not being the proper
parties against whom the subject action for
reimbursement must be directed to. A complaint
states a cause of action where it contains three
essential elements of a cause of action, namely: (1)
the legal right of the plaintiff; (2) the correlative
obligation of the defendant, and (3) the act or
omission of the defendant in violation of said legal
right. If these elements are absent, the complaint
becomes vulnerable to a motion to dismiss on the
ground of failure to state a cause of action. Albeit
the respondent herein has the legal right to be
reimbursed of the cost of the improvements of the
subject property, it is not the petitioners but the
estate of her deceased husband which has the
obligation to pay the same. The complaint herein is
therefore dismissible for failure to state a cause of
action against the petitioners. Needless to say, the

respondent is not without any further recourse as she

may file her claim against the estate of her deceased
husband.
In light of the foregoing, we find that the public
respondent committed grave abuse of discretion in
denying the petitioners motion to dismiss for failure
to state a cause of action.[13]
Aggrieved, petitioner filed a Motion for Reconsideration
thereon. However, on 17 December 2004, the Court of Appeals
rendered a Resolution[14] denying the motion.
Hence, the present recourse.
Petitioner submits the following grounds for the allowance
of the instant Petition, to wit:
A. THE HONORABLE COURT OF APPEALS
ERRED IN RULING THAT PETITIONERS
COMPLAINT FAILS TO STATE A CAUSE OF
ACTION AGAINST THE RESPONDENTS, THE
LATTER NOT BEING THE PROPER PARTIES
AGAINST WHOM THE SUBJECT ACTION FOR
REIMBURSEMENT MUST BE DIRECTED TO.
B. THE HONORABLE COURT OF APPEALS
ERRED IN RULING THAT THE PUBLIC
RESPONDENT, HON. RIZALINA T. CAPCOUMALI, COMMITTED GRAVE ABUSE OF
DISCRETION
IN
DENYING
THE
[RESPONDENTS] MOTION TO DISMISS FOR
FAILURE TO STATE A CAUSE OF ACTION.[15]

4
Both arguments raise the sole issue of whether the Court of
Appeals erred in dismissing petitioners Complaint for failure to state
a cause of action.

absence of any of these elements makes a complaint vulnerable to a

Motion to Dismiss on the ground of a failure to state a cause of
action.[21]

Section 1(g) Rule 16[16] of the 1997 Rules of Civil Procedure makes
it clear that failure to make a sufficient allegation of a cause of action
in the complaint warrants the dismissal thereof. Section 2, Rule 2 of
the 1997 Rules of Civil Procedure defines a cause of action as the act
or omission by which a party violates the right of another. It is the
delict or the wrongful act or omission committed by the defendant in
violation of the primary right of the plaintiff.[17]

After a reading of the allegations contained in petitioners

Complaint, we are convinced that the same failed to state a cause of
action.

A cause of action has the following essential elements, viz:

(1) A right in favor of the plaintiff by whatever
means and under whatever law it arises or is
created;
(2) An obligation on the part of the named defendant
to respect or not to violate such right; and
(3) Act or omission on the part of such defendant
in violation of the right of the plaintiff or
constituting a breach of the obligation of the
defendant to the plaintiff for which the latter
may maintain an action for recovery of
damages or other appropriate relief.[18]
A complaint states a cause of action only when it has the
three indispensable elements.[19]
In the determination of the presence of these elements,
inquiry is confined to the four corners of the complaint. Only the
statements in the Complaint may be properly considered. [20] The

In the case at bar, petitioner asserts a legal right in her favor

by relying on the Decision of the RTC in Civil Case No. 61327. It
can be recalled that the aforesaid case is an action for Annulment
filed by Alfredo and petitioner against the respondents to seek
annulment of the Deed of Sale, executed by Alfredo in respondents
favor and covering the herein subject premises. The Complaint was
dismissed by the RTC, and subsequently affirmed by the Court of
Appeals and by this Court in G.R. No. L-117067.
According to petitioner, while the RTC in Civil Case No.
61327 recognized that the improvements constructed on Alfredos lots
were deemed as Alfredos exclusive and capital property, the court
also held that petitioner, as Alfredos spouse, has the right to claim
reimbursement from the estate of Alfredo. It is argued by petitioner
that her husband had no other property, and his only property had
been sold to the respondents; hence, she has the legal right to claim
for reimbursement from the respondents who are now the owners of
the lot and the improvements thereon. In fine, petitioner asseverates
that the Complaint cannot be dismissed on the ground of failure to
state a cause of action because the respondents have the correlative
obligation to pay the value of the improvements.
Petitioner was not able to show that there is an obligation on
the part of the respondents to respect or not to violate her
right. While we could concede that Civil Case No. 61327 made a
reference to the right of the spouse as contemplated in Article
120[22] of the Family Code to be reimbursed for the cost of the
improvements, the obligation to reimburse rests on the spouse upon
whom ownership of the entire property is vested. There is no

5
obligation on the part of the purchaser of the property, in case the
property is sold by the owner-spouse.
Indeed, Article 120 provides the solution in determining the
ownership of the improvements that are made on the separate
property of the spouses at the expense of the partnership or through
the acts or efforts of either or both spouses. Thus, when the cost of
the improvement and any resulting increase in value are more than
the value of the property at the time of the improvement, the entire
property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the property of
the owner-spouse at the time of the improvement; otherwise, said
property shall be retained in ownership by the owner-spouse,
likewise subject to reimbursement of the cost of the
improvement. The subject property was precisely declared as the
exclusive property of Alfredo on the basis of Article 120 of the
Family Code.

was not in violation of petitioners rights. The same can also be said
of the respondents objection to reimburse petitioner. Simply, no
correlative obligation exists on the part of the respondents to
reimburse the petitioner. Corollary thereto, neither can it be said that
their refusal to reimburse constituted a violation of petitioners
rights. As has been shown in the foregoing, no obligation by the
respondents under the law exists. Petitioners Complaint failed to
state a cause of action against the respondents, and for this reason,
the Court of Appeals was not in error in dismissing the same.
WHEREFORE, the Petition is DENIED. The Decision dated 16
August 2004 and the Resolution dated 17 December 2004 of the
Court
of
Appeals in
CA
G.R.
SP.
No.
78525
are AFFIRMED. Costs de oficio.
SO ORDERED.

What is incontrovertible is that the respondents, despite the

allegations contained in the Complaint that they are the buyers of the
subject premises, are not petitioners spouse nor can they ever be
deemed as the owner-spouse upon whom the obligation to reimburse
petitioner for her costs rested. It is the owner-spouse who has the
obligation to reimburse the conjugal partnership or the spouse who
expended the acts or efforts, as the case may be. Otherwise stated,
respondents do not have the obligation to respect petitioners right to
be reimbursed.
On this matter, we do not find an act or omission on the part of
respondents in violation of petitioners rights. The right of the
respondents to acquire as buyers the subject premises from Alfredo
under the assailed Deed of Sale in Civil Case No. 61327 had been
laid to rest. This is because the validity of the Deed of Sale had
already been determined and upheld with finality. The same had been
similarly admitted by petitioner in her Complaint. It can be said,
thus, that respondents act of acquiring the subject property by sale

MINITA V. CHICO-NAZARIO
Associate Justice

[1]

Penned by Associate Justice Delilah Vidallon-Magtolis with

Associate Justices Eliezer R. De Los Santos and Arturo D.
Brion, concurring; rollo, pp. 27-35.

[2]

Id. at 40-41.

[3]

Records, pp. 1-9.

6
[4]

Id. at 11-12.

[5]

Entitled, Sps. Alfredo S. Ferrer and Josefa Jimenez Ferrer v. Sps.

Ismael R. Ferrer and Flora C. Ferrer and Sps. Manuel M.
Ferrer and Virginia Ferrer.

[6]

Penned by Jose H. Hernandez; records, pp. 17-22.

[7]

Id. at 3.

[8]

Id. at 20.

[9]

Id. at 201-210.

[10]

Id. at 244-245.

[11]

Id. at 251.

[12]

Art. 129. Upon the dissolution of the conjugal partnership regime,

the following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive
properties of each spouse.
(2) Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either spouse
shall be credited to the conjugal partnership as an asset
thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value
of his or her exclusive property, the ownership of which has
been vested by law in the conjugal partnership. (4) The debts
and obligations of the conjugal partnership shall be paid out
of the conjugal assets. In case of insufficiency of said assets,
the spouses shall be solidarily liable for the unpaid balance
with their separate properties, in accordance with the
provisions of paragraph (2) of Article 121.

(5) Whatever remains of the exclusive properties of the

spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for the
benefit of the family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties
shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements or
unless there has been a voluntary waiver or forfeiture of such
share as provided in this Code.
(8) The presumptive legitimes of the common children shall
be delivered upon the partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall, unless otherwise
agreed upon by the parties, be adjudicated to the spouse with
whom the majority of the common children choose to
remain. Children below the age of seven years are deemed to
have chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the court shall
decide, taking into consideration the best interests of said
children.
[13]

Rollo, pp. 33-34.

[14]

Penned by Associate Justice Delilah Vidallon-Magtolis with

Associate Justices Eliezer R. De Los Santos and Monina
Arevalo Zenarosa, concurring; rollo, pp. 38-39.

[15]

Id. at 16.

7
[16]

Section 1. Grounds. Within the time for but before filing the
answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following
grounds:
(a)
(b)

[17]

Danfoss, Incorporated v. Continental Cement Corporation, G.R.

No. 143788, 9 September 2005, 469 SCRA 505, 511.

[18]

Swagman Hotels and Travel, Inc. v. Court of Appeals and Neal B.

Christian, G.R. No. 161135, 8 April 2005, 455 SCRA 175,
183.

[19]

Goodyear Philippines, Inc. v. Anthony Sy and Jose L. Lee, G.R.

No. 154554, 9 November 2005, 474 SCRA 427, 435.

That the court has no jurisdiction over the

person of the defending party;
That the court has no jurisdiction over the
subject matter of the claim;
[20]

(c)

That venue is improperly laid;

(d)

That the plaintiff has no legal capacity to sue;

(e)

That there is another action pending between

the same parties for the same cause;

(f)

That the cause of action is barred by a prior

judgment or by the statute of limitations;

(g)

That the pleading asserting the claim states no

cause of action;

(h)

That the claim or demand set forth in the

plaintiffs pleading has been paid, waived,
abandoned,or otherwise extinguished;

(i)

That the claim on which the action is founded

is unenforceable under the provisions of the
statute of frauds; and

(j)

That a condition precedent for filing the claim

has not been complied with.

Concepcion V. Vda. De Daffon v. Court of Appeals, G.R. No.

129017, 436 Phil 233, 238 (2002).
[21]

Victoria J. Ilano v. Hon. Dolores L. Espaol, G.R. No. 161756, 16

December 2005, 478 SCRA 365, 372.

[22]

Art. 120. The ownership of improvements, whether for utility or

adornment, made on the separate property of the spouses at
the expense of the partnership or through the acts or efforts
of either or both spouses shall pertain to the conjugal
partnership, or to the original owner-spouse, subject to the
following rules:

When the cost of the improvement made by the conjugal partnership

and any resulting increase in value are more than the value
of the property at the time of the improvement, the entire
property of one of the spouses shall belong to the conjugal
partnership, subject to reimbursement of the value of the
property of the owner-spouse at the time of the
improvement; otherwise, said property shall be retained in
ownership by the owner-spouse, likewise subject to
reimbursement of the cost of the improvement.

8
In either case, the ownership of the entire property shall be vested
upon the reimbursement, which shall be made at the time of
the liquidation of the conjugal partnership.

FIRST DIVISION
[G.R. No. 147978. January 23, 2002]
THELMA A. JADER-MANALO, petitioner,
vs. NORMA FERNANDEZ C. CAMAISA and EDILBERTO
CAMAISA, respondents.

DECISION
KAPUNAN, J.:

9
The issue raised in this case is whether or not the
husband may validly dispose of a conjugal property without the
wifes written consent.
The present controversy had its beginning when petitioner
Thelma
A. Jader-Manalo allegedly
came
across
an
advertisement placed by respondents, the Spouses Norma
Fernandez
C. Camaisa and Edilberto Camaisa,
in
the
Classified Ads Section of the newspaper BULLETIN TODAY in
its April, 1992 issue, for the sale of their ten-door apartment
in Makati, as well as that in Taytay, Rizal.
As narrated by petitioner in her complaint filed with the
Regional Trial Court of Makati, Metro Manila, she was
interested in buying the two properties so she negotiated for
the purchase through a real estate broker, Mr. Proceso Ereno,
authorized by respondent spouses.[1] Petitioner made a visual
inspection of the said lots with the real estate broker andwas
shown the tax declarations, real property tax payment receipts,
location plans, and vicinity maps relating to the properties.
[2]
Thereafter, petitioner met with the vendors who turned out to
be respondent spouses. She made a definite offer to buy the
properties
to
respondent Edilberto Camaisa with
the
knowledge and conformity of his wife, respondent
Norma Camaisa in the presence of the real estate broker.
[3]
After some bargaining, petitioner and Edilberto agreed upon
the purchase price of P1,500,000.00 for the Taytayproperty
and P2,100,000.00 for the Makati property[4] to be paid on
installment
basis
with downpayments of P100,000.00
and P200,000.00, respectively, on April 15, 1992. The balance
thereof was to be paid as follows[5]:
TaytayPropertyMakatiProperty
6thmonthP200,000.00P300,000.00
12thmonth700,000.001,600,000.00
18thmonth500,000.00

This agreement was handwritten by petitioner and signed

by Edilberto.[6] When petitioner pointed out the conjugal nature
of the properties, Edilberto assured her of his wifes conformity
and consent to the sale.[7] The formal typewritten Contracts to
Sell were thereafter prepared by petitioner. The following day,
petitioner, the real estate broker andEdilberto met in the latters
office for the formal signing of the typewritten Contracts to Sell.
[8]
After Edilberto signed the contracts, petitioner delivered to
him two checks, namely, UCPB Check No. 62807 dated April
15, 1992 for P200,000.00 and UCPB Check No. 62808 also
dated April 15, 1992 for P100,000.00 in the presence of the
real estate broker and an employee in Edilbertos office.[9] The
contracts were given to Edilberto for the formal affixing of his
wifes signature.
The following day, petitioner received a call from
respondent Norma, requesting a meeting to clarify some
provisions of the contracts.[10] To accommodate her queries,
petitioner, accompanied by her lawyer, met with Edilberto and
Norma and the real estate broker at Cafe Rizal in Makati.
[11]
During the meeting, handwritten notations were made on
the contracts to sell, so they arranged to incorporate the
notations and to meet again for the formal signing of the
contracts.[12]
When petitioner met again with respondent spouses and
the real estate broker at Edilbertos office for the formal affixing
of Normas signature, she was surprised when respondent
spouses informed her that they were backing out of the
agreement because they needed spot cash for the full amount
of the consideration.[13] Petitioner reminded respondent
spouses that the contracts to sell had already been duly
perfected and Normas refusal to sign the same would unduly
prejudice petitioner. Still, Norma refused to sign the contracts
prompting petitioner to file a complaint for specific
performance and damages against respondent spouses
before the Regional Trial Court of Makati, Branch 136 onApril

10
29, 1992, to compel respondent Norma Camaisa to sign the
contracts to sell.
A Motion to Dismiss[14] was filed by respondents which
was denied by the trial court in its Resolution of July 21, 1992.
[15]

Respondents then filed their Answer with Compulsory

Counter-claim, alleging that it was an agreement between
herein petitioner and respondent Edilberto Camaisa that the
sale of the subject properties was still subject to the approval
and conformity of his wife Norma Camaisa.[16] Thereafter, when
Norma refused to give her consent to the sale, her refusal was
duly communicated by Edilberto to petitioner.[17] The checks
issued by petitioner were returned to her by Edilberto and she
accepted the same without any objection.[18] Respondent
further claimed that the acceptance of the checks returned to
petitioner signified her assent to the cancellation of the sale of
the subject properties.[19] Respondent Norma denied that she
ever participated in the negotiations for the sale of the subject
properties and that she gave her consent and conformity to the
same.[20]
On October 20, 1992, respondent Norma F. Camaisa filed
a Motion for Summary Judgment [21] asserting that there is no
genuine issue as to any material fact on the basis of the
pleadings and admission of the parties considering that the
wifes written consent was not obtained in the contract to
sell, the subject conjugal properties belonging to respondents;
hence, the contract was null and void.
On April 14, 1993, the trial court rendered a summary
judgment dismissing the complaint on the ground that under
Art. 124 of the Family Code, the court cannot intervene to
authorize the transaction in the absence of the consent of the
wife since said wife who refused to give consent had not been
shown to be incapacitated. The dispositive portion of the trial
courts decision reads:

WHEREFORE,consideringthesepremises,judgmentishereby
rendered:
1.Dismissingthecomplaintandorderingthecancellationofthe
NoticeofLisPendensbyreasonofitsfilingonTCTNos.(464860)
S8724and(464861)S8725oftheRegistryofDeedsatMakatiand
onTCTNos.295976and295971oftheRegistryofRizal.
2.OrderingplaintiffThelmaA.Jadertopaydefendantspouses
NormaandEdilbertoCamaisa,FIFTYTHOUSAND(P50,000.00)as
MoralDamagesandFIFTYTHOUSAND(P50,000.00)asAttorneys
Fees.
Costsagainstplaintiff.[22]
Petitioner, thus, elevated the case to the Court of Appeals.
On November 29, 2000, the Court of Appeals affirmed the
dismissal by the trial court but deleted the award ofP50,000.00
as damages and P50,000.00 as attorneys fees.
The Court of Appeals explained that the properties subject
of the contracts were conjugal properties and as such, the
consent of both spouses is necessary to give effect to the
sale. Since private respondent Norma Camaisa refused to sign
the contracts, the sale was never perfected. In fact,
the downpayment was returned by respondent spouses and
was accepted by petitioner. The Court of Appeals also
stressed that the authority of the court to allow sale or
encumbrance of a conjugal property without the consent of the
other spouse is applicable only in cases where the said
spouse is incapacitated or otherwise unable to participate in
the administration of the conjugal property.
Hence, the present recourse assigning the following
errors:

11
THEHONORABLECOURTOFAPPEALSGRIEVIOUSLY
ERREDINRENDERINGSUMMARYJUDGMENTIN
DISMISSINGTHECOMPLAINTENTIRELYAND
ORDERINGTHECANCELLATIONOFNOTICEOFLIS
PENDENSONTHETITLESOFTHESUBJECTREAL
PROPERTIES;
THEHONORABLECOURTOFAPPEALSGRIEVIOUSLY
ERREDINFAILINGTOCONSIDERTHATTHESALEOF
REALPROPERTIESBYRESPONDENTSTOPETITIONER
HAVEALREADYBEENPERFECTED,FORAFTERTHE
LATTERPAIDP300,000.00DOWNPAYMENT,
RESPONDENTMRS.CAMAISANEVEROBJECTEDTO
STIPULATIONSWITHRESPECTTOPRICE,OBJECTAND
TERMSOFPAYMENTINTHECONTRACTTOSELL
ALREADYSIGNEDBYTHEPETITIONER,RESPONDENT
MR.CAMAISAANDWITNESSESMARKEDASANNEXG
INTHECOMPLAINTEXCEPT,FORMINORPROVISIONS
ALREADYIMPLIEDBYLAW,LIKEEJECTMENTOF
TENANTS,SUBDIVISIONOFTITLEANDRESCISSIONIN
CASEOFNONPAYMENT,WHICHPETITIONER
READILYAGREEDANDACCEDEDTOTHEIR
INCLUSION;
THEHONORABLECOURTOFAPPEALSGRIEVIOUSLY
ERREDWHENITFAILEDTOCONSIDERTHAT
CONTRACTOFSALEISCONSENSUALANDITIS
PERFECTEDBYTHEMERECONSENTOFTHEPARTIES
ANDTHEAPPLICABLEPROVISIONSAREARTICLES
1157,1356,1357,1358,1403,1405AND1475OFTHE
CIVILCODEOFTHEPHILIPPINESANDGOVERNEDBY
THESTATUTEOFFRAUD.[23]
The Court does not find error in the decisions of both the
trial court and the Court of Appeals.

Petitioner alleges that the trial court erred when it entered

a summary judgment in favor of respondent spouses there
being a genuine issue of fact. Petitioner maintains that the
issue of whether the contracts to sell between petitioner and
respondent spouses was perfected is a question of fact
necessitating a trial on the merits.
The Court does not agree. A summary judgment is one
granted by the court upon motion by a party for an expeditious
settlement of a case, there appearing from the pleadings,
depositions, admissions and affidavits that there are no
important questions or issues of fact involved, and that
therefore the moving party is entitled to judgment as a matter
of law.[24] A perusal of the pleadings submitted by both parties
show that there is no genuine controversy as to the facts
involved therein.
Both parties admit that there were negotiations for the
sale of four parcels of land between petitioner and respondent
spouses;
that petitioner
and
respondent Edilberto
Camaisa came to an agreement as to the price and the terms
of payment, and a downpayment was paid by petitioner to the
latter; and that respondent Norma refused to sign the contracts
to sell. The issue thus posed for resolution in the trial court
was whether or not the contracts to sell between petitioner and
respondent spouses were already perfected such that the
latter could no longer back out of the agreement.
The law requires that the disposition of a conjugal
property by the husband as administrator in appropriate cases
requires the written consent of the wife, otherwise, the
disposition is void. Thus, Article 124 of the Family Code
provides:
Art.124.Theadministrationandenjoymentoftheconjugal
partnershippropertyshallbelongtobothspousesjointly.Incaseof
disagreement,thehusbandsdecisionshallprevail,subjecttorecourse

12
tothecourtbythewifeforaproperremedy,whichmustbeavailed
ofwithinfiveyearsfromthedateofthecontractimplementingsuch
decision.
Intheeventthatonespouseisincapacitatedorotherwiseunableto
participateintheadministrationoftheconjugalproperties,theother
spousemayassumesolepowersofadministration.Thesepowersdo
notincludethepowersofdispositionorencumbrancewhichmust
havetheauthorityofthecourtorthewrittenconsentoftheother
spouse.Intheabsenceofsuchauthorityorconsentthedispositionor
encumbranceshallbevoid.However,thetransactionshallbe
construedasacontinuingofferonthepartoftheconsentingspouse
andthethirdperson,andmaybeperfectedasabindingcontract
upontheacceptancebytheotherspouseorauthorizationbythecourt
beforetheofferiswithdrawnbyeitheror
bothofferors.(Underscoringours.)
The properties subject of the contracts in this case were
conjugal; hence, for the contracts to sell to be effective, the
consent of both husband and wife must concur.
Respondent Norma Camaisa admittedly did not give her
written consent to the sale. Even granting that respondent
Norma actively participated in negotiating for the sale of the
subject properties, which she denied, her written consent to
the sale is required by law for its validity. Significantly,
petitioner herself admits that Norma refused to sign the
contracts to sell. Respondent Norma may have been aware of
the negotiations for the sale of their conjugal
properties. However, being merely aware of a transaction is
not consent.[25]
Finally, petitioner argues that since respondent Norma
unjustly refuses to affix her signatures to the contracts to sell,
court authorization under Article 124 of the Family Code is
warranted.

The argument is bereft of merit. Petitioner is correct

insofar as she alleges that if the written consent of the other
spouse cannot be obtained or is being withheld, the matter
may be brought to court which will give such authority if the
same is warranted by the circumstances. However, it should
be stressed that court authorization under Art. 124 is only
resorted to in cases where the spouse who does not give
consent is incapacitated.[26] In this case, petitioner failed to
allege and prove that respondent Norma was incapacitated to
give her consent to the contracts. In the absence of such
showing of the wifes incapacity, court authorization cannot be
sought.
Under the foregoing facts, the motion for summary
judgment was proper considering that there was no genuine
issue as to any material fact. The only issue to be resolved by
the trial court was whether the contract to sell involving
conjugal properties was valid without the written consent of the
wife.
WHEREFORE, the petition is hereby DENIED and the
decision of the Court of Appeals dated November 29, 2000 in
CA-G.R. CV No. 43421 AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo, and YnaresSantiago, JJ., concur.

[1]

Paragraph IV of Complaint; Rollo, p. 61.

[2]

Paragraph V of Complaint; id.

[3]

Paragraph VI of Complaint; id.

[4]

Paragraph VII of Complaint; id., at 62.

[5]

Id.

13
[6]

The handwritten agreement was attached as Annex E to the

Complaint; Rollo, pp.80-83.

[7]

Supra, Note 4.

[8]

Paragraph IX of Complaint; Rollo, p. 63.

[9]

Photocopies of these checks were attached as Annex H to the

Complaint; Rollo, .pp. 90-92.

[10]

Paragraph XI of Complaint; Rollo, pp. 63-64.

[11]

Paragraph XII of Complaint; id.

[12]

Paragraph XIII of Complaint; id.

[13]

Paragraph XIX; id., pp. 64-65.

[14]

Rollo, pp. 107-110.

[15]

Id., at 143.

[16]

Paragraph XI of Answer with Cumpolsary Counterclaim, id., p.

95.

[17]

Paragraph XIII, id.

[18]

id.

[19]

id.

[20]

Paragraphs
2
and
3
of
the
with Compulsary Counterclaim; id. at 93-94.

[21]

Rollo, p. 186.

[22]

Annex Q, p. 3; Rollo, pp. 224-225.

[23]

Rollo, p. 23.

[24]

271 SCRA 36 (1997).

[25]

Tinitigan vs. Tinitigan, 100 SCRA 619 (1980).

[26]

Commentaries and Jurisprudence on the Civil Code of

the Philippines, Arturo Tolentino, Vol. I, p. 461 citing the

case of Nicolas vs. Court of Appeals, 154 SCRA 635

[1987] which held that:
... the very conspicuous absence of the wifes conforme to such
disposition of the ganancial property, there being no showing that
Lourdes Manuel, whom respondent Madlangsakay married in
1927, is legally incapacitated - renders the alleged sale
void ab initio because it is in contravention of the mandatory
requirement in Article 166 of the Civil Code. This doctrine is too
well-settled in our jurisprudence to require further elucidation.
See also p. 392 of Tolentinos Commentaries relating to an
identical provision, Art. 96 of the Civil Code,
on community property. Tolentino writes:
As a result of this joint ownership, neither spouse may alienate or
encumber any common property without the written
consent of the other, or, if the other spouse is
incapacitated, the authorization of the court.

THIRD DIVISION
[G.R. No. 153828. October 24, 2003]

Answer

LINCOLN L. YAO, petitioner,

vs. HONORABLE NORMA C. PERELLO, in her capacity as
Presiding Judge of the Regional Trial Court, Branch
276, Muntinlupa City, THE EX-OFICIO SHERIFF,
REGIONAL TRIAL COURT, MUNTINLUPA CITY and
BERNADINE D. VILLARIN, respondents.

DECISION

14
CORONA, J.:
Before us is a petition for certiorari filed by Lincoln L. Yao,
assailing the resolution dated March 22, 2002 and Order dated
May 10, 2002, of the Regional Trial Court of Paraaque City,
Branch 274,[1] which respectively granted private respondent
Bernadine D. Villarins petition for prohibition and denied
petitioners motion for intervention.
The present controversy stemmed from a complaint filed
by petitioner before the Housing and Land Use Regulatory
Board (HLURB) against a certain corporation, PR Builders,
Inc. and its managers, Enrico Baluyot and Pablito Villarin,
private respondents husband.
On September 17, 1999, the HLURB rendered a decision
rescinding the contract to sell between petitioner and PR
Builders, and ordering PR Builders to refund petitioner the
amount of P2,116,103.31, as well as to pay damages in the
amount of P250,000.
Thereafter, the HLURB issued a writ of execution against
PR Builders and its managers, and referred the writ to the
office of the Clerk of Court of Muntinlupa for enforcement.
Pursuant to the writ, the deputy sheriff levied on a parcel
of land in Canlubang, Calamba, Laguna, registered in the
names of spouses Pablito Villarin and private respondent,
Bernadine Villarin. The property was scheduled for public
auction on March 20, 2002.
On March 19, 2002, private respondent filed before the
RTC of Paraaque City, a petition for prohibition with prayer for
temporary restraining order and/or writ of preliminary
injunction, seeking to enjoin Sheriff Melvin T. Bagabaldo from
proceeding with the public auction. Private respondent alleged

that she co-owned the property subject of the execution sale;

that the property regime between private respondent and her
husband was complete separation of property, and that she
was not a party in the HLURB case, hence, the subject
property could not be levied on to answer for the separate
liability of her husband.
On even date, public respondent Judge Norma C. Perrello
issued a 72-hour temporary restraining order and set the case
for raffle and conference on March 22, 2002.
The case was eventually raffled to RTC, Branch 276,
presided by public respondent judge. A conference was then
conducted, after which public respondent judge issued the
assailed resolution of March 22, 2002 granting private
respondents
petition
for
prohibition
and
declaring
the subject property exempt from execution. Hence, the
scheduled auction sale did not materialize.
On April 25, 2002, or more than a month after public
respondent judge issued the resolution of March 22, 2002,
petitioner filed a motion for intervention. However, public
respondent judge denied the motion in her assailed order of
May 10, 2002:
ORDER
TheMOTIONFORINTERVENTIONisdenied,
consideringthatthiscasehaslongbeendecided,hencethe
interventionistoolate.Thereisnocaseforthemto
intervene.
Letthedecisionbeexecutedtosatisfythejudgmentdebt.
SOORDEREDinopenCourt.[2]

15
Aggrieved,
petitioner
filed
the
instant
petition
for certiorari imputing grave abuse of discretion to public
respondent judge in: (a) declaring the subject property exempt
from execution and therefore could not be sold to satisfy the
obligation of private respondents husband, and (b) denying
petitioners motion for intervention on the ground that the same
was filed late.
It is a basic precept that the power of the court in the
execution of judgments extends only to properties
unquestionably belonging to the judgment debtor. The levy by
the sheriff on property by virtue of a writ of attachment may be
considered as made under the authority of the court only vis-avis property belonging to the defendant. For indeed, one man's
goods shall not be sold for another man's debts.[3]In the case
at bar, the property levied on by the sheriff was clearly not
exclusively owned by Pablito Villarin. It was co-owned by
herein private respondent who was a stranger in the HLURB
case. The property relation of spouses Villarin was governed
by the regime of complete separation of property as decreed in
the order[4] dated November 10, 1998 of the Regional Trial
Court, Branch 27, Paraaque City.
Articles 145 and 146 of the Family Code governing the
regime of complete separation of property provide:
Art.145.Eachspouseshallown,disposeof,possess,administerand
enjoyhisorherownseparateestate,withoutneedoftheconsentof
theother.Toeachspouseshallbelongallearningsfromhisorher
profession,businessorindustryandallfruits,natural,industrialor
civil,dueorreceivedduringhismarriagefromhisorherseparate
property.(214a)
Art.146.Bothspousesshallbearthefamilyexpensesinproportion
totheirincome,or,incaseofinsufficiencyordefaultthereof,tothe
currentmarketvalueoftheirseparateproperties.

Theliabilityofthespousestocreditorsforfamilyexpensesshall,
however,besolidary.(215a)
It is clear from the foregoing that the only time the
separate properties of the spouses can be made to answer for
liabilities to creditors is when those liabilities are incurred
forfamily expenses. This has not been shown in the case at
bar.
Accordingly, private respondent acted well within her
rights in filing a petition for prohibition against the deputy
sheriff because the latter went beyond his authority in
attaching the subject property. This right is specifically
reserved by Section 17, Rule 39 of the Rules of Court.
Petitioner insists that, in a petition for prohibition, it is
essential that the party who is interested in sustaining the act
or acts sought to be prohibited or enjoined be impleaded as
private respondent. Thus, as the judgment creditor in the
HLURB case, petitioner claims that he was an indispensable
party in the petition for prohibition and should have been
allowed to intervene in the said case. He was not allowed to do
so.

Section 2, Rule 65 of the Rules of Court provides:

SEC.2Petitionforprohibition.Whentheproceedingsofany
tribunal,corporation,board,officerorperson,whetherexercising
judicial,quasijudicialorministerialfunctions,arewithoutorin
excessofitsorhisjurisdiction,orwithgraveabuseofdiscretion
amountingtolackorexcessofjurisdiction,andthereisnoappealor

16
anyotherplain,speedy,andadequateremedyintheordinarycourse
oflaw,apersonaggrievedtherebymayfileaverifiedpetitioninthe
propercourt,allegingthefactswithcertaintyandprayingthat
judgmentberenderedcommandingtherespondenttodesistfrom
furtherproceedingsintheactionormatterspecifiedtherein,or
otherwisegrantingsuchincidentalreliefsaslawandjusticemay
require.
Thepetitionshalllikewisebeaccompaniedbyacertifiedtruecopy
ofthejudgment,orderorresolutionsubjectthereof,copiesofall
pleadingsanddocumentsrelevantandpertinentthereto,andasworn
certificationofnonforumshoppingasprovidedinthelastparagraph
ofSection3,Rule46.(2a)
Consequently, petitioners claim that he had the right to
intervene is without basis. Nothing in the said provision
requires the inclusion of a private party as respondent in
petitions for prohibition. On the other hand, to allow
intervention, it must be shown that (a) the movant has a legal
interest in the matter in litigation or otherwise qualified, and (b)
consideration must be given as to whether the adjudication of
the rights of the original parties may be delayed or prejudiced,
or whether the intervenors rights may be protected in a
separate proceeding or not. Both requirements must concur as
the first is not more important than the second.[5]
In the case at bar, it cannot be said that petitioners right
as a judgment creditor was adversely affected by the lifting of
the levy on the subject real property. Records reveal that there
are other pieces of property exclusively owned by the
defendants in the HLURB case that can be levied upon.
Moreover, even granting for the sake of argument that
petitioner indeed had the right to intervene, he must exercise
said right in accordance with the rules and within the period
prescribed therefor.

As provided in the Rules of Court, the motion for

intervention may be filed at any time before rendition of
judgment by the trial court.[6] Petitioner filed his motion only on
April 25, 2002, way beyond the period set forth in the rules.
The court resolution granting private respondents petition for
prohibition and lifting the levy on the subject property was
issued on March 22, 2002. By April 6, 2002, after the lapse of
15 days, the said resolution had already become final and
executory.
Besides, the mere fact that petitioner failed to move for
the reconsideration of the trial courts resolution is sufficient
cause for the outright dismissal of the instant
petition.Certiorari as a special civil action will not lie unless a
motion for reconsideration is first filed before the respondent
court to allow it an opportunity to correct its errors, if any.
Finally, grave abuse of discretion is committed when the
power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility. The Court fails to find
grave abuse of discretion committed by public respondent
judge in rendering the assailed resolution and order.
WHEREFORE, the petition is hereby dismissed for lack of
merit.
SO ORDERED.
Puno,
(Chairman),
Panganiban,
Gutierrez, and Carpio-Morales, JJ., concur.
FIRST DIVISION
G.R. No. 86355 May 31, 1990

Sandoval-

17
JOSE MODEQUILLO, petitioner,
vs.
HON. AUGUSTO V. BREVA FRANCISCO SALINAS,
FLORIPER ABELLAN-SALINAS, JUANITO CULAN-CULAN
and DEPUTY SHERIFF FERNANDO PLATA respondents.

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;

Josefina Brandares-Almazan for petitioner.

ABC Law Offices for private respondents.

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.

GANCAYCO, J.:
2. Plaintiffs-appellants Culan-Culan:
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.

a. the sum of P5,000.00 for hospitalization

expenses of Renato Culan- Culan; and
b. P5,000.00 for moral damages.

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:

3. Both plaintiff-appellants Salinas and CulanCulan, P7,000.00 for attorney's fees and
litigation expenses.
All counterclaims and other claims are hereby
dismissed. 1
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

18
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.

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:

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.

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.

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'

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

19
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.
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.
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.

20
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.
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.

Footnotes
1 Madame Justice Lorna S. Lombosde la
Fuente was the ponente concurred in by
Justices Antonio M. Martinez and Cecilio L. Pe.
2 Pages 18-21, Rollo.

SECOND DIVISION
[G.R. No. 125465. June 29, 1999]
SPOUSES
AUGUSTO
HONTIVEROS
HONTIVEROS, petitioners,

and

MARIA

vs. REGIONAL TRIAL COURT, Branch 25, Iloilo City and

SPOUSES GREGORIO HONTIVEROS and TEODORA
AYSON, respondents.

21
SYLLABUS
SYNOPSIS
Petitioner spouses herein filed a complaint for damages against
herein private respondents. In their complaint, petitioners alleged
that being the owners of a parcel of land they were deprived of the
income therefrom as a result of the filling of the land registration
case by the private respondents and withheld in bad faith possession
of the land from petitioners. Private respondents, however, denied
the allegations and claimed that possession of the property in
question had already been transferred to petitioners. Petitioners
moved for a judgment on the pleadings on the ground that private
respondents answer did not tender an issue or that it otherwise
admitted the material allegations of the complaint. The trial court
denied the motion. At the same time, the court dismissed the case on
the ground that the complaint was not verified as required by Art.
151 of the Family Code and, therefore, it did not believe that earnest
efforts had been made to arrive at a compromise. Petitioners moved
for reconsideration of the order of dismissal, but their motion was
denied. Hence this petition.
The Supreme Court ruled that the inclusion of private
respondent Teodora Ayson as defendant and petitioner Maria
Hontiveros as plaintiff took the case out of the ambit of Art. 151 of
the Family Code. Under this provision, the phrase members of the
same family refers to husband and wife, parents and children,
ascendants and descendants, and brothers and sisters, whether full or
half-blood. Private respondent Ayson, being the spouse of
respondent Hontiveros, and petitioner Maria Hontiveros, being the
spouse of petitioner Augusto Hontiveros, are considered strangers to
the Hontiveros family, for purposes of Art. 151. The absence of
verification required in Art. 151 do not affect the jurisdiction of the
court over the subject matter of the complaint. The verification is
merely a formal requirement intended to secure an assurance that
matters which are alleged are true and correct. Hence, this petition
was granted and the case was remanded to the trial court for further
proceedings.

1. REMEDIAL LAW; ACTIONS; APPEAL TO THE SUPREME

COURT; PETITION FOR REVIEW ON CERTIORARI
(UNDER RULE 45 OF THE RULES OF COURT);
PROPER MODE WHEN MATTERS RAISED IS PURELY
ON QUESTIONS OF LAW; CASE AT BAR. The petition in
this case was filed pursuant to Rule 45 of the Rules of Court. As
explained in Atlas Consolidated Mining and Development
Corporation vs. Court of Appeals (201 SCRA 51, 58-59
[1991]): Under Section 5, subparagraph (2)(e), Article VIII of
the 1987 Constitution, the Supreme Court is vested with the
power to review, revise, reverse, modify, or affirm on appeal or
certiorari as the law or the Rules of Court may provide, final
judgments and orders of lower courts in all cases in which only
an error or question of law is involved. A similar provision is
contained in Section 17, fourth paragraph, subparagraph (4) of
the Judiciary Act of 1948, as amended by Republic Act No.
5440. And, in such cases where only questions of law are
involved, Section 25 of the Interim Rules and Guidelines
implementing Batas Pambansa Blg. 129, in conjunction with
Section 3 of Republic Act No. 5440, provides that the appeal to
the Supreme Court shall be taken by petition for certiorari
which shall be governed by Rule 45 of the Rules of Court. The
rule, therefore, is that direct appeals to this Court from the trial
court on questions of law have to be through the filing of a
petition for review on certiorari. It has been held that: xxx when
a CFI (RTC) adjudicates a case in the exercise of its original
jurisdiction, the correct mode of elevating the judgment to the
Court of Appeals is by ordinary appeal, or appeal by writ of
error, involving merely the filing of a notice of appeal except
only if the appeal is taken in special proceedings and other cases
wherein multiple appeals are allowed under the law, in which
even the filing of a record on appeal is additionally required. Of
course, when the appeal would involve purely questions of law
or any of the other cases (except criminal cases as stated
hereunder) specified in Section 5(2), Article X of the

22
Constitution, it should be taken to the Supreme Court by
petition for review on certiorari in accordance with Rules 42
and 45 of the Rules of Court. By the way of implementation of
the aforestated provisions of law, this Court issued on March 9,
1990 Circular No.2-90, paragraph 2 of which provides: 2.
Appeals from Regional Courts to the Supreme Court. Except in
criminal cases where the penalty imposed is life imprisonment
or reclusion perpetua, judgments of regional trial courts may be
appealed to the Supreme Court only by petition for review on
certiorari in accordance with Rule 45 of the Rules of Court in
relation to Section 17 of the Judiciary Act of 1948, as amended,
this being the clear intendment of the provision of the Interim
Rules that (a)ppeals to the Supreme Court shall be taken by
petition for certiorari which shall be governed by Rule 45 of the
Rules of Court. Under the foregoing consideration, therefore,
the inescapable conclusion is that herein petitioner adopted the
correct mode of appeal in G.R. No. 88354 by filing with this
Court a petition to review on certiorari the decision of the
Regional Trial Court of Pasig in Civil Case No. 25528 and
raising therein purely questions of law. In Meneses vs. Court of
Appeals, it was held: It must also be stressed that the trial
courts order of 5 June 1992 dismissing the petitioners complaint
was, whether it was right or wrong, a final order because it had
put an end to the particular matter resolved, or settled definitely
the matter therein disposed of and left nothing more to be done
by the trial court except the execution of the order. It is a firmly
settled rule that the remedy against such order is the remedy of
appeal and not certiorari. That appeal may be solely on
questions of law, in which case it may be taken only to this
Court; or on questions of fact and law, in which case the appeal
should be brought to the Court of Appeals. Pursuant to Murillo
vs. Consul, the appeal to this Court should be by petition for
review on certiorari in accordance with Rule 45 of the Rules of
Court.
2. ID.; ID.; DISMISSAL OF CASE; COURTS CANNOT
DISMISS
A
CASE MOTU
PROPRIO WITHOUT

VIOLATING THE PLAINTIFFS RIGHT TO BE HEARD;

EXCEPTIONS. There are instances when the trial court may
order the dismissal of the case even without a motion to that
effect filed by any of the parties. In Baja vs. Macandog, (158
SCRA 391, 396-397 [1986]) this Court mentioned these cases,
to wit: The court cannot dismiss a casemotu proprio without
violating the plaintiffs right to be heard, except in the following
instances; if the plaintiff fails to appear at the time of the trial; if
he fails to prosecute his action for an unreasonable length of
time; or if he fails to comply with the rules or any order of the
court; or if the court finds that it has no jurisdiction over the
subject matter of the suit.
3. ID.; ID.; JUDGMENTS ON THE PLEADINGS; PROPER
ONLY WHERE AN ANSWER FAILS TO TENDER AN
ISSUE OR OTHERWISE ADMITS THE MATERIAL
ALLEGATION OF THE ADVERSE PARTYS PLEADING;
WHEN NOT APPLICABLE; CASE AT BAR. Rule 19 of the
Rules of Court provides (Now Rule 34 of the 1997 RULES OF
CIVIL PROCEDURE): SECTION 1. Judgment on the
pleadings. Where an answer fails to tender an issue, or
otherwise admits the material allegation of the adverse partys
pleading, the court may, on motion of the party, direct judgment
on such pleading. But in actions for annulment of marriage or
for legal separation the material facts alleged in the complaint
shall always be proved. Under the rules, if there is no
controverted matter in the case after the answer is filed, the trial
court has the discretion to grant a motion for judgment on the
pleadings filed by a party. Where there are actual issues raised
in the answer, such as one involving damages, which require the
presentation of evidence and assessment thereof by the trial
court, it is improper for the judge to render judgment based on
the pleadings alone. In this case, aside from the amount of
damages, the following factual issues have to be resolved,
namely, (1) private respondent Teodora Aysons participation
and/or liability, if any, to petitioners and (2) the nature, extent,
and duration of private respondents possession of the subject

23
property. The trial court, therefore, correctly denied petitioners
motion for judgment on the pleadings.
4. CIVIL CODE; FAMILY CODE; ART. 151; REQUIREMENT
THAT
EARNEST
EFFORTS
TOWARDS
A
COMPROMISE SHOULD
HAVE
BEEN MADE
BETWEEN MEMBERS OF THE FAMILY, CONSTRUED.
The absence of the verification required in Art. 151 does not
affect the jurisdiction of the court over the subject matter of the
complaint. A verification is merely a formal requirement
intended to secure an appearance that matters which are alleged
are true and correct. If the court doubted the veracity of the
allegations regarding efforts made to settled the case among
members of the same family, it could simply have ordered
petitioners to verify them. As this Court has already ruled, the
court may simply order the correction of unverified pleadings or
act on it and waive strict compliance with the rules in order that
the ends of justice may be served. Otherwise, mere suspicion or
doubt on the part of the trial court as to the truth of the
allegation that earnest efforts had been made toward a
compromise but the parties efforts proved unsuccessful is not a
ground for the dismissal of an action. Only if it is later shown
that such efforts had not really been exerted would the court be
justified in dismissing the action. Thus, Art. 151 provides: 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. It if 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.
5. ID.; ID.; ART. 150; MEMBERS OF THE SAME FAMILY,
DEFINED; APPLICATION IN CASE AT BAR. The phrase
members of the same family refers to the husband and wife,
parents and children, ascendants and descendants, and brothers
and sisters, whether full or half-blood. (FAMILY CODE, Art.

150) As this Court held in Guerrero vs. RTC, Ilocos Norte, Br.
XVI (229 SCRA 274, 278 [1994]): As early as two decades ago,
we already ruled in Gayon vs. Gayon 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-in-law of
private respondent Hernando, was required to exert earnest
efforts towards a compromise before filing the present suit.
Religious relationship and relationship by affinity are not given
any legal effect in this jurisdiction. Consequently, private
respondent Ayson, who is described in the complaint as the
spouse of respondent Hontiveros, and petitioner Maria
Hontiveros, who is admittedly the spouse of petitioner Augusto
Hontiveros, are considered strangers to the Hontiveros family,
for purposes of Art. 151.
APPEARANCES OF COUNSEL
Ramon A. Gonzales for petitioner.
Resurreccion S. Salvilla for private respondents.
DECISION
MENDOZA, J.:
On December 3, 1990, petitioners, the spouses Augusto and
Maria Hontiveros, filed a complaint for damages against private
respondents Gregorio Hontiveros and Teodora Ayson before the
Regional Trial Court of Iloilo City, Branch 25, where it was docketed
as Civil Case No. 19504. In said complaint, petitioners alleged that
they are the owners of a parcel of land, in the town of Jamindan,
Province of Capiz, as shown by OCT No. 0-2124, issued pursuant to

24
the decision of the Intermediate Appellate Court, dated April 12,
1984, which modified the decision of the Court of First Instance of
Capiz, dated January 23, 1975, in a land registration case [1] filed by
private respondent Gregorio Hontiveros; that petitioners were
deprived of income from the land as a result of the filing of the land
registration case; that such income consisted of rentals from tenants
of the land in the amount of P66,000.00 per year from 1968 to 1987,
and P595,000.00 per year thereafter; and that private respondents
filed the land registration case and withheld possession of the land
from petitioners in bad faith.[2]

private respondents by way of counterclaim, as well as reconveyance

of the subject land to private respondents.[3]

In their answer, private respondents denied that they were

married and alleged that private respondent Hontiveros was a
widower while private respondent Ayson was single. They denied
that they had deprived petitioners of possession of and income from
the land. On the contrary, they alleged that possession of the property
in question had already been transferred to petitioners on August 7,
1985, by virtue of a writ of possession, dated July 18, 1985, issued
by the clerk of court of the Regional Trial Court of Capiz,
Mambusao, the return thereof having been received by petitioners
counsel; that since then, petitioners have been directly receiving
rentals from the tenants of the land; that the complaint failed to state
a cause of action since it did not allege that earnest efforts towards a
compromise had been made, considering that petitioner Augusto
Hontiveros and private respondent Gregorio Hontiveros are brothers;
that the decision of the Intermediate Appellate Court in Land
Registration Case No. N-581-25 was null and void since it was based
upon a ground which was not passed upon by the trial court; that
petitioners claim for damages was barred by prescription with
respect to claims before 1984; that there were no rentals due since
private respondent Hontiveros was a possessor in good faith and for
value; and that private respondent Ayson had nothing to do with the
case as she was not married to private respondent Gregorio
Hontiveros and did not have any proprietary interest in the subject
property. Private respondents prayed for the dismissal of the
complaint and for an order against petitioners to pay damages to

On July 19, 1995, petitioners moved for a judgment on the

pleadings on the ground that private respondents answer did not
tender an issue or that it otherwise admitted the material allegations
of the complaint.[4] Private respondents opposed the motion alleging
that they had denied petitioners claims and thus tendered certain
issues of fact which could only be resolved after trial. [5]

On May 16, 1991, petitioners filed an Amended Complaint to

insert therein an allegation that earnest efforts towards a compromise
have been made between the parties but the same were unsuccessful.
In due time, private respondents filed an Answer to Amended
Complaint with Counterclaim, in which they denied, among other
things, that earnest efforts had been made to reach a compromise but
the parties were unsuccessful.

On November 23, 1995, the trial court denied petitioners

motion. At the same time, however, it dismissed the case on the
ground that the complaint was not verified as required by Art. 151 of
the Family Code and, therefore, it did not believe that earnest efforts
had been made to arrive at a compromise. The order of the trial court
reads:[6]
TheCourt,afteranassessmentofthedivergingviewsandarguments
presentedbybothparties,isoftheopinionandsoholdsthat
judgmentonthepleadingsisinappropriatenotonlyforthefactthat
thedefendantsintheiranswer,particularlyinitsparagraph3tothe
amendedcomplaint,specificallydeniedtheclaimofdamagesagainst
them,butalsobecauseoftherulinginDeCruzvs.Cruz,G.R.No.
27759,April17,1970(32SCRA307),citingRilivs.Chunaco,98
Phil.505,whichruledthatthepartyclaimingdamagesmust
satisfactorilyprovetheamountthereofandthatthoughtheruleis
thatfailuretospecificallydenytheallegationsinthecomplaintor
counterclaimisdeemedanadmissionofsaidallegations,thereis
howeveranexceptiontoit,thatis,thatwhentheallegationsreferto

25
theamountofdamages,theallegationsmuststillbeproved.This
rulingisinaccordwiththeprovisionofSection1,Rule9ofthe
RulesofCourt.

motionforjudgmentonthepleadingsthatsheevertookanypartin
theactortransactionthatgaverisetothedamagesallegedlysuffered
bytheplaintiffsforwhichtheynowclaimsomecompensation.

Thatwhiletheplaintiffsintheiramendedcomplaintallegethat
earnesteffortstowardsacompromisewiththedefendantswere
made,thefactisthattheircomplaintwasnotverifiedasprovidedin
Article151oftheFamilyCode.Besides,itisnotbelievedthatthere
wereindeedearnesteffortsmadetopatchupand/orreconcilethe
twofeudingbrothers,GregorioandAugusto,bothsurnamed
Hontiveros.

WHEREFORE,inthelightofalltheforegoingpremises,theCourt
orders,asitherebyorders,thedismissalofthiscasewithcostagainst
theplaintiffs.

Thesubmissionoftheplaintiffsthat,assumingnosuchearnest
effortsweremade,thesameisnotnecessaryorjurisdictionalinthe
lightoftherulinginRufinoMagbaleta,etal.,petitioners,vs.Hon.
ArsenioM.Gonong,etal.,respondents,No.L44903,April22,
1977,is,tothemindofthisCourt,notapplicabletothecaseatbar
forthefactistherationaleinthatcaseisnotpresentintheinstant
caseconsideringthesesalientpoints:
a)TeodoraAyson,theallegedwifeofdefendantGregorio
HontiverosandallegedlynotamemberoftheHontiverosFamily,is
notshowntobereallythewifeofGregorio,afactwhichGregorio
alsodeniedintheirverifiedanswertotheamendedcomplaint;
b)TeodoraAysonhasnotbeenshowntohaveacquiredany
proprietaryrightorinterestinthelandthatwaslitigatedbyGregorio
andAugusto,unlikeinthecitedcaseofMagbaletawhereitwas
shownthatastrangertothefamilyacquiredcertainright;
c)Inthedecisionrenderedbytheappellatecourtnomentionwas
madeatallofthenameofTeodoraAysonaspartawardeeofLot37
thatwasadjudgedtoGregoriootherthanhimselfwhowastherein
describedasawidower.Moreover,Teodorawasnevermentionedin
saiddecision,norintheamendedcomplaintandintheamended

SOORDERED.
Petitioners moved for a reconsideration of the order of
dismissal, but their motion was denied. [7] Hence, this petition for
review on certiorari. Petitioners contend:
I. THE REGIONAL TRIAL COURT PALPABLY ERRED
IN DISMISSING THE COMPLAINT ON THE
GROUND THAT IT DOES NOT ALLEGE UNDER
OATH THAT EARNEST EFFORTS TOWARD A
COMPROMISE WERE MADE PRIOR TO THE
FILING THEREOF AS REQUIRED BY ARTICLE 151
OF THE FAMILY CODE.
II. THE REGIONAL TRIAL COURT PALPABLY ERRED
IN NOT DENYING THE MOTION FOR JUDGMENT
ON THE PLEADINGS AND ORDERING A TRIAL
ON THE MERITS.
Private respondents raise a preliminary question. They argue
that petitioners should have brought this case on appeal to the Court
of Appeals since the order of the trial court judge was actually a
decision on the merits. On the other hand, even if petition
for certiorari were the proper remedy, they contend that the petition
is defective because the judge of the trial court has not been
impleaded as a respondent.[8]
Private respondents contention is without merit. The petition in
this case was filed pursuant to Rule 45 of the Rules of Court. As

26
explained in Atlas Consolidated
Corporation v. Court of Appeals:[9]

Mining

and

Development

UnderSection5,subparagraph(2)(e),ArticleVIIIofthe1987
Constitution,theSupremeCourtisvestedwiththepowertoreview,
revise,reverse,modify,oraffirmonappealorcertiorariasthelawor
theRulesofCourtmayprovide,finaljudgmentsandordersoflower
courtsinallcasesinwhichonlyanerrororquestionoflawis
involved.AsimilarprovisioniscontainedinSection17,fourth
paragraph,subparagraph(4)oftheJudiciaryActof1948,as
amendedbyRepublicActNo.5440.And,insuchcaseswhereonly
questionsoflawareinvolved,Section25oftheInterimRulesand
GuidelinesimplementingBatasPambansaBlg.129,inconjunction
withSection3ofRepublicActNo.5440,providesthattheappealto
theSupremeCourtshallbetakenbypetitionforcertiorariwhich
shallbegovernedbyRule45oftheRulesofCourt.
Therule,therefore,isthatdirectappealstothisCourtfromthetrial
courtonquestionsoflawhavetobethroughthefilingofapetition
forreviewoncertiorari.Ithasbeenheldthat:
xxxwhenaCFI(RTC)adjudicatesacaseintheexerciseofits
originaljurisdiction,thecorrectmodeofelevatingthejudgmentto
theCourtofAppealsisbyordinaryappeal,orappealbywritof
error,involvingmerelythefilingofanoticeofappealexceptonly
iftheappealistakeninspecialproceedingsandothercaseswherein
multipleappealsareallowedunderthelaw,inwhicheventhefiling
ofarecordonappealisadditionallyrequired.Ofcourse,whenthe
appealwouldinvolvepurelyquestionsoflaworanyoftheother
cases(exceptcriminalcasesasstatedhereunder)specifiedinSection
5(2),ArticleXoftheConstitution,itshouldbetakentotheSupreme
CourtbypetitionforreviewoncertiorariinaccordancewithRules
42and45oftheRulesofCourt.

Bywayofimplementationoftheaforestatedprovisionsoflaw,this
CourtissuedonMarch9,1990CircularNo.290,paragraph2of
whichprovides:
2.AppealsfromRegionalCourtstotheSupremeCourt.Exceptin
criminalcaseswherethepenaltyimposedislifeimprisonment
orreclusionperpetua,judgmentsofregionaltrialcourtsmaybe
appealedtotheSupremeCourtonlybypetitionforreviewon
certiorariinaccordancewithRule45oftheRulesofCourtin
relationtoSection17oftheJudiciaryActof1948,asamended,this
beingtheclearintendmentoftheprovisionoftheInterimRulesthat
(a)ppealstotheSupremeCourtshallbetakenbypetitionfor
certiorariwhichshallbegovernedbyRule45oftheRulesofCourt.
Undertheforegoingconsiderations,therefore,theinescapable
conclusionisthathereinpetitioneradoptedthecorrectmodeof
appealinG.R.No.88354byfilingwiththisCourtapetitionto
reviewoncertiorarithedecisionoftheRegionalTrailCourtofPasig
inCivilCaseNo.25528andraisingthereinpurelyquestionsoflaw.
In Meneses v. Court of Appeals, it was held:[10]
Itmustalsobestressedthatthetrialcourtsorderof5June1992
dismissingthepetitionerscomplaintwas,whetheritwasrightor
wrong,afinalorderbecauseithadputanendtotheparticularmatter
resolved,orsettleddefinitelythematterthereindisposedofandleft
nothingmoretobedonebythetrialcourtexcepttheexecutionofthe
order.Itisafirmlysettledrulethattheremedyagainstsuchorderis
theremedyofappealandnotcertiorari.Thatappealmaybesolelyon
questionsoflaw,inwhichcaseitmaybetakenonlytothisCourt;or
onquestionsoffactandlaw,inwhichcasetheappealshouldbe
broughttotheCourtofAppeals.PursuanttoMurillov.Consul,the
appealtothisCourtshouldbebypetitionforreviewoncertiorariin
accordancewithRule45oftheRulesofCourt.

27
As private respondents themselves admit, the order of
November 23, 1995 is a final order from which an appeal can be
taken. It is final in the sense that it disposes of the pending action
before the court and puts an end to the litigation so that nothing more
was left for the trial court to do. [11] Furthermore, as the questions
raised are questions of law, petition for review on certiorari is the
proper mode of appeal. These questions are: (1) whether after
denying petitioners motion for judgment on the pleadings, the trial
court could dismiss their complaint motu proprio for failure to
comply with Art. 151 of the Family Code which provides that no suit
between members of the same family shall prosper unless it appears
from the complaint, which must be verified, that earnest efforts
towards a compromise have been made but the same have failed; and
(2) whether Art. 151 applies to this case. These questions do not
require an examination of the probative value of evidence presented
and the truth or falsehood of facts asserted which questions of fact
would entail.[12]

However, none of these exceptions appears in this case.

On the other hand, petitioners contend that the trial court erred
in dismissing the complaint when no motion to that effect was made
by any of the parties. They point out that, in opposing the motion for
judgment on the pleadings, private respondents did not seek the
dismissal of the case but only the denial of petitioners
motion. Indeed, what private respondents asked was that trial be held
on the merits.

Under the rules, if there is no controverted matter in the case after the
answer is filed, the trial court has the discretion to grant a motion for
judgment on the pleadings filed by a party.[15] Where there are actual
issues raised in the answer, such as one involving damages, which
require the presentation of evidence and assessment thereof by the
trial court, it is improper for the judge to render judgment based on
the pleadings alone.[16] In this case, aside from the amount of
damages, the following factual issues have to be resolved, namely,
(1) private respondent Teodora Aysons participation and/or liability,
if any, to petitioners and (2) the nature, extent, and duration of
private respondents possession of the subject property. The trial
court, therefore, correctly denied petitioners motion for judgment on
the pleadings.

Of course, there are instances when the trial court may order the
dismissal of the case even without a motion to that effect filed by any
of the parties. In Baja v. Macandog,[13] this Court mentioned these
cases, to wit:
Thecourtcannotdismissacasemotupropriowithoutviolatingthe
plaintiffsrighttobeheard,exceptinthefollowinginstances:ifthe
plaintifffailstoappearatthetimeofthetrial;ifhefailstoprosecute
hisactionforanunreasonablelengthoftime;orifhefailstocomply
withtherulesoranyorderofthecourt;orifthecourtfindsthatithas
nojurisdictionoverthesubjectmatterofthesuit.

Moreover, the trial court itself found that judgment on the

pleadings is inappropriate not only for the fact that [private
respondents] in their answer . . . specifically denied the claim of
damages against them, but also because of the [rule] . . . that the
party claiming damages must satisfactorily prove the amount thereof.
. . . Necessarily, a trial must be held.
Rule 19 of the Rules of Court provides:[14]
SECTION1.Judgmentonthepleadings.Whereananswerfailsto
tenderanissue,orotherwiseadmitsthematerialallegationofthe
adversepartyspleading,thecourtmay,onmotionoftheparty,direct
judgmentonsuchpleading.Butinactionsforannulmentofmarriage
orforlegalseparationthematerialfactsallegedinthecomplaint
shallalwaysbeproved.

However, the trial court erred in dismissing petitioners

complaint on the ground that, although it alleged that earnest efforts
had been made toward the settlement of the case but they proved
futile, the complaint was not verified for which reason the trial court
could not believe the veracity of the allegation.

28
The absence of the verification required in Art. 151 does not
affect the jurisdiction of the court over the subject matter of the
complaint. The verification is merely a formal requirement intended
to secure an assurance that matters which are alleged are true and
correct. If the court doubted the veracity of the allegations regarding
efforts made to settle the case among members of the same family, it
could simply have ordered petitioners to verify them. As this Court
has already ruled, the court may simply order the correction of
unverified pleadings or act on it and waive strict compliance with the
rules in order that the ends of justice may be served. [17] Otherwise,
mere suspicion or doubt on the part of the trial court as to the truth of
the allegation that earnest efforts had been made toward a
compromise but the parties efforts proved unsuccessful is not a
ground for the dismissal of an action. Only if it is later shown that
such efforts had not really been exerted would the court be justified
in dismissing the action. Thus, Art. 151 provides:
Nosuitbetweenmembersofthesamefamilyshallprosperunlessit
shouldappearfromtheverifiedcomplaintorpetitionthatearnest
effortstowardacompromisehavebeenmade,butthatthesamehave
failed.Itifisshownthatnosucheffortswereinfactmade,thecase
mustbedismissed.
Thisruleshallnotapplytocaseswhichmaynotbethesubjectof
compromiseundertheCivilCode.
Moreover, as petitioners contend, Art. 151 of the Family Code
does not apply in this case since the suit is not exclusively among
family members. Citing several cases[18] decided by this Court,
petitioners claim that whenever a stranger is a party in a case
involving family members, the requisite showing of earnest efforts to
compromise is no longer mandatory. They argue that since private
respondent Ayson is admittedly a stranger to the Hontiveros family,
the case is not covered by the requirements of Art. 151 of the Family
Code.

We agree with petitioners. The inclusion of private respondent

Ayson as defendant and petitioner Maria Hontiveros as plaintiff takes
the case out of the ambit of Art. 151 of the Family Code.Under this
provision, the phrase members of the same family refers to the
husband and wife, parents and children, ascendants and descendants,
and brothers and sisters, whether full or half-blood. [19] As this Court
held in Guerrero v. RTC, Ilocos Norte, Br. XVI:[20]
Asearlyastwodecadesago,wealreadyruledinGayonv.
Gayonthattheenumerationofbrothersandsistersasmembersofthe
samefamilydoesnotcomprehendsistersinlaw.Inthatcase,then
ChiefJusticeConcepcionemphasizedthatsistersinlaw(hence,also
brothersinlaw)arenotlistedunderArt.217oftheNewCivilCode
asmembersofthesamefamily.SinceArt.150oftheFamilyCode
repeatsessentiallythesameenumerationofmembersofthefamily,
wefindnoreasontoalterexistingjurisprudenceonthe
mater.Consequently,thecourtaquoerredinrulingthatpetitioner
Guerrero,beingabrotherinlawofprivaterespondentHernando,
wasrequiredtoexertearnesteffortstowardsacompromisebefore
filingthepresentsuit.
Religious relationship and relationship by affinity are not given any
legal effect in this jurisdiction. [21] Consequently, private respondent
Ayson, who is described in the complaint as the spouse of respondent
Hontiveros, and petitioner Maria Hontiveros, who is admittedly the
spouse of petitioner Augusto Hontiveros, are considered strangers to
the Hontiveros family, for purposes of Art. 151.
Petitioners finally question the constitutionality of Art. 151 of
the Family Code on the ground that it in effect amends the Rules of
Court. This, according to them, cannot be done since the Constitution
reserves in favor of the Supreme Court the power to promulgate rules
of pleadings and procedure. Considering the conclusion we have
reached in this case, however, it is unnecessary for present purposes
to pass upon this question. Courts do not pass upon constitutional
questions unless they are the very lis mota of the case.

29
WHEREFORE, the petition is GRANTED and the Order,
dated November 23, 1995 of the Regional Trial Court of Iloilo City,
Branch 25 is SET ASIDE and the case is remanded to the trial court
for further proceedings not inconsistent with this decision.

(Chairman),

NowRule34ofthe1997RulesofCivilProcedure.

1V.J.Francisco,TheRevisedRulesofCourtinthePhilippines
1033(1973).
[15]

Rocamorav.RTC,Cebu(BranchVIII),167SCRA615(1988);1
M.V.Moran,CommentontheRulesofCourt538(1967).
[16]

SO ORDERED.
Bellosillo,
JJ., concur.

[14]

Puno,

Quisumbing, and Buena,

SeeVda. de Gabriel v. Court of Appeals, 264 SCRA 137

(1996);Sy v. Habicon-Garayblas, 228 SCRA 644 (1993);
Buenaventurav.Halili,149SCRA22(1987).
[17]

Magbaletav.Gonong,76SCRA511(1977);Gayonv.Gayon,36
SCRA 104 (1970); Mendezv. Eugenia, 80 SCRA 82 (1977);
Gonzalesv.Lopez,160SCRA346(1988);Guerrero v. RTC, Ilocos
Norte, Br. XVI,229SCRA274(1994).
[18]

DocketedasLandRegistrationCaseNo.N58125,LRCRec.No.
288.
[1]

[2]
[3]
[4]

SeeAmendedComplaint;Petition,AnnexA;Rollo,pp.2830.
SeeAmendedAnswer;Petition,AnnexB;Rollo,pp.3135.
Petition,AnnexC;Rollo,pp.3646.

[5]

Petition, Annex H.

[6]

Id., Annex E.

[7]

Id.,AnnexF.

[8]

Comment/Answer,pp.12;Rollo,pp.6061.

[9]

201 SCRA 51,5859(1991).

[10]

[19]

FamilyCode,Art.150.

[20]

229 SCRA 274,278(1994).

1A.M.Tolentino,CommentariesandJurisprudenceontheCivil
CodeofthePhilippines504(1990).
[21]

237 SCRA 484,491492(1994).

Allied Free Workers Unionv. Judge Estipona, 113 Phil. 748

(1961).
[11]

SeeRoman Catholic Archbishop of Manila v. Court of

Appeals,258SCRA195,199(1996).
[12]

[13]

158SCRA391,396397(1986).

FIRST DIVISION
G.R. NO. 154132
HIYAS SAVINGS and LOAN
BANK, INC.
Petitioner,

Present:
PANGANIBAN, C.J.

30
(Chairperson)
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.

- versus -

HON. EDMUNDO T. ACUA,

in his capacity as Pairing Judge
of Regional Trial Court, Branch
122, Caloocan City, and ALBERTO
MORENO,
Promulgated:
Respondent.
August 31, 2006
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
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[3] denying 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

31
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]

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 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:

Petitioner filed a Motion for Partial Reconsideration.

Private respondent filed his Comment,[11] after which petitioner
filed its Reply.[12] Thereafter, private respondent filed his Rejoinder.
[10]

[13]

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, L44903, April 25, 1977 and Mendez v. [B]iangon, L32159, 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.

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 aboveentitled 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.

32

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]

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]

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.

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

33
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. Purganan on 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.
Zamora on 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 agroindustrial 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.

34
And even if this Court passes upon the substantial issues
raised by petitioner, the instant petition likewise fails for lack of
merit.

This rule shall not apply to cases which may

not be the subject of compromise under the Civil
Code.

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.

Article 222 of the Civil Code from which Article 151 of the Family
Code was taken, essentially contains the same provisions, to wit:

The Court is not persuaded.

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]

Article 151 of the Family Code provides as follows:

The Code Commission that drafted Article 222 of the Civil Code
from which Article 151 of the Family Code was taken explains:
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.

[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

35
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
ofMartinez v. Martinez.[26] Thus, Article 151 of the Family Code
applies to cover when the suit is exclusively between or among
family members.

36
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.

and Article 217 of the Civil Code, to wit:

ART. 217. Family relations shall include

those:
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:

(1)

Between husband and wife;

(2)

Between parent and child;

(3)
(4)

Among other ascendants and their

descendants;
Among brothers and sisters.

ART. 150. Family relations include those:

(1)

Between husband and wife;

(2)

Between parents and children;

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.

(3)
Among other ascendants and
descendants; and
(4)
Among brothers and sisters,
whether of the full or half blood.

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

37
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
for Certiorari is DISMISSED for lack of merit.

Petition

[5]

Id. at 16.

[6]

Id. at 22.

[7]

Id. at 28.

[8]

Id. at 39.

[9]

Id. at 45-46.

[10]

Id. at 47.

[11]

Id. at 61.

[12]

Id. at 65.

[13]

Id. at 70.

[14]

Id. at 74.

MA. ALICIA AUSTRIA-MARTINEZ

[15]

Rollo, p. 9.

Associate Justice

[16]

G.R. No. 140954, April 12, 2005, 455 SCRA 460.

[17]

Id. at 470-472.

[18]

G.R. No. L-42260, April 30, 1979, 89 SCRA 674.

G.R. No. L-44903, April 22, 1977, 76 SCRA 511.

Costs against petitioner.

SO ORDERED.

[1]

Penned by Judge Edmundo T. Acua.

[19]

[2]

Records, p. 45.

[20]

[3]

Id. at 73.

[4]

Id. at 1.

ART. 2035. No compromise upon the following questions shall be

valid:
(1)

The civil status of persons;

38
(2)

The validity of a marriage or a legal separation;

(3)

Any ground for legal separation;

(4)

Future support;

(5)

The jurisdiction of courts;

(6)

Future legitime.

[21]

Report of the Code Commission, p. 18 cited in The Civil Code of

the Philippines and Family Code, Vol. 1, 1990 ed., by Ramon
C. Aquino and Carolina Grio-Aquino, p. 272.

[22]

Supra note 19, at 513.

[23]

G.R. No. L-48068, April 15, 1988, 160 SCRA 346.

[24]

339 Phil. 184 (1997).

[25]

368 Phil. 653 (1999).

[26]

G.R. No. 162084, June 28, 2005, 461 SCRA 562.

FIRST DIVISION
[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.

SYNOPSIS
The two parcels of land owned by Pablo Taneo located at Barrio
Igpit, Opol, Misamis Oriental were levied to satisfy the judgment in
Civil Case No. 590 for recovery of property in favor of private
respondent Abdon Gilig. The subject properties were sold at public
auction on February 12, 1966 to the private respondent as the highest
bidder. After Pablo Taneo failed to redeem the said properties, a
final deed of conveyance was executed on February 9, 1968, in favor
of the private respondent. On February 12, 1977, Pablo Taneo died.
And on November 5, 1985, the herein petitioners as legal heirs of
Pablo Taneo, filed an action to declare the deed of conveyance void
and to quiet title over the land claiming that one parcel of land had
been acquired through free patent under Commonwealth Act No. 141
and the other parcel of land is a family home, hence, both parcels of

39
land are inalienable and not subject to any encumbrance for the
payment of debt. After trial, the RTC dismissed the complaint. On
appeal, the Court of Appeals affirmed in toto the decision of the trial
court.
Hence, this petition.
The Court ruled that 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. Pablo Taneos
application for free patent was approved only on October 19, 1973.
As of February 9, 1968, the date of issuance of the deed of
conveyance, Pablo Taneo did not actually have anymore rights over
the land which he could 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.
Further, the applicable law in the case at bar is still the Civil
Code where registration of the declaration of a family home is a
prerequisite. The instrument constituting the family home was
registered only on January 24, 1966. The money judgment against
Pablo Taneo was registered 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).
The petition was DENIED.

SYLLABUS
1.

CIVIL
LAW;
LAND
TITLES
AND
DEEDS;
COMMONWEALTH ACT NO. 141; INTENT OF THE

LAW. -- We are not unmindful of the intent of the law. In fact,

in Republic v. Court of Appeals, 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 the law
impliedly permits alienation of the 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 or 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.
2. ID.; ID.; ID.; PROHIBITION AGAINST ALIENATION OF
LANDS. -- 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.
3. ID.; ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR.
-- 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,
Pablo Taneo did not actually have anymore rights over the land

40
which he could 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.
4. ID.; PERSONS; FAMILY HOME; CONCEPT. -- 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. It cannot be seized by creditors except in certain
special cases.
5. ID.; ID.; ID.; WAYS TO CONSTITUTE. -- Under the Civil
Code (Articles 224 to 251), a family home may be constituted
judicially 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. 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 residence.
6. ID.; ID.; ID.; RETROACTIVE EFFECT OF THE FAMILY
CODE IN RELATION THERETO. -- 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,
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 (Modequillo 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 clearly as
November 25, 1987, it preceded the effectivity of the Family
Code. His property is therefore not exempt from attachment.
7. ID.; ID.; ID.; NOT EXEMPTED FROM EXECUTION; CASE
AT BAR. -- 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. 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).
8. ID.; ID.; ID.; THE HOUSE MUST BE CONSTRUCTED ON
THE LAND NOT BELONGING TO ANOTHER.

41
-- 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 which it is
situated, it is understood that the house should be constructed on
a land not belonging to another.

APPEARANCES OF COUNSEL
Carlito P. Somido for petitioner.
Augusto G. Maderazo for private respondent.

DECISION
KAPUNAN, J.:
The issues in this case are not novel: whether or not the
conveyance made by way of the sheriffs sale pursuant to the wit 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.
As a result of a judgment in Civil Case No. 590 (For recovery of
property) in favor of private respondent, two (2) petitioner's
properties were levied to satisfy the judgment amount of
aboutP5,000.00: 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, 1966. 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

42
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 made final only in 1979.
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.
The dispositive portion thereof reads as follows:
Premisesconsidered,Judgmentisherebyrenderedinfavorofthe
defendantandagainsttheplaintiffs,orderingthedismissalofthe
complaintfiledbytheplaintiffs;
a) Declaring OCT No P-12820 and Free Patent No. 548906
both in 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

attorneys fees and to pay the costs.
SOORDERED.[1]
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

43
Pablo Taneo ordering the latter to pay damages in the
amount of P5,000.00 (Exh. 2);
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 of
March 2, 1966;
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.
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 entitled Arriola vs. Abdon Gilig, et al., for
Recovery of Property and/or annulment of Sale with
Damages;
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, 1979;
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.OnNovember3,1985,theplaintifffiledthepresentaction. [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:
Itiswellknownthatthehomesteadlawsweredesignedtodistribute
disposableagriculturallotsoftheStatetolanddestitutecitizensfor
theirhomeandcultivation.Pursuanttosuchbenevolentintentionthe
Stateprohibitsthesaleorencumbranceofthehomestead(Section
116)withinfiveyearsafterthegrantofthepatent.Afterthatfive

44
yearperiodthelawimpliedlypermitsalienationofthehomestead;
butinlinewiththeprimordialpurposetofavorthehomesteaderand
hisfamilythestatuteprovidesthatsuchalienationorconveyance
(Section117)shallbesubjecttotherightofrepurchasebythe
homesteader,hiswidoworheirswithinfiveyears.ThisSection117
isundoubtedlyacomplementofSection116.Itaimstopreserveand
keepinthefamilyofthehomesteaderthatportionofpublicland
whichtheStatehadgratuitouslygiventohim.Itwould,therefore,be
inkeepingwiththisfundamentalideatohold,aswehold,thatthe
righttorepurchaseexistsnotonlywhentheoriginalhomesteader
makestheconveyance,butalsowhenitismadebyhiswidow
orheirs.Thisconstructionisclearlydeduciblefromthetermsofthe
statute.
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.
Section 118 of Commonwealth Act No. 141 reads:
ExceptinfavoroftheGovernmentoranyofitsbranches,unitsor
institutions,orlegallyconstitutedbankingcorporations,lands
acquiredunderfreepatentorhomesteadprovisionsshallnotbe
subjecttoencumbranceoralienationfromthedateoftheapprovalof
theapplicationandforatermoffiveyearsfromandafterthedateof
issuanceofthepatentorgrant,norshalltheybecomeliabletothe
satisfactionofanydebtcontractedpriortotheexpirationofsaid
period,buttheimprovementsorcropsonthelandmaybemortgaged
orpledgedtoqualifiedpersons,associations,orcorporations.
x x x.
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:
xxxThedatewhentheprohibitionagainstthealienationoflands
acquiredbyhomesteadsorfreepatentscommencesisthedateofthe
approvaloftheapplicationandtheprohibitionembracestheentire
fiveyearperiodfromandafterthedateofissuanceofthepatentor
grant.AsstatedinBenigav.Bugas,(35SCRA111),theprovision
wouldmakenosenseiftheprohibitionstartingfromthedateofthe
approvaloftheapplicationwouldhavenoterminationdate.
Thespecificperiodoffiveyearswithinwhichthealienationor
encumbranceofahomesteadisrestrictedstartstobecomputedfrom
thedateoftheissuanceofthepatent.Buttheprohibitionof
alienationcommencesfromthedatetheapplicationis
approvedwhichcomesearlier.(Underliningours.)
Following this ruling, we agree with the respondent court that
the conveyance made by way of the sheriffs 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
Taneos application for free patent 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, Pablo Taneo did not
actually have anymore rights over the land which he could have
transferred to herein petitioners. The petitioners are not the owners of
the land and cannot claim to be such by invoking Commonwealth

45
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 courts valid observation on the
matter:
xxxtheapplicationofPabloTaneoforafreepatentwasapproved
onlyon19October1973andFreePatentwasissuedon10
December1980.Undertheaforecitedprovision,thesubjectland
couldnotbemadeliableforthesatisfactionofanydebtcontracted
fromthetimeoftheapplicationandduringthe5yearperiod
following10December1980,oruntil10December1985.However,
debtscontractedpriortotheapprovaloftheapplicationforfree
patent,thatispriorto18October1973,arenotcoveredbythe
prohibition.Thisisbecausetheydonotfallwithinthescopeofthe
prohibitedperiod.Inthiscase,thejudgmentdebtinfavorof
defendantappelleewasrenderedon24June1964,thewritof
executionissuedon22November1965,noticeoflevymadeon1
December1965,theexecutionsaleheldon12February1966,and
thecertificateofsaleregisteredon2March1966,allbeforePablo
Taneosapplicationforfreepatentwasapprovedon19October
1973.Theexecution,therefore,wasnotviolativeofthelaw. [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 special cases.

Under the Civil Code (Articles 224 to 251), a family home may
be constituted judicially 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 residence. It reads:
Thefamilyhomeisdeemedconstitutedonahouseandlotfromthe
timeitisoccupiedasfamilyresidence.Fromthetimeofits
constitutionandsolongasitsbeneficiariesactuallyresides
therein,thefamilyhomecontinuestobesuchandisexemptfrom
execution,forcedsaleorattachment,exceptashereinafterprovided
andtotheextentofthevalueallowedbylaw.
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 ofManacop v. Court
of Appeals[11] to wit:
Finally,thepetitionerinsiststhattheattachedpropertyisafamily
home,havingbeenoccupiedbyhimandhisfamilysince1972,and
isthereforeexemptfromattachment.
Thecontentionisnotwelltaken.

46
WhileArticle153oftheFamilyCodeprovidesthatthefamilyhome
isdeemedconstitutedonahouseandlotfromthetimeitisoccupied
asafamilyresidence,itdoesnotmeanthatsaidarticlehasa
retroactiveeffectsuchthatallexistingfamilyresidences,petitioners
included,aredeemedtohavebeenconstitutedasfamilyhomesatthe
timeoftheiroccupationpriortotheeffectivityoftheFamilyCode
andhenceforth,areexemptfromexecutionforthepaymentof
obligationsincurredbeforetheeffectivityoftheFamilyCodeon
August3,1988(Modequillovs.Breva,185SCRA766).Neither
doesArticle162ofsaidCodestatethattheprovisionsofChapter2,
TitleVthereofhaveretroactiveeffect.Itsimplymeansthatall
existingfamilyresidencesatthetimeoftheeffectivityoftheFamily
Codeareconsideredfamilyhomesandareprospectivelyentitledto
thebenefitsaccordedtoafamilyhomeundertheFamilyCode
(Modequillovs.Breva,supra).Sincepetitionersdebtwasincurredas
earlyasNovember25,1987,itprecededtheeffectivityoftheFamily
Code.Hispropertyisthereforenotexemptfromattachment(Annex
O,PlaintiffsPositionPaperandMemorandumofAuthorities,p.
78).(pp.56,Decision;pp.6465,Rollo)(underscoringours)
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.
Article 243 reads:

(3) For debts secured by mortgages on the premises before

or after such record of the declaration;
(4)Fordebtsduetolaborers,mechanics,architects,builders,
materialmenandotherswhohaverenderedserviceorfurnished
materialfortheconstructionofthebuilding.[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 which it is situated,[13] it 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.

Thefamilyhomeextrajudiciallyformedshallbeexemptfrom
execution,forcedsaleorattachment,except:

SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, and Pardo, JJ., concur.

(1) For nonpayment of taxes;

(2) For debts incurred before the declaration was recorded
in the Registry of Property;

[1]
[2]

Rollo, p. 19.
Records, pp. 262-265.

47
[3]

69 Phil 305 (1940).

51 SCRA 381 (1973).
[5]
See Rollo, p. 13.
[6]
281 SCRA 639, 650 (1997).
[7]
122 SCRA 327 (1983).
[8]
Rollo, p. 23.
[9]
Tolentino, Commentaries and Jurisprudence on the Civil Code of
the Philippines, Vol. I, p. 523.
[10]
ART. 240. The family home may be extrajudicially constituted by
recording in the Registry of Property a public instrument wherein a
person declares that he thereby establishes a family home out of a
dwelling place with the land on which it is situated.
ART. 241. The declaration setting up the family home shall be under
oath and shall contain:
(1) A statement that the claimant is the owner of, and is actually
residing in the premises;
(2) A description of the property;
(3) An estimate of its actual value; and
(4) The names opf the claimants spouse and the other beneficiaries
mentioned in article 226.
[11]
215 SCRA 773 (1992).
[12]
See also Article 155 of the Family Code.
[13]
Article 223, Civil Code; Article 152, Family Code. [13] Rollo, p.
19.
[13]
Records, pp. 262-265.
[13]
69 Phil 305 (1940).
[13]
51 SCRA 381 (1973).
[13]
See Rollo, p. 13.
[13]
281 SCRA 639, 650 (1997).
[13]
122 SCRA 327 (1983).
[13]
Rollo, p. 23.
[13]
Tolentino, Commentaries and Jurisprudence on the Civil Code of
the Philippines, Vol. I, p. 523.
[13]
ART. 240. The family home may be extrajudicially constituted by
recording in the Registry of Property a public instrument wherein a
[4]

person declares that he thereby establishes a family home out of a

dwelling place with the land on which it is situated.
ART. 241. The declaration setting up the family home shall be under
oath and shall contain:
(1) A statement that the claimant is the owner of, and is actually
residing in the premises;
(2) A description of the property;
(3) An estimate of its actual value; and
(4) The names opf the claimants spouse and the other beneficiaries
mentioned in article 226.
[13]
215 SCRA 773 (1992).
[13]
See also Article 155 of the Family Code.
[13]
Article 223, Civil Code; Article 152, Family Code.

SECOND DIVISION
G.R. No. 185064

January 16, 2012

SPOUSES ARACELI OLIVA-DE MESA and ERNESTO S. DE

MESA, Petitioner,
vs.
SPOUSES CLAUDIO D. ACERO, JR. and MA. RUFINA D.
ACERO, SHERIFF FELIXBERTO L. SAMONTE and
REGISTRAR ALFREDO SANTOS, Respondents.
DECISION
REYES, J.:
Nature of the Petition

48
This is a petition for review on certiorari under Rule 45 of the
Rules of Court filed by the Spouses Araceli Oliva-De Mesa
(Araceli) and Ernesto S. De Mesa (Ernesto), assailing the
Court of Appeals (CA) Decision1 dated June 6, 2008 and
Resolution2 dated October 23, 2008 in CA-G.R. CV No. 79391
entitled "Spouses Araceli Oliva-De Mesa and Ernesto De
Mesa v. Spouses Claudio Acero, Jr., et al."

was filed against the petitioners with the Regional Trial Court
(RTC) of Malolos, Bulacan.

The Antecedent Facts

On March 15, 1993, a writ of execution was issued and Sheriff

Felixberto L. Samonte (Sheriff Samonte) levied upon the
subject property. On March 9, 1994, the subject property was
sold on public auction; Claudio was the highest bidder and the
corresponding certificate of sale was issued to him.

This involves a parcel of land situated at No. 3 Forbes Street,

Mount Carmel Homes Subdivision, Iba, Meycauayan, Bulacan,
which was formerly covered by Transfer Certificate of Title
(TCT) No. T-76.725 (M) issued by the Register of Deeds of
Meycauayan, Bulacan and registered under Aracelis name.
The petitioners jointly purchased the subject property on April
17, 1984 while they were still merely cohabiting before their
marriage. A house was later constructed on the subject
property, which the petitioners thereafter occupied as their
family home after they got married sometime in January 1987.

On October 21, 1992, the RTC rendered a Decision3 acquitting

the petitioners but ordering them to pay Claudio the amount
of P100,000.00 with legal interest from date of demand until
fully paid.

Sometime in February 1995, Claudio leased the subject

property to the petitioners and a certain Juanito Oliva (Juanito)
for a monthly rent of P5,500.00. However, the petitioners and
Juanito defaulted in the payment of the rent and as of October
3, 1998, their total accountabilities to Claudio amounted
to P170,500.00.

Sometime in September 1988, Araceli obtained a loan from

Claudio D. Acero, Jr. (Claudio) in the amount ofP100,000.00,
which was secured by a mortgage over the subject property.
As payment, Araceli issued a check drawn against China
Banking Corporation payable to Claudio.

Meanwhile, on March 24, 1995, a Final Deed of Sale4 over the

subject property was issued to Claudio and on April 4, 1995,
the Register of Deeds of Meycauayan, Bulacan cancelled TCT
No. T-76.725 (M) and issued TCT No. T-221755 (M)5 in his
favor.

When the check was presented for payment, it was

dishonored as the account from which it was drawn had
already been closed. The petitioners failed to heed Claudios
subsequent demand for payment.

Unable to collect the aforementioned rentals due, Claudio and

his wife Ma. Rufina Acero (Rufina) (collectively referred to as
Spouses Acero) filed a complaint for ejectment with the
Municipal Trial Court (MTC) of Meycauayan, Bulacan against
the petitioners and Juanito. In their defense, the petitioners
claimed that Spouses Acero have no right over the subject
property. The petitioners deny that they are mere lessors; on
the contrary, they are the lawful owners of the subject property
and, thus cannot be evicted therefrom.

Thus, on April 26, 1990, Claudio filed with the Prosecutor's

Office of Malolos, Bulacan a complaint for violation of Batas
Pambansa Blg. 22 (B.P. 22) against the petitioners. After
preliminary investigation, an information for violation of B.P. 22

49
On July 22, 1999, the MTC rendered a Decision,6 giving due
course to Spouses Aceros complaint and ordering the
petitioners and Juanito to vacate the subject property. Finding
merit in Spouses Aceros claims, the MTC dismissed the
petitioners' claim of ownership over the subject property.
According to the MTC, title to the subject property belongs to
Claudio as shown by TCT No. T-221755 (M).
The MTC also stated that from the time a Torrens title over the
subject property was issued in Claudios name up to the time
the complaint for ejectment was filed, the petitioners never
assailed the validity of the levy made by Sheriff Samonte, the
regularity of the public sale that was conducted thereafter and
the legitimacy of Claudios Torrens title that was resultantly
issued.
The petitioners appealed the MTCs July 22, 1999 Decision to
the RTC. This appeal was, however, dismissed in a Decision
dated November 22, 1999 due to the petitioners failure to
submit their Memorandum. The petitioners sought
reconsideration of the said decision but the same was denied
in an Order dated January 31, 2000.
Consequently, the petitioners filed a petition for review7 with
the CA assailing the RTCs November 22, 1999 Decision and
January 31, 2000 Order. In a December 21, 2006
Decision,8 the CA denied the petitioners petition for review.
This became final on July 25, 2007.9
In the interregnum, on October 29, 1999, the petitioners filed
against the respondents a complaint10 to nullify TCT No. T221755 (M) and other documents with damages with the RTC
of Malolos, Bulacan. Therein, the petitioners asserted that the
subject property is a family home, which is exempt from
execution under the Family Code and, thus, could not have

been validly levied upon for purposes of satisfying the March

15, 1993 writ of execution.
On September 3, 2002, the RTC rendered a Decision,11 which
dismissed the petitioners complaint. Citing Article 155(3) of the
Family Code, the RTC ruled that even assuming that the
subject property is a family home, the exemption from
execution does not apply. A mortgage was constituted over the
subject property to secure the loan Araceli obtained from
Claudio and it was levied upon as payment therefor.
The petitioners sought reconsideration of the RTCs
September 3, 2002 Decision but this was denied in a
Resolution12 dated January 14, 2003.
On appeal, the CA affirmed the RTCs disposition in its
Decision13 dated June 6, 2008. The CA ratiocinated that the
exemption of a family home from execution, attachment or
forced sale under Article 153 of the Family Code is not
automatic and should accordingly be raised and proved to the
Sheriff prior to the execution, forced sale or attachment. The
appellate court noted that at no time did the petitioners raise
the supposed exemption of the subject property from
execution on account of the same being a family home.
The petitioners then sought reconsideration of the said June 6,
2008 Decision but the same was denied by the CA in its
Resolution14 dated October 23, 2008.
Aggrieved, the petitioners filed the instant petition for review,
praying for the cancellation of TCT No. T-221755 (M). They
insist that the execution sale that was conducted is a nullity
considering that the subject property is a family home. The
petitioners assert that, contrary to the disposition of the CA, a
prior demonstration that the subject property is a family home
is not required before it can be exempted from execution.

50
In their Comment,15 Spouses Acero claimed that this petition
ought to be denied on the ground of forum-shopping as the
issues raised had already been determined by the MTC in its
July 22, 1999 Decision on the complaint for ejectment filed by
them, which had already become final and executory following
the petitioners failure to appeal the CAs December 21, 2006
Decision affirming it.
Issues
The threshold issues for resolution are the following: (a)
whether the petitioners are guilty of forum-shopping; and (b)
whether the lower courts erred in refusing to cancel Claudios
Torrens title TCT No. T-221755 (M) over the subject property.
The Courts Ruling
First Issue: Forum-Shopping
On the first issue, we find that the petitioners are not guilty of
forum-shopping.
There is forum-shopping when as a result of an adverse
decision in one forum, or in anticipation thereof, a party seeks
a favorable opinion in another forum through means other than
an appeal or certiorari. Forum-shopping exists when two or
more actions involve the same transactions, essential facts,
and circumstances; and raise identical causes of action,
subject matter, and issues.16
Forum-shopping exists where the elements of litis
pendentia are present, and where a final judgment in one case
will amount to res judicata in the other. The elements of forumshopping are: (a) identity of parties, or at least such parties as
would represent the same interest in both actions; (b) identity
of rights asserted and relief prayed for, the relief being founded
on the same facts; and (c) identity of the two preceding

particulars such that any judgment rendered in the other action

will, regardless of which party is successful, amount to res
judicata in the action under consideration.17
There is no identity of issues and reliefs prayed for in the
ejectment case and in the action to cancel TCT No. T-221755
(M). Verily, the primordial issue in the ejectment case is who
among the contending parties has a better right of possession
over the subject property while ownership is the core issue in
an action to cancel a Torrens title.
It is true that the petitioners raised the issue of ownership over
the subject property in the ejectment case. However, the
resolution thereof is only provisional as the same is solely for
the purpose of determining who among the parties therein has
a better right of possession over the subject property.
Accordingly, a judgment rendered in an ejectment case is not a
bar to action between the same parties respecting title to the
land or building. Neither shall it be conclusive as to the facts
therein. This issue is far from being novel and there is no
reason to depart from this Courts previous pronouncements.
In Malabanan v. Rural Bank of Cabuyao, Inc.,18 this Court had
previously clarified that a decision in an ejectment case is
not res judicata in an annulment of title case and vice-versa
given the provisional and inconclusive nature of the
determination of the issue of ownership in the former.
Forum-shopping exists where the elements of litis
pendentia are present, namely: (a) identity of parties or at least
such as representing the same interests in both actions; (b)
identity of rights asserted and reliefs prayed for, the relief
being founded on the same facts; and (c) the identity in the
two cases should be such that the judgment that may be
rendered in one would, regardless of which party is successful,
amounts to res judicata in the other.

51
Petitioner and respondent are the same parties in the
annulment and ejectment cases. The issue of ownership was
likewise being contended, with same set of evidence being
presented in both cases. However, it cannot be inferred that a
judgment in the ejectment case would amount to res
judicata in the annulment case, and vice-versa.
This issue is hardly a novel one. It has been laid to rest by
heaps of cases iterating the principle that a judgment rendered
in an ejectment case shall not bar an action between the same
parties respecting title to the land or building nor shall it be
conclusive as to the facts therein found in a case between the
same parties upon a different cause of action involving
possession.
It bears emphasizing that in ejectment suits, the only issue for
resolution is the physical or material possession of the
property involved, independent of any claim of ownership by
any of the party litigants. However, the issue of ownership may
be provisionally ruled upon for the sole purpose of determining
who is entitled to possession de facto. Therefore, the
provisional determination of ownership in the ejectment case
cannot be clothed with finality.
Corollarily, the incidental issue of whether a pending action for
annulment would abate an ejectment suit must be resolved in
the negative.
A pending action involving ownership of the same property
does not bar the filing or consideration of an ejectment suit,
nor suspend the proceedings. This is so because an ejectment
case is simply designed to summarily restore physical
possession of a piece of land or building to one who has been
illegally or forcibly deprived thereof, without prejudice to the
settlement of the parties' opposing claims of juridical
possession in appropriate proceedings.19(citations omitted)

Second Issue: Nullification of TCT No. T-221755 (M)

Anent the second issue, this Court finds that the CA did not err
in dismissing the petitioners complaint for nullification of TCT
No. T-221755 (M).
The subject property is a family home.
The petitioners maintain that the subject property is a family
home and, accordingly, the sale thereof on execution was a
nullity. In Ramos v. Pangilinan,20 this Court laid down the rules
relative to exemption of family homes from execution:
For the family home to be exempt from execution, distinction
must be made as to what law applies based on when it was
constituted and what requirements must be complied with by
the judgment debtor or his successors claiming such privilege.
Hence, two sets of rules are applicable.
If the family home was constructed before the effectivity of the
Family Code or before August 3, 1988, then it must have
been constituted either judicially or extra-judicially as
provided under Articles 225, 229-231 and 233 of the Civil
Code. Judicial constitution of the family home requires the
filing of a verified petition before the courts and the registration
of the courts order with the Registry of Deeds of the area
where the property is located. Meanwhile, extrajudicial
constitution is governed by Articles 240 to 242 of the Civil
Code and involves the execution of a public instrument which
must also be registered with the Registry of Property. Failure
to comply with either one of these two modes of constitution
will bar a judgment debtor from availing of the privilege.
On the other hand, for family homes constructed after the
effectivity of the Family Code on August 3, 1988, there isno
need to constitute extrajudicially or judicially, and the

52
exemption is effective from the time it was constituted and
lasts as long as any of its beneficiaries under Art. 154 actually
resides therein. Moreover, the family home should belong to
the absolute community or conjugal partnership, or if
exclusively by one spouse, its constitution must have been
with consent of the other, and its value must not exceed
certain amounts depending upon the area where it is located.
Further, the debts incurred for which the exemption does not
apply as provided under Art. 155 for which the family home is
made answerable must have been incurred after August 3,
1988.21 (citations omitted)
In the earlier case of Kelley, Jr. v. Planters Products, Inc.,22 we
stressed that:
Under the Family Code, there is no need to constitute the
family home judicially or extrajudicially. All family homes
constructed after the effectivity of the Family Code (August 3,
1988) are constituted as such by operation of law. All existing
family residences as of August 3, 1988 are considered
family homes and are prospectively entitled to the
benefits accorded to a family home under the Family
Code.23 (emphasis supplied and citation omitted)
The foregoing rules on constitution of family homes, for
purposes of exemption from execution, could be summarized
as follows:
First, family residences constructed before the
effectivity of the Family Code or before August 3, 1988
must be constituted as a family home either judicially or
extrajudicially in accordance with the provisions of the
Civil Code in order to be exempt from execution;
Second, family residences constructed after the
effectivity of the Family Code on August 3, 1988 are

automatically deemed to be family homes and thus

exempt from execution from the time it was constituted
and lasts as long as any of its beneficiaries actually
resides therein;
Third, family residences which were not judicially or
extrajudicially constituted as a family home prior to the
effectivity of the Family Code, but were existing
thereafter, are considered as family homes by
operation of law and are prospectively entitled to the
benefits accorded to a family home under the Family
Code.
Here, the subject property became a family residence
sometime in January 1987. There was no showing, however,
that the same was judicially or extrajudicially constituted as a
family home in accordance with the provisions of the Civil
Code. Still, when the Family Code took effect on August 3,
1988, the subject property became a family home by operation
of law and was thus prospectively exempt from execution. The
petitioners were thus correct in asserting that the subject
property was a family home.
The family homes exemption from execution must be set
up and proved to the Sheriff before the sale of the
property at public auction.
Despite the fact that the subject property is a family home and,
thus, should have been exempt from execution, we
nevertheless rule that the CA did not err in dismissing the
petitioners complaint for nullification of TCT No. T-221755 (M).
We agree with the CA that the petitioners should have
asserted the subject property being a family home and its
being exempted from execution at the time it was levied or
within a reasonable time thereafter. As the CA aptly pointed
out:

53
In the light of the facts above summarized, it is evident that
appellants did not assert their claim of exemption within a
reasonable time. Certainly, reasonable time, for purposes of
the law on exemption, does not mean a time after the
expiration of the one-year period provided for in Section 30 of
Rule 39 of the Rules of Court for judgment debtors to redeem
the property sold on execution, otherwise it would render
nugatory final bills of sale on execution and defeat the very
purpose of execution to put an end to litigation. x x x.24
The foregoing disposition is in accord with the Courts
November 25, 2005 Decision in Honrado v. Court of
Appeals,25 where it was categorically stated that at no other
time can the status of a residential house as a family home
can be set up and proved and its exemption from execution be
claimed but before the sale thereof at public auction:
While it is true that the family home is constituted on a house
and lot from the time it is occupied as a family residence and is
exempt from execution or forced sale under Article 153 of the
Family Code, such claim for exemption should be set up and
proved to the Sheriff before the sale of the property at public
auction. Failure to do so would estop the party from later
claiming the exemption. As this Court ruled in Gomez v.
Gealone:
Although the Rules of Court does not prescribe the period
within which to claim the exemption, the rule is, nevertheless,
well-settled that the right of exemption is a personal privilege
granted to the judgment debtor and as such, it must be
claimed not by the sheriff, but by the debtor himself at the time
of the levy or within a reasonable period thereafter;
"In the absence of express provision it has variously held that
claim (for exemption) must be made at the time of the levy if
the debtor is present, that it must be made within a reasonable

time, or promptly, or before the creditor has taken any step

involving further costs, or before advertisement of sale, or at
any time before sale, or within a reasonable time before the
sale, or before the sale has commenced, but as to the last
there is contrary authority."
In the light of the facts above summarized, it is self-evident
that appellants did not assert their claim of exemption within a
reasonable time. Certainly, reasonable time, for purposes of
the law on exemption, does not mean a time after the
expiration of the one-year period provided for in Section 30 of
Rule 39 of the Rules of Court for judgment debtors to redeem
the property sold on execution, otherwise it would render
nugatory final bills of sale on execution and defeat the very
purpose of executionto put an end to litigation.1awphil We
said before, and We repeat it now, that litigation must end and
terminate sometime and somewhere, and it is essential to an
effective administration of justice that, once a judgment has
become final, the winning party be not, through a mere
subterfuge, deprived of the fruits of the verdict. We now rule
that claims for exemption from execution of properties under
Section 12 of Rule 39 of the Rules of Court must be presented
before its sale on execution by the sheriff.26 (citations omitted)
Reiterating the foregoing in Spouses Versola v. Court of
Appeals,27 this Court stated that:
Under the cited provision, 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.
The settled rule is that the right to exemption or forced
sale under Article 153 of the Family Code is a personal
privilege granted to the judgment debtor and as such, it
must be claimed not by the sheriff, but by the debtor

54
himself before the sale of the property at public auction. It
is not sufficient that the person claiming exemption merely
alleges that such property is a family home. This claim for
exemption must be set up and proved to the Sheriff. x x
x.28 (emphasis supplied and citations omitted)
Having failed to set up and prove to the sheriff the supposed
exemption of the subject property before the sale thereof at
public auction, the petitioners now are barred from raising the
same. Failure to do so estop them from later claiming the said
exemption.
Indeed, the family home is a sacred symbol of family love and
is the repository of cherished memories that last during ones
lifetime.29 It is likewise without dispute that the family home,
from the time of its constitution and so long as any of its
beneficiaries actually resides therein, is generally exempt from
execution, forced sale or attachment.30
The family home is a real right, which is gratuitous, inalienable
and free from attachment. It cannot be seized by creditors
except in certain special cases.31 However, this right can be
waived or be barred by laches by the failure to set up and
prove the status of the property as a family home at the time of
the levy or a reasonable time thereafter.
In this case, it is undisputed that the petitioners allowed a
considerable time to lapse before claiming that the subject
property is a family home and its exemption from execution
and forced sale under the Family Code. The petitioners
allowed the subject property to be levied upon and the public
sale to proceed. One (1) year lapsed from the time the subject
property was sold until a Final Deed of Sale was issued to
Claudio and, later, Aracelis Torrens title was cancelled and a
new one issued under Claudios name, still, the petitioner
remained silent. In fact, it was only after the respondents filed

a complaint for unlawful detainer, or approximately four (4)

years from the time of the auction sale, that the petitioners
claimed that the subject property is a family home, thus,
exempt from execution.
For all intents and purposes, the petitioners negligence or
omission to assert their right within a reasonable time gives
rise to the presumption that they have abandoned, waived or
declined to assert it. Since the exemption under Article 153 of
the Family Code is a personal right, it is incumbent upon the
petitioners to invoke and prove the same within the prescribed
period and it is not the sheriffs duty to presume or raise the
status of the subject property as a family home.
The petitioners negligence or omission renders their present
assertion doubtful; it appears that it is a mere afterthought and
artifice that cannot be countenanced without doing the
respondents injustice and depriving the fruits of the judgment
award in their favor. Simple justice and fairness and equitable
considerations demand that Claudios title to the property be
respected. Equity dictates that the petitioners are made to
suffer the consequences of their unexplained negligence.
WHEREFORE, in consideration of the foregoing disquisitions,
the petition is DENIED. The assailed Decision dated June 6,
2008 of the Court of Appeals in CA-G.R. CV No. 79391, which
affirmed the Decision of the Regional Trial Court of Malolos,
Bulacan, Branch 22, in Civil Case No. 1058-M-99 and
dismissed the complaint for declaration of nullity of TCT No.
221755 (M) and other documents, and the October 23, 2008
Resolution denying reconsideration, are AFFIRMED.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice

55
11

Id. at 156-163.

12

Id. at 170-172.

13

Supra note 1.

Additional Member in lieu of Associate Justice Arturo

D. Brion per Special Order No. 1174 dated January 9,
2012.

14

Supra note 2.

15

Rollo, pp. 253-278.

16

Footnotes
*

Penned by Associate Justice Regalado E.

Maambong, with Associate Justices Celia C. LibreaLeagogo and Agustin S. Dizon, concurring; rollo, pp.
28-41.
2

Id. at 42-43.

Making Enterprises, Inc. v. Marfori, G.R. No. 152239,

August 17, 2011.
17

Cruz v. Caraos, G.R. No. 138208, April 23, 2007, 521

SCRA 510, 522.
18

G.R. No. 163495, May 8, 2009, 587 SCRA 442.

19

Id. at 446-448.

20

G.R. No. 185920, July 20, 2010, 625 SCRA 181.

21

Id. at 186-189.

22

G.R. No. 172263, July 9, 2008, 557 SCRA 499.

23

Id. at 502.

24

Rollo, pp. 38-39.

25

512 Phil 657 (2005).

26

Id. at 666-667.

27

529 Phil 377 (2006).

Id. at 65-68.
Id. at 74-75.
Id. at 76.
Id. at 77-80.
Id. at 293-313.

Penned by Associate Justice Ramon R. Garcia, with

Associate Justices Rebecca De Guia-Salvador and
Magdangal M. De Leon, concurring; id. at 279-287.
9

Id. at 288.

10

Id. at 44-55.

56
28

Id. at 386.

29

Cabang v. Basay, G.R. No. 180587, March 20, 2009,

582 SCRA 172, 184, citing A. Tolentino, Commentaries
and Jurisprudence on the Civil Code of the Philippines,
Vol. 1 (1990 ed.), p. 508.
30

31

Family Code, Article 153.

Josef v. Santos, G.R. No. 165060, November 27,

2008, 572 SCRA 57, 63.

THIRD DIVISION
[G.R. No. 138493. June 15, 2000]
TEOFISTA BABIERA, petitioner, vs. PRESENTACION B.
CATOTAL, respondent.
DECISION
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 Courts consideration is a Petition for Review
on Certiorari[1] under Rule 45 of the Rules of Court, seeking
reversal of the March 18, 1999 Decision[2] of the Court of
Appeals[3] (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

57
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 Norte, 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 x x x;
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 x x x 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)

58
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 x x x 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, x x x
Certificate of Baptism, x x x Student's Report Card x x
x 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
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

59
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 childs 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.
CV-56031 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 Courts Ruling
The Petition is not meritorious.

First Issue: Subject of the Present Action

Petitioner contends that respondent has no standing to sue,
because Article 171[8] 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 wifes 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 petitioners 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:
"Petitioners 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:

60
x x x.....x x x.....x x x
"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 thehusband 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 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
decedents 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 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."

61
This argument is bereft of merit. The present action involves
the cancellation of petitioners 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.[13]
Third Issue: Presumption in Favor of the Birth Certificate
Lastly, petitioner argues that the evidence presented,
especially Hermogenas testimony that petitioner was not her
real child, cannot overcome the presumption of regularity in
the issuance of the Birth Certificate.
While it is true that an official document such as petitioners
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 mothers 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 Hermogenas pregnancy, such as
medical records and doctors prescriptions, other than the Birth
Certificate itself. In fact, no witness was presented to attest to
the pregnancy of Hermogena during that time. 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 Eugenios. 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.
x x x.....x x x.....x x x
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]
Relying merely on the assumption of validity of the Birth
Certificate, petitioner has presented no other evidence other

62
than the said document to show that she is really Hermogenas
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 respondents parents.
WHEREFORE, the Petition is hereby DENIED and the
assailed Decision AFFIRMED. Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., abroad on official business.

[1]

[2]

Rollo, pp. 9-16.

Rollo, pp. 22-29.

Fifteenth Division.
[4]
CA Decision, p. 10; rollo, p. 29. The Decision was written by J.
Demetrio G. Demetria, with the concurrence of JJ Ramon A.
Bercelona (Division chairman) and Presbiterio J. Velasco Jr.
(member)
[5]
CA Decision, pp. 2-4; rollo, pp. 22-24.
[6]
The case was deemed submitted for resolution on December 24,
1999, upon receipt by this Court of Petitioners Memorandum, which
was signed by Atty. Pablito C. Pielago Sr. Respondents
Memorandum, signed by Atty. Dulcesimo Tampos, had been
received earlier.
[7]
Petition, p. 3; rollo, p. 11.
[3]

[8]

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 cases:
(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.
[9]
It appears that respondent invoked Rule 108 in the present action.
Although the said Rule allows only the correction of typographical or
clerical errors and not material or substantial ones (see Leonor v. CA,
256 SCRA 69, April 2, 1996), the propriety of the present remedy
was not raised as an issue. Hence, the Court finds no reason to pass
upon it. It should be observed, however, that the trial court ordered
the publication of the Petition and the date of hearing in a newspaper
of general publication and caused the service of copies thereof to the
Office of the Solicitor General, the Iligan City local civil registrar
and the Office of the Iligan City Prosecutor.
[10]
Civil Case No. 2389.
[11]
229 SCRA 468, January 24, 1994.
[12]
Ibid., pp. 472-474, per Puno, J.
[13]
See Santos v. Aranzanso, 116 SCRA 1, August 21, 1982.
[14]
The civil registrar was G.L. Caluen.
[15]
CA Decision, pp. 9-10; rollo, pp. 28-29. The same was taken from
Special Proceedings No. 1794, entitled "In the matter of the
Perpetuation of the Testimony of Hermogena C. Babiera,
Presentacion B. Catotal, Petitioner."

63

THIRD DIVISION

BELEN SAGAD ANGELES, G.R. No. 153798

Petitioner,
Present:
PANGANIBAN, J., Chairman
SANDOVAL-GUTIERREZ,
CORONA,
- versus -

CARPIO-MORALES, and
GARCIA, JJ.

ALELI CORAZON ANGELES

MAGLAYA, Respondent.
2005

Promulgated:
September 2,

64
x------------------------------------------------------------------------x

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of

the Rules of Court, petitioner Belen Sagad Angeles
seeks to set aside the Decision dated May 29,
2002[1] of the Court of Appeals in CA G.R. CV No.
66037, reversing an earlier Order of the Regional Trial
Court at Caloocan City which dismissed the petition for
the settlement of the intestate estate of Francisco
Angeles, thereat commenced by the herein respondent
Aleli Corazon Angeles-Maglaya.

The legal dispute between the parties started when,

on March 25, 1998, in the Regional Trial Court (RTC) at
Caloocan City, respondent filed a petition [2]for letters of
administration and her appointment as administratrix
of the intestate estate of Francisco M. Angeles
(Francisco, hereinafter). In the petition, docketed
as Special Proceedings No. C-2140 and raffled to
Branch 120 of the court, respondent alleged, among
other things, the following:

1. That Francisco, a resident of 71 B. Serrano St.,

Grace Park, Caloocan, died intestate on January 21,
1998 in the City of Manila, leaving behind four (4)
parcels of land and a building, among other valuable
properties;
2. That there is a need to appoint an
administrator of Franciscos estate;
3. That she (respondent) is the sole legitimate
child of the deceased and Genoveva Mercado, and,
together with petitioner, Belen S. Angeles, decedents
wife by his second marriage, are the surviving heirs of
the decedent; and
4. That she has all the qualifications and none of
the disqualifications required of an administrator.

Petitioner opposed the basic petition and prayed that

she, instead of respondent, be made the administratrix
of Franciscos estate.[3] In support of her opposition and
plea, petitioner alleged having married Francisco on
August 7, 1948 before Judge Lucio M. Tianco of the
Municipal Court of Rizal, a union which was ratified two
(2) months later in religious rites at the Our Lady of
Grace Parish in Caloocan City, and that Francisco
represented in their marriage contract that he was
single at that time. Petitioner also averred that
respondent could not be the daughter of Francisco for,
although she was recorded as Franciscos legitimate
daughter, the corresponding birth certificate was not
signed by him. Pressing on, petitioner further alleged
that respondent, despite her claim of being the
legitimate
child
of
Francisco
and
Genoveva

65
Mercado, has not presented the marriage contract
between her supposed parents or produced any
acceptable document to prove such union. And
evidently to debunk respondents claim of being the
only child of Francisco, petitioner likewise averred that
she and Francisco had, during their marriage, legally
adopted Concesa A. Yamat, et al. Petitioner thus urged
that she, being the surviving spouse of Francisco, be
declared as possessed of the superior right to the
administration of his estate.

In her reply to opposition, respondent alleged, inter

alia, that per certification of the appropriate offices,
the January to December 1938 records of marriages of
the Civil Registrar of Bacolor, Pampanga where the
alleged 1938 Francisco-Genoveva wedding took place,
were destroyed. In the same reply, respondent
dismissed as of little consequence the adoption
adverted to owing to her having interposed with the
Court of Appeals a petition to nullify the decree of
adoption entered by the RTC at Caloocan.[4]
Issues having been joined, trial ensued. Respondent,
as petitioner a quo, commenced the presentation of
her evidence by taking the witness stand. She testified
having been born on November 20, 1939 as the
legitimate child of Francisco M. Angeles and Genoveva
Mercado, who died in January 1988. [5]She also testified
having been in open and continuous possession of the
status of a legitimate child. Four (4) other witnesses

testified on her behalf, namely: Tomas Angeles,

[6]
Francisco Yaya,[7] Jose O. Carreon[8] and Paulita
Angeles de la Cruz.[9] Respondent also offered in
evidence her birth certificate which contained an entry
stating that she was born at the Mary Johnston
Hospital, Tondo, Manila, to Francisco Angeles and
Genoveva Mercado and whereon the handwritten
word Yes appears
on
the
space
below
the
question Legitimate? (Legitimo?); pictures taken during
respondents wedding as bride to Atty. Guillermo T.
Maglaya; and a copy of her marriage contract. Likewise
offered were her scholastic and government service
records.
After respondent rested her case following her formal
offer of exhibits, petitioner filed a Motion to
Dismiss under Section 1(g), Rule 16 of the Rules of
Court. In it, she prayed for the dismissal of the petition
for letters of administration on the ground that the
petition failed to state or prove a cause of action, it
being her stated position that [P]etitioner [Corzaon],
by her evidence, failed to establish her filiation vis--vis
the decedent, i.e., that she is in fact a legitimate child
of Francisco M. Angeles.[10]
To the motion to dismiss, respondent interposed an
opposition, followed by petitioners reply, to which
respondent countered with a rejoinder.
Eventually, in an Order dated July 12, 1999,
the trial court, on its finding that respondent failed
to prove her filiation as legitimate child of Francisco,
dismissed the petition, thus:
[11]

WHEREFORE, the instant petition is

hereby ordered DISMISSED for failure of the
[respondent] to state a cause of action in accordance

66
with Section 1(g) of Rule 16 of the 1997 Rules of
Civil of Procedure. (Word in bracket added]
Respondent then moved for reconsideration, which
motion was denied by the trial court in its Order of
December 17, 1999.[12] Therefrom, respondent went on
appeal to the Court of Appeals where her recourse was
docketed as CA-G.R. CV No. 66037.

As stated at the threshold hereof, the Court of Appeals,

in its assailed Decision dated May 29, 2002,
[13]
reversed and set aside the trial courts order of
dismissal and directed it to appoint respondent as
administratrix of the estate of Francisco, to wit:
WHEREFORE, the appealed order of dismissal
is REVERSED. The Trial Court is hereby ordered to
appoint petitioner-appellant Aleli Corazon Angeles
as administratrix of the intestate estate of Francisco
Angeles.
SO ORDERED.

The appellate court predicated its ruling on the

interplay of the following main premises:
1. Petitioners Motion to Dismiss filed with the trial
court, albeit premised on the alleged failure of the
underlying petition for letter of administration to state

or prove a cause of action, actually partakes of a

demurrer to evidence under Section 1 of Rule 33; [14]
2. Petitioners motion being a demurer, it follows that
she thereby waived her right to present opposing
evidence to rebut respondents testimonial and
documentary evidence; and
3. Respondent has sufficiently established
legitimate filiation with the deceased Francisco.

her

Hence, petitioners instant petition for review

on certiorari, on the submission that the Court of
Appeals erred: (1) in reversing the trial courts order of
dismissal;[15] (2) in treating her motion to dismiss as a
demurrer to evidence; (3) in holding that respondent is
a legitimate daughter of Francisco; and (4) in
decreeing respondents appointment as administratrix
of Franciscos intestate estate.

We resolve to grant the petition.

The principal issue tendered in this case boils
down to the question of whether or not respondent is
the legitimate child of decedent Francisco M. Angeles
and Genoveva Mercado. The Court of Appeals resolved
the issue in the affirmative and, on the basis of such
determination, ordered the trial court to appoint
respondent as administratrix of Franciscos estate.
We are unable to lend concurrence to the
appellate courts conclusion on the legitimate status of

67
respondent, or, to be precise, on her legitimate filiation
to the decedent. A legitimate child is a product of, and,
therefore, implies a valid and lawful marriage. Remove
the element of lawful union and there is strictly no
legitimate filiation between parents and child. Article
164 of the Family Code cannot be more emphatic on
the matter: Children conceived or born during the
marriage of the parents are legitimate.
In finding for respondent, the Court of Appeals,
citing and extensibly quoting from Tison vs. Court of
Appeals,[16] stated that since petitioneropted not to
present any contrary evidence, the presumption on
respondents legitimacy stands unrebutted.[17]
Following is an excerpt from Tison:
It seems that both the court a quo and
respondent appellate court have regrettably
overlooked the universally recognized presumption
on legitimacy. There is no presumption of the law
more firmly established and founded on sounder
morality
and
more
convincing
than
the presumption that children born in wedlock are
legitimate. And well-settled is the rule that the issue
of legitimacy cannot be attacked collaterally.
The rationale for this rule has been explained in this wise:
The presumption of legitimacy in the Family Code . . .
actually fixes a status for the child
born in wedlock, and that civil status
cannot be attacked collaterally. xxx
xxx xxx xxx
Upon the expiration of the
periods provided in Article 170 [of the
Family Code], the action to impugn

the legitimacy of a child can no longer

be bought. The status conferred by the
presumption, therefore, becomes
fixed, and can no longer be
questioned. The obvious intention of
the law is to prevent the status of
a child born in wedlock from being
in a state of uncertainty. It also aims to
force early action to settle any doubt
as to the paternity of such child so that
the evidence material to the matter . . .
may still be easily available.
xxxxxxxxx
Only the husband can contest
the legitimacy of a child born to his
wife . . . .(Words in bracket added;
Emphasis ours)
Contextually, the correct lesson of Tison, which
the appellate court evidently misapplied, is that: (a) a
child is presumed legitimate only if conceived or born
in wedlock; and (b) the presumptive legitimacy of such
child cannot be attacked collaterally.
A party in whose favor the legal presumption
exists may rely on and invoke such legal presumption
to establish a fact in issue. He need not introduce
evidence to prove that fact.[18] For, a presumption
is prima facie proof of the fact presumed. However, it
cannot be over-emphasized, that while a fact
thus prima facie established by legal presumption
shall, unless overthrown, stand as proved, [19] the
presumption of legitimacy under Article 164 of the
Family Code[20] may be availed only upon convincing
proof of the factual basis therefor, i.e., that the childs
parents were legally married and that his/her

68
conception or birth occurred during the subsistence of
that marriage. Else, the presumption of law that a child
is legitimate does not arise.

In the case at bench, the Court of Appeals, in its

decision under review, did not categorically state from
what facts established during the trial was the
presumption of respondents supposed legitimacy
arose. But even if perhaps it wanted to, it could not
have possibly done so. For, save for respondents
gratuitous assertion and an entry in her certificate of
birth, there is absolutely no proof of the decedents
marriage to respondents mother, Genoveva Mercado.
To stress, no marriage certificate or marriage contract
doubtless the best evidence of Franciscos and
Genovevas
marriage,
if
one
had
been
solemnized[21] was offered in evidence. No priest,
judge, mayor, or other solemnizing authority was
called to the witness box to declare that he solemnized
the marriage between the two. None of the four (4)
witnesses respondent presented could say anything
about, let alone affirm, that supposed marriage. At
best, their testimonies proved that respondent was
Franciscos daughter. For example, Tomas Angeles and
Paulita Angeles de la Cruz testified that they know
respondent to be their cousin because his (Tomas)
father and her (Paulitas) mother, who are both
Franciscos siblings, told them so. [22] And one Jose
Carreon would testify seeing respondent in 1948 in
Franciscos house in Caloocan, the same Francisco who
used to court Genoveva before the war. [23] In all, no
evidence whatsoever was presented of the execution
of the Francisco Angeles-Genoveva Mercado marriage
contract; when and where their marriage was

solemnized; the identity of the solemnizing officer; the

persons present, and like significant details.
While perhaps not determinative of the issue of
the existence of marriage between Francisco and
Genoveva, we can even go to the extent of saying that
respondent has not even presented a witness to testify
that her putative parents really held themselves out to
the public as man-and-wife. Clearly, therefore, the
Court of Appeals erred in crediting respondent with the
legal presumption of legitimacy which, as above
explained, should flow from a lawful marriage between
Francisco and Genevova. To reiterate, absent such a
marriage, as here, there is no presumption of
legitimacy and, therefore, there was really nothing for
petitioner to rebut.
Parenthetically, for all her unyielding stance that
her mother and Francisco Angeles were married in
1938, respondent never, thru the years, even question
what would necessarily be a bigamous Francisco-Belen
Sagad marriage. Ironical as it may seem, respondent
herself undermined her very own case. As it were, she
made certain judicial admission negating her own
assertion as well as the appellate courts conclusion that Francisco was legally married to Genoveva. As
may be recalled, respondent had declared that her
mother Genoveva died in 1988, implying, quite
clearly, that when Francisco contracted marriage with
petitioner Belen S. Angeles in 1948, Genoveva and
Francisco were already spouses. Now, then, if, as
respondent maintained despite utter lack of evidence,
that Genoveva Mercado and Francisco were married
in 1938, it follows that the marriage of Francisco to
petitioner Belen Angeles in 1948, or prior to
Genovevas death, would necessarily have to be
bigamous, hence void,[24] in which case petitioner could

69
not be, as respondent alleged in her petition for letters
of administration, a surviving spouse of the decedent.
We quote the pertinent allegation:
4. The surviving heirs of decedent are the
petitioner [Corazon] herself who is 58 years old, and
BELEN S. Angeles, the surviving spouse of
deceased Francisco M. Angeles by his second
marriage, who is about 77 years old . . . .YEARS
OLD . . . (Emphasis and word in bracket added)
We can concede, because Article 172 of the
Family Code appears to say so, that the legitimate
filiation of a child can be established by any of the
modes therein defined even without direct evidence of
the marriage of his/her supposed parents. Said article
172 reads:
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
judgments; 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.
Here, respondent presented, in support of her claim of
legitimacy, a copy of her Birth Certificate dated
November 23, 1939 issued by the Civil Registrar of the
City of Manila (Exh. E). In it, her birth was recorded as
the legitimate child of Francisco Angeles and
Genoveva Mercado. And the word married is written in
the certificate to indicate the union of Francisco and
Genoveva.
Petitioner, however, contends, citing jurisprudence,
that [I]t was error for the Court of Appeals to have
ruled
.
.
.
that [respondents] Birth
Certificateindubitably establishes that she is the
legitimate daughter of Francisco and Genoveva who
are legally married.
The contention commends itself for concurrence. The
reason is as simple as it is elementary: the Birth
Certificate presented was not signed by Francisco
against whom legitimate filiation is asserted. Not even
by Genoveva. It was signed by the attending physician,
one Rebecca De Guzman, who certified to having
attended the birth of a child. Such certificate, albeit
considered a public record of a private document is,
under Section 23, Rule 132 of the Rules of Court,
evidence only of the fact which gave rise to its
execution: the fact of birth of a child. [25] Jurisprudence

70
teaches that a birth certificate, to be considered as
validating proof of paternity and as an instrument of
recognition, must be signed by the father and mother
jointly, or by the mother alone if the father refuses.
[26]
Dr. Arturo Tolentino, commenting on the probative
value of the entries in a certificate of birth, wrote:

could veritably invest legitimate status to her offspring

through the simple expedient of writing the putative
fathers name in the appropriate space in the birth
certificate. A long time past, this Court cautioned
against
according
a
similar
unsigned
birth
certificate prima facie evidentiary value of filiation:

xxx if the alleged father did not intervene in the

making of the birth certificate, the putting of his
name by the mother or doctor or registrar is void; the
signature of the alleged father is necessary.[27]

Give this certificate evidential relevancy,

and we thereby pave the way for any scheming
unmarried mother to extort money for her child (and
herself) from any eligible bachelor or affluent pater
familias. How? She simply causes the midwife to
state in the birth certificate that the newborn babe is
her legitimate offspring with that individual and the
certificate will be accepted for registration . . . . And
any lawyer with sufficient imagination will realize
the exciting possibilities from such mischief of such
prima facie evidence when and if the father dies in
ignorance of the fraudulent design xxx[30]

The conclusion reached by the Court of Appeals that

the Birth Certificate of respondent, unsigned as it were
by
Francisco
and
Genoveva,
establishes
andindubitably at that - not only respondents filiation
to Francisco but even her being a legitimate daughter
of Francisco and Genoveva, taxes credulity to the limit.
In a very real sense, the appellate court regarded such
certificate as defining proof of filiation, and not just
filiation but of legitimate filiation, by inferring from it
that Francisco and Genoveva are legally married. In
the apt words of petitioner, the appellate court, out of
a Birth Certificate signed by a physician who merely
certified having attended the birth of a child who was
born alive at 3:50 P.M. , created a marriage that of
Francisco and Genoveva, and filiation (that said
child) is the daughter of Francisco[28]
It cannot be over-emphasized that the legitimate
filiation of a child is a matter fixed by law itself. [29] It
cannot, as the decision under review seems to
suggest, be made dependent on the declaration of the
attending physician or midwife, or that of the mother
of the newborn child. For then, an unwed mother, with
or without the participation of a doctor or midwife,

Just like her Birth Certificate, respondent can

hardly derive comfort from her marriage contract to
Atty. Maglaya and from her student and government
records which indicated or purported to show that
Francisco Angeles is her father. The same holds true
for her wedding pictures which showed Francisco
giving respondents hands in marriage. These papers or
documents, unsigned as they are by Francisco or the
execution of which he had no part, are not sufficient
evidence of filiation or recognition. [31] And needless to
stress, they cannot support a finding of the legitimate
union of Francisco and Genoveva.
The argument may be advanced that the
aforesaid wedding pictures, the school and service

71
records and the testimony of respondents witnesses
lend support to her claim of enjoying open and
continuous possession of the status of a child of
Francisco. The Court can even concede that
respondent may have been the natural child of
Francisco with Genoveva. Unfortunately, however, that
angle is not an, or at issue in the case before us. For,
respondent peremptorily predicated her petition for
letters of administration on her being a legitimate child
of Francisco who was legally married to her mother,
Genoveva, propositions which we have earlier refuted
herein.
If on the foregoing score alone, this Court could
very well end this disposition were it not for another
compelling consideration which petitioner has raised
and which we presently take judicially notice of.
As may be recalled, respondent, during the
pendency of the proceedings at the trial court, filed
with the Court of Appeals a petition for the annulment
of the decision of the RTC Caloocan granting the
petition of spouses Francisco Angeles and petitioner
Belen S. Angeles for the adoption of Concesa A. Yamat
and two others. In that petition, docketed with the
appellate court as CA-G.R. SP No. 47832 and
captioned Aleli Corazon Angeles Maglaya vs. Hon
Jaime T. Hamoy, Consesa A. Yamat, Teodora A. Santos,
Franco Angeles and Belen S. Angeles, respondent
alleged that as legitimate daughter of Francisco, she
should have been notified of the adoption proceedings.
Following a legal skirmish, the Court of Appeals
referred the aforementioned annulment case to RTC,
Caloocan for reception of evidence. Eventually, in a
Decision[32] dated December 17, 2003, the Court of

Appeals dismissed CA-G.R. SP No. 47832 on the

ground, inter alia, that herein respondent is not,
contrary to her claim, a legitimate daughter of
Francisco, nor a child of a lawful wedlock between
Francisco M. Angeles and Genoveva Y. Mercado. Wrote
the appellate court in that case:
Petitioner [Aleli Corazon Maglaya] belabors
with repetitious persistence the argument that she is
a legitimate child or the only daughter of Francisco
M. Angeles and Genoveva Y. Mercado . . . .
In the case at bench, other than the selfserving declaration of the petitioner, there is nothing
in the record to support petitioners claim that she is
indeed a legitimate child of the late Francisco M.
Angeles and Genoveva Y. Mercado. xxx In other
words, Francisco M. Angeles was never married
before or at anytime prior to his marriage to Belen
Sagad, contrary to the claim of petitioner that
Francisco M. Angeles and Genoveva Y. Mercado
were married in 1938
While petitioner may have submitted
certifications to the effect that the records of
marriages during the war years . . . were totally
destroyed, no secondary evidence was presented by
petitioner to prove the existence of the marriage
between Francisco M. Angeles and Genoveva Y.
Mercado, even as no witness was presented to
confirm the celebration of such marriage . . . .
Petitioner presented pictures. x x x However,
it is already settled law that photographs are not
sufficient evidence of filiation or acknowledgment.

72
To be sure, very little comfort is provided by
petitioners birth certificate and even her marriage
contract.. . . Reason: These documents were not
signed by Francisco . . . . Equally inconsequential
are petitioners school records . . . . all these lacked
the signatures of both Francisco and Genoveva . . . .
xxx xxx xxx
Having failed to prove that she is the
legitimate daughter or acknowledged natural child of
the late Francisco M. Angeles, petitioner cannot be a
real party in interest in the adoption proceedings, as
her consent thereto is not essential or required.
(Emphasis in the original; words in bracket added)
Significantly, the aforesaid December 17, 2003
Decision of the appellate court in CA-G.R. SP
No.47832 was effectively affirmed by this Court via its
Resolution dated August 9, 2004 in G.R. No.
163124, denying Aleli Corazon Maglayas petition for
Review on Certiorari,[33] and Resolution dated October
20, 2004,[34] denying with FINALITY her motion for
reconsideration. Another Resolution dated January 24,
2005 resolved to NOTE WITHOUT ACTION Maglayas
second motion for reconsideration.
In the light of the ruling of the Court of Appeals
in CA-G.R. SP No. 47832, as affirmed with finality by
this Court in G.R. No. 163124, there can be no
serious objection to applying in this case the rule on
conclusiveness of judgment,[35] one of two (2) concepts
embraced in the res judicataprinciple. Following the
rule on conclusiveness of judgment, herein respondent
is precluded from claiming that she is the legitimate
daughter of Francisco and Genoveva Mercado. In fine,

the issue of herein respondents legitimate filiation to

Francisco and the latters marriage to Genoveva,
having been judicially determined in a final judgment
by a court of competent jurisdiction, has thereby
become res judicata and may not again be resurrected
or litigated between herein petitioner and respondent
or their privies in a subsequent action, regardless of
the form of the latter.[36]
Lest it be overlooked, the same ruling of the
appellate court in CA-G.R. SP No. 47832, as sustained
by this Court in G.R. No. 163124, virtually confirms
the ratio of the trial courts order of dismissal in Special
Proceedings (SP) No. C-2140, i.e, that respondent
failed to establish that she is in fact a legitimate child
of Francisco. Accordingly, the question of whether or
not the Motion to Dismiss[37] interposed by herein
petitioner, as respondent in SP No. C-2140, is in the
nature of a demurer to evidence has become moot and
academic. It need not detain us any minute further.
Finally, it should be noted that on the matter of
appointment of administrator of the estate of the
deceased, the surviving spouse is preferred over the
next of kin of the decedent. [38] When the law speaks
of next of kin, the reference is to those who are
entitled, under the statute of distribution, to the
decedents property;[39] one whose relationship is such
that he is entitled to share in the estate as distributed,
[40]
or, in short, an heir. In resolving, therefore, the
issue of whether an applicant for letters of
administration is a next of kin or an heir of the
decedent, the probate court perforce has to determine
and pass upon the issue of filiation. A separate action
will only result in a multiplicity of suits. Upon this
consideration, the trial court acted within bounds when

73
it looked into and pass upon the claimed relationship
of respondent to the late Francisco Angeles.
WHEREFORE, the herein assailed decision of the
Court of Appeals is hereby REVERSED and SET
ASIDE, and the order of the trial court dismissing
Special Proceedings No. C-2140 REINSTATED.
No costs.

[6]

Son of Demetrio Angeles, Franciscos brother.

[7]

Employed as auto mechanic by Liberty Taxi Corporation where

Francisco was President and General Manager.

[8]

A former town mate and employee of Francisco.

[9]

Niece of Francisco.

[10]

Rollo, pp. 421 et seq.

[11]

Rollo, pp. 458 et seq.

[12]

Rollo, p. 482.

[13]

See Note #1, supra.

[14]

Sec 1. Demurrer to evidence. After the plaintiff has completed the

presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and law the
plaintiff has shown no right to relief. If his motion is denied,
he shall have the right to present evidence. If the motion is
granted but on appeal the order of dismissal is reversed he
shall be deemed to have waived the right to present
evidence.

[15]

See Note # 11, supra.

[16]

276 SCRA 582 [1997].

[17]

Page 15 of the CA Decision, Rollo, p. 206.

[18]

Tison vs. Court of Appeals, 276 SCRA 582 [1997].

SO ORDERED.
CANCIO C. GARCIA
Associate Justice

[1]

Penned by Associate Justice Ruben T. Reyes, with Associate

Justices Renato C. Dacudao and Amelita G. Tolentino,
concurring; Annex A, Petition; Rollo pp. 192-215.

[2]

Annex B, Petition; Rollo, pp. 218-221.

[3]

[4]

[5]

Annex C Petition, Rollo, p. 232 et seq.

Rollo, pp. 243 et seq.

T.S.N, August 14, 1998, p. 34.

74
[19]

Republic vs. Sandiganbayan, 406 SCRA 190, 268 [2003], citing

Defensor-Santiago, RULES OF COURT ANNOTATED,
1999 ed., p. 857.

[31]

Bercilles vs. GSIS, supra; [1984]; Reyes vs. CA, supra; Colorado
vs. Court of Appeals, 135 SCRA 47 [1985].

[32]

Per Associate Justice Renato C. Dacudao, concurred in by

Associate Justices Edgardo P. Cruz and Elizer R. Delos Santos;
Rollo, pp. 1215 et seq.

[33]

Rollo, p. 1232.

[34]

Ibid., p. 1233

[35]

The rule on conclusiveness of judgment precludes the relitigation

of particular facts or issues in another action between the
same parties on a different claim or cause of action (Calalang
vs. Register of Deeds of Quezon City, 231 SCRA 88 [1994].

[36]

Carlet vs. Court of Appeals, 275 SCRA 97 [1997].

[37]

See Note #10, supra.

[38]

Under Sec. 6(b), Rule 78, Rules of Court, the administration of

the estate of a person who dies intestate shall be granted to
the surviving husband or wife, as the case may be, or next of
kin, or both, in the discretion of the court, or to such person
as such surviving husband or wife, or next of kin, requests to
have appointed, if competent and willing to serve.

[39]

Ventura vs. Ventura, 160 SCRA 810 [1988].

[40]

Tavera vs. El Hogar Filipino, Inc. 98 Phil. 481 [1980].

[20]

Art. 164. Children conceived or born during the marriage of the

parents are legitimate.
[21]

Lim Tanhu vs. Ramolete, 66 SCRA 425 [1975].

[22]

TSN, Sept. 18, 1998, p. 8; TSN Jan. 19, 1999, p. 4.

[23]

TSN Oct. 29, 1998 pp. 43 & 47.

[24]

Art. 35 (4) and 41, Family Code.

[25]

Sec. 23. 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 . . .
of the fact which gave rise to their execution and of the date
of the latter.

[26]

Reyes vs. Court of Appeals, 135 SCRA 439 [1985].

[27]

Tolentino, Commentaries & Jurisprudence on the Civil Code of

the Philippines, Vol. I, 1990 ed., p. 540, citing Bercilles vs.
GSIS, 128 SCRA 53 [1984] and Reyes vs. CA, 135 SCRA 439
[1985].

[28]

Rollo, pp. 134-135.

[29]

Sayson vs. Court of Appeals, 205 SCRA 321 [1999].

[30]

Crisolo vs. Macadaeg, 94 Phil.862 [1954].

75
vs. NICOLASA T. SANTIAGO, AMANDA T. SANTIAGO and
HON. COURT OF APPEALS, respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari seeks to annul the decision
dated March 4, 1997,[1] of the Court of Appeals in CA-G.R. CV No.
32817, which reversed and set aside the judgment dated October 17,
1990,[2] of the Regional Trial Court of Manila, Branch 54, in Civil
Case No. 87-41515, finding herein petitioner to be the owner of
1/3 pro indiviso share in a parcel of land.
The pertinent facts of the case, as borne by the records, are as
follows:
Jose T. Santiago owned a parcel of land covered by TCT No.
64729, located in Rizal Avenue Extension, Sta. Cruz,
Manila. Alleging that Jose had fraudulently registered it in his name
alone, his sisters Nicolasa and Amanda (now respondents herein),
sued Jose for recovery of 2/3 share of the property. [3] On April 20,
1981, the trial court in that case decided in favor of the sisters,
recognizing their right of ownership over portions of the property
covered by TCT No. 64729. The Register of Deeds of Manila was
required to include the names of Nicolasa and Amanda in the
certificate of title to said property.[4]

SECOND DIVISION
[G.R. No. 132305. December 4, 2001]
IDA C. LABAGALA, petitioner,

Jose died intestate on February 6, 1984. On August 5, 1987,

respondents filed a complaint for recovery of title, ownership, and
possession against herein petitioner, Ida C. Labagala, before the
Regional Trial Court of Manila, to recover from her the 1/3 portion
of said property pertaining to Jose but which came into petitioners
sole possession upon Joses death.
Respondents alleged that Joses share in the property belongs to
them by operation of law, because they are the only legal heirs of
their brother, who died intestate and without issue. They claimed that

76
the purported sale of the property made by their brother to petitioner
sometime in March 1979[5] was executed through petitioners
machinations and with malicious intent, to enable her to secure the
corresponding transfer certificate of title (TCT No. 172334 [6]) in
petitioners name alone.[7]
Respondents insisted that the deed of sale was a forgery. The
deed showed that Jose affixed his thumbmark thereon but
respondents averred that, having been able to graduate from college,
Jose never put his thumbmark on documents he executed but always
signed his name in full. They claimed that Jose could not have sold
the property belonging to his poor and unschooled sisters who
sacrificed for his studies and personal welfare. [8] Respondents also
pointed out that it is highly improbable for petitioner to have paid the
supposed consideration of P150,000 for the sale of the subject
property because petitioner was unemployed and without any visible
means of livelihood at the time of the alleged sale. They also stressed
that it was quite unusual and questionable that petitioner registered
the deed of sale only on January 26, 1987, or almost eight years after
the execution of the sale.[9]
On the other hand, petitioner claimed that her true name is not
Ida C. Labagala as claimed by respondent but Ida C. Santiago. She
claimed not to know any person by the name of Ida C. Labagala. She
claimed to be the daughter of Jose and thus entitled to his share in the
subject property. She maintained that she had always stayed on the
property, ever since she was a child. She argued that the purported
sale of the property was in fact a donation to her, and that nothing
could have precluded Jose from putting his thumbmark on the deed
of sale instead of his signature. She pointed out that during his
lifetime, Jose never acknowledged respondents claim over the
property such that respondents had to sue to claim portions
thereof. She lamented that respondents had to disclaim her in their
desire to obtain ownership of the whole property.
Petitioner revealed that respondents had in 1985 filed two
ejectment cases against her and other occupants of the property. The
first was decided in her and the other defendants favor, while the

second was dismissed. Yet respondents persisted and resorted to the

present action.
Petitioner recognized respondents ownership of 2/3 of the
property as decreed by the RTC. But she averred that she caused the
issuance of a title in her name alone, allegedly after respondents
refused to take steps that would prevent the property from being sold
by public auction for their failure to pay realty taxes thereon. She
added that with a title issued in her name she could avail of a realty
tax amnesty.
On October 17, 1990, the trial court ruled in favor of petitioner,
decreeing thus:
WHEREFORE,judgmentisherebyrenderedrecognizingthe
plaintiffs[hereinrespondents]asbeingentitledtotheownershipand
possessioneachofonethird(1/3)proindivisoshareoftheproperty
originallycoveredbyTransferCertificateofTitleNo.64729,inthe
nameofJoseT.SantiagoandpresentlycoveredbyTransfer
CertificateofTitleNo.172334,inthenameofhereindefendant
[hereinpetitioner]andwhichislocatedatNo.3075ARizalAvenue
Extension,Sta.Cruz,Manila,aspercomplaint,andtheadjudication
toplaintiffsperdecisioninCivilCaseNo.56226ofthisCourt,
BranchVI,andtheremainingonethird(1/3)proindivisoshare
adjudicatedinsaiddecisiontodefendantJoseT.Santiagoinsaid
case,isherebyadjudgedandadjudicatedtohereindefendantas
ownerandentitledtopossessionofsaidshare.TheCourtdoesnot
seefittoadjudgedamages,attorneysfeesandcosts.Uponfinalityof
thisjudgment,TransferCertificateofTitleNo.172334isordered
cancelledandanewtitleissuedinthenamesofthetwo(2)plaintiffs
andthedefendantasownersinequalshares,andtheRegisterof
DeedsofManilaissodirectedtoeffectthesameuponpaymentof
theproperfeesbythepartiesherein.
SOORDERED.[10]

77
According to the trial court, while there was indeed no
consideration for the deed of sale executed by Jose in favor of
petitioner, said deed constitutes a valid donation. Even if it were not,
petitioner would still be entitled to Joses 1/3 portion of the property
as Joses daughter. The trial court ruled that the following evidence
shows petitioner to be the daughter of Jose: (1) the decisions in the
two ejectment cases filed by respondents which stated that petitioner
is Joses daughter, and (2) Joses income tax return which listed
petitioner as his daughter. It further said that respondents knew of
petitioners existence and her being the daughter of Jose, per records
of the earlier ejectment cases they filed against petitioner. According
to the court, respondents were not candid with the court in refusing
to recognize petitioner as Ida C. Santiago and insisting that she was
Ida C. Labagala, thus affecting their credibility.

1. Whether or not petitioner has adduced preponderant evidence

to prove that she is the daughter of the late Jose T. Santiago, and

Respondents appealed to the Court of Appeals, which reversed

the decision of the trial court.

Petitioner asserts further that respondents cannot impugn her

filiation collaterally, citing the case of Sayson v. Court of
Appeals[12] in which we held that (t)he legitimacy of (a) child can be
impugned only in a direct action brought for that purpose, by the
proper parties and within the period limited by law.[13] Petitioner also
cites Article 263 of the Civil Code in support of this contention. [14]

WHEREFORE,theappealeddecisionisREVERSEDandoneis
entereddeclaringtheappellantsNicolasaandAmandaSantiagothe
coownersinequalsharesoftheonethird(1/3)proindivisoshareof
thelateJoseSantiagointhelandandbuildingcoveredbyTCTNo.
172334.Accordingly,theRegisterofDeedsofManilaisdirectedto
cancelsaidtitleandissueinitsplaceanewonereflectingthis
decision.
SOORDERED.
Apart from respondents testimonies, the appellate court noted
that the birth certificate of Ida Labagala presented by respondents
showed that Ida was born of different parents, not Jose and his
wife. It also took into account the statement made by Jose in Civil
Case No. 56226 that he did not have any child.
Hence, the present petition wherein the following issues are
raised for consideration:

2. Whether or not respondents could still impugn the filiation of

the petitioner as the daughter of the late Jose T. Santiago.
Petitioner contends that the trial court was correct in ruling that
she had adduced sufficient evidence to prove her filiation by Jose
Santiago, making her his sole heir and thus entitled to inherit his 1/3
portion. She points out that respondents had, before the filing of the
instant case, previously considered[11] her as the daughter of Jose
who, during his lifetime, openly regarded her as his legitimate
daughter. She asserts that her identification as Joses daughter in his
ITR outweighs the strange answers he gave when he testified in Civil
Case No. 56226.

For their part, respondents contend that petitioner is not the

daughter of Jose, per her birth certificate that indicate her parents as
Leo Labagala and Cornelia Cabrigas, instead of Jose Santiago and
Esperanza Cabrigas.[15] They argue that the provisions of Article 263
of the Civil Code do not apply to the present case since this is not an
action impugning a childs legitimacy but one for recovery of title,
ownership, and possession of property.
The issues for resolution in this case, to our mind, are (1)
whether or not respondents may impugn petitioners filiation in this
action for recovery of title and possession; and (2) whether or not
petitioner is entitled to Joses 1/3 portion of the property he co-owned
with respondents, through succession, sale, or donation.
On the first issue, we find petitioners reliance on Article 263 of
the Civil Code to be misplaced. Said article provides:

78
Art.263.Theactiontoimpugnthelegitimacyofthechildshallbe
broughtwithinoneyearfromtherecordingofthebirthintheCivil
Register,ifthehusbandshouldbeinthesameplace,orinaproper
case,anyofhisheirs.
Ifheorhisheirsareabsent,theperiodshallbeeighteenmonthsif
theyshouldresideinthePhilippines;andtwoyearsifabroad.Ifthe
birthofthechildhasbeenconcealed,thetermshallbecountedfrom
thediscoveryofthefraud.
This article should be read in conjunction with the other articles
in the same chapter on paternity and filiation in the Civil Code. A
careful reading of said chapter would reveal that it contemplates
situations where a doubt exists that a child is indeed a mans child by
his wife, and the husband (or, in proper cases, his heirs) denies the
childs filiation. It does not refer to situations where a child is alleged
not to be the child at all of a particular couple. [16]
Article 263 refers to an action to impugn the legitimacy of a
child, to assert and prove that a person is not a mans child by his
wife. However, the present case is not one impugning petitioners
legitimacy. Respondents are asserting not merely that petitioner is
not a legitimate child of Jose, but that she is not a child of Jose at all.
[17]
Moreover, the present action is one for recovery of title and
possession, and thus outside the scope of Article 263 on prescriptive
periods.
Petitioners reliance on Sayson is likewise improper. The factual
milieu present in Sayson does not obtain in the instant case. What
was being challenged by petitioners in Sayson was (1) the validity of
the adoption of Delia and Edmundo by the deceased Teodoro and
Isabel Sayson, and (2) the legitimate status of Doribel Sayson. While
asserting that Delia and Edmundo could not have been validly
adopted since Doribel had already been born to the Sayson couple at
the time, petitioners at the same time made the conflicting claim that
Doribel was not the child of the couple. The Court ruled in that case
that it was too late to question the decree of adoption that became

final years before. Besides, such a challenge to the validity of the

adoption cannot be made collaterally but in a direct proceeding. [18]
In this case, respondents are not assailing petitioners legitimate
status but are, instead, asserting that she is not at all their brothers
child. The birth certificate presented by respondents support this
allegation.
We agree with the Court of Appeals that::
TheCertificateofRecordofBirth(ExhibitH)[19]plainlystatesthat
IdawasthechildofthespousesLeonLabagalaand[Cornelia]
Cabrigas.ThisdocumentstatesthatitwasLeonLabagalawhomade
thereporttotheLocalCivilRegistrarandthereforethesupplierof
theentriesinsaidCertificate.Therefore,thiscertificateisproofof
thefiliationofIda.AppelleehoweverdeniesthatExhibitHisher
BirthCertificate.SheinsiststhatsheisnotIdaLabagalabutIda
Santiago.IfExhibitHisnotherbirthcertificate,thenwhereis
hers?Shedidnotpresentanythoughitwouldhavebeentheeasiest
thingtodoconsideringthataccordingtoherbaptismalcertificateshe
wasborninManilain1969.Thiscourtrejectssuchdenialsandholds
thatExhibitHisthecertificateoftherecordofbirthofappelleeIda
Againstsuchevidence,theappelleeIdacouldonlypresenther
testimonyandabaptismalcertificate(Exhibit12)statingthat
appelleesparentswereJoseSantiagoandEsperanzaCabrigas.But
then,adecisionalruleinevidencestatesthatabaptismalcertificateis
notaproofoftheparentageofthebaptizedperson.Thisdocument
canonlyprovetheidentityofthebaptized,thedateandplaceofher
baptism,theidentitiesofthebaptismalsponsorsandthepriestwho
administeredthesacramentnothingmore. [20](Citationsomitted.)
At the pre-trial conducted on August 11, 1988, petitioners
counsel admitted that petitioner did not have a birth certificate
indicating that she is Ida Santiago, though she had been using this
name all her life.[21]

79
Petitioner opted not to present her birth certificate to prove her
relationship with Jose and instead offered in evidence her baptismal
certificate.[22] However, as we held in Heirs of Pedro Cabais v. Court
of Appeals:
abaptismalcertificateisevidenceonlytoprovethe
administrationofthesacramentonthedatesthereinspecified,
butnottheveracityofthedeclarationsthereinstatedwith
respectto[apersons]kinsfolk.Thesameisconclusiveonlyof
thebaptismadministered,accordingtotheritesoftheCatholic
Church,bythepriestwhobaptizedsubjectchild,butitdoesnot
provetheveracityofthedeclarationsandstatementscontained
inthecertificateconcerningtherelationshipoftheperson
baptized.[23]
A baptismal certificate, a private document, is not conclusive
proof of filiation.[24] More so are the entries made in an income tax
return, which only shows that income tax has been paid and the
amount thereof.[25]
We note that the trial court had asked petitioner to secure a copy
of her birth certificate but petitioner, without advancing any reason
therefor, failed to do so. Neither did petitioner obtain a certification
that no record of her birth could be found in the civil registry, if such
were the case. We find petitioners silence concerning the absence of
her birth certificate telling. It raises doubt as to the existence of a
birth certificate that would show petitioner to be the daughter of Jose
Santiago and Esperanza Cabrigas. Her failure to show her birth
certificate would raise the presumption that if such evidence were
presented, it would be adverse to her claim. Petitioners counsel
argued that petitioner had been using Santiago all her life. However,
use of a family name certainly does not establish pedigree.
Further, we note that petitioner, who claims to be Ida Santiago,
has the same birthdate as Ida Labagala. [26] The similarity is too
uncanny to be a mere coincidence.

During her testimony before the trial court, petitioner denied

knowing Cornelia Cabrigas, who was listed as the mother in the birth
certificate of Ida Labagala. In her petition before this Court,
however, she stated that Cornelia is the sister of her mother,
Esperanza. It appears that petitioner made conflicting statements that
affect her credibility and could cast a long shadow of doubt on her
claims of filiation.
Thus, we are constrained to agree with the factual finding of the
Court of Appeals that petitioner is in reality the child of Leon
Labagala and Cornelia Cabrigas, and contrary to her averment, not of
Jose Santiago and Esperanza Cabrigas. Not being a child of Jose, it
follows that petitioner can not inherit from him through intestate
succession. It now remains to be seen whether the property in dispute
was validly transferred to petitioner through sale or donation.
On the validity of the purported deed of sale, however, we agree
with the Court of Appeals that:
Thisdeedisshotthroughandthroughwithsomanyintrinsic
defectsthatareasonablemindisinevitablyledtothe
conclusionthatitisfake.Theintrinsicdefectsareextractable
fromthefollowingquestions:a)IfJoseSantiagointendedto
donatethepropertiesinquestiontoIda,whatwasthebigidea
ofhidingthenatureofthecontractinthefaadeofthesale?b)If
thedeedisagenuinedocument,howcouldithavehappened
thatJoseSantiagowhowasofcoursefullyawarethatheowned
only1/3proindivisoofthepropertiescoveredbyhistitlesold
ordonatedthewholepropertiestoIda?c)Whyinheavensname
didJoseSantiago,acollegegraduate,whoalwayssignedhis
nameindocumentsrequiringhissignature(citationomitted)
[affix]histhumbmarkonthisdeedofsale?d)IfIdawas[the]
childofJoseSantiago,whatwasthesenseofthelatterdonating
hispropertiestoherwhenshewouldinheritthemanywayupon
hisdeath?e)WhydidJoseSantiagoaffixhisthumbmarktoa
deedwhichfalselystatedthat:hewassingle(forhewasearlier

80
marriedtoEsperanzaCabrigas);Idawasoflegalage(for[s]he
wasthenjust15yearsold);andthesubjectpropertieswerefree
fromliensandencumbrances(forEntryNo.27261,Noticeof
AdverseClaimandEntryNo.6388,NoticeofLisPendenswere
alreadyannotatedinthetitleofsaidproperties).Ifthedeedwas
executedin1979,howcomeitsurfacedonlyin1984afterthe
deathofJoseSantiagoandofallpeople,theoneinpossession
wasthebaptismalsponsorofIda?[27]
Clearly, there is no valid sale in this case. Jose did not have the
right to transfer ownership of the entire property to petitioner since
2/3 thereof belonged to his sisters.[28] Petitioner could not have given
her consent to the contract, being a minor at the time. [29] Consent of
the contracting parties is among the essential requisites of a contract,
[30]
including one of sale, absent which there can be no valid
contract. Moreover, petitioner admittedly did not pay any centavo for
the property,[31] which makes the sale void. Article 1471 of the Civil
Code provides:
Art.1471.Ifthepriceissimulated,thesaleisvoid,buttheactmay
beshowntohavebeeninrealityadonation,orsomeotheractor
contract.
Neither may the purported deed of sale be a valid deed of
donation. Again, as explained by the Court of Appeals:
Evenassumingthatthedeedisgenuine,itcannotbeavalid
donation.ItlackstheacceptanceofthedoneerequiredbyArt.725of
theCivilCode.Beingaminorin1979,theacceptanceofthe
donationshouldhavebeenmadebyherfather,LeonLabagalaor
[her]motherCorneliaCabrigasorherlegalrepresentativepursuant
toArt.741ofthesameCode.Nooneofthosementionedinthelaw
infactnooneatallacceptedthedonationforIda. [32]

In sum, we find no reversible error attributable to the assailed

decision of the Court of Appeals, hence it must be upheld.
WHEREFORE, the petition is DENIED, and the decision of
the Court of Appeals in CA-G.R. CV No. 32817 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, and De Leon, Jr., JJ., concur.
Buena J., on official leave.

[1]

Rollo, pp. 51-56.

Id. at 23-33.
[3]
Civil Case No. 56226, lodged before the then Court of First
Instance of Manila, Branch 6 (Records, p. 9). In the TSN, the case
no. is listed as 56626. See Exhibit G to G-11, records, pp. 165-176.
[4]
Records, p. 17.
[5]
The purported deed of sale is dated ___ day of February, 1979 but
was notarized on March 19, 1979. See records, pp. 147-148; TSN,
June 29, 1989, p. 19.
[6]
Records, p. 161.
[7]
Id. at 3, 18.
[8]
Id. at 4.
[9]
Id. at 3-4, 18.
[10]
Rollo, pp. 32-33.
[11]
Id. at 17.
[12]
G.R. Nos. 89224-25, 205 SCRA 321 (1992).
[13]
Rollo, p. 18. Sayson v. Court of Appeals, supra, at 328.
[14]
The present controversy arose prior to the effectivity of the
Family Code.
[15]
Esperanza and Cornelia were sisters. See rollo, p. 16.
[16]
See Benitez-Badua v. Court of Appeals, G.R. No. 105625, 229
SCRA 468, 473 (1994). This case deals with Articles 164, 166, 170,
[2]

81
and 171 of the Family Code. Article 263 of the Civil Code is now
Article 170 of the Family Code.
[17]
Cabatbat-Lim v. Intermediate Appellate Court, No. L-69679, 166
SCRA 451, 457 (1988).
[18]
Sayson v. Court of Appeals, supra, note 12, at 326-328.
[19]
Records, p. 179.
[20]
Rollo, pp. 52-53.
[21]
TSN, August 11, 1988, p. 10.
[22]
Exhibit 10.
[23]
Heirs of Pedro Cabais v. Court of Appeals, G.R. Nos. 106314-15,
316 SCRA 338, 344 (1999), citing Macadangdang v. Court of
Appeals, et al., No. L-49542, 100 SCRA 73, 84 (1980).
[24]
Id. at 343.
[25]
Exhibit 11.
[26]
TSN, June 29, 1989, p. 3.
[27]
Rollo, pp. 54-55.
[28]
CIVIL CODE OF THE PHILIPPINES, Article 1459.
[29]
CIVIL CODE OF THE PHILIPPINES, Article 1327.
[30]
CIVIL CODE OF THE PHILIPPINES, Article 1318.
[31]
TSN, June 29, 1989, pp. 17, 25.
[32]
Rollo,pp.5455.Article725and741oftheCivilCodestates:
Art. 725. Donation is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another, who accepts it.
Art. 741. Minors and others who cannot enter into a contract may
become donees but acceptance shall be done through their parents or
legal representatives.

SECOND DIVISION
[A.C. No. 2115. November 27, 1990.]
FELICIDAD BARIAN TAN, Complainant, v. ATTY.
GALILEO J. TROCIO, Respondent.
SYLLABUS
1. LEGAL ETHICS; DISBARMENT OF LAWYERS; CHARGE
OF IMMORALITY, NOT ESTABLISHED IN THE CASE AT
BAR. The issue for determination is whether or not
Respondent should be disbarred for immoral conduct. This, in
turn, hinges on the question of whether he had, in fact,
sexually assault the Complainant, as a consequence of which
the latter begot a child by him. We find insufficient basis to
sustain Complainants charge. The outrage allegedly took
place during the last week of April, 1971. Yet, no criminal
charge was filed, and it was only about eight years later, on 5
November 1979, that an administrative complaint was
presented before this Court. Complainants explanation that
Respondents threat to cause the deportation of her alien
husband should she report to anyone made her desist from
filing a charge is not credible as she had admitted having lost
contact with her husband when he learned of respondents
transgression that very same evening (p. 3, TSN, 16 October
1980, p. 46, Rollo). The fear that she speaks of, therefore, had
become inexistent. Another factor that engenders doubt in the
mind of the Court is the fact that after the alleged incident, she
continued having dealings with the Respondent as if nothing
had happened. Thus, by Respondents own account, which
was left uncontroverted by the Complainant, the former
assisted her mother and sisters prosecute a robbery case.
Then in March, 1976, she secured respondents services in
claiming indemnity from three insurance companies when a

82
fire burned the school down. Finally, respondent was retained
as a collaborating attorney by complainants family in an
inheritance case. These subsequent dealings are far from
being the normal reaction of a woman who has been wronged.
Complainants contention that Respondent continued
supporting the child for several years for which reason she
desisted from charging him criminally, has not been
substantiated. Truth to tell, the fact that she kept her peace for
so many years can even be construed as a condonation of his
alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should,
of
all
names,
be
called
"Jewel."
library
2. CIVIL LAW; PATERNITY AND FILIATION; PROOF OF
FILIATION; UNUSUAL CLOSENESS AND PHYSICAL
LIKENESS, CONSIDERED INCONCLUSIVE EVIDENCE.
The testimonies of Complainant and witness Marilou
Pangandaman, another maid, to show unusual closeness
between Respondent and Jewel, like playing with him and
giving him toys, are not convincing enough to prove paternity,
as Complainant would want us to believe. The same must be
said of Exhibits A, A1, B and B1, which are pictures of Jewel
and the Respondent showing allegedly their physical likeness
to each other. Such evidence is inconclusive to prove paternity,
and much less would it prove violation of Complainants
person
and
honor.
3. ID.; ID.; LEGITIMATE CHILDREN; PRESUMPTION OF
LEGITIMACY, NOT OVERCOME BY ADEQUATE AND
CONVINCING PROOF IN THE CASE AT BAR. More
importantly, Jewel Tan was born in 1972, during wedlock of
Complainant and her husband and the presumption should be
in favor of legitimacy unless physical access between the
couple was impossible. From the evidence on hand, the
presumption has not been overcome by adequate and
convincing proof. In fact, Jewel was registered in his birth

certificate the legitimate child of the Complainant and her

husband,
Tan
Le
Pok.
DECISION
MELENCIO-HERRERA, J.:
In a verified complaint, filed on 9 November 1979, complainant
Felicidad Barian Tan seeks the disbarment of respondent
Atty. Galileo J. Trocio for immorality and conduct unbecoming
of a lawyer.
Complainant, owner and directress of Harlyn Vocational
School in Baroy, Lanao del Norte, declares that sometime in
April, 1971, at about 8:30 PM, after classes were dismissed,
respondent, who is the legal counsel of the school,
overpowered her inside the office and, against her will,
succeeded in having carnal knowledge of her. As a result, she
begot a son on 5 February 1972 whom she named and
registered as Jewel Tan. She avers that respondent used to
support Jewel but subsequently lost interest in doing so
thereby neglecting to defray the needed expenses for Jewels
well-being. Complainant also alleges that the respondent
threatened her with the deportation of her alien husband if she
complained to the authorities since she was violating the AntiDummy Law in operating the vocational school. This threat,
aside from the fact that Complainant is a married woman with
eight children and a school directress at the time of the sexual
assault, made her desist from filing a charge against
theRespondent. However, after eight years and thorough soulsearching, she decided to file this administrative
complaint.chanrobles virtual lawlibrary
Respondent, in his Answer, admits having acted as a lawyer of

83
the vocational school. In fact, he contends that he had also
served as the lawyer of the Complainant, her family and her
parents-in-law. Thus, in 1971, he helped prosecute a case for
robbery committed against Complainants mother and sisters.
Also, in March of 1976, when a fire of unknown origin gutted
the school, he assisted the complainant in collecting
P10,000.00 from FGU Insurance Group, and P40,000.00 from
Fortune Insurance Corporation as indemnities. With regard to
the same case, he also represented complainant in a suit
involving a P130,000.00 claim against the Workmens
Insurance Corporation before the then Court of First Instance
of Lanao del Norte. Then in 1978, he was retained as a
collaborating attorney by Complainants family in an
inheritance case. Further, her father-in-law had always
consulted him in matters affecting the formers store.
But respondent vehemently denies that he had sexually
assaulted the Complainant. He argues that her motivation in
filing this charge was to get even with him after having been
humiliated when he declined her request to commit a "breach
of trust." He states that in the inheritance case he handled for
her family, Complainant insisted that he report to her mother
and sisters that he had charged a fee of P15,000.00 instead of
the P2,500.00 he actually received so that she could pocket
the difference. He refused and told the Complainant to look for
another lawyer. She tried twice to make peace with him but
was unsuccessful. Rebuffed, she promised to get even with
him. Thus, this complaint.
Another reason why Complainant filed the present case,
respondent claims, is to escape her indebtedness to him
representing his services as legal counsel of the school which
were unpaid since 1974 and the accumulated honoraria from
her fire insurance claims. These obligations were left unpaid
despite demand made when respondent learned that
Complainant had sold a piece of land in Agusan.

On 2 June 1980, the Court, acting upon the Complaint and the
Answer already filed, referred the case to the Office of the
Solicitor General for investigation, report and recommendation.
On 19 August 1980, said Office, upon the request of the
Complainant that the investigation be held in Lanao del Norte
as she and her witnesses could not afford to come to Manila,
referred the case to the Provincial Fiscal of said province for
the necessary proceedings.
Between September and October of 1980, hearings were
conducted on the case. In a Report and Recommendation,
dated 16 January 1981, the Provincial Fiscal stated that
respondent failed to attend the hearing despite the issuance of
subpoena; that there was prima facie evidence showing that
respondent had committed acts violative of his professional
decorum; and, that he was recommending disciplinary action
against him. The records of the case were then forwarded to
the Office of the Solicitor General.
On 1 September 1982, the Office of the Solicitor General
returned the records to the Provincial Fiscal of Lanao del Norte
for re-investigation on the ground that the investigation was
conducted in the absence of respondent, who did not appear
despite subpoenas sent to him. Thus, further proceedings
were conducted by the Provincial Fiscal wherein Respondent
was allowed to submit a sworn letter, dated 13 December
1985, amplifying on the defenses contained in his Answer.
On 13 February 1986, the Provincial Fiscal of Lanao del Norte
issued a Resolution adopting his previous Report and
Recommendation of 16 January 1981, which found prima facie
evidence to hold Respondent administratively liable. On the
same day, the records of the case were referred back to the
Office the Solicitor General.

84

On 16 May 1986, the Office of the Solicitor General came up

with its own Report recommending that Respondent be
disbarred for gross immoral conduct. On 17 July 1986, as
directed by the Court, the Solicitor General filed a formal
Complaint for disbarment against Respondent. On 29 May
1990, the case was raffled to this Second Division and was
included in the latters agenda on 13 June 1990.
Respondent has filed an Answer, Complainant her Reply, while
Respondents Rejoinder, as required by the Court, was
received on 3 October 1990. The required pleadings being
complete, this case is now ripe for resolution.
The issue for determination is whether or not Respondent
should be disbarred for immoral conduct. This, in turn, hinges
on the question of whether he had, in fact, sexually assault the
Complainant, as a consequence of which the latter begot a
child by him.
We find insufficient basis to sustain Complainants charge.
The outrage allegedly took place during the last week of April,
1971. Yet, no criminal charge was filed, and it was only about
eight years later, on 5 November 1979, that an administrative
complaint was presented before this Court. Complainants
explanation that Respondents threat to cause the deportation
of her alien husband should she report to anyone made her
desist from filing a charge is not credible as she had admitted
having lost contact with her husband when he learned of
respondents transgression that very same evening (p. 3, TSN,
16 October 1980, p. 46, Rollo). The fear that she speaks of,
therefore, had become inexistent.
Another factor that engenders doubt in the mind of the Court is
the fact that after the alleged incident, she continued having

dealings with the Respondent as if nothing had happened.

Thus, by Respondents own account, which was left
uncontroverted by the Complainant, the former assisted her
mother and sisters prosecute a robbery case. Then in March,
1976, she secured respondents services in claiming indemnity
from three insurance companies when a fire burned the school
down. Finally, respondent was retained as a collaborating
attorney by complainants family in an inheritance case. These
subsequent dealings are far from being the normal reaction of
a woman who has been wronged.
Complainants contention that Respondent continued
supporting the child for several years for which reason she
desisted from charging him criminally, has not been
substantiated. Truth to tell, the fact that she kept her peace for
so many years can even be construed as a condonation of his
alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should,
of all names, be called "Jewel." library
During the investigation before the Provincial Fiscal, the
complainant, aside from herself, presented two other
witnesses, Eleuteria Garcia and Marilou Pangandaman, both
her domestic help, to testify. Among the three, it was Eleuteria
who tried to establish the manner in which the sexual assault
took place. Thus: lawlibrary
"x

"Q You stated in your affidavit marked Annex A that you heard
Felicidad Barian Tan shouted (sic) for help on the evening of
last week of April, 1971, can you tell me or do you know why
Mrs. Tan shouted for help?
"A Yes sir. When I responded to the shout for help of Tan I

85
noticed that Atty. Galileo Trocio, hurriedly left the office leaving
behind Mrs. Felicidad Barian Tan.
"Q Did you ask Mrs. Felicidad Barian Tan why she was
shouting for help?
"A Before I could ask her the reason why she shouted for help,
she told me and Marilou Pangandaman that she was sexually
abused by Atty. Galileo J. Trocio.

convincing proof. In fact, Jewel was registered in his birth

certificate the legitimate child of the Complainant and her
husband, Tan Le Pok.
WHEREFORE, this Complaint for disbarment must be, and is
hereby DISMISSED, for lack of convincing substantiation.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.

"Q What did you notice of Mrs. Felicidad Barian Tan when
you responded to her shout for help?
"A She was crying and trying to fix her dress.." . . (p. 52-53,
Rollo)." library
However, how near to the crime scene said witness was,
considering that it allegedly happened in school premises, has
not been shown. Her credibility is thus also put in issue.
The testimonies of Complainant and witness Marilou
Pangandaman, another maid, to show unusual closeness
between Respondent and Jewel, like playing with him and
giving him toys, are not convincing enough to prove paternity,
as Complainant would want us to believe. The same must be
said of Exhibits A, A1, B and B1, which are pictures of Jewel
and the Respondent showing allegedly their physical likeness
to each other. Such evidence is inconclusive to prove paternity,
and much less would it prove violation of Complainants
person and honor.c
More importantly, Jewel Tan was born in 1972, during wedlock
of Complainant and her husband and the presumption should
be in favor of legitimacy unless physical access between the
couple was impossible. From the evidence on hand, the
presumption has not been overcome by adequate and

86
FIRST DIVISION
G.R. No. 86302 September 24, 1991
CASIMIRO MENDOZA, petitioner,
vs.
HON. COURT OF APPEALS and TEOPISTA TORING
TUACAO, respondents.
Bienvenido R. Saniel, Jr. for petitioner.
Domingo Antigua & Associates for private respondent.

CRUZ, J.:p
The private respondent claimed she was the illegitimate
daughter of Casimiro Mendoza, but the latter denied her claim.
He denied it to his dying day. The trial court believed him and
dismissed her complaint for compulsory recognition. The
appellate court did not and reversed the judgment of the court
below. Now the issue is before us oncertiorari.
The complaint was filed on August 21, 1981, in the Regional
Trial Court in Cebu City. Teopista Toring Tufiacao, the herein
private respondent, alleged that she was born on August 20,
1930, to Brigida Toring, who was then single, and defendant
Casimiro Mendoza, married at that time to Emiliana
Barrientos. She averred that Mendoza recognized her as an
illegitimate child by treating her as such and according her the
rights and privileges of a recognized illegitimate child.
Casimiro Mendoza, then already 91 years old, specifically
denied the plaintiffs allegations and set up a counterclaim for
damages and attorney's fees.

87
Amplifying on her complaint, Teopista testified that it was her
mother who told her that her father was Casimiro. She called
him Papa Miroy. She lived with her mother because Casimiro
was married but she used to visit him at his house. When she
married Valentin Tufiacao, Casimiro bought a passenger truck
and engaged him to drive it so he could have a livelihood.
Casimiro later sold the truck but gave the proceeds of the sale
to her and her husband. In 1977, Casimiro allowed her son,
Lolito Tufiacao, to build a house on his lot and later he gave
her money to buy her own lot from her brother, Vicente Toring.
On February 14, 1977, Casimiro opened a joint savings
account with her as a co-depositor at the Mandaue City branch
of the Philippine Commercial and Industrial Bank. Two years
later, Margarita Bate, Casimiro's adopted daughter, took the
passbook from her, but Casimiro ordered it returned to her
after admonishing Margarita. 1
Lolito Tufiacao corroborated his mother and said he
considered Casimiro his grandfather because Teopista said so.
He would kiss his hand whenever they saw each other and
Casimiro would give him money. Casimiro used to invite him to
his house and give him jackfruits. when his grandfather
learned that he was living on a rented lot, the old man allowed
him to build a house on the former's land. 2
Two other witnesses testified for Teopista, namely, Gaudencio
Mendoza and Isaac Mendoza, both relatives of Casimiro.
Gaudencio said he was a cousin of Casimiro and knew Brigida
Toring because she used to work with him in a saltbed in
Opao. Casimiro himself told him she was his sweetheart.
Later, Gaudencio acted as a go-between for their liaison,
which eventually resulted in Brigida becoming pregnant in
1930 and giving birth to Teopista. Casimiro handed him P20.00
to be given to Brigida at Teopista's baptism. Casimiro also
gave him P5.00 every so often to be delivered to Brigida. 3

Isaac testified that his uncle Casimiro was the father of

Teopista because his father Hipolito, Casimiro's brother, and
his grandmother, Brigida Mendoza, so informed him. He
worked on Casimiro's boat and whenever Casimiro paid him
his salary, he would also give him various amounts from P2.00
to P10.00 to be delivered to Teopista. Isaac also declared that
Casimiro intended to give certain properties to Teopista. 4
Casimiro himself did not testify because of his advanced age,
but Vicente Toring took the stand to resist Teopista's claim.
Vicente, who professed to be Casimiro's only illegitimate child
by Brigida Toring, declared that Teopista's father was not
Casimiro but a carpenter named Ondoy, who later abandoned
her. Vicente said that it was he who sold a lot to Teopista, and
for a low price because she was his half sister. It was also he
who permitted Lolito to build a house on Casimiro's lot. This
witness stressed that when Casimiro was hospitalized,
Teopista never once visited her alleged father. 5
The last statement was shared by the other defense witness,
Julieta Ouano, Casimiro's niece, who also affirmed that
Vicente Toring used to work as a cook in Casimiro's boat. She
flatly declared she had never met Teopista but she knew her
husband, who was a mechanic. 6
The rules on compulsory recognition are embodied in Article
283 of the Civil Code, which has been held to be applicable
not only to natural children but also to spurious children. 7 The
said article provides:
Art. 283. In any of the following cases, the
father is obliged to recognize the child as his
natural child:

88
(1) In cases of rape, abduction or seduction,
when the period of the offense coincides more
or less with that of the conception;
(2) When the child is in continuous possession
of status of a child of the alleged father by the
direct acts of the latter or of his family;
(3) when the child was conceived during the
time when the mother cohabited with the
supposed father.
(4) When the child has in his favor any evidence
or proof that the defendant is his father.
This article has been substantially reproduced in the Family
Code 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.
In his remarkably well-written decision, Judge Leoncio P.
Abarquez rejected the plaintiff' s claim that she was in
continuous possession of the status of a child of the alleged
father by the direct acts of the latter or of his family. His Honor
declared:
In this particular case the established evidence
is that plaintiff continuously lived with her
mother, together with her sister Paulina. Neither
the plaintiff nor her husband had come to live
with the defendant. At most, only their son,
Lolito Tufiacao was allowed to construct a small
house in the land of the defendant, either by the
defendant himself, as claimed by the plaintiff, or
by Vicente Toring, as claimed by the witnesses
of the defendant. The defendant never spent for
the support and education of the plaintiff. He did
not allow the plaintiff to carry his surname. The
instances when the defendant gave money to
the plaintiff were, more or less, off-and-on or
rather isolatedly periodic. They were made at
considerable intervals and were not given
directly to the plaintiff but through a third
person. Thus, while it may be conceded that: a)
the defendant's parents, as well as the plaintiff
himself told Gaudencio Mendoza and Isaac
Mendoza that Teopista is the daughter of the
defendant; b) that Teopista calls the defendant
as "Papa Miroy"; c) that Teopista would kiss

89
defendant's hand when she met him; d) that the
defendant gave to her and her husband the
income of the passenger truck as well as the
proceeds of the sale thereof, all these acts,
taken altogether, are not sufficient to show that
the plaintiff had possessed continuously the
status of a recognized illegitimate child.
On appeal, however, the respondent courts 8 disagreed and
arrived at its own conclusion as follows:
Contrary to the conclusion of the court a quo,
We find that appellant has sufficiently proven
her continuous possession of such status.
Although the court a quo did not pass on the
credibility of the various witnesses presented,
We consider the witnesses for the plaintiff as
credible and unbiased. No proof was shown to
render them otherwise. There is no showing
that Isaac and Gaudencio testified falsely. They
were disinterested parties with no axe to grind
against the appellee or the people actively
acting in his behalf. In fact even the court a
quo conceded to the truthfulness of some of
their testimonies.
By contrast, it continued, Vicente Toring was an interested
party who was claiming to be the sole recognized natural child
of Casimiro and stood to lose much inheritance if Teopista's
claim were recognized. He had earlier filed theft charges
against his own sister and libel charges against her husband.
As for Julieta Ouano, the respondent court found it difficult to
believe that she had never met Teopista although both of them
have been living in the same barangay since birth.

The decision of the Court of Appeals was promulgated on

August 11, 1988. A motion for reconsideration was filed, and it
was only from the opposition thereto of the private respondent
that Casimiro's counsel learned that his client had died on May
1986. He immediately informed the respondent court build the
motion for reconsideration was denied without any substitution
of parties having been effected. The said counsel, now acting
for Vicente Toring, then asked this Court to substitute the latter
for the deceased Casimiro Mendoza in the present petition.
The applicable provisions of the Rules of Court are Sections
16 and 17 of Rule 3, reading as follows:
Sec. 16. Duty of attorney upon death,
incapacity or incompetency of party.
Whenever a party to a pending case dies,
becomes incapacitated or incompetent, it shall
be the duty of his attorney to inform the court
promptly of such death, incapacity or
incompetency, and to give the name and
residence of his executor, guardian or other
legal representative.
Sec. 17. Death of party. After a party dies
and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal
representative of the deceased to appear and to
be substituted for the deceased, within a period
of thirty (30) days, or within such time as may
be granted. If the legal representative fails to
appear within said time the court may order the
opposing party to procure the appointment of a
legal representative of the deceased within a
time to be specified by the court, and the
representative shall immediately appear for and
on behalf of the interest of the deceased. The

90
court charges involved in procuring such
appointment, if defrayed by the opposing party,
may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for
the deceased, without requiring the
appointment of an executor or administrator and
the court may appoint guardian ad litemfor the
minor heirs.
In the early case of Masecampo vs. Masecampo, 9 it was
settled that:
The subsequent death of the father is not a bar
to the action commenced during Ms lifetime by
one who pretended to be his natural son. It may
survive against the executor, administrator, or
any other legal representative of the testate or
intestate succession.
Pursuant to the above rules and jurisprudence, we hereby
allow the substitution of Casimiro Mendoza pro haec
viceand nunc pro tunc by Vicente Toring, who appears to be
the former's illegitimate son. This disposes of the private
respondent's contention that the lawyer-client relationship
terminated with Casimiro's death and that Vicente has no
personality now to substitute him.
Now to the merits.

We note that both the trial court and the respondent court, in
arriving at their respective conclusions, focused on the
question of whether or not Teopista was in continuous
possession of her claimed status of an illegitimate child of
Casimiro Mendoza. This was understandable because
Teopista herself had apparently based her claim on this
particular ground as proof of filiation allowed under Article 283
of the Civil Code.
To establish "the open and continuous possession of the
status of an illegitimate child," it is necessary to comply with
certain jurisprudential requirements. "Continuous" does not
mean that the concession of status shall continue forever but
only that it shall not be of an intermittent character while it
continues. 10 The possession of such status means that the
father has treated the child as his own, directly and not
through others, spontaneously and without concealment
though without publicity (since the relation is
illegitimate). 11 There must be a showing of the permanent
intention of the supposed father to consider the child as his
own, by continuous and clear manifestation of paternal
affection and care. 12
With these guidelines in mind, we agree with the trial court that
Teopista has not been in continuous possession of the status
of a recognized illegitimate child of Casimiro Mendoza, under
both Article 283 of the Civil Code and Article 172 of the Family
Code.
The plaintiff lived with her mother and not with the defendant
although they were both residents of Omapad, Mandaue City.
It is true, as the respondent court observed, that this could
have been because defendant had a legitimate wife. However,
it is not unusual for a father to take his illegitimate child into his
house to live with him and his legitimate wife, especially if the
couple is childless, as in this case. In fact, Vicente Toring, who

91
also claimed to be an illegitimate child of Casimiro, lived with
the latter and his wife, apparently without objection from the
latter. We also note that Teopista did not use the surname of
Casimiro although this is, of course, not decisive of one's
status. No less significantly, the regularity of defendant's act of
giving money to the plaintiff through Gaudencio Mendoza and
Isaac Mendoza has not been sufficiently established. The trial
court correctly concluded that such instances were "off-andon," not continuous and intermittent. Indeed, the plaintiff s
testimony on this point is tenuous as in one breath she said
that her mother solely spent for her education and in another
that Casimiro helped in supporting her.13
But although Teopista has failed to show that she was in open
and continuous possession of the status of an illegitimate child
of Casimiro, we find that she has nevertheless established that
status by another method.
What both the trial court and the respondent court did not take
into account is that an illegitimate child is allowed to establish
his claimed filiation by "any other means allowed by the Rules
of Court and special laws," according to the Civil Code, or "by
evidence or proof in his favor that the defendant is her father,"
according to the Family Code. Such evidence may consist of
his baptismal certificate, a judicial admission, a family Bible in
which his name has been entered, common reputation
respecting his pedigree, admission by silence, the testimonies
of witnesses, and other kinds of proof admissible under Rule
130 of the Rules of Court. 14
The trial court conceded that "the defendant's parents, as well
as the plaintiff himself, told Gaudencio Mendoza and Isaac
Mendoza, that Teopista was the daughter of the defendant." It
should have probed this matter further in light of Rule 130,
Section 39, of the Rules of Court, providing as follows:

Sec. 39. Act or declarations about pedigree.

The act or declaration of a person deceased,
or unable to testify, in respect to the pedigree of
another person related to him by birth or
marriage, may be received in evidence where it
occurred before the controversy, and the
relationship between the two persons is shown
by evidence other than such act or declaration.
The word "pedigree" includes relationship,
family genealogy, birth, marriage, death, the
dates when and the places where these facts
occurred, and the names of the relatives. It
embraces also facts of family history intimately
connected with pedigree.
The statement of the trial court regarding Teopista's parentage
is not entirely accurate. To set the record straight, we will
stress that it was only Isaac Mendoza who testified on this
question of pedigree, and he did not cite Casimiro's father. His
testimony was that he was informed by his father Hipolito, who
was Casimiro's brother, and Brigida Mendoza, Casimiro's own
mother, that Teopista was Casimiro's illegitimate daughter. 15
Such acts or declarations may be received in evidence as an
exception to the hearsay rule because "it is the best the nature
of the case admits and because greater evils are apprehended
from the rejection of such proof than from its
admission. 16 Nevertheless, precisely because of its nature as
hearsay evidence, there are certain safeguards against its
abuse. Commenting on this provision, Francisco enumerates
the following requisites that have to be complied with before
the act or declaration regarding pedigree may be admitted in
evidence:
1. The declarant is dead or unable to testify.

92
2. The pedigree must be in issue.
3. The declarant must be a relative of the
person whose pedigree is in issue.
4. The declaration must be made before the
controversy arose.
5. The relationship between the declarant and
the person whose pedigree is in question must
be shown by evidence other than such
declaration. 17
All the above requisites are present in the case at bar. The
persons who made the declarations about the pedigree of
Teopista, namely, the mother of Casimiro, Brigida Mendoza,
and his brother, Hipolito, were both dead at the time of Isaac's
testimony. The declarations referred to the filiation of Teopista
and the paternity of Casimiro, which were the very issues
involved in the complaint for compulsory recognition. The
declarations were made before the complaint was filed by
Teopista or before the controversy arose between her and
Casimiro. Finally, the relationship between the declarants and
Casimiro has been established by evidence other than such
declaration, consisting of the extrajudicial partition of the
estate of Florencio Mendoza, in which Casimiro was
mentioned as one of his heirs.18
The said declarations have not been refuted. Casimiro could
have done this by deposition if he was too old and weak to
testify at the trial of the case.
If we consider the other circumstances narrated under oath by
the private respondent and her witnesses, such as the
financial doles made by Casimiro to Brigida Toring, the hiring
of Teopista's husband to drive the passenger truck of

Casimiro, who later sold the vehicle and gave the proceeds of
the sale to Teopista and her husband, the permission he gave
Lolito Tufiacao to build a house on his land after he found that
the latter was living on a rented lot, and, no less remarkably,
the joint savings account Casimiro opened with Teopista, we
can reasonably conclude that Teopista was the illegitimate
daughter of Casimiro Mendoza.
We hold that by virtue of the above-discussed declarations,
and in view of the other circumstances of this case, 'reopista
Toring Tufiacao has proved that she is the illegitimate daughter
of Casimiro Mendoza and is entitled to be recognized as such.
In so holding, we give effect to the policy of the Civil Code and
the Family Code to liberalize the rule on the investigation of
"the paternity of illegitimate children, without prejudice to the
right of the alleged parent to resist the claimed status with his
own defenses, including evidence now obtainable through the
facilities of modern medicine and technology
WHEREFORE, the petition is DENIED. Judgment is hereby
rendered DECLARING Teopista Toring Tuacao to be the
illegitimate child of the late Casimiro Mendoza and entitled to
all the rights appurtenant to such status. Costs against the
petitioner.
SO ORDERED.
Narvasa (Chairman), Grio-Aquino and Medialdea, JJ.,
concur.
Footnotes
1 TSN, March 21, 1983, pp. 49-60, Ibid., April 22, 1983,
pp. 6-12; Exhibit 'A.
2 Id., July 1, 1982, pp. 7-17.

93
3 Id., July 12, 1982, pp. 3-11.
4 Id., August 16, 1982, pp. 7-14; Id., September 30,
1982, pp. 3140.

FIRST DIVISION

5 Id., May 9, 1983, pp. 17-21, 25-30, 34-36.

6 Id., July 7, 1983, pp. 3-9; Id., August 8, 1983, pp. 612.
7 Paulino vs. Paulino, 113 Phil. 697; Divinagracia vs.
Rovira, 72 SCRA 307.
8 Penned by Justice Chua, with Purisima and Lapena,
J.J., concurring.
9 11 Phil. 1.
10 De Jesus vs. Syquia, 58 Phil. 866.

[G.R. No. 148220. June 15, 2005]

ROSENDO HERRERA, petitioner,

vs. ROSENDO ALBA, minor, represented by his mother
ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES,
Presiding Judge, Branch 48, Regional Trial Court,
Manila, respondents.

11 J.B.L. Reyes and R.C. Puno, Outline of Philippine

Civil Law, Vol. 1, 1964 ed., pp. 269-270 citing Coquia
vs. Coquia, CA 50, O.G. 3701.
12 Tolentino, Civil Code of the Philippines, Vol. 1, 1983
ed., p. 602.
13 TSN, March 21, 1983, p. 51; Ibid., April 22, 1983, p.
5.
14 Justice Alicia Sempio-Diy, Handbook on the Family
Code of the Philippines, 1988 ed., p. 246.
15 TSN, September 30, 1982, pp. 31-32.
16 20 Am. Jur. 409.
17 Francisco, Revised Rules of Court in the
Philippines, Vol. VII, Part 1, 1990 ed., pp. 567-572.
18 Exhibit "E."

DECISION
CARPIO, J.:
The Case
This is a petition for review[1] to set aside the
Decision[2] dated 29 November 2000 of the Court of Appeals
(appellate court) in CA-G.R. SP No. 59766. The appellate
court affirmed two Orders[3] issued by Branch 48 of the
Regional Trial Court of Manila (trial court) in SP No. 98-88759.
The Order dated 3 February 2000 directed Rosendo Herrera
(petitioner) to submit to deoxyribonucleic acid (DNA) paternity
testing, while the Order dated 8 June 2000 denied petitioners
motion for reconsideration.
The Facts

94
On 14 May 1998, then thirteen-year-old Rosendo Alba
(respondent), represented by his mother Armi Alba, filed
before the trial court a petition for compulsory recognition,
support and damages against petitioner. On 7 August 1998,
petitioner filed his answer with counterclaim where he denied
that he is the biological father of respondent. Petitioner also
denied physical contact with respondents mother.
Respondent filed a motion to direct the taking of DNA
paternity testing to abbreviate the proceedings. To support the
motion, respondent presented the testimony of Saturnina C.
Halos, Ph.D. When she testified, Dr. Halos was an Associate
Professor at De La Salle University where she taught Cell
Biology. She was also head of the University of the Philippines
Natural Sciences Research Institute (UP-NSRI), a DNA
analysis laboratory. She was a former professor at the
University of the Philippines in Diliman, Quezon City, where
she developed the Molecular Biology Program and taught
Molecular Biology. In her testimony, Dr. Halos described the
process for DNA paternity testing and asserted that the test
had an accuracy rate of 99.9999% in establishing paternity.[4]
Petitioner opposed DNA paternity testing and contended
that it has not gained acceptability. Petitioner further argued
that DNA paternity testing violates his right against selfincrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted
respondents motion to conduct DNA paternity testing on
petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner
is GRANTED and the relevant individuals, namely: the
petitioner, the minor child, and respondent are

directed to undergo DNA paternity testing in a

laboratory of their common choice within a period of
thirty (30) days from receipt of the Order, and to
submit the results thereof within a period of ninety
(90) days from completion. The parties are further
reminded of the hearing set on 24 February 2000 for
the reception of other evidence in support of the
petition.
IT IS SO ORDERED.[5] (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3
February 2000 Order. He asserted that under the present
circumstances, the DNA test [he] is compelled to take would
be inconclusive, irrelevant and the coercive process to obtain
the requisite specimen, unconstitutional.
In an Order dated 8 June 2000, the trial court denied
petitioners motion for reconsideration.[6]
On 18 July 2000, petitioner filed before the appellate court
a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure. He asserted that the trial court rendered the
Orders dated 3 February 2000 and 8 June 2000 in excess of,
or without jurisdiction and/or with grave abuse of discretion
amounting to lack or excess of jurisdiction. Petitioner further
contended that there is no appeal nor any [other] plain,
adequate and speedy remedy in the ordinary course of law.
Petitioner maintained his previous objections to the taking of
DNA paternity testing. He submitted the following grounds to
support his objection:
1. Public respondent misread and misapplied the
ruling in Lim vs. Court of Appeals (270 SCRA
2).

95
2. Public respondent ruled to accept DNA test
without considering the limitations on, and
conditions precedent for the admissibility of
DNA testing and ignoring the serious
constraints affecting the reliability of the test
as admitted by private respondents expert
witness.
3. Subject Orders lack legal and factual support,
with public respondent relying on scientific
findings and conclusions unfit for judicial
notice and unsupported by experts in the field
and scientific treatises.
4. Under the present circumstances the DNA
testing petitioner [is] compelled to take will be
inconclusive, irrelevant and the coercive
process to obtain the requisite specimen from
the petitioner, unconstitutional.[7]
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a
decision denying the petition and affirming the questioned
Orders of the trial court. The appellate court stated that
petitioner merely desires to correct the trial courts evaluation
of evidence. Thus, appeal is an available remedy for an error
of judgment that the court may commit in the exercise of its
jurisdiction. The appellate court also stated that the proposed
DNA paternity testing does not violate his right against selfincrimination because the right applies only to testimonial
compulsion. Finally, the appellate court pointed out that
petitioner can still refute a possible adverse result of the DNA
paternity testing. The dispositive portion of the appellate courts
decision reads:

WHEREFORE, foregoing premises considered, the

Petition is hereby DENIED DUE COURSE, and ordered
dismissed, and the challenged orders of the Trial
Court AFFIRMED, with costs to Petitioner.
SO ORDERED.[8]
Petitioner moved for reconsideration, which the appellate
court denied in its Resolution dated 23 May 2001.[9]
Issues
Petitioner raises the issue of whether a DNA test is a valid
probative tool in this jurisdiction to determine filiation.
Petitioner asks for the conditions under which DNA technology
may be integrated into our judicial system and the
prerequisites for the admissibility of DNA test results in a
paternity suit.[10]
Petitioner further submits that the appellate court gravely
abused its discretion when it authorized the trial court to
embark in [sic] a new procedure xxx to determine filiation
despite the absence of legislation to ensure its reliability and
integrity, want of official recognition as made clear in Lim vs.
Court of Appeals and the presence of technical and legal
constraints in respect of [sic] its implementation. [11] Petitioner
maintains that the proposed DNA paternity testing violates his
right against self-incrimination.[12]
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we
deem it appropriate to give an overview of a paternity suit and
apply it to the facts of this case. We shall consider the

96
requirements of the Family Code and of the Rules of Evidence
to establish paternity and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate
paternity but also to secure a legal right associated with
paternity, such as citizenship,[13] 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.[14]
A prima facie case exists if a woman declares that she
had sexual relations with the putative father. In our jurisdiction,
corroborative proof is required to carry the burden forward and
shift it to the putative father.[15]
There are two affirmative defenses available to the
putative father. The putative father may show incapability of
sexual relations with the mother, because of either physical
absence or impotency.[16] The putative father may also show
that the mother had sexual relations with other men at the time
of conception.
A child born to a husband and wife during a valid marriage
is presumed legitimate.[17] The childs legitimacy may be
impugned only under the strict standards provided by law.[18]
Finally, physical resemblance between the putative father
and child may be offered as part of evidence of paternity.
Resemblance is a trial technique unique to a paternity
proceeding. However, although likeness is a function of

heredity, there is no mathematical formula that could quantify

how much a child must or must not look like his biological
father.[19] This kind of evidence appeals to the emotions of the
trier of fact.
In the present case, the trial court encountered three of
the four aspects. Armi Alba, respondents mother, put forward
a prima facie case when she asserted that petitioner is
respondents biological father. Aware that her assertion is not
enough to convince the trial court, she offered corroborative
proof in the form of letters and pictures. Petitioner, on the other
hand, denied Armi Albas assertion. He denied ever having
sexual relations with Armi Alba and stated that respondent is
Armi Albas child with another man. Armi Alba countered
petitioners denial by submitting pictures of respondent and
petitioner side by side, to show how much they resemble each
other.
Paternity and filiation disputes can easily become
credibility contests. We now look to the law, rules, and
governing jurisprudence to help us determine what evidence of
incriminating acts on paternity and filiation are allowed in this
jurisdiction.
Laws, Rules, and Jurisprudence
Establishing Filiation
The relevant provisions of the Family Code provide as
follows:
ART. 175. Illegitimate children may establish their
illegitimate filiation in the same way and on the same
evidence as legitimate children.
xxx

97
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.
The Rules on Evidence include provisions on pedigree.
The relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree.The act or
declaration of a person deceased, or unable to testify,
in respect to the pedigree of another person related to
him by birth or marriage, may be received in evidence
where it occurred before the controversy, and the
relationship between the two persons is shown by
evidence other than such act or declaration. The word
pedigree includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where
these facts occurred, and the names of the relatives. It
embraces also facts of family history intimately
connected with pedigree.

SEC. 40. Family reputation or tradition regarding

pedigree.The reputation or tradition existing in a
family previous to the controversy, in respect to the
pedigree of any one of its members, may be received
in evidence if the witness testifying thereon be also a
member of the family, either by consanguinity or
affinity. Entries in family bibles or other family books or
charts, engraving on rings, family portraits and the
like, may be received as evidence of pedigree.
This Courts rulings further specify what incriminating acts
are acceptable as evidence to establish filiation. In Pe Lim v.
CA,[20] a case petitioner often cites, we stated that the issue of
paternity still has to be resolved by such conventional
evidence as the relevant incriminating verbal and written acts
by the putative father. Under Article 278 of the New Civil Code,
voluntary recognition by a parent shall be made in the record
of birth, a will, a statement before a court of record, or in any
authentic writing. To be effective, the claim of filiation must be
made by the putative father himself and the writing must be
the writing of the putative father.[21] A notarial agreement to
support a child whose filiation is admitted by the putative father
was considered acceptable evidence.[22] Letters to the mother
vowing to be a good father to the child and pictures of the
putative father cuddling the child on various occasions,
together with the certificate of live birth, proved filiation.
[23]
However, a student permanent record, a written consent to
a fathers operation, or a marriage contract where the putative
father gave consent, cannot be taken as authentic writing.
[24]
Standing alone, neither a certificate of baptism [25] nor family
pictures[26] are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit
evidence of paternity and filiation to incriminating acts alone.
However, advances in science show that sources of evidence
of paternity and filiation need not be limited to incriminating

98
acts. There is now almost universal scientific agreement that
blood grouping tests are conclusive on non-paternity, although
inconclusive on paternity.[27]
In Co Tao v. Court of Appeals,[28] the result of the blood
grouping test showed that the putative father was a possible
father of the child. Paternity was imputed to the putative father
after the possibility of paternity was proven on presentation
during trial of facts and circumstances other than the results of
the blood grouping test.
In Jao v. Court of Appeals,[29] the child, the mother, and
the putative father agreed to submit themselves to a blood
grouping test. The National Bureau of Investigation (NBI)
conducted the test, which indicated that the child could not
have been the possible offspring of the mother and the
putative father. We held that the result of the blood grouping
test was conclusive on the non-paternity of the putative father.
The present case asks us to go one step further. We are
now asked whether DNA analysis may be admitted as
evidence to prove paternity.
DNA Analysis as Evidence
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.[30]
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.

[31]

We quote relevant portions of the trial courts 3 February

2000 Order with approval:
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 makeup. 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,
or analysis/DNA fingerprinting/genetic tests or
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:

99
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; mtDNA
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.
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.[32] (Emphasis in
the original)
Although the term DNA testing was mentioned in the 1995
case of People v. Teehankee, Jr.,[33] it was only in the 2001
case of Tijing v. Court of Appeals[34] that more than a passing
mention was given to DNA analysis. In Tijing, we issued a writ
of habeas
corpus against
respondent
who
abducted
petitioners youngest son. Testimonial and documentary
evidence and physical resemblance were used to establish
parentage. However, we observed that:
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.
xxx For it was said, that courts should apply the results
of science when completely obtained in aid of
situations presented, since to reject said result is to
deny progress. Though it is not necessary in this case
to resort to DNA testing, in [the] future it would be
useful to all concerned in the prompt resolution of
parentage and identity issues.
Admissibility of

100
DNA Analysis as Evidence
The 2002 case of People v. Vallejo[35] discussed DNA
analysis as evidence. This may be considered a 180 degree
turn from the Courts wary attitude towards DNA testing in the
1997 Pe Lim case,[36] where we stated that DNA, being a
relatively new science, xxx has not yet been accorded official
recognition by our courts. In Vallejo, the DNA profile from the
vaginal swabs taken from the rape victim matched the
accuseds DNA profile. We affirmed the accuseds conviction of
rape with homicide and sentenced him to death. We declared:
In assessing the probative value of DNA evidence,
therefore, courts should consider, among other things,
the following data: how the samples were collected,
how they were handled, the possibility of
contamination of the samples, the procedure followed
in analyzing the samples, whether the proper
standards and procedures were followed in conducting
the tests, and the qualification of the analyst who
conducted the tests.[37]
Vallejo discussed the probative value, not admissibility, of
DNA evidence. By 2002, there was no longer any question on
the validity of the use of DNA analysis as evidence. The Court
moved from the issue of according official recognition to DNA
analysis as evidence to the issue of observance of procedures
in conducting DNA analysis.
In 2004, there were two other cases that had a significant
impact on jurisprudence on DNA testing: People v.
Yatar[38] and In re: The Writ of Habeas Corpus for Reynaldo
de Villa.[39] In Yatar, a match existed between the DNA profile
of the semen found in the victim and the DNA profile of the
blood sample given by appellant in open court. The Court,
following Vallejos footsteps, affirmed the conviction of

appellant because the physical evidence, corroborated by

circumstantial evidence, showed appellant guilty of rape with
homicide. In De Villa, the convict-petitioner presented DNA
test results to prove that he is not the father of the child
conceived at the time of commission of the rape. The Court
ruled that a difference between the DNA profile of the convictpetitioner and the DNA profile of the victims child does not
preclude the convict-petitioners commission of rape.
In the present case, the various pleadings filed by
petitioner and respondent refer to two United States cases to
support their respective positions on the admissibility of DNA
analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell
Dow Pharmaceuticals.[41] In Frye v. U.S., the trial court
convicted Frye of murder. Frye appealed his conviction to the
Supreme Court of the District of Columbia. During trial, Fryes
counsel offered an expert witness to testify on the result of a
systolic blood pressure deception test[42] made on defendant.
The state Supreme Court affirmed Fryes conviction and ruled
that the systolic blood pressure deception test has not yet
gained such standing and scientific recognition among
physiological and psychological authorities as would justify the
courts in admitting expert testimony deduced from the
discovery, development, and experiments thus far made.
The Frye standard of general acceptance states as follows:
Just when a scientific principle or discovery crosses the
line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight
zone the evidential force of the principle must be
recognized, and while courts will go a long way in
admitting expert testimony deduced from a well
recognized scientific principle or discovery, the thing
from which the deduction is made must be sufficiently
established to have gained general acceptance in the
particular field in which it belongs.

101
In 1989, State v. Schwartz[43] modified the Frye standard.
Schwartz was charged with stabbing and murder.
Bloodstained articles and blood samples of the accused and
the victim were submitted for DNA testing to a government
facility and a private facility. The prosecution introduced the
private testing facilitys results over Schwartzs objection. One
of the issues brought before the state Supreme Court included
the admissibility of DNA test results in a criminal proceeding.
The state Supreme Court concluded that:
While we agree with the trial court that forensic DNA
typing has gained general acceptance in the scientific
community, we hold that admissibility of specific test
results in a particular case hinges on the laboratorys
compliance with appropriate standards and controls,
and the availability of their testing data and results. [44]
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.
further modified the Frye-Schwartz standard. Daubert was
a product liability case where both the trial and appellate
courts denied the admissibility of an experts testimony
because it failed to meet the Frye standard of general
acceptance. The United States Supreme Court ruled that in
federal trials, the Federal Rules of Evidence have superseded
the Frye standard. Rule 401 defines relevant evidence, while
Rule 402 provides the foundation for admissibility of evidence.
Thus:
[45]

States, by Act of Congress, by these rules, or by other

rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is
not admissible.
Rule 702 of the Federal Rules of Evidence governing
expert testimony provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
Daubert cautions that departure from the Frye standard
of general acceptance does not mean that the Federal Rules
do not place limits on the admissibility of scientific evidence.
Rather, the judge must ensure that the testimonys reasoning
or method is scientifically valid and is relevant to the issue.
Admissibility would depend on factors such as (1) whether the
theory or technique can be or has been tested; (2) whether the
theory or technique has been subjected to peer review and
publication; (3) the known or potential rate of error; (4) the
existence and maintenance of standards controlling the
techniques operation; and (5) whether the theory or technique
is generally accepted in the scientific community.

Rule 401. Relevant evidence is defined as that which

has any tendency to make the existence of any fact
that is of consequence to the determination of the
action more probable or less probable than it would be
without the evidence.

Another product liability case, Kumho Tires Co. v.

Carmichael,[46] further modified the Daubert standard. This led
to the amendment of Rule 702 in 2000 and which now reads
as follows:

Rule 402. All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United

If scientific, technical or other specialized knowledge

will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as

102
an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product
of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the
facts of the case.

Probative Value of

We now determine the applicability in this jurisdiction of

these American cases. Obviously, neither the FryeSchwartz standard nor the Daubert-Kumho standard is
controlling in the Philippines.[47] At
best, American
jurisprudence merely has a persuasive effect on our decisions.
Here, evidence is admissible when it is relevant to the fact in
issue and is not otherwise excluded by statute or the Rules of
Court.[48] Evidence is relevant when it has such a relation to the
fact in issue as to induce belief in its existence or nonexistence.[49] Section 49 of Rule 130, which governs the
admissibility of expert testimony, provides as follows:

In assessing the probative value of DNA evidence,

therefore, courts should consider, among other things,
the following data: how the samples were collected,
how they were handled, the possibility of
contamination of the samples, the procedure followed
in analyzing the samples, whether the proper
standards and procedures were followed in conducting
the tests, and the qualification of the analyst who
conducted the tests.[51]

The opinion of a witness on a matter requiring special

knowledge, skill, experience or training which he is
shown to possess may be received in evidence.
This Rule does not pose any legal obstacle to the admissibility
of DNA analysis as evidence. Indeed, even evidence on
collateral matters is allowed when it tends in any reasonable
degree to establish the probability or improbability of the fact in
issue.[50]
Indeed, it would have been convenient to merely refer
petitioner to our decisions in Tijing, Vallejo and Yatar to
illustrate that DNA analysis is admissible as evidence. In our
jurisdiction, the restrictive tests for admissibility established
by Frye-Schwartz and Daubert-Kumho go into the weight of
the evidence.

DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial
courts should be cautious in giving credence to DNA analysis
as evidence. We reiterate our statement in Vallejo:

We also repeat the trial courts explanation of DNA

analysis used in paternity cases:
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.[52]

103
It is not enough to state that the childs DNA profile matches
that of the putative father. A complete match between the DNA
profile of the child and the DNA profile of the putative father
does not necessarily establish paternity. For this reason,
following the highest standard adopted in an American
jurisdiction,[53] trial courts should require at least 99.9% as a
minimum value of the Probability of Paternity (W) prior to a
paternity inclusion. W is a numerical estimate for the likelihood
of paternity of a putative father compared to the probability of a
random match of two unrelated individuals. An appropriate
reference population database, such as the Philippine
population database, is required to compute for W. Due to the
probabilistic nature of paternity inclusions, W will never equal
to 100%. However, the accuracy of W estimates is higher
when the putative father, mother and child are subjected to
DNA analysis compared to those conducted between the
putative father and child alone.[54]
DNA analysis that excludes the putative father from
paternity should be conclusive proof of non-paternity. If the
value of W is less than 99.9%, the results of the DNA analysis
should be considered as corroborative evidence. If the value of
W is 99.9% or higher, then there is refutable presumption of
paternity.[55] This refutable presumption of paternity should be
subjected to the Vallejo standards.
Right Against
Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that
no person shall be compelled to be a witness against himself.
Petitioner asserts that obtaining samples from him for DNA
testing violates his right against self-incrimination. Petitioner
ignores our earlier pronouncements that the privilege is
applicable only to testimonial evidence. Again, we quote

relevant portions of the trial courts 3 February 2000 Order with

approval:
Obtaining DNA samples from an accused in a criminal
case or from the respondent in a paternity case,
contrary to the belief of respondent in this action, will
not violate the right against self-incrimination. This
privilege applies only to evidence that
is communicative in essence taken under duress
(People vs. Olvis, 154 SCRA 513, 1987). The Supreme
Court has ruled that the right against self-incrimination
is just a prohibition on the use of physical or moral
compulsion to extort communication (testimonial
evidence) from a defendant, not an exclusion of
evidence taken from his body when it may be material.
As such, a defendant can be required to submit to a
test to extract virus from his body (as cited in People
vs. Olvis, Supra); the substance emitting from the body
of the accused was received as evidence for acts of
lasciviousness (US vs. Tan Teng, 23 Phil. 145);
morphine forced out of the mouth was received as
proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by
the judge for the witness to put on pair of pants for
size was allowed (People vs. Otadora, 86 Phil. 244);
and the court can compel a woman accused of
adultery to submit for pregnancy test (Villaflor vs.
Summers, 41 Phil. 62), since the gist of the privilege is
the restriction on testimonial compulsion.[56]
The policy of the Family Code to liberalize the rule on the
investigation of the paternity and filiation of children, especially
of illegitimate children, is without prejudice to the right of the
putative parent to claim his or her own defenses. [57] Where the
evidence to aid this investigation is obtainable through the
facilities of modern science and technology, such evidence

104
should be considered subject to the limits established by the
law, rules, and jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the
Decision of the Court of Appeals dated 29 November 2000 in
CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3
February 2000 and 8 June 2000 issued by Branch 48 of the
Regional Trial Court of Manila in Civil Case No. SP-98-88759.

[9]

Ibid., pp. 51-52.

[10]

Ibid., p. 22.

[11]

Ibid., p. 18.

[12]

Ibid., p. 34.

[13]

See Tecson v. Commission on Elections, G.R. No. 161434,

3 March 2004, 424 SCRA 277; Co v. Electoral Tribunal
of the House of Representatives, G.R. Nos. 92191-92,
30 July 1991, 199 SCRA 692; Board of Commissioners
(CID) v. Dela Rosa, G.R. Nos. 95612-13, 31 May 1991,
197 SCRA 854.

[14]

See E. Donald Shapiro, Stewart Reifler, and Claudia L.

Psome, The DNA Paternity Test: Legislating the Future
Paternity Action, 7 J.L. & Health 1, 7-19 (1993).

[15]

See Executive Order No. 209, otherwise known as the

Family Code of the Philippines (Family Code), Arts.
172-173, 175; Rule 130, Sections 39-40.

[16]

See Family Code, Art. 166.

[17]

See Family Code, Arts. 165, 167.

[18]

See Family Code, Arts. 166-167, 170-171.

[19]

See Cabatania v. Court of Appeals, G.R. No. 124814, 21

October 2004.

[20]

336 Phil. 741 (1997).

SO ORDERED.
Davide, Jr., C.J., (Chairman), Quisumbing, YnaresSantiago, and Azcuna, JJ., concur.

[1]

[2]

[3]

[4]

[5]

Under Rule 45 of the Rules of Court.

Penned by Associate Justice Jose L. Sabio, Jr., with
Associate Justices Buenaventura J. Guerrero and
Eliezer R. De Los Santos, concurring.
Penned by Judge Nimfa Cuesta-Vilches.
Rollo, pp. 318-325, 332-338.
Ibid., p. 92.

[6]

Ibid., p. 93.

[7]

Ibid., p. 59.

[8]

Ibid., p. 48.

105
[21]

[22]

[23]

[24]

[25]

[26]

Heirs of Raymundo C. Baas v. Heirs of Bibiano Baas, L25715, 31 January 1985, 134 SCRA 260.

Supra note 35.

[38]

G.R. No. 150224, 19 May 2004, 428 SCRA 504.

[39]

G.R. No. 158802, 17 November 2004.

[40]

54 App.D.C. 46, 293 F. 1013 (1923).

[41]

509 US 579, 113 S.Ct. 2786 (1993).

[42]

This form of lie detector test asserts that blood pressure is

influenced by change in the emotions of the witness,
and that the systolic blood pressure rises are brought
about by nervous impulses sent to the sympathetic
branch of the nervous system.

[43]

447 N.W.2d 422 (Minn. Sup. Ct. 1989).

[44]

Ibid.

[45]

Supra note 41.

[46]

526 U.S. 137, 119 S.Ct. 1167 (1999).

[47]

See People v. Joel Yatar, G.R. No. 150224, 19 May 2004,

428
SCRA
504. See
also Pacifico
Agabin, Integrating DNA Technology in the Judicial
System, 1 CONTINUING LEGAL EDUC. L.J. 27 (2001);
Patricia-Ann T. Prodigalidad, Assimilating DNA Testing
into the Philippine Criminal Justice System: Exorcising
the Ghost of the Innocent Convict, 79 PHIL. L.J. 930
(2005).

Reyes, et al. v. CA, et al., 220 Phil. 116 (1985).

Ibid.
Colorado v. Court of Appeals, No. L-39948, 28 February
1985, 135 SCRA 47.

[28]

101 Phil. 188 (1957).

[31]

[37]

Supra note 20.

Jao v. Court of Appeals, No. L-49162, 28 July 1987, 152

SCRA 359.

[30]

Supra note 20.

Marcayda v. Naz, 210 Phil. 386 (1983).

[27]

[29]

[36]

Supra note 27.

See Maria Corazon A. De Ungria, Ph.D., Forensic DNA
Analysis in Criminal and Civil Cases, 1 CONTINUING
LEGAL EDUC. L.J. 57 (2001).
See The UP-NSRI DNA Analysis Laboratory, A Primer on
DNA-based Paternity Testing (2001).

[32]

Rollo, pp. 89-90.

[33]

People v. Teehankee, Jr., 319 Phil. 128 (1995).

[34]

G.R. No. 125901, 8 March 2001, 354 SCRA 17.

[35]

431 Phil. 798 (2002).

106
[48]

Rule 128, Section 3.

[49]

Rule 128, Section 4.

[50]

Rule 128, Section 4.

[51]

Supra note 35.

[52]

Rollo, p. 90.

[53]

The State of Louisiana. See Maria Corazon A. De Ungria,

Ph.D., Forensic DNA Analysis in Criminal and Civil
Cases, 1 CONTINUING LEGAL EDUC. L.J. 57 (2001).

[54]

Ibid. See also Maria Corazon A. De Ungria, Ph.D., Kristina

A. Tabada, Frederick C. Delfin, Alma M. Frani, Michelle
M.F. Magno, Gayvelline C. Calacal, and Saturnina C.
Halos, Resolving Questioned Paternity Issues Using a
Philippine Genetic Database, 14 SCIENCE DILIMAN 8
(January to June 2002).

[55]

See note 54.

[56]

Rollo, p. 91.

[57]

See Mendoza v. Court of Appeals, G.R. No. 86302, 24

September 1991, 201 SCRA 675.

THIRD DIVISION
[G.R. No. 148311. March 31, 2005]

IN THE MATTER OF THE ADOPTION OF STEPHANIE

NATHY ASTORGA GARCIA
HONORATO B. CATINDIG, petitioner.
DECISION
SANDOVAL-GUTIERREZ, J.:
May an illegitimate child, upon adoption by her natural
father, use the surname of her natural mother as her
middle name? This is the issue raised in the instant case.
The facts are undisputed.
On August 31, 2000, Honorato B. Catindig, herein
petitioner, filed a petition[1] to adopt his minor illegitimate
child Stephanie Nathy Astorga Garcia. He alleged therein,
among others, that Stephanie was born on June 26, 1994;
[2]
that her mother is Gemma Astorga Garcia; that Stephanie
has been using her mothers middle name and surname; and
that he is now a widower and qualified to be her adopting

107
parent. He prayed that Stephanies middle name Astorga be
changed to Garcia, her mothers surname, and that her
surname Garcia be changed to Catindig, his surname.
On March 23, 2001,[3] the trial court rendered the assailed
Decision granting the adoption, thus:
Afteracarefulconsiderationoftheevidencepresentedbythe
petitioner,andintheabsenceofanyoppositiontothepetition,this
Courtfindsthatthepetitionerpossessesallthequalificationsand
noneofthedisqualificationprovidedforbylawasanadoptive
parent,andthatassuchheisqualifiedtomaintain,careforand
educatethechildtobeadopted;thatthegrantofthispetitionwould
redoundtothebestinterestandwelfareoftheminorStephanie
NathyAstorgaGarcia.TheCourtfurtherholdsthatthepetitioners
careandcustodyofthechildsinceherbirthuptothepresent
constitutemorethanenoughcompliancewiththerequirementof
Article35ofPresidentialDecreeNo.603.
WHEREFORE,findingthepetitiontobemeritorious,thesame
isGRANTED.Henceforth,StephanieNathyAstorgaGarciais
herebyfreedfromallobligationsofobedienceandmaintenancewith
respecttohernaturalmother,andforcivilpurposes,shallhenceforth
bethepetitionerslegitimatechildandlegalheir.PursuanttoArticle
189oftheFamilyCodeofthePhilippines,theminorshallbeknown
asSTEPHANIENATHYCATINDIG.
UponfinalityofthisDecision,letthesamebeenteredintheLocal
CivilRegistrarconcernedpursuanttoRule99oftheRulesofCourt.
LetcopyofthisDecisionbefurnishedtheNationalStatisticsOffice
forrecordpurposes.
SOORDERED.[4]

On April 20, 2001, petitioner filed a motion for clarification

and/or reconsideration[5] praying that Stephanie should be
allowed to use the surname of her natural mother (GARCIA)
as her middle name.
On May 28, 2001,[6] the trial court denied petitioners
motion for reconsideration holding that there is no law or
jurisprudence allowing an adopted child to use the surname of
his biological mother as his middle name.
Hence, the present petition raising the issue of whether an
illegitimate child may use the surname of her mother as her
middle name when she is subsequently adopted by her natural
father.
Petitioner submits that the trial court erred in depriving
Stephanie of a middle name as a consequence of adoption
because: (1) there is no law prohibiting an adopted child from
having a middle name in case there is only one adopting
parent; (2) it is customary for every Filipino to have as middle
name the surname of the mother; (3) the middle name or initial
is a part of the name of a person; (4) adoption is for the benefit
and best interest of the adopted child, hence, her right to bear
a proper name should not be violated; (5) permitting Stephanie
to use the middle name Garcia (her mothers surname) avoids
the stigma of her illegitimacy; and; (6) her continued use of
Garcia as her middle name is not opposed by either the
Catindig or Garcia families.
The Republic, through the Office of the Solicitor General
(OSG), agrees with petitioner that Stephanie should be
permitted to use, as her middle name, the surname of her
natural mother for the following reasons:
First, it is necessary to preserve and maintain Stephanies
filiation with her natural mother because under Article 189 of

108
the Family Code, she remains to be an intestate heir of the
latter. Thus, to prevent any confusion and needless hardship in
the future, her relationship or proof of that relationship with her
natural mother should be maintained.
Second, there is no law expressly prohibiting Stephanie to
use the surname of her natural mother as her middle name.
What the law does not prohibit, it allows.
Last, it is customary for every Filipino to have a middle
name, which is ordinarily the surname of the mother. This
custom has been recognized by the Civil Code and Family
Code. In fact, the Family Law Committees agreed that the
initial or surname of the mother should immediately precede
the surname of the father so that the second name, if any, will
be before the surname of the mother.[7]
We find merit in the petition.
Use Of Surname Is Fixed By Law

to which he belongs and is continued from parent to child. The

given name may be freely selected by the parents for the child,
but the surname to which the child is entitled is fixed by law.[9]
Thus, Articles 364 to 380 of the Civil Code provides the
substantive rules which regulate the use of surname[10] of an
individual whatever may be his status in life, i.e., whether he
may be legitimate or illegitimate, an adopted child, a married
woman or a previously married woman, or a widow, thus:
Art.364.Legitimateandlegitimatedchildrenshallprincipallyuse
thesurnameofthefather.
Art.365.Anadoptedchildshallbearthesurnameoftheadopter.
xxx
Art.369.Childrenconceivedbeforethedecreeannullingavoidable
marriageshallprincipallyusethesurnameofthefather.

For all practical and legal purposes, a man's name is the

designation by which he is known and called in the community
in which he lives and is best known. It is defined as the word or
combination of words by which a person is distinguished from
other individuals and, also, as the label or appellation which he
bears for the convenience of the world at large addressing
him, or in speaking of or dealing with him. [8] It is both of
personal as well as public interest that every person must
have a name.

Art.370.Amarriedwomanmayuse:

The name of an individual has two parts: (1) the given or

proper name and (2) the surname or family name. The
given or proper name is that which is given to the individual at
birth or at baptism, to distinguish him from other individuals.
The surname or family name is that which identifies the family

Art.371.Incaseofannulmentofmarriage,andthewifeistheguilty
party,sheshallresumehermaidennameandsurname.Ifsheisthe
innocentspouse,shemayresumehermaidennameandsurname.

(1)Hermaidenfirstnameandsurnameandaddherhusband's
surname,or
(2)Hermaidenfirstnameandherhusband'ssurnameor
(3)Herhusband'sfullname,butprefixingawordindicatingthatshe
ishiswife,suchasMrs.

109
However,shemaychoosetocontinueemployingherformer
husband'ssurname,unless:
(1)Thecourtdecreesotherwise,or
(2)Sheortheformerhusbandismarriedagaintoanotherperson.
Art.372.Whenlegalseparationhasbeengranted,thewifeshall
continueusinghernameandsurnameemployedbeforethelegal
separation.
Art.373.Awidowmayusethedeceasedhusband'ssurnameas
thoughhewerestillliving,inaccordancewithArticle370.
Art.374.Incaseofidentityofnamesandsurnames,theyounger
personshallbeobligedtousesuchadditionalnameorsurnameas
willavoidconfusion.
Art.375.Incaseofidentityofnamesandsurnamesbetween
ascendantsanddescendants,thewordJuniorcanbeusedonlybya
son.Grandsonsandotherdirectmaledescendantsshalleither:
(1)Addamiddlenameorthemother'ssurname,
(2)AddtheRomannumeralsII,III,andsoon.
xxx
Law Is Silent As To The Use Of
Middle Name
As correctly submitted by both parties, there is no law
regulating the use of a middle name. Even Article 176[11] of the

Family Code, as amended by Republic Act No. 9255,

otherwise known as An Act Allowing Illegitimate Children To
Use The Surname Of Their Father, is silent as to what middle
name a child may use.
The middle name or the mothers surname is only
considered in Article 375(1), quoted above, in case there is
identity of names and surnames between ascendants and
descendants, in which case, the middle name or the mothers
surname shall be added.
Notably, the law is likewise silent as to what middle
name an adoptee may use. Article 365 of the Civil Code
merely provides that an adopted child shall bear the surname
of the adopter. Also, Article 189 of the Family Code,
enumerating the legal effects of adoption, is likewise silent on
the matter, thus:
"(1)Forcivilpurposes,theadoptedshallbedeemedtobe
alegitimatechildoftheadoptersandbothshallacquirethe
reciprocalrightsandobligationsarisingfromtherelationshipof
parentandchild,includingtherightoftheadoptedtousethe
surnameoftheadopters;
xxx
However, as correctly pointed out by the OSG, the
members of the Civil Code and Family Law Committees that
drafted the Family Code recognized the Filipino custom of
adding the surname of the childs mother as his middle
name. In the Minutes of the Joint Meeting of the Civil Code
and Family Law Committees, the members approved the
suggestion that the initial or surname of the mother should
immediately precede the surname of the father, thus

110
JusticeCaguioacommentedthatthereisadifferencebetweentheuse
bythewifeofthesurnameandthatofthechildbecausethefathers
surnameindicatesthefamilytowhichhebelongs,forwhich
reasonhewouldinsistontheuseofthefatherssurnamebythe
childbutthat,ifhewantsto,thechildmayalsousethesurname
ofthemother.
JusticePunoposedthequestion:Ifthechildchoosestousethe
surnameofthemother,howwillhisnamebewritten?Justice
Caguioarepliedthatitisuptohimbutthathispointisthatitshould
bemandatorythatthechildusesthesurnameofthefatherand
permissiveinthecaseofthesurnameofthemother.
Prof.BavieraremarkedthatJusticeCaguioaspointiscoveredbythe
presentArticle364,whichreads:
Legitimateandlegitimatedchildrenshallprincipallyusethesurname
ofthefather.
JusticePunopointedoutthatmanynameschangethroughnochoice
ofthepersonhimselfpreciselybecauseofthismisunderstanding.He
thencitedthefollowingexample:AlfonsoPonceEnrilescorrect
surnameisPoncesincethemotherssurnameisEnrilebuteverybody
callshimAtty.Enrile.JusticeJoseGutierrezDavidsfamilynameis
GutierrezandhismotherssurnameisDavidbuttheyallcallhim
JusticeDavid.

JusticeCaguioasuggestedthattheproposedArticle(12)be
modifiedtotheeffectthatitshallbemandatoryonthechildto
usethesurnameofthefatherbuthemayusethesurnameofthe
motherbywayofaninitialoramiddlename.Prof.Balanestated
thattheytakenoteofthisforinclusionintheChapteronUseof
SurnamessinceintheproposedArticle(10)theyarejust
enumeratingtherightsoflegitimatechildrensothatthedetailscan
becoveredintheappropriatechapter.
xxx
JusticePunoremarkedthatthereislogicinthesimplification
suggestedbyJusticeCaguioathatthesurnameofthefathershould
alwaysbelastbecausetherearesomanytraditionsliketheAmerican
traditionwheretheyliketousetheirsecondgivennameandthe
Latintradition,whichisalsofollowedbytheChinesewhereinthey
evenincludetheClanname.
xxx
JusticePunosuggestedthattheyagreeinprinciplethatinthe
ChapterontheUseofSurnames,theyshouldsaythatinitialor
surnameofthemothershouldimmediatelyprecedethesurname
ofthefathersothatthesecondname,ifany,willbebeforethe
surnameofthemother.Prof.Balaneaddedthatthisisreallythe
Filipinoway.TheCommitteeapprovedthesuggestion.
[12]
(Emphasissupplied)
In the case of an adopted child, the law provides that the
adopted shall bear the surname of the adopters.[13] Again, it is
silent whether he can use a middle name. What it only
expressly allows, as a matter of right and obligation, is for the
adoptee to bear the surname of the adopter, upon issuance of
the decree of adoption.[14]

111

The Underlying Intent of

Adoption Is In Favor of the
Adopted Child
Adoption is defined as the process of making a child,
whether related or not to the adopter, possess in general, the
rights accorded to a legitimate child.[15] It is a juridical act, a
proceeding in rem which creates between two persons a
relationship similar to that which results from legitimate
paternity and filiation.[16] The modern trend is to consider
adoption not merely as an act to establish a relationship of
paternity and filiation, but also as an act which endows the
child with a legitimate status.[17] This was, indeed, confirmed in
1989, when the Philippines, as a State Party to the
Convention of the Rights of the Child initiated by the
United Nations, accepted the principle that adoption is
impressed with social and moral responsibility, and that
its underlying intent is geared to favor the adopted child.
[18]
Republic Act No. 8552, otherwise known as the Domestic
Adoption Act of 1998,[19] secures these rights and privileges for
the adopted.[20]
One of the effects of adoption is that the adopted is
deemed to be a legitimate child of the adopter for all intents
and purposes pursuant to Article 189[21] of the Family Code
and Section 17[22] Article V of RA 8552.[23]

the intention of the members of the Civil Code and Family Law
Committees as earlier discussed. In fact, it is a Filipino custom
that the initial or surname of the mother should immediately
precede the surname of the father.
Additionally, as aptly stated by both parties, Stephanies
continued use of her mothers surname (Garcia) as her middle
name will maintain her maternal lineage. It is to be noted that
Article 189(3) of the Family Code and Section 18[24], Article V
of RA 8552 (law on adoption) provide that the adoptee remains
an intestate heir of his/her biological parent. Hence, Stephanie
can well assert or claim her hereditary rights from her natural
mother in the future.
Moreover, records show that Stephanie and her mother
are living together in the house built by petitioner for them at
390 Tumana, San Jose, Baliuag, Bulacan. Petitioner provides
for all their needs. Stephanie is closely attached to both her
mother and father. She calls them Mama and Papa. Indeed,
they are one normal happy family. Hence, to allow Stephanie
to use her mothers surname as her middle name will not only
sustain her continued loving relationship with her mother but
will also eliminate the stigma of her illegitimacy.

Liberal Construction of
Adoption Statutes In Favor Of
Adoption

Being a legitimate child by virtue of her adoption, it

follows that Stephanie is entitled to all the rights provided
by law to a legitimate child without discrimination of any
kind, including the right to bear the surname of her father
and her mother, as discussed above. This is consistent with

It is a settled rule that adoption statutes, being humane

and salutary, should be liberally construed to carry out the
beneficent purposes of adoption.[25] The interests and welfare
of the adopted child are of primary and paramount

112
consideration,[26] hence, every reasonable intendment should
be sustained to promote and fulfill these noble and
compassionate objectives of the law.[27]
Lastly, Art. 10 of the New Civil Code provides that:

[1]

Rollo at 34-36.

Incaseofdoubtintheinterpretationorapplicationoflaws,itis
presumedthatthelawmakingbodyintendedrightandjusticeto
prevail.

[2]

Annex C, id. at 33.

[3]

Annex F, id. at 41-43.

This provision, according to the Code Commission, is

necessary so that it may tip the scales in favor of right and
justice when the law is doubtful or obscure. It will strengthen
the determination of the courts to avoid an injustice which may
apparently be authorized by some way of interpreting the law.

[4]

Rollo at 42-43.

[5]

Annex G, id. at 44-48.

[6]

Annex H, id. at 49.

[7]

Minutes of the Joint Meeting of the Civil Code and Family

Law Committees, August 10, 1985, p. 8.

[8]

Republic vs. Court of Appeals and Maximo Wong, G.R. No.

97906, May 21, 1992, 209 SCRA 189, citing 38 Am Jur,
Name 594-595.

[9]

Republic vs. Hon. Hernandez, et al., G.R. No. 117209,

February 9, 1996, 253 SCRA 509, citing Tolentino,
A.M., Civil Code of the Philippines, Commentaries and
Jurisprudence, Vol. I, 1993 ed., 672.

[28]

Hence, since there is no law prohibiting an illegitimate

child adopted by her natural father, like Stephanie, to use, as
middle name her mothers surname, we find no reason why
she should not be allowed to do so.
WHEREFORE, the petition is GRANTED. The assailed
Decision is partly MODIFIED in the sense that Stephanie
should be allowed to use her mothers surname GARCIA as
her middle name.
Let the corresponding entry of her correct and complete
name be entered in the decree of adoption.
SO ORDERED.
Panganiban,
(Chairman),
Morales, and Garcia, JJ., concur.

Corona,

Carpio-

[10]

Republic vs. Court of Appeals and Maximo Wong, supra.

[11]

Art. 176. Illegitimate children shall use the surname and

shall be under the parental authority of their mother,
and shall be entitled to support in conformity with this
Code. However, illegitimate children may use the
surname of their father if their filiation has been

113
expressly recognized by the father through the record
of birth appearing in the civil register, or when an
admission in a public document or private handwritten
instrument is made by the father. Provided, the father
has the right to institute an action before the regular
courts to prove non-filiation during his lifetime. The
legitime of each illegitimate child shall consist of onehalf of the legitime of a legitimate child.

guidance and support in keeping with the means of the

family.
[20]

Id.

[21]

Art.

189. (1) For civil purposes, the adopted shall

be deemed to be a legitimate child of the
adopters and both shall acquire the reciprocal rights
and obligations arising from the relationship of parent
and child, including the right of the adopted to use
the surname of the adopters;

[12]

Minutes of the Joint Meeting of the Civil Code and Family

law Committees, August 10, 1985, pp. 16-18.

[13]

Article 365 of the New Civil Code.

[22]

Supra.

[14]

Republic vs. Hon. Hernandez, et al., supra; Republic vs.

Court of Appeals and Maximo Wong, supra.

[23]

Domestic Adoption Act of 1998.

[24]

Sec. 18. Succession. In legal and intestate succession, the

adopter(s) and the adoptee shall have reciprocal rights
of succession without distinction from legitimate
filiation. However, if the adoptee and his/her biological
parent(s) had left a will, the law on testamentary
succession shall govern.

[25]

Republic of the Philippines vs. Court of Appeals, et al., G.R.

No. 92326, January 24, 1992, 205 SCRA 356, citing 2
Am Jur 2d, Adoption, 865.

[26]

Republic of the Philippines vs. Court of Appeals, et al., id.,

citing 2 Am Jur 2d, Adoption, 910.

[27]

Republic of the Philippines vs. Court of Appeals, et al., id.,

citing Bobanovic, et al. vs. Montes, etc., et al., 142
SCRA 485 (1986).

[28]

Paras, supra, p. 91.

[15]

Paras, Civil Code of the Philippines Annotated, Vol. I,

Fifteenth Edition, 2002, p. 685.

[16]

Pineda, The Family Code of the Philippines Annotated,

1989 Edition, p. 272-273, citing 4 Valverde, 473.

[17]

Paras, supra, citing Prasnick vs. Republic, 98 Phil. 665.

[18]

Lahom vs. Sibulo, G.R. No. 143989, July 14, 2003, 406
SCRA
135,
citing
United
Nation
General
Assembly/44/49 (1989).

[19]

Sec. 17. Legitimacy. The adoptee shall be considered the

legitimate son/daughter of the adopter(s) for all intents
and purposes and as such is entitled to all the rights
and obligations provided by law to legitimate
sons/daughters born to them without discrimination of
any kind. To this end, the adoptee is entitled to love,

114
In the matter of the intestate estate of the late JUAN "JHONNY"
LOCSIN, SR., LUCY A. SOLINAP (Daughter of the late
Maria Locsin Araneta), the successors of the late
LOURDES C. LOCSIN, MANUEL C. LOCSIN, ESTER
LOCSIN JARANTILLA and the intestate estate of the
late JOSE C. LOCSIN, JR., petitioners, vs. JUAN C.
LOCSIN, JR., respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
A Certificate of Live Birth duly recorded in the Local Civil
Registry, a copy of which is transmitted to the Civil Registry General
pursuant to the Civil Registry Law, is prima facie evidence of the
facts therein stated. However, if there are material discrepancies
between them, the one entered in the Civil Registry General prevails.
This is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, seeking the reversal of
the September 13, 2000 Decision of the Court of Appeals in CA-G.R.
CV No. 57708 which affirmed in toto the September 13, 1996 order
of the Regional Trial Court, Branch 30, of Iloilo City in Special
Proceeding No. 4742. The September 13 order of the trial court
appointed Juan E. Locsin, Jr., respondent, as the sole administrator of
the Intestate Estate of the late Juan "Jhonny" Locsin, Sr.

THIRD DIVISION
[G.R. No. 146737. December 10, 2001]

Records show that on November 11, 1991, or eleven (11)

months after Juan "Jhonny" Locsin, Sr.[1] died intestate on December
11, 1990, respondent Juan E. Locsin, Jr. filed with the Regional Trial
Court of Iloilo City, Branch 30, a "Petition for Letters of
Administration" (docketed as Special Proceeding No. 4742) praying
that he be appointed Administrator of the Intestate Estate of the
deceased. He alleged, among others, (a) that he is an acknowledged
natural child of the late Juan C. Locsin; (b) that during his lifetime,
the deceased owned personal properties which include undetermined
savings, current and time deposits with various banks, and 1/6
portion of the undivided mass of real properties owned by him and

115
his siblings, namely: Jose Locsin, Jr., Manuel Locsin, Maria Locsin
Yulo, Lourdes Locsin and Ester Locsin; and (c) that he is the only
surviving legal heir of the decedent.
On November 13, 1991, the trial court issued an order setting
the petition for hearing on January 13, 1992, which order was duly
published,[2] thereby giving notice to all persons who may have
opposition to the said petition.
Before the scheduled hearing, or on January 10, 1992, the heirs
of Jose Locsin, Jr., the heirs of Maria Locsin, Manuel Locsin and
Ester Jarantilla, claiming to be the lawful heirs of the deceased, filed
an opposition to respondents petition for letters of administration.
They averred that respondent is not a child or an acknowledged
natural child of the late Juan C. Locsin, who during his lifetime,
never affixed "Sr." in his name .
On January 5, 1993, another opposition to the petition was filed
by Lucy Salinop (sole heir of the late Maria Locsin Vda. De Araneta,
sister of the deceased), Manuel Locsin and the successors of the late
Lourdes C. Locsin alleging that respondent's claim as a natural child
is barred by prescription or the statute of limitations.
The Intestate Estate of the late Jose Locsin, Jr. (brother of the
deceased) also entered its appearance in the estate proceedings,
joining the earlier oppositors. This was followed by an appearance
and opposition dated January 26, 1993 of Ester Locsin Jarantilla
(another sister of Juan C. Locsin), likewise stating that there is no
filial relationship between herein respondent and the deceased.
Thereupon, the trial court conducted hearings.
To support his claim that he is an acknowledged natural child of
the deceased and, therefore, entitled to be appointed administrator of
the intestate estate, respondent submitted a machine copy (marked as
Exhibit "D")[3] of his Certificate of Live Birth No. 477 found in the
bound volume of birth records in the Office of the Local Civil
Registrar of Iloilo City. Exhibit "D" contains the information that
respondent's father is Juan C. Locsin, Sr. and that he was the

informant of the facts stated therein, as evidenced by his signatures

(Exhibit "D-2" and "D-3"). To prove the existence and authenticity of
Certificate of Live Birth No. 477 from which Exhibit "D" was
machine copied, respondent presented Rosita J. Vencer, the Local
Civil Registrar of Iloilo City. She produced and identified in court
the bound volume of 1957 records of birth where the alleged original
of Certificate of Live Birth No. 477 is included.
Respondent also offered in evidence a photograph (Exhibit "C")
showing him and his mother, Amparo Escamilla, in front of a
coffin bearing Juan C. Locsin's dead body. The photograph,
respondent claims, shows that he and his mother have been
recognized as family members of the deceased.
[4]

In their oppositions, petitioners claimed that Certificate of Live

Birth No. 477 (Exhibit "D") is spurious. They submitted a certified
true copy of Certificate of Live Birth No. 477 found in the Civil
Registrar General, Metro Manila, marked as Exhibit "8", [5] indicating
that the birth of respondent was reported by his mother, Amparo
Escamilla, and that the same does not contain the signature of the
late Juan C. Locsin. They observed as anomalous the fact that while
respondent was born on October 22, 1956 and his birth was recorded
on January 30, 1957, however, his Certificate of Live Birth No. 447
(Exhibit "D") was recorded on a December 1, 1958 revised
form. Upon the other hand, Exhibit "8" appears on a July, 1956
form, already used before respondent's birth. This scenario clearly
suggests that Exhibit "D" was falsified. Petitioners presented as
witness, Col. Pedro L. Elvas, a handwriting expert. He testified that
the signatures of Juan C. Locsin and Emilio G. Tomesa (then Civil
Registrar of Iloilo City) appearing in Certificate of Live Birth No.
477 (Exhibit "D") are forgeries. He thus concluded that the said
Certificate is a spurious document surreptitiously inserted into the
bound volume of birth records of the Local Civil Registrar of Iloilo
City.
After hearing, th trial court, finding that Certificate of Live
Birth No. 477 (Exhibit "D") and the photograph (Exhibit "C") are
sufficient proofs of respondent's illegitimate filiation with the

116
deceased, issued on September 13, 1996 an order, the dispositive
portion of which reads:
WHEREFORE,premisesconsidered,thisPETITIONishereby
GRANTEDandthepetitionerJuanE.Locsin,Jr.isherebyappointed
AdministratoroftheIntestateEstateofthelateJuanJohnnyLocsin,
Sr.
"LetLettersofAdministrationbeissuedinhisfavor,uponhisfiling
ofabondinthesumofFIFTYTHOUSANDPESOS(P50,000.00)to
beapprovedbythisCourt.
"SOORDERED.[6]
On appeal, the Court of Appeals rendered the challenged
Decision affirming in toto the order of the trial court dated
September 13, 1996. Petitioners moved for a reconsideration, while
respondent filed a motion for execution pending appeal. Both
motions were, however, denied by the Appellate Court in its
Resolution dated January 10, 2001.
Hence, the instant petition for review on certiorari by
petitioners.
The focal issue for our resolution is which of the two documents
- Certificate of Live Birth No. 477 (Exhibit "D") and Certificate of
Live Birth No. 477 (Exhibit "8") is genuine.
The rule that factual findings of the trial court, adopted and
confirmed by the Court of Appeals, are final and conclusive and may
not be reviewed on appeal [7] does not apply when there appears in
the record of the case some facts or circumstances of weight and
influence which have been overlooked, or the significance of which
have been misinterpreted, that if considered, would affect the result
of the case.[8] Here, the trial court failed to appreciate facts and
circumstances that would have altered its conclusion.

Section 6, Rule 78 of the Revised Rules of Court lays down the

persons preferred who are entitled to the issuance of letters of
administration, thus:
Section6.Whenandtowhomlettersofadministration
granted.Ifnoexecutorisnamedinthewill,ortheexecutoror
executorsareincompetent,refusethetrust,orfailtogivebond,ora
persondiesintestate,administrationshallbegranted:
(a)Tothesurvivinghusbandorwife,asthecasemaybe,ornextof
kin,orboth,inthediscretionofthecourt,ortosuchpersonassuch
survivinghusbandorwife,ornextofkin,requeststohaveappointed,
ifcompetentandwillingtoserve;
(b)Ifsuchsurvivinghusbandorwife,asthecasemaybe,ornextof
kin,orthepersonselectedbythem,beincompetentorunwilling,or
ifthehusbandorwidow,ornextofkin,neglectsforthirty(30)days
afterthedeathofapersontoapplyforadministrationortorequest
thatadministrationbegrantedtosomeotherperson,itmaybe
grantedtooneormoreoftheprincipalcreditors,ifcompetentand
willingtoserve;
(c)Ifthereisnosuchcreditorcompetentandwillingtoserve,itmay
begrantedtosuchotherpersonasthecourtmayselect.(Emphasis
ours)
Upon the other hand, Section 2 of Rule 79 provides that a
petition for letters of administration must be filed by an interested
person, thus:
Sec.2Contentsofpetitionforlettersofadministration.Apetition
forlettersofadministrationmustbefiledbyaninterested
personandmustshow,sofarasknowntothepetitioner:

117
(a)Thejurisdictionalfacts;xxx"(Emphasisours)
An "interested party", in estate proceedings, is one who would
be benefited in the estate, such as an heir, or one who has a claim
against the estate, such as a creditor.[9] Also, in estate proceedings,
the phrase "next of kin" refers to those whose relationship with the
decedent is such that they are entitled to share in the estate as
distributees.[10] In Gabriel v. Court of Appeals,[11]this Court held that
in the appointment of the administrator of the estate of a deceased
person, the principal consideration reckoned with is the interest in
said estate of the one to be appointed administrator.
Here, undisputed is the fact that the deceased, Juan C. Locsin,
was not survived by a spouse. In his petition for issuance of letters of
administration, respondent alleged that he is anacknowledged
natural son of the deceased, implying that he is an interested
person in the estate and is considered as next of kin. But has
respondent established that he is an acknowledged natural son of the
deceased? On this point, this Court, through Mr. Justice Jose C.
Vitug, held:
"Thefiliationofillegitimatechildren,likelegitimatechildren,is
establishedby(1)therecordofbirthappearinginthecivilregister
orafinaljudgement;or(2)anadmissionoflegitimatefiliationina
publicdocumentoraprivatehandwritteninstrumentandsignedby
theparentconcerned.Intheabsencethereof,filiationshallbe
provedby(1)theopenandcontinuouspossessionofthestatusofa
legitimatechild;or(2)anyothermeansallowedbytheRulesof
Courtandspeciallaws.Theduerecognitionofanillegitimatechild
inarecordofbirth,awill,astatementbeforeacourtofrecord,orin
anyauthenticwritingis,initself,aconsummatedactof
acknowledgementofthechild,andnofurthercourtactionis
required.Infact,anyauthenticwritingistreatednotjustagroundfor
compulsoryrecognition;itisinitselfavoluntaryrecognitionthat
doesnotrequireaseparateactionforjudicialapproval.Where,
instead,aclaimforrecognitionispredicatedonotherevidence

merelytendingtoprovepaternity,i.e.,outsideofarecordofbirth,a
will,astatementbeforeacourtofrecordoranauthenticwriting,
judicialactionwithintheapplicablestatuteoflimitationsisessential
inordertoestablishthechild'sacknowledgment."[12](Emphasisours)
Here, respondent, in order to establish his filiation with the
deceased, presented to the trial court his Certificate of Live Birth No.
477 (Exhibit "D") and a photograph (Exhibit "C") taken during the
burial of the deceased.
Regarding the genuineness and probative value of Exhibit "D",
the trial court made the following findings, affirmed by the Appellate
Court:
"ItwasdulyestablishedinCourtthattheCertificateofLiveBirth
No.477inthenameofJuanE.Locsin,Jr.,theoriginalhavingbeen
testifiedtobyRositaVencer,existsinthefilesoftheLocalCivil
RegistrarofIloilo.Petitionersincebirthenjoyedtheopenand
continuousstatusofanacknowledgednaturalchildofJuanC.
Locsin,Sr.,hetogetherwithhismotherwassummonedtoattendto
theburialasevidencedbyapictureofrelativesfacingthecoffinof
thedeceasedwithpetitionerandhismotherinthepicture.xxx.It
wasdulyprovenatthetrialthatthestandardsignaturespresentedby
oppositorswerenotinpublicdocumentandmayalsobecalled
questioneddocumentwhereasinthecertificateoflivebirthNo.477,
thesignatureofJuanC.Locsin,Sr.wastheoriginalorprimary
evidence.Theanomalousandsuspiciouscharacteristicofthebound
volumewherethecertificateoflivebirthasallegedbyoppositors
wasfoundwastestifiedtoandexplainedbyRositaVencerofthe
OfficeoftheLocalCivilRegistrarthattheyrunoutofformsin1957
andrequisitionedforms.However,theformssenttothemwasthe
1958revisedformandthatshesaidtheirofficeusuallypastethe
pagesoftheboundvolumeifdestroyed.Allthedoubtsregardingthe
authenticityandgenuinenessofthesignaturesofJuanC.Locsin,Sr.

118
andEmilioTomesa,andthesuspiciouscircumstancesofthebound
volumewereerasedduetotheexplanationofRositaVencer."
This Court cannot subscribe to the above findings.
Pursuant to Section 12 of Act 3753 (An Act to Establish a Civil
Register), the records of births from all cities and municipalities in
the Philippines are officially and regularly forwarded to the Civil
Registrar General in Metro Manila by the Local Civil
Registrars. Since the records of births cover several decades and
come from all parts of the country, to merely access them in the Civil
Registry General requires expertise. To locate one single birth record
from the mass, a regular employee, if not more, has to be engaged. It
is highly unlikely that any of these employees in Metro Manila
would have reason to falsify a particular 1957 birth record
originating from the Local Civil Registry of Iloilo City.
With respect to Local Civil Registries, access thereto by
interested parties is obviously easier. Thus, in proving the
authenticity of Exhibit "D," more convincing evidence than those
considered by the trial court should have been presented by
respondent.
The trial court held that the doubts respecting the genuine nature
of Exhibit "D" are dispelled by the testimony of Rosita Vencer, Local
Civil Registrar of Iloilo City.
The event about which she testified on March 7, 1994 was the
record of respondent's birth which took place on October 22, 1956,
on 37 or 38 years ago. The Local Civil Registrar of Iloilo City at that
time was Emilio G. Tomesa. Necessarily, Vencer's knowledge of
respondent's birth record allegedly made and entered in the Local
Civil Registry in January, 1957 was based merely on her general
impressions of the existing records in that Office.
When entries in the Certificate of Live Birth recorded in the
Local Civil Registry vary from those appearing in the copy
transmitted to the Civil Registry General, pursuant to the Civil

Registry Law, the variance has to be clarified in more persuasive and

rational manner. In this regard, we find Vencer's explanation not
convincing.
Respondent's Certificate of Live Birth No. 477 (Exhibit "D")
was recorded in a December 1, 1958 revised form. Asked how
a 1958 form could be used in 1957 when respondent's birth was
recorded, Vencer answered that "xxx during that time, maybe the
forms in 1956 were already exhausted so the former Civil Registrar
had requested for a new form and they sent us the 1958 Revised
Form."[13]
The answer is a "maybe", a mere supposition of an event. It
does not satisfactorily explain how a Revised Form dated
December 1, 1958 could have been used on January 30, 1957 or
almost (2) years earlier.
Upon the other hand, Exhibit "8" of the petitioners found in the
Civil Registrar General in Metro Manila is on Municipal Form No.
102, revised in July, 1956. We find no irregularity here.Indeed, it is
logical to assume that the 1956 forms would continue to be used
several years thereafter. But for a 1958 form to be used in 1957 is
unlikely.
There are other indications of irregularity relative to Exhibit
"D." The back cover of the 1957 bound volume in the Local Civil
Registry of Iloilo is torn. Exhibit "D" is merely pasted with the
bound volume, not sewn like the other entries.
The documents bound into one volume are original
copies. Exhibit "D" is a carbon copy of the alleged original and
sticks out like a sore thumb because the entries therein are
typewritten, while the records of all other certificates are
handwritten. Unlike the contents of those other certificates, Exhibit
"D" does not indicate important particulars, such as the alleged
father's religion, race, occupation, address and business. The space
which calls for an entry of the legitimacy of the child is blank. On
the back page of Exhibit "D", there is a purported signature of the

119
alleged father, but the blanks calling for the date and other details of
his Residence Certificate were not filled up.
When asked to explain the torn back cover of the bound
volume, Vencer had no answer except to state, "I am not aware of
this because I am not a bookbinder." As to why Exhibit "D" was not
sewn or bound into the volume, she explained as follows:
"COURT:
Iwillbuttin.Aretheseinstanceswhereyouremployeeswouldonly
pasteadocumentlikethisCertificateofLiveBirth?
WITNESS:
Yes,YourHonor,wearepastingsomeoftheleavesjusttoreplace
therecord.Sometimeswejusthaveitpastedintherecordwhenthe
leavesweretaken.
ATTY.TIROL:
Youmeantosayyouallowtheleavesoftheboundvolumetobe
takenout?
A:Nosir.Itisbecausesometimestheleavesaredetachedsowe
havetopastethem."[14](Emphasisours)
There is no explanation why out of so many certificates, this
vital document, Exhibit "D", was merely pasted with the volume.
Vencer's testimony suffers from infirmities. Far from explaining
the anomalous circumstances surrounding Exhibit "D", she actually
highlighted the suspicious circumstances surrounding its existence.

The records of the instant case adequately support a finding that

Exhibit "8" for the petitioners, not respondent's Exhibit "D", should
have been given more faith and credence by the courts below.
The Civil Registry Law requires, inter alia, the Local Civil
Registrar to send copies of registrable certificates and documents
presented to them for entry to the Civil Registrar General, thus:
DutiesofLocalCivilRegistrar.Localcivilregistrarsshall(a)file
registrablecertificatesanddocumentspresentedtothemforentry;
(b)compilethesamemonthlyandprepareandsendanyinformation
requiredofthembytheCivilRegistrar;(c)issuecertifiedtranscripts
orcopiesofanydocumentregistereduponpaymentofproperfees;
(d)orderthebinding,properlyclassified,ofallcertificatesor
documentsregisteredduringtheyear;(e)sendtotheCivil
RegistrarGeneral,duringthefirsttendaysofeachmonth,a
copyoftheentriesmadeduringtheprecedingmonth,for
filing;(f)indexthesametofacilitatesearchandidentificationin
caseanyinformationisrequired;and(g)administeroaths,freeof
charge,forcivilregisterpurposes"[15](Emphasisours)
In light of the above provisions, a copy of the document sent by
the Local Civil Registrar to the Civil Registrar General should be
identical in form and in substance with the copy being kept by the
latter. In the instant case, Exhibit "8", as transmitted to the Civil
Registrar General is not identical with Exhibit "D" as appearing in
the records of the Local Civil Registrar of Iloilo City.Such
circumstance should have aroused the suspicion of both the trial
court and the Court of Appeals and should have impelled them to
declare Exhibit "D" a spurious document.
Exhibit "8" shows that respondent's record of birth was made by
his mother. In the same Exhibit "8", the signature and name of Juan
C. Locsin listed as respondent's father and the entry that he and
Amparo Escamilla were married in Oton, Iloilo on November 28,
1954 do not appear.

120
In this connection, we echo this Court's pronouncement
in Roces vs. Local Civil Registrar[16] that:
Section5ofActNo.3753andArticle280oftheCivilCodeofthe
Philippinesxxxexplicitlyprohibit,notonlythenamingofthe
fatherofthechildbornoutofwedlock,whenthebirthcertificate,
ortherecognition,isnotfiledormadebyhim,butalso,the
statementofanyinformationorcircumstancesbywhichhecouldbe
identified.Accordingly,theLocalCivilRegistrarhadnoauthorityto
makeorrecordthepaternityofanillegitimatechilduponthe
informationofathirdpersonandthecertificateofbirthofan
illegitimatechild,whensignedonlybythemotherofthelatter,is
incompetentevidenceoffathershipofsaidchild.(Emphasisours)
The Roces ruling regarding illegitimate filiation is further
elucidated in Fernandez vs. Court of Appeals [17] where this Court
said that "a birth certificate not signed by the alleged father (who had
no hand in its preparation) is not competent evidence of paternity."
A birth certificate is a formidable piece of evidence prescribed
by both the Civil Code and Article 172 of the Family Code for
purposes of recognition and filiation. However, birth certificate
offers only prima facie evidence of filiation and may be refuted by
contrary evidence.[18] Its evidentiary worth cannot be sustained where
there exists strong, complete and conclusive proof of its falsity or
nullity. In this case, respondent's Certificate of Live Birth No. 477
entered in the records of the Local Civil Registry (from which
Exhibit "D" was machine copied) has all the badges of
nullity. Without doubt, the authentic copy on file in that office was
removed and substituted with a falsified Certificate of Live Birth.
At this point, it bears stressing the provision of Section 23, Rule
132 of the Revised Rules of Court that "(d)ocuments 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." In
this case, the glaring discrepancies between the two Certificates of

Live Birth (Exhibits "D" and "8") have overturned the genuineness
of Exhibit "D" entered in the Local Civil Registry. What is authentic
is Exhibit "8" recorded in the Civil Registry General.
Incidentally, respondent's photograph with his mother near the
coffin of the late Juan C. Locsin cannot and will not constitute proof
of filiation,[19] lest we recklessly set a very dangerous precedent that
would encourage and sanction fraudulent claims. Anybody can have
a picture taken while standing before a coffin with others and
thereafter utilize it in claiming the estate of the deceased.
Respondent Juan E. Locsin, Jr. failed to prove his filiation with
the late Juan C. Locsin, Sr.. His Certificate of Live Birth No. 477
(Exhibit "D") is spurious. Indeed, respondent is not aninterested
person within the meaning of Section 2, Rule 79 of the Revised
Rules of Court entitled to the issuance of letters of administration.
WHEREFORE, the petition is hereby GRANTED. The
challenged Decision and Resolution of the Court of Appeals in CAG.R. No. 57708 are REVERSED and SET ASIDE. Respondent's
petition for issuance of letters of administration is ORDERED
DISMISSED.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Carpio, JJ., concur.

[1]

Alternatively referred to as Juan C. Locsin or the deceased.

[2]

Publication was made once a week for three consecutive weeks in

the Visayan Progress Recorder, a weekly newspaper edited and
published in Iloilo City with general circulation in Western Visayas,
Capiz, Guimaras and Negros.
[3]

Folder of RTC Exhibits, p. 7.

[4]

Ibid., p. 6.

121
[5]

Ibid., p. 60.

[6]

Rollo, p. 194.

[7]

GSIS v. Court of Appeals, 287 SCRA 204 (1998).

EN BANC

[8]

Lee v. Court of Appeals, 201 SCRA 405 (1991); Reyes v. Court of

Appeals, 258 SCRA 651 (1996).
[9]

Saguinsin v. Lindayag, 6 SCRA 874 (1962); Teotico v. Del Val, 13

SCRA 406 (1965).
[10]

Tavera v. El Hogar Fil., Inc., 98 Phil. 481 (1956).

[11]

212 SCRA 413, G.R. No. 101512, August 7, 1992.

[12]

Jinkie Christie A. De Jesus, et al. vs. The Estate of Decedent Juan

Gamba Dizon, et al., G.R. No. 142877, October, 2001, citing Article
172, Family Code; Gono-Javier vs. Court of Appeals, 239 SCRA 593
(1994); and Divinagraciavs. Bellosillo, 143 SCRA 356 (1986).
[13]

Respondent reproduces Vencer's testimony in his April 30, 2001

Comment at pp. 11 to 14.
[14]

Decision, p. 14, Rollo, p. 23.

[15]

Section 12, Act No. 3753, "An Act to Establish a Civil Register."

[16]

102 Phil. 1050 (1958).

G.R. No. L-66574 February 21, 1990

ANSELMA DIAZ, guardian of VICTOR, RODRIGO,
ANSELMINA and MIGUEL, all surnamed SANTERO, and
FELIXBERTA PACURSA, guardian of FEDERICO
SANTERO, et al., petitioners,
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI
JARDIN, respondents.
Ambrosio Padilla, Mempin & Reyes Law Offices for
petitioners.
Pedro S. Sarino for respondent Felisa Pamuti Jardin.
RESOLUTION

[17]

230 SCRA 130 (1994), citing Berciles v. Government Service

Insurance System, 128 SCRA 53 (1984).
[18]

Sayson v. Court of Appeals, 205 SCRA 321 (1992).

[19]

Berciles v. Government Service Insurance System, supra.

PARAS, J.:
The decision of the Second Division of this Court in the case of
Anselma Diaz, et al. vs. Intermediate Appellate Court, et al.,
G.R. No. 6574, promulgated June 17, 1987 declaring Felisa
Pamuti-Jardin to be the sole legitimate heir to the intestate
estate of the late Simona Pamuti Vda. de Santero, and its
Resolution of February 24, 1988 denying the Motion for
Reconsideration dated July 2, 1987, are being challenged in
this Second Motion for Reconsideration dated July 5, 1988.

122
After the parties had filed their respective pleadings, the Court,
in a resolution dated October 27, 1988, resolved to grant the
request of the petitioners for oral argument before the court en
banc, and the case was set for hearing on November 17, 1988
to resolve the question: Does the term "relatives" in Article 992
of the New Civil Code which reads:
An illegitimate child has no right to inherit ab
intestato from the legitimate children or relatives
of his father or mother; nor shall such children
or relatives inherit in the same manner from the
illegitimate child.
include the legitimate parents of the father or mother of the
illegitimate children? Invited to discuss as amici curiaeduring
the hearing were the following: Justice Jose B.L. Reyes,
former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino,
former Justice Eduardo Caguioa, and Professor Ruben
Balane.
The facts of the case, as synthesized in the assailed decision,
are as follows:
It is undisputed: 1) that Felisa Pamuti Jardin is a
niece of Simona Pamuti Vda. de Santero who
together with Felisa's mother Juliana were the
only legitimate children of the spouses Felipe
Pamuti and Petronila Asuncion; 2) that Juliana
married Simon Jardin and out of their union
were born Felisa Pamuti and another child who
died during infancy; 3) that Simona Pamuti Vda.
de Santero is the widow of Pascual Santero and
the mother of Pablo Santero; 4) that Pablo
Santero was the only legitimate son of his
parents Pascual Santero and Simona Pamuti
Vda. de Santero; 5) that Pascual Santero died

in 1970; Pablo Santero in 1973 and Simona

Santero in 1976; 6) that Pablo Santero, at the
time of his death was survived by his mother
Simona Santero and his six minor natural
children to wit: four minor children with Anselma
Diaz and two minor children with Felixberta
Pacursa.
(pp. 1-2, Decision; pp. 190-191, Rollo)
Briefly stated, the real issue in the instant case is this who
are the legal heirs of Simona Pamuti Vda. de Santero her
niece Felisa Pamuti-Jardin or her grandchildren (the natural
children of Pablo Santero)?
The present controversy is confined solely to the intestate
estate of Simona Pamuti Vda. de Santero. In connection
therewith, We are tasked with determining anew whether
petitioners as illegitimate children of Pablo Santero could
inherit from Simona Pamuti Vda. de Santero, by right of
representation of their father Pablo Santero who is a legitimate
child of Simona Pamuti Vda. de Santero.
Petitioners claim that the amendment of Articles 941 and 943
of the old Civil Code (Civil Code of Spain) by Articles 990 and
992 of the new Civil Code (Civil Code of the Philippines)
constitute a substantial and not merely a formal change, which
grants illegitimate children certain successional rights. We do
not dispute the fact that the New Civil Code has given
illegitimate children successional rights, which rights were
never before enjoyed by them under the Old Civil Code. They
were during that time merely entitled to support. In fact, they
are now considered as compulsory primary heirs under Article
887 of the new Civil Code (No. 5 in the order of intestate
succession). Again, We do not deny that fact. These are only
some of the many rights granted by the new Code to
illegitimate children. But that is all. A careful evaluation of the

123
New Civil Code provisions, especially Articles 902, 982, 989,
and 990, claimed by petitioners to have conferred illegitimate
children the right to represent their parents in the inheritance
of their legitimate grandparents, would in point of fact reveal
that such right to this time does not exist.
Let Us take a closer look at the above-cited provisions.
Art.902. The rights of illegitimate children set
forth in the preceding articles are transmitted
upon their death to their descendants, whether
legitimate or illegitimate.
Art. 982. The grandchildren and other
descendants shall inherit by right
of representation and if any one of them should
have died, leaving several heirs, the portion
pertaining to him shall be divided among the
latter in equal portions. (933)
Art. 989. If, together with illegitimate children,
there should survive descendants of
another illegitimatechild who is dead, the former
shall succeed in their own right and the latter by
right of representation. (940a)
Art. 990. The hereditary rights granted by the
two preceding articles to illegitimate children
shall be transmitted upon their death to their
descendants, who shall inherit by right
of representation from their deceased
grandparent. (941a) Emphasis supplied).
Articles 902, 989, and 990 clearly speak of successional rights
of illegitimate children, which rights are transmitted to their
descendants upon their death. The descendants (of these

illegitimate children) who may inherit by virtue of the right of

representation may be legitimate or illegitimate. In whatever
manner, one should not overlook the fact that the persons to
be represented are themselves illegitimate. The three named
provisions are very clear on this matter. The right of
representation is not available to illegitimate descendants
of legitimate children in the inheritance of a legitimate
grandparent. It may be argued, as done by petitioners, that the
illegitimate descendant of a legitimate child is entitled to
represent by virtue of the provisions of Article 982, which
provides that "the grandchildren and other descendants shall
inherit by right of representation." Such a conclusion is
erroneous. It would allow intestate succession by an
illegitimate child to the legitimate parent of his father or mother,
a situation which would set at naught the provisions of Article
992. Article 982 is inapplicable to instant case because Article
992 prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the
father or mother. It may not be amiss to state that Article 982 is
the general rule and Article 992 the exception.
"The rules laid down in Article 982 that 'grandchildren and
other descendants shall inherit by right of representation and
in Article 902 that the rights of illegitimate children ... are
transmitted upon their death to their descendants, whether
legitimate or illegitimate are subject to the limitation prescribed
by Article 992 to the end that an illegitimate child has no right
to inherit ab intestato from the legitimate children and relatives
of his father or mother."' (Amicus Curiae's Opinion by former
Justice Minister Ricardo C. Puno, p. 12)
"Article 992 of the New Civil Code provides a barrier or iron
curtain in that it prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate
children and relatives of the father or mother of said
illegitimate child. They may have a natural tie of blood, but this

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is not recognized by law for the purpose of Article 992.
Between the legitimate family and the illegitimate family there
is presumed to be an intervening antagonism and
incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; and the family is in turn,
hated by the illegitimate child; the latter considers the
privileged condition of the former, and the resources of which it
is thereby deprived; the former, in turn, sees in the illegitimate
child nothing but the product of sin, palpable evidence of a
blemish broken in life; the law does no more than recognize
this truth, by avoiding further ground of resentment." (7
Manresa 110 cited in Grey v. Fable 40 OG (First S) No. 3, p.
196).
According to petitioners, the commentaries of Manresa as
above- quoted are based on Articles 939 to 944 of the old Civil
Code and are therefore inapplicable to the New Civil Code and
to the case at bar. Petitioners further argue that the consistent
doctrine adopted by this Court in the cases of Llorente vs.
Rodriguez, et al., 10 Phil., 585; Centeno vs. Centeno, 52 Phil.
322, and Oyao vs. Oyao, 94 Phil. 204, cited by former Justice
Minister Justice Puno, Justice Caguioa, and Prof. Balane,
which identically held that an illegitimate child has no right to
succeed ab intestato the legitimate father or mother of his
natural parent (also a legitimate child himself is already
abrogated by the amendments made by the Now Civil Code
and thus cannot be made to apply to the instant case.
Once more, We decline to agree with petitioner. We are fully
aware of certain substantial changes in our law of
succcession, but there is no change whatsoever with respect
to the provision of Article 992 of the Civil Code. Otherwise, by
the said substantial change, Article 992, which was a
reproduction f Article 943 of the Civil Code of Spain, should
have been suppressed or at least modified to clarify the
matters which are now the subject of the present controversy.

While the New Civil Code may have granted successional

rights to illegitimate children, those articles, however, in
conjunction with Article 992, prohibit the right of representation
from being exercised where the person to be represented is a
legitimate child. Needless to say, the determining factor is the
legitimacy or illegitimacy of the person to be represented. If the
person to be represented is an illegitimate child, then his
descendants, whether legitimate or illegitimate, may represent
him; however, if the person to be represented is legitimate, his
illegitimate descendants cannot represent him because the
law provides that only his legitimate descendants may
exercise the right of representation by reason of the barrier
imposed Article 992. In this wise, the commentaries of
Manresa on the matter in issue, even though based on the old
Civil Code, are still very much applicable to the New Civil Code
because the amendment, although substantial, did not consist
of giving illegitimate children the right to represent their natural
parents (legitimate) in the intestate succession of their
grandparents (legitimate). It is with the same line of reasoning
that the three aforecited cases may be said to be still
applicable to the instant case.
Equally important are the reflections of the Illustrious Hon.
Justice Jose B.L. Reyes which also find support from other
civilists. We quote:
In the Spanish Civil Code of 1889 the right of
representation was admitted only within the
legitimate family; so much so that Article 943 of
that Code prescribed that an illegitimate child
can not inherit ab intestato from the legitimate
children and relatives of his father and mother.
The Civil Code of the Philippines apparently
adhered to this principle since it reproduced
Article 943 of the Spanish Code in its own Art.
992, but with fine inconsistency, in subsequent

125
articles (990, 995 and 998) our Code allows the
hereditary portion of the illegitimate child to
pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992
prevents the illegitimate issue of a legitimate
child from representing him in the intestate
succession of the grandparent, the illegitimates
of an illegitimate child can now do so. This
difference being indefensible and unwarranted,
in the future revision of the Civil Code we shall
have to make a choice and decide either that
the illegitimate issue enjoys in all cases the right
of representation, in which case Art. 992 must
be suppressed; or contrariwise maintain said
article and modify Articles 992 and 998. The
first solution would be more in accord with an
enlightened attitude vis-a-vis illegitimate
children. (Reflections on the Reform of
hereditary Succession, JOURNAL of the
Integrated Bar of the Philippines, First Quartet
1976, Volume 4, Number 1, pp. 40-41). (p. 7,
Decision; p. 196, Rollo)
It is therefore clear from Article 992 of the New Civil Code that
the phrase "legitimate children and relatives of his father or
mother" includes Simona Pamuti Vda. de Santero as the word
"relative" is broad enough to comprehend all the kindred of the
person spoken of. (Comment, p. 139 Rollo citing p. 2862
Bouvier's Law Dictionary vol. 11, Third Revision, Eight Edition)
The record reveals that from the commencement of this case
the only parties who claimed to be the legitimate heirs of the
late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin
and the six minor natural or illegitimate children of Pablo
Santero. Since petitioners herein are barred by the provisions
of Article 992, the respondent Intermediate Appellate Court did
not commit any error in holding Felisa Pamuti Jardin to be the

sole legitimate heir to the intestate estate of the late Simona

Pamuti Vda. de Santero.
It is Our shared view that the word "relatives" should be
construed in its general acceptation. Amicus curiae Prof.
Ruben Balane has this to say:
The term relatives, although used many times in
the Code, is not defined by it. In accordance
therefore with the canons of statutory
interpretation, it should be understood to have a
general and inclusive scope, inasmuch as the
term is a general one. Generalia verba sunt
generaliter intelligenda. That the law does not
make a distinction prevents us from making
one: Ubi lex non distinguit, nec nos distinguera
debemus. Esrinche, in his Diccionario de
Legislacion y
Jurisprudencia defines parientes as "los que
estan relacionados por los vinculos de la
sangre, ya sea por proceder unos de otros,
como los descendientes y ascendientes, ya sea
por proceder de una misma raiz o tronco, como
los colaterales. (cited in Scaevola, op. cit., p.
457). (p. 377, Rollo)
According to Prof. Balane, to interpret the term relatives in
Article 992 in a more restrictive sense than it is used and
intended is not warranted by any rule of interpretation.
Besides, he further states that when the law intends to use the
term in a more restrictive sense, it qualifies the term with the
word collateral, as in Articles 1003 and 1009 of the New Civil
Code.
Thus, the word "relatives" is a general term and when used in
a statute it embraces not only collateral relatives but also all

126
the kindred of the person spoken of, unless the context
indicates that it was used in a more restrictive or limited sense
which as already discussed earlier, is not so in the case at
bar.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Feliciano,

Gancayco, Cortes, Grio-Aquino, Medialdea and Regalado,
JJ., concur.
Padilla, Bidin, Sarmiento, JJ., took no part.

To recapitulate, We quote this:

Separate Opinions
The lines of this distinction between legitimates
and illegitimates. which goes back very far in
legal history, have been softened but not erased
by present law. Our legislation has not gone so
far as to place legitimate and illegitimate
children on exactly the same footing. Even the
Family Code of 1987 (EO 209) has not
abolished the gradation between legitimate and
illegitimate children (although it has done away
with the sub-classification of illegitimates into
natural and 'spurious'). It would thus be correct
to say that illegitimate children have only those
rights which are expressly or clearly granted to
them by law (vide Tolentino, Civil Code of the
Philippines, 1973 ed., vol. III, p. 291). (Amicus
Curiae's Opinion by Prof. Ruben Balane, p. 12).
In the light of the foregoing, We conclude that until Article 992
is suppressed or at least amended to clarify the term
"relatives" there is no other alternative but to apply the law
literally. Thus, We hereby reiterate the decision of June 17,
1987 and declare Felisa Pamuti-Jardin to be the sole heir to
the intestate estate of Simona Pamuti Vda. de Santero, to the
exclusion of petitioners.
WHEREFORE, the second Motion for Reconsideration is
DENIED, and the assailed decision is hereby AFFIRMED.
SO ORDERED.

GUTIERREZ, JR., J., dissenting:

The ponente, Mr. Justice Edgardo L. Paras, is a noted teacher
of Civil Law subjects and a well-known author of many
Commentaries on the Civil Code. The amicus curiae former
Justice Jose B.L. Reyes, former Justice Ricardo C. Puno,
former Senator Arturo Tolentino, former Justice Eduardo
Caguioa, and Professor Ruben Balane together with the
ponente read like a veritable Who's Who in Civil Law in the
Philippines.
It is, therefore, with trepidation that I venture to cast a
discordant vote on the issue before the Court. But it is perhaps
because I am not as deeply steeped in the civil law tradition
and in the usually tidy and methodical neatness characterizing
its ancient precepts that I discern a change effected by our
own version of the Civil Code. The orthodox rules which earlier
inflexibly separated the legitimate from the illegitimate families
have been relaxed a little. The oppobrium cast on illegitimate
children and the disadvantages they suffer in law are no longer
as overwhelming as before. The wall is no longer as rigid as it
used to be. The efforts of the Code Commission and the
Congress to make our civil law conform "With the customs,
traditions, and idiosyncrasies of the Filipino people and with
modern trends in legislation and the progressive principles of
law" have resulted in deviations from the strict and narrow path
followed by Manresa and other early glossators. I, therefore,
do not feel bound to follow the ancient interpretations in the

127
presence of absurd and unjust results brought about by
amendments in the new Civil Code.
We have here a case of grandchildren who cannot inherit from
their direct ascendant, their own grandmother, simply because
their father (who was a legitimate son) failed to marry their
mother. There are no other direct heirs. Hence, the properties
of their grandmother goes to a collateral relative her niece.
If the niece is no longer alive, an even more distant group of
grandnieces and grandnephews will inherit as against the
grandmother's own direct flesh and blood.
As pointed out by the petitioners, the decision of the
Intermediate Appellate Court disregards the order of intestate
succession in Arts. 978 to 1014 of the Civil Code and the right
of representation in Art. 970 of descendants, whether
legitimate or illegitimate as provided by Arts. 902, 993, and
995.
I agree that a clear and precise amendment is needed if
collateral relatives such as illegitimate children and legitimate
uncles, aunts, or cousins or illegitimate siblings and their
legitimate half-brothers or half-sisters are to inherit from one
another. But I must stress that the barrier is between the
legitimate and illegitimate families. I see no reason why we
should include a grandmother or grandfather among those
where a firm wall of separation should be maintained. She
cannot be a separate "family" from her own grandchildren.
The ancient wall was breached by our Code Commission and
Congress in Art. 902 of the Code which provides:
The rights of illegitimate children set forth in the
preceding articles are transmitted upon their
death to their descendants, whether legitimate
or illegitimate. (843a)

The illegitimate children of an illegitimate child have the right to

represent him in the circumstances given in preceding articles.
Before the Code was amended, that right was reserved to the
illegitimate child's legitimate off-spring.
I find it absurd why the petitioners could have represented
their father Pablo if their grandparents Simona and Pascual
had not been legally married. Senator Tolentino, while
supporting the majority view of this Court states:
xxx xxx xxx
In the present article, the Code Commission
took a step forward by giving an illegitimate
child the right of representation, which he did
not have under the old Code. But in retaining
without change provisions of the old Code in
Article 992, it created an absurdity and
committed an injustice, because while the
illegitimate descendant of an illegitimate child
can represent, the illegitimate descendant of a
legitimate child cannot. The principle that the
illegitimate child should succeed by operation of
law only to persons with the same status of
illegitimacy has thus been preserved. And this is
unfair to the illegitimate descendants of
legitimate children. Dura lex, sed lex. (Tolentino,
Commentaries and Jurisprudence on the Civil
Code of the Philippines, Vol. III, 1987 ed., p.
330.)
The adoption of a harsh and absurd interpretation, pending an
amendment of the law, does not impress me as correct.
Precisely, the word "relatives" in Art. 992 calls for
reinterpretation because the Code has been amended. The

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meaning of relatives must follow the changes in various
provisions upon which the word's effectivity is dependent.

EN BANC
G.R. No. 206248

My dissent from the majority opinion is also premised on a firm

belief that law is based on considerations of justice. The law
should be interpreted to accord with what appears right and
just. Unless the opposite is proved, I will always presume that
a grandmother loves her grandchildren legitimate or
illegitimate more than the second cousins of said
grandchildren or the parents of said cousins. The grandmother
may be angry at the indiscretions of her son but why should
the law include the innocent grandchildren as objects of that
anger. "Relatives" can only refer to collateral relatives, to
members of a separate group of kins but not to one's own
grandparents.
I, therefore, vote to grant the motion for reconsideration.

February 18, 2014

GRACE M. GRANDE, Petitioner,

vs.
PATRICIO T. ANTONIO, Respondent.
DECISION
VELASCO, JR., J.:
Before this Court is a Petition for Review on Certiorari under
Rule 45, assailing the July 24, 2012 Decision1 and March 5,
2013 Resolution2 of the Court of Appeals (CA) in CA-G.R. CV
No. 96406.
As culled from the records, the facts of this case are:
Petitioner Grace Grande (Grande) and respondent Patricio
Antonio (Antonio) for a period of time lived together as
husband and wife, although Antonio was at that time already
married to someone else.3 Out of this illicit relationship, two
sons were born: Andre Lewis (on February 8, 1998) and
Jerard Patrick (on October 13, 1999).4 The children were not
expressly recognized by respondent as his own in the Record
of Births of the children in the Civil Registry. The parties
relationship, however, eventually turned sour, and Grande left
for the United States with her two children in May 2007. This
prompted respondent Antonio to file a Petition for Judicial
Approval of Recognition with Prayer to take Parental Authority,
Parental Physical Custody, Correction/Change of Surname of
Minors and for the Issuance of Writ of Preliminary Injunction
before the Regional Trial Court, Branch 8 of Aparri, Cagayan
(RTC), appending a notarized Deed of Voluntary Recognition
of Paternity of the children.5

129
On September 28, 2010, the RTC rendered a Decision in favor
of herein respondent Antonio, ruling that "[t]he evidence at
hand is overwhelming that the best interest of the children can
be promoted if they are under the sole parental authority and
physical custody of [respondent Antonio]."6 Thus, the court a
quo decreed the following:
WHEREFORE, foregoing premises considered, the Court
hereby grants [Antonios] prayer for recognition and the same
is hereby judicially approved. x x x Consequently, the Court
forthwith issues the following Order granting the other reliefs
sought in the Petition, to wit:
a. Ordering the Office of the City Registrar of the City of
Makati to cause the entry of the name of [Antonio] as
the father of the aforementioned minors in their
respective Certificate of Live Birth and causing the
correction/change and/or annotation of the surnames
of said minors in their Certificate of Live Birth from
Grande to Antonio;
b. Granting [Antonio] the right to jointly exercise
Parental Authority with [Grande] over the persons of
their minor children, Andre Lewis Grande and Jerard
Patrick Grande;
c. Granting [Antonio] primary right and immediate
custody over the parties minor children Andre Lewis
Grandre and Jerard Patrick Grande who shall stay with
[Antonios] residence in the Philippines from Monday
until Friday evening and to [Grandes] custody from
Saturday to Sunday evening;

d. Ordering [Grande] to immediately surrender the

persons and custody of minors Andre Lewis Grande
and Jerard Patrick Grande unto [Antonio] for the days
covered by the Order;
e. Ordering parties to cease and desist from bringing
the aforenamed minors outside of the country, without
the written consent of the other and permission from
the court.
f. Ordering parties to give and share the support of the
minor children Andre Lewis Grande and Jerard Patrick
Grande in the amount of P30,000 per month at the rate
of 70% for [Antonio] and 30% for [Grande].7(Emphasis
supplied.)
Aggrieved, petitioner Grande moved for reconsideration.
However, her motion was denied by the trial court in its
Resolution dated November 22, 20108 for being pro forma and
for lack of merit.
Petitioner Grande then filed an appeal with the CA attributing
grave error on the part of the RTC for allegedly ruling contrary
to the law and jurisprudence respecting the grant of sole
custody to the mother over her illegitimate children.9 In
resolving the appeal, the appellate court modified in part the
Decision of the RTC. The dispositive portion of the CA
Decision reads:
WHEREFORE, the appeal is partly GRANTED. Accordingly,
the appealed Decision of the Regional Trial Court Branch 8,
Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in
part and shall hereinafter read as follows:
a. The Offices of the Civil Registrar General and the
City Civil Registrar of Makati City are DIRECTED to

130
enter the surname Antonio as the surname of Jerard
Patrick and Andre Lewis, in their respective certificates
of live birth, and record the same in the Register of
Births;
b. [Antonio] is ORDERED to deliver the minor children
Jerard Patrick and Andre Lewis to the custody of their
mother herein appellant, Grace Grande who by virtue
hereof is hereby awarded the full or sole custody of
these minor children;
c. [Antonio] shall have visitorial rights at least twice a
week, and may only take the children out upon the
written consent of [Grande]; and
d. The parties are DIRECTED to give and share in
support of the minor children Jerard Patrick and Andre
Lewis in the amount of P30,000.00 per month at the
rate of 70% for [Antonio] and 30% for [Grande].
(Emphasis supplied.)
In ruling thus, the appellate court ratiocinated that
notwithstanding the fathers recognition of his children, the
mother cannot be deprived of her sole parental custody over
them absent the most compelling of reasons.10 Since
respondent Antonio failed to prove that petitioner Grande
committed any act that adversely affected the welfare of the
children or rendered her unsuitable to raise the minors, she
cannot be deprived of her sole parental custody over their
children.
The appellate court, however, maintained that the legal
consequence of the recognition made by respondent Antonio
that he is the father of the minors, taken in conjunction with the
universally protected "best-interest-of-the-child" clause,
compels the use by the children of the surname "ANTONIO."11

As to the issue of support, the CA held that the grant is legally

in order considering that not only did Antonio express his
willingness to give support, it is also a consequence of his
acknowledging the paternity of the minor children.12Lastly, the
CA ruled that there is no reason to deprive respondent Antonio
of his visitorial right especially in view of the constitutionally
inherent and natural right of parents over their children.13
Not satisfied with the CAs Decision, petitioner Grande
interposed a partial motion for reconsideration, particularly
assailing the order of the CA insofar as it decreed the change
of the minors surname to "Antonio." When her motion was
denied, petitioner came to this Court via the present petition. In
it, she posits that Article 176 of the Family Codeas amended
by Republic Act No. (RA) 9255, couched as it is in permissive
languagemay not be invoked by a father to compel the use
by his illegitimate children of his surname without the consent
of their mother.
We find the present petition impressed with merit.
The sole issue at hand is the right of a father to compel the
use of his surname by his illegitimate children upon his
recognition of their filiation. Central to the core issue is the
application of Art. 176 of the Family Code, originally phrased
as follows:
Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to
support in conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other
provisions in the Civil Code governing successional rights shall
remain in force.

131
This provision was later amended on March 19, 2004 by RA
925514 which now reads:
Art. 176. Illegitimate children shall use the surname and shall
be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. However,
illegitimate children may use the surname of their father if their
filiation has been expressly recognized by their father through
the record of birth appearing in the civil register, or when an
admission in a public document or private handwritten
instrument is made by the father. Provided, the father has the
right to institute an action before the regular courts to prove
non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate
child. (Emphasis supplied.)
From the foregoing provisions, it is clear that the general rule
is that an illegitimate child shall use the surname of his or her
mother. The exception provided by RA 9255 is, in case his or
her filiation is expressly recognized by the father through the
record of birth appearing in the civil register or when an
admission in a public document or private handwritten
instrument is made by the father. In such a situation, the
illegitimate child may use the surname of the father.
In the case at bar, respondent filed a petition for judicial
approval of recognition of the filiation of the two children with
the prayer for the correction or change of the surname of the
minors from Grande to Antonio when a public document
acknowledged before a notary public under Sec. 19, Rule 132
of the Rules of Court15 is enough to establish the paternity of
his children. But he wanted more: a judicial conferment of
parental authority, parental custody, and an official declaration
of his childrens surname as Antonio.

Parental authority over minor children is lodged by Art. 176 on

the mother; hence, respondents prayer has no legal mooring.
Since parental authority is given to the mother, then custody
over the minor children also goes to the mother, unless she is
shown to be unfit.
Now comes the matter of the change of surname of the
illegitimate children. Is there a legal basis for the court a quo to
order the change of the surname to that of respondent?
Clearly, there is none. Otherwise, the order or ruling will
contravene the explicit and unequivocal provision of Art. 176 of
the Family Code, as amended by RA 9255.
Art. 176 gives illegitimate children the right to decide if they
want to use the surname of their father or not. It is not the
father (herein respondent) or the mother (herein petitioner)
who is granted by law the right to dictate the surname of their
illegitimate children.
Nothing is more settled than that when the law is clear and
free from ambiguity, it must be taken to mean what it says and
it must be given its literal meaning free from any
interpretation.16 Respondents position that the court can order
the minors to use his surname, therefore, has no legal basis.
On its face, Art. 176, as amended, is free from ambiguity. And
where there is no ambiguity, one must abide by its words. The
use of the word "may" in the provision readily shows that an
acknowledged illegitimate child is under no compulsion to use
the surname of his illegitimate father. The word "may" is
permissive and operates to confer discretion17 upon the
illegitimate children.
It is best to emphasize once again that the yardstick by which
policies affecting children are to be measured is their best

132
interest. On the matter of childrens surnames, this Court has,
time and again, rebuffed the idea that the use of the fathers
surname serves the best interest of the minor child. In Alfon v.
Republic,18 for instance, this Court allowed even a legitimate
child to continue using the surname of her mother rather than
that of her legitimate father as it serves her best interest and
there is no legal obstacle to prevent her from using the
surname of her mother to which she is entitled. In fact, in
Calderon v. Republic,19 this Court, upholding the best interest
of the child concerned, even allowed the use of a surname
different from the surnames of the childs father or mother.
Indeed, the rule regarding the use of a childs surname is
second only to the rule requiring that the child be placed in the
best possible situation considering his circumstances.
In Republic of the Philippines v. Capote,20 We gave due
deference to the choice of an illegitimate minor to use the
surname of his mother as it would best serve his interest, thus:
The foregoing discussion establishes the significant
connection of a persons name to his identity, his status in
relation to his parents and his successional rights as a
legitimate or illegitimate child. For sure, these matters should
not be taken lightly as to deprive those who may, in any way,
be affected by the right to present evidence in favor of or
against such change.
The law and facts obtaining here favor Giovannis petition.
Giovanni availed of the proper remedy, a petition for change of
name under Rule 103 of the Rules of Court, and complied with
all the procedural requirements. After hearing, the trial court
found (and the appellate court affirmed) that the evidence
presented during the hearing of Giovannis petition sufficiently
established that, under Art. 176 of the Civil Code, Giovanni is
entitled to change his name as he was never recognized by
his father while his mother has always recognized him as her

child. A change of name will erase the impression that he was

ever recognized by his father. It is also to his best interest as it
will facilitate his mothers intended petition to have him join her
in the United States. This Court will not stand in the way of the
reunification of mother and son. (Emphasis supplied.)
An argument, however, may be advanced advocating the
mandatory use of the fathers surname upon his recognition of
his illegitimate children, citing the Implementing Rules and
Regulations (IRR) of RA 9255,21 which states:
Rule 7. Requirements for the Child to Use the Surname of the
Father
7.1 For Births Not Yet Registered
7.1.1 The illegitimate child shall use the surname of the father
if a public document is executed by the father, either at the
back of the Certificate of Live Birth or in a separate document.
7.1.2 If admission of paternity is made through a private
instrument, the child shall use the surname of the father,
provided the registration is supported by the following
documents:
xxxx
7.2. For Births Previously Registered under the Surname of
the Mother
7.2.1 If filiation has been expressly recognized by the father,
the child shall use the surname of the father upon the
submission of the accomplished AUSF [Affidavit of Use of the
Surname of the Father].

133
7.2.2 If filiation has not been expressly recognized by the
father, the child shall use the surname of the father upon
submission of a public document or a private handwritten
instrument supported by the documents listed in Rule 7.1.2.
7.3 Except in Item 7.2.1, the consent of the illegitimate child is
required if he/she has reached the age of majority. The
consent may be contained in a separate instrument duly
notarized.
xxxx
Rule 8. Effects of Recognition
8.1 For Births Not Yet Registered
8.1.1 The surname of the father shall be entered as the last
name of the child in the Certificate of Live Birth. The Certificate
of Live Birth shall be recorded in the Register of Births.
xxxx
8.2 For Births Previously Registered under the Surname of the
Mother
8.2.1 If admission of paternity was made either at the back of
the Certificate of Live Birth or in a separate public document or
in a private handwritten document, the public document or
AUSF shall be recorded in the Register of Live Birth and the
Register of Births as follows:
"The surname of the child is hereby changed from (original
surname) to (new surname) pursuant to RA 9255."

The original surname of the child appearing in the Certificate

of Live Birth and Register of Births shall not be changed or
deleted.
8.2.2 If filiation was not expressly recognized at the time of
registration, the public document or AUSF shall be recorded in
the Register of Legal Instruments. Proper annotation shall be
made in the Certificate of Live Birth and the Register of Births
as follows:
"Acknowledged by (name of father) on (date). The surname of
the child is hereby changed from (original surname) on (date)
pursuant to RA 9255." (Emphasis supplied.)
Nonetheless, the hornbook rule is that an administrative
issuance cannot amend a legislative act. In MCC Industrial
Sales Corp. v. Ssangyong Corporation,22 We held:
After all, the power of administrative officials to promulgate
rules in the implementation of a statute is necessarily limited to
what is found in the legislative enactment itself. The
implementing rules and regulations of a law cannot extend the
law or expand its coverage, as the power to amend or repeal a
statute is vested in the Legislature. Thus, if a discrepancy
occurs between the basic law and an implementing rule or
regulation, it is the former that prevails, because the law
cannot be broadened by a mere administrative issuance an
administrative agency certainly cannot amend an act of
Congress.
Thus, We can disregard contemporaneous construction where
there is no ambiguity in law and/or the construction is clearly
erroneous.23 What is more, this Court has the constitutional
prerogative and authority to strike down and declare as void
the rules of procedure of special courts and quasi- judicial
bodies24 when found contrary to statutes and/or the

134
Constitution.25 Section 5(5), Art. VIII of the Constitution
provides:
Sec. 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law,
the Integrated Bar, and legal assistance to the underprivileged.
Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of
special courts and quasi-judicial bodies shall remain effective
unless disapproved by the Supreme Court. (Emphasis
supplied.)
Thus, We exercise this power in voiding the above-quoted
provisions of the IRR of RA 9255 insofar as it provides the
mandatory use by illegitimate children of their fathers surname
upon the latters recognition of his paternity.
To conclude, the use of the word "shall" in the IRR of RA 9255
is of no moment. The clear, unambiguous, and unequivocal
use of "may" in Art. 176 rendering the use of an illegitimate
fathers surname discretionary controls, and illegitimate
children are given the choice on the surnames by which they
will be known.
At this juncture, We take note of the letters submitted by the
children, now aged thirteen (13) and fifteen (15) years old, to
this Court declaring their opposition to have their names
changed to "Antonio."26 However, since these letters were not
offered before and evaluated by the trial court, they do not

provide any evidentiary weight to sway this Court to rule for or

against petitioner.27 A proper inquiry into, and evaluation of the
evidence of, the children's choice of surname by the trial court
is necessary.
WHEREFORE, the instant petition is PARTIALLY GRANTED.
The July 24, 2012 Decision of the Court of Appeals in CA-G.R.
CV No. 96406 is MODIFIED, the dispositive portion of which
shall read:
WHEREFORE, the appeal is partly GRANTED. Accordingly.
the appealed Decision of the Regional Trial Court Branch 8,
Aparri Cagayan in SP Proc. Case No. 11-4492 is MODIFIED in
part and shall hereinafter read as follows:
a. [Antonio] is ORDERED to deliver the minor children
Jerard Patrick and Andre Lewis to the custody of their
mother herein appellant, Grace Grande who by virtue
hereof is hereby awarded the full or sole custody of
these minor children;
b. [Antonio] shall have visitation rights28 at least twice a
week, and may only take the children out upon the
written consent of [Grande]:
c. The parties are DIRECTED to give and share in
support of the minor children Jerard Patrick and Andre
Lewis in the amount of P30,000.00 per month at the
rate of 70% for [Antonio] and 30% for [Grande]; and
d. The case is REMANDED to the Regional Trial Court,
Branch 8 of Aparri, Cagayan for the sole purpose of
determining the surname to be chosen by the children
Jerard Patrick and Andre Lewis.

135
Rule 7 and Rule 8 of the Office of the Civil Registrar General
Administrative Order No. 1, Series of 2004 are
DISAPPROVED and hereby declared NULL and VOID.

10

Id. at 36-38.

11

Id. at 38.

SO ORDERED.

12

Id. at 39.

PRESBITERO J. VELASCO, JR.

Associate Justice

13

Id.

14

Footnotes
* On leave.
** No part.

An Act Allowing Illegitimate Children to Use the

Surname of Their Father Amending for the Purpose
Article 176 of Executive Order No. 209, Otherwise
Known as the "Family Code of the Philippines," signed
into law on February 24, 2004 and took effect on March
19, 2004 fifteen (15) days after its publication on
Malaya and the Manila Times on March 4, 2004.

Rollo, pp. 23-41. Penned by Associate .Justice Edwin

D. Sorongon and concurred in by Associate Justices
Hakim S. Abdulwahid and Marlene Gonzales-Sison.
2

Id. at 42-43.
Id. at 25.

Id. at 10, 25, 44-46, 50.

Id. at 79.

Id. at 30.

Id. at 24-25.

Id. at 30.

Id. at 31.

15

Rule 132, Sec. 19. Classes of Documents. For the

purpose of their presentation in evidence, documents
are either public or private.
Public documents are:
(a) The written official acts, or records of the
official acts of the sovereign authotirty, official
bodies and tribunals, and public officers,
whether of the Philippines, or a foreign country;
(b) Documents acknowledged before a notary
public except last will and testaments; and
(c) Public records, kept in the Philippines, of
private documents required by law to be
entered therein.
All other writings are private.

136
16

Republic v. Lacap, G.R. No. 158253, March 2, 2007,

517 SCRA 255; Chartered Bank Employees
Association v. Ople, No. L-44717, August 28, 1985, 138
SCRA 273; Quijano v. Development Bank of the
Philippines, G.R. No. 26419, October 19, 1970, 35
SCRA 270; Luzon Surety Co., Inc. v. De Garcia, No. L25659, October 31, 1969, 30 SCRA 111.
17

Agpalo, Ruben, STATUTORY CONSTRUCTION 460

(6th ed., 2009); citations omitted.
18

No. L-51201, May 29, 1980, 97 SCRA 858.

19

126 Phil. 1 (1967).

20

G.R. No. 157043, February 2, 2007, 514 SCRA 76,

83-84.
21

Office of Civil Registrar General (OCRG)

Administrative Order No. 1, Series of 2004, issued by
the National Statistics Office-Office of the Civil
Registrar General. Approved on May 14, 2004,
published on May 18, 2004 on the Manila Times, and
took effect on June 2, 2004.
22

G.R. No. 170633, October 17, 2007, 536 SCRA 408,

453.
23

Regalado v. Yulo, 61 Phil. 173 (1935); Molina v.

Rafferty, 37 Phil. 545 (1918).
24

The Office of the Civil Registrar General exercises

quasi-judicial powers under Rule 13, Title 1, of NSO
Administrative Order 1-93, December 18, 1993,
Implementing Rules and Regulations of Act No. 3753
and Other Laws on Civil Registration:

RULE 13. Posting of the Pending Application.

(1) A notice to the public on the pending
application for delayed registration shall be
posted in the bulletin board of the
city/municipality for a period of not less than ten
(10) days.
(2) If after ten (10) days, no one opposes the
registration, the civil registrar shall evaluate the
veracity of the statements made in the required
documents submitted.
(3) If after proper evaluation of all documents
presented and investigation of the allegations
contained therein, the civil registrar is convinced
that the event really occurred within the
jurisdiction of the civil registry office, and finding
out that said event was not registered, he shall
register the delayed report thereof.
(4) The civil registrar, in all cases of delayed
registration of birth, death and marriage, shall
conduct an investigation whenever an
opposition is filed against its registration by
taking the testimonies of the parties concerned
and witnesses in the form of questions and
answers. After investigation, the civil registrar
shall forward his findings and recommendations
to the Office of the Civil Registrar-General for
appropriate action.
(5) The Civil Registrar-General may, after
review and proper evaluation, deny or authorize
the registration.

137
25

Tan v. COMELEC, G.R. Nos. 166143-47 & 166891,

November 20, 2006, 507 SCRA 352, 370-371.
26

FIRST DIVISION

Rollo, pp. 45-46.

G.R. No. 85723 June 19, 1995

27

Rule 132. Sec. 34. Offer of' evidence. - The court

shall consider no evidence which has not been formally
offered. The purpose for which the evidence is offered
must be specified.

BIENVENIDO RODRIGUEZ, petitioner,

vs.
COURT OF APPEALS and CLARITO
AGBULOS, respondents.

28

In family law. the right granted by a court to a parent

or other relative who is deprived custody of a child to
visit the child on a regular basis. See DICTIONARY or
LEGAL TERMS 529 (3rd ed.).

QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court of the Decision of the Court of Appeals
dated November 2, 1988 in CA-G.R. SP No. 14276, which
allowed, in an action for compulsory recognition, the testimony
of the mother of a natural child on the identity of the putative
father.
I
On October 15, 1986, an action for compulsory recognition
and support was brought before the Regional Trial Court,
Branch 9, Baguio-Benguet, by respondent Alarito (Clarito)
Agbulos against Bienvenido Rodriguez, petitioner herein. At
the trial, the plaintiff presented his mother, Felicitas Agbulos
Haber, as first witness. In the course of her direct examination,
she was asked by counsel to reveal the identity of the plaintiff's
father but the defendant's counsel raised a timely objection
which the court sustained.
The plaintiff filed before this Court a petition for review
on certiorari questioning the said order in UDK 8516 entitled

138
Clarito Agbulos v. Hon. Romeo A. Brawner and Bienvenido
Rodriguez." On March 18, 1988, this Court referred the petition
to the Court of Appeals (CA-G.R. SP No. 14276), which
promulgated the questioned Decision dated November 2,
1988.
II
In the instant petition for review on certiorari, petitioner alleged
that the Court of Appeals erred: (1) in not dismissing the
petition for certiorari on the ground that the order of the trial
court disallowing the testimony of Felicitas Agbulos Haber was
interlocutory and could not be reviewed separately from the
judgment; and (2) in reversing the said order and allowing the
admission of said testimony.
As a rule, errors of judgment or of procedure, not relating to
the court's jurisdiction nor involving grave abuse of discretion,
are not reviewable by certiorari under Rule 65 of the Revised
Rules of Court (Villalon v. Intermediate Appellate Court, 144
SCRA 443 [1986]). However, there are exceptions to said rule.
For instance, certiorari is justified in order to prevent
irreparable damages and injury to a party, where the trial judge
capriciously and whimsically exercised his judgment, or where
there may be danger of failure of justice. Certiorari may also
be availed of where an appeal would be slow, inadequate and
insufficient (Presco v. Court of Appeals, 192 SCRA 232 [1990];
Saludes v. Pajarillo, 78 Phil. 754 [1947]).
We find that had the appellate court sanctioned the trial court's
disallowance of the testimony of plaintiff's mother, private
respondent would have been deprived of a speedy and
adequate remedy considering the importance of said
testimony and the erroneous resolution of the trial court.

On the merits of his petition, petitioner contended that Felicitas

Agbulos Haber should not be allowed to reveal the name of
the father of private respondent because such revelation was
prohibited by Article 280 of the Civil Code of the Philippines.
Said Article provided:
When the father or the mother makes the
recognition separately, he or she shall not
reveal he name of the person with whom he or
she had the child; neither shall he or she state
any circumstance whereby the other party may
be identified.
On the other hand, private respondent argued that his mother
should be allowed to testify on the identity of his father,
pursuant to paragraph 4, Article 283 of the Civil Code of the
Philippines and Section 30, Rule 130 of the Revised Rules of
Court.
Article 283 of the Civil Code of the Philippines provided:
In any of the following cases, the father is
obliged to recognize the child as his natural
child:
(1) In cases of rape, abduction or seduction,
when the period of the offense coincides more
or less with that of the conception;
(2) When the child is in continuous possession
of status of a child of the alleged father by the
direct acts of the latter or of his family;
(3) When the child was conceived during the
time when the mother cohabited with the
supposed father;

139
(4) When the child has in his favor any evidence
or proof that the defendant is his father.
Section 30, Rule 130 of the Revised Rules of Court provides:
Testimony generally confined to personal
knowledge; hearsay excluded. A witness can
testify only to those facts which he knows of his
own knowledge, that is, which are derived from
his own perception, except as otherwise
provided in these rules.
Private respondent cannot invoke our decision in Navarro v.
Bacalla, 15 SCRA 114 (1965). While we ruled inNavarro that
the testimony of the mother of the plaintiff in said case, could
be used to establish his paternity, such testimony was
admitted during the trial without objection and the defendant
accepted the finding of the trial court that he was the father of
the plaintiff.
In the case at bench, petitioner timely objected to the calling of
the mother of private respondent to the witness stand to name
petitioner as the father of said respondent.
Likewise, in Navarro we clearly stated:

We are not ruling whether the mere testimony

of the mother, without more, is sufficient to
prove the paternity of the child. Neither are we
ruling on the scope of Art. 280, New Civil Code
which enjoins the mother in making a separate
and voluntary recognition of a child from
revealing the name of the father, specifically, as
to whether the mother's testimony identifying
the father is admissible in an action to compel
recognition if and when a timely objection to
such oral evidence is interposed (at p. 117).
Navarro, therefore, is not the end but only the beginning of our
quest, which felicitously was reached with our conclusion that
the prohibition in Article 280 against the identification of the
father or mother of a child applied only in voluntary and not in
compulsory recognition. This conclusion becomes abundantly
clear if we consider the relative position of the progenitor of
Article 280, which was Article 132 of the Spanish Civil Code of
1889, with the other provisions on the acknowledgement of
natural children of the same Code.
Article 132 was found in Section I (Acknowledgment of Natural
Children), Chapter IV (Illegitimate Children), Title V (Paternity
and Filiation), Book First (Persons) of the Spanish Civil Code
of 1889.
The first article in said Section provided:
Art. 129 A natural child may be
acknowledged by the father and mother jointly
or by either of them alone.
The next article provided:

140
Art. 130 In case the acknowledgment is
made by only one of the parents, it shall be
presumed that the child is a natural one if the
parent acknowledging it was, at the time of the
conception, legally competent to contract
marriage.
The article immediately preceding Article 132 provided:
Art. 131 The acknowledgment of a natural
child must be made in the record of birth, in a
will, or in some other public document.
Article 132 of the Spanish Civil Code provided:
When the acknowledgment is made separately
by the father or the mother, the name of the
child's other parent shall not be revealed by the
parent acknowledging it, nor shall any
circumstance be mentioned by which such
person might be recognized.
No public officer shall authenticate any
document drawn in violation of this provision
and should he do so notwithstanding this
prohibition shall be liable to a fine of from 125 to
500 pesetas, and the words containing such
revelation shall be striken out.
Article 280 of the Civil Code of the Philippines was found in
Section 1 (Recognition of Natural Children), Chapter 4
(Illegitimate Children), Title VIII (Paternity and Filiation) of said
Code. The whole section was repealed by the Family Code.
The first article of this section was Article 276 which was a
reproduction of Article 129 of the Spanish Civil Code. The

second article was Article 277 which was a reproduction of

Article 130 of the Spanish Civil Code. The third article was
Article 278 which was a reproduction of Article 131 of the
Spanish Civil Code.
However, unlike in the Spanish Civil Code, wherein the
progenitor of Article 280 followed immediately the progenitor of
Article 278, a new provision was inserted to separate Article
280 from Article 278. The new provision, Article 279, provided:
A minor who may contract marriage without
parental consent cannot acknowledge a natural
child, unless the parent or guardian approves
the acknowledgment, or unless the recognition
is made in the will.
If the sequencing of the provisions in the Spanish Civil Code
were maintained in the Civil Code of the Philippines, and
Article 280 was numbered Article 279, it becomes clear that
the prohibition against the identification by the parent
acknowledging a child of the latter's other parent refers to the
voluntary recognition provided for in Article 278.
Senator Arturo M. Tolentino is of the view that the prohibition in
Article 280 does not apply in an action for compulsory
recognition. According to him:
The prohibition to reveal the name or
circumstance of the parent who does not
intervene in the separate recognition is limited
only to the very act of making such separate
recognition. It does not extend to any other act
or to cases allowed by law. Thus, when a
recognition has been made by one parent, the
name of the other parent may be revealed in an
action by the child to compel such other parent

141
to recognize him also (I Commentaries and
Jurisprudence on the Civil Code of the
Philippines 590 [1985]).
Justice Eduardo Caguioa also opines that the said prohibition
refers merely to the act of recognition. "It does prevent inquiry
into the identity of the other party in case an action is brought
in court to contest recognition on the ground that the child is
not really natural because the other parent had no legal
capacity to contract marriage" (I Comments and Cases on Civil
Law 380 [1967] citing In re Estate of Enriquez, 29 Phil. 167
[1915]).
We have not lost sight of our decision in Infante v. Fiqueras, 4
Phil. 738 (1905), where we rejected the testimony of the
mother of a child that the defendant was the father of the
plaintiff. The action for recognition in that case was brought
under Article 135 of the Spanish Civil Code, which limited
actions to compel recognition to cases when an indubitable
writing existed wherein the father expressly acknowledged his
paternity and when the child was in the uninterrupted
possession of the status of a natural child of the defendant
father justified by the conduct of the father himself or that of
his family.
The action filed by private respondent herein was brought
under Article 283 of the Civil Code of the Philippines, which
added new grounds for filing an action for recognition: namely,
xxx xxx xxx
3) When the child was conceived during the
time when the mother cohabited with the
supposed father;

4) When the child has in his favor any evidence

or proof that the defendant is his father.
Likewise, the testimony of the mother of the plaintiff
in Infante was not admissible under the procedural law then in
force, which was the Law of Bases of May 11, 1888. Said law
in pertinent part provided:
No se admitira la investigation de la paternidad
si no en los casos de delito o cuando existe
escrito del padre en el que conste su voluntad
indubitada de reconnocer per suyo al hijo,
deliberadamente expresada con ese fin, o
cuando medie posesion de estado. Se permitira
la investigacion de la maternidad.
Traditionally, there was a free inquiry into the paternity of
children allowed by French royal decrees but the investigation
of paternity was forbidden by the French Revolutionary
Government in order to repress scandal and blackmail. This
prohibition passed to the French Civil Code and from it to the
Spanish Civil Code of 1889 (I Reyes and Puno, An Outline of
Philippine Civil Code 266 [4th ed.]).
Worth noting is the fact that no similar prohibition found in
Article 280 of the Civil Code of the Philippines has been
replicated in the present Family Code. This undoubtedly
discloses the intention of the legislative authority to uphold the
Code Commission's stand to liberalize the rule on the
investigation of the paternity of illegitimate children.
Articles 276, 277, 278, 279 and 280 of the Civil Code of the
Philippines were repealed by the Family Code, which now
allows the establishment of illegitimate filiation in the same
way and on the same evidence as legitimate children (Art.
175).

142
Under Article 172 of the Family Code, filiation of legitimate
children is by any of the following:

SO ORDERED.
Davide, Jr., Bellosillo and Kapunan, JJ., concur.

The filiation of legitimate children is established

by any of the following:

Padilla, J., took no part.

(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. (265a, 266a, 267a)
Of interest is that Article 172 of the Family Code adopts the
rule in Article 283 of the Civil Code of the Philippines, that
filiation may be proven by "any evidence or proof that the
defendant is his father."
WHEREFORE, the Decision of the Court of Appeals is
AFFIRMED. The trial court is DIRECTED to PROCEED with
dispatch in the disposition of the action for compulsory
recognition.

THIRD DIVISION
[G.R. No. 140500. January 21, 2002]

ERNESTINA BERNABE, petitioner,

vs. CAROLINA ALEJO as guardian ad litem for the minor
ADRIAN BERNABE, respondent.

DECISION
PANGANIBAN, J.:
The right to seek recognition granted by the Civil Code to
illegitimate children who were still minors at the time the
Family Code took effect cannot be impaired or taken away.
The minors have up to four years from attaining majority age
within which to file an action for recognition.
Statement of the Case

143
Before us is a Petition[1] for Review on Certiorari under
Rule 45 of the Rules of Court, praying for (1) the nullification of
the July 7, 1999 Court of Appeals[2] (CA) Decision[3] in CA-GR
CV No. 51919 and the October 14, 1999 CA
Resolution[4] denying petitioners Motion for Reconsideration,
as well as (2) the reinstatement of the two Orders issued by
the Regional Trial Court (RTC) of Pasay City (Branch 109)
concerning the same case. The dispositive portion of the
assailed Decision reads as follows:
WHEREFORE,premisesconsidered,theorderofthelowercourt
dismissingCivilCaseNo.940562isREVERSEDandSETASIDE.
Lettherecordsofthiscaseberemandedtothelowercourtfortrial
onthemerits.[5]
The Facts
The undisputed facts are summarized by the Court of
Appeals in this wise:
ThelateFiscalErnestoA.Bernabeallegedlyfatheredasonwithhis
secretaryoftwentythree(23)years,hereinplaintiffappellant
CarolinaAlejo.ThesonwasbornonSeptember18,1981andwas
namedAdrianBernabe.FiscalBernabediedonAugust13,1993,
whilehiswifeRosalinadiedonDecember3ofthesameyear,
leavingErnestinaasthesolesurvivingheir.
OnMay16,1994,Carolina,inbehalfofAdrian,filedtheaforesaid
complaintprayingthatAdrianbedeclaredanacknowledged
illegitimatesonofFiscalBernabeandassuchhe(Adrian)begiven
hisshareinFiscalBernabesestate,whichisnowbeingheldby
Ernestinaasthesolesurvivingheir.
OnJuly16,1995,theRegionalTrialCourtdismissedthecomplaint,
rulingthatundertheprovisionsoftheFamilyCodeaswellasthe

caseofUyguangcovs.CourtofAppeals,thecomplaintisnowbarred
xxx.[6]
Orders of the Trial Court
In an Order dated July 26, 1995, the trial court granted
Ernestina Bernabes Motion for Reconsideration of the trial
courts Decision and ordered the dismissal of the Complaint for
recognition. Citing Article 175 of the Family Code, the RTC
held that the death of the putative father had barred the action.
In its Order dated October 6, 1995, the trial court added
that since the putative father had not acknowledged or
recognized Adrian Bernabe in writing, the action for recognition
should have been filed during the lifetime of the alleged father
to give him the opportunity to either affirm or deny the
childs filiation.
Ruling of the Court of Appeals
On the other hand, the Court of Appeals ruled that in the
interest of justice, Adrian should be allowed to prove that he
was the illegitimate son of Fiscal Bernabe. Because the boy
was born in 1981, his rights are governed by Article 285 of the
Civil Code, which allows an action for recognition to be filed
within four years after the child has attained the age of
majority. The subsequent enactment of the Family Code did
not take away that right.
Hence, this appeal.[7]
Issues
In her Memorandum,[8] petitioner raises the following
issues for our consideration:

144
I
Whetherornotrespondenthasacauseofactiontofileacaseagainst
petitioner,thelegitimatedaughteroftheputativefather,for
recognitionandpartitionwithaccountingaftertheputativefathers
deathintheabsenceofanywrittenacknowledgmentofpaternityby
thelatter.
II
WhetherornottheHonorableCourtofAppealserredinrulingthat
respondentshadfouryearsfromtheattainmentofminoritytofilean
actionforrecognitionasprovidedinArt.285oftheCivilCode,in
completedisregardofitsrepealbythe[express]provisionsofthe
FamilyCodeandtheapplicablejurisprudenceasheldbythe
HonorableCourtofAppeals.
III
Whetherornotthepetitionforcertiorarifiledbythepetition[er]is
fatallydefectiveforfailuretoimpleadtheCourtofAppealsasoneof
therespondents.[9]
The Courts Ruling
The Petition has no merit.
First and Second Issues: Period to File Action for
Recognition
Because the first and the second issues are interrelated,
we shall discuss them jointly.
Petitioner contends that respondent is barred from filing
an action for recognition, because Article 285 of the Civil Code

has been supplanted by the provisions of the Family Code.

She argues that the latter Code should be given retroactive
effect, since no vested right would be impaired. We do not
agree.
Article 285 of the Civil Code provides the period for filing
an action for recognition as follows:
ART.285.Theactionfortherecognitionofnaturalchildrenmaybe
broughtonlyduringthelifetimeofthepresumedparents,exceptin
thefollowingcases:
(1)Ifthefatherormotherdiedduringtheminorityofthe
child,inwhichcasethelattermayfiletheaction
beforetheexpirationoffouryearsfromthe
attainmentofhismajority;
(2)Ifafterthedeathofthefatherorofthemothera
documentshouldappearofwhichnothinghadbeen
heardandinwhicheitherorbothparentsrecognize
thechild.
Inthiscase,theactionmustbecommencedwithinfouryearsfrom
thefindingofthedocument.
The two exceptions provided under the foregoing
provision, have however been omitted by Articles 172, 173 and
175 of the Family Code, which we quote:
ART.172.Thefiliationoflegitimatechildrenisestablishedbyany
ofthefollowing:
(1)Therecordofbirthappearinginthecivilregisterorafinal
judgment;or

145
(2)Anadmissionoflegitimatefiliationinapublicdocumentora
privatehandwritteninstrumentandsignedbytheparentconcerned.
Intheabsenceoftheforegoingevidence,thelegitimatefiliationshall
beprovedby:
(1)Theopenandcontinuouspossessionofthestatusofalegitimate
child;or
(2)AnyothermeansallowedbytheRulesofCourtandspeciallaws.
ART.173.Theactiontoclaimlegitimacymaybebroughtbythe
childduringhisorherlifetimeandshallbetransmittedtotheheirs
shouldthechilddieduringminorityorinastateofinsanity.Inthese
cases,theheirsshallhaveaperiodoffiveyearswithinwhichto
institutetheaction.
Theactionalreadycommencedbythechildshallsurvive
notwithstandingthedeathofeitherorbothoftheparties.
ART.175.Illegitimatechildrenmayestablishtheir
illegitimatefiliationinthesamewayandonthesame,evidenceas
legitimatechildren.
Theactionmustbebroughtwithinthesameperiodspecifiedin
Article173,exceptwhentheactionisbasedonthesecondparagraph
ofArticle172,inwhichcasetheactionmaybebroughtduringthe
lifetimeoftheallegedparent.
Under the new law, an action for the recognition of an
illegitimate child must be brought within the lifetime of the
alleged parent. The Family Code makes no distinction on
whether the former was still a minor when the latter died. Thus,
the putative parent is given by the new Code a chance to
dispute the claim, considering that illegitimate children are

usually begotten and raised in secrecy and without the

legitimate family being aware of their existence. x x x The
putative parent should thus be given the opportunity to affirm
or deny the childs filiation, and this, he or she cannot do if he
or she is already dead.[10]
Nonetheless, the Family Code provides the caveat that
rights that have already vested prior to its enactment should
not be prejudiced or impaired as follows:
ART.255.ThisCodeshallhaveretroactiveeffectinsofarasitdoes
notprejudiceorimpairvestedoracquiredrightsinaccordancewith
theCivilCodeorotherlaws.
The crucial issue to be resolved therefore is
whether Adrians right to an action for recognition, which was
granted by Article 285 of the Civil Code, had already vested
prior to the enactment of the Family Code. Our answer is
affirmative.
A vested right is defined as one which is absolute,
complete and unconditional, to the exercise of which no
obstacle exists, and which is immediate and perfect in itself
and not dependent upon a contingency x x x.[11] Respondent
however contends that the filing of an action for recognition is
procedural in nature and that as a general rule, no vested right
may attach to [or] arise from procedural laws.[12]
Bustos v.
Lucero[13] distinguished
procedural law in these words:

substantive

from

xxx.Substantivelawcreatessubstantiverightsandthetwotermsin
thisrespectmaybesaidtobesynonymous.Substantiverightsisa
termwhichincludesthoserightswhichoneenjoysunderthelegal
systempriortothedisturbanceofnormalrelations.Substantivelaw

146
isthatpartofthelawwhichcreates,definesandregulatesrights,or
whichregulatestherightsanddutieswhichgiverisetoacauseof
action;thatpartofthelawwhichcourtsareestablishedto
administer;asopposedtoadjectiveorremediallaw,whichprescribes
themethodofenforcingrightsorobtainsredressfortheirinvasion.
[14]
(Citationsomitted)

effect should not be affected by the subsequent enactment of

the Family Code, because the right had already vested.

Recently, in Fabian v. Desierto,[15] the Court laid down the

test for determining whether a rule is procedural or
substantive:

To be sure, Article 285 of the Civil Code refers to the

action for recognition of natural children. Thus, petitioner
contends that the provision cannot be availed of by
respondent, because at the time of his conception, his parents
were impeded from marrying each other. In other words, he is
not a natural child.

[I]ndeterminingwhetheraruleprescribedbytheSupremeCourt,for
thepracticeandprocedureofthelowercourts,abridges,enlarges,or
modifiesanysubstantiveright,thetestiswhethertherulereally
regulatesprocedure,thatis,thejudicialprocessforenforcingrights
anddutiesrecognizedbysubstantivelawandforjustlyadministering
remedyandredressforadisregardorinfractionofthem.Iftherule
takesawayavestedright,itisnotprocedural.Iftherulecreatesa
rightsuchastherighttoappeal,itmaybeclassifiedasasubstantive
matter;butifitoperatesasameansofimplementinganexisting
rightthentheruledealsmerelywithprocedure.[16]
Applying the foregoing jurisprudence, we hold that Article
285 of the Civil Code is a substantive law, as it
gives Adrian the right to file his petition for recognition within
four years from attaining majority age. Therefore, the Family
Code cannot impair or take Adrians right to file an action for
recognition, because that right had already vested prior to its
enactment.
Uyguangco v. Court of Appeals[17] is not applicable to the
case at bar, because the plaintiff therein sought recognition as
an illegitimate child when he was no longer a minor. On the
other hand, in Aruego Jr. v. Court of Appeals[18] the Court ruled
that an action for recognition filed while the Civil Code was in

Not Limited to Natural Children

A natural child is one whose parents, at the time of

conception, were not disqualified by any legal impediment
from marrying each other. Thus, in De Santos v. Angeles,[19] the
Court explained:
Achildsparentsshouldnothavebeendisqualifiedtomarryeach
otheratthetimeofconceptionforhimtoqualifyasanaturalchild.
[20]

A strict and literal interpretation of Article 285 has already

been frowned upon by this Court in the aforesaid case
of Aruego, which allowed minors to file a case for recognition
even if their parents were disqualified from marrying each
other. There, the Complaint averred that the late
Jose Aruego Sr.,
a
married
man,
had
an
extramarital liason with Luz Fabian. Out of this relationship
were born two illegitimate children who in 1983 filed an action
for recognition. The two children were born in 1962 and 1963,
while the alleged putative father died in 1982. In short, at the
time of their conception, the two childrens parents were legally
disqualified from marrying each other. The Court allowed the
Complaint to prosper, even though it had been filed almost a

147
year after the death of the presumed father. At the time of his
death, both children were still minors.
Moreover, in the earlier case Divinagracia v. Rovira,[21] the
Court said that the rules on voluntary and compulsory
acknowledgment of natural children, as well as the prescriptive
period for filing such action, may likewise be applied to
spurious children. Pertinent portions of the case are quoted
hereunder:
Thesocalledspuriouschildren,orillegitimatechildrenotherthan
naturalchildren,commonlyknownasbastards,includethose
adulterouschildrenorthosebornoutofwedlocktoamarriedwoman
cohabitingwithamanotherthanherhusbandortoamarriedman
cohabitingwithawomanotherthanhiswife.Theyareentitledto
supportandsuccessionalrights.Buttheirfiliationmustbeduly
proven.
Howshouldtheirfiliationbeproven?Article289oftheCivilCode
allowstheinvestigationofthepaternityormaternityorspurious
childrenunderthecircumstancesspecifiedinarticles283and284of
theCivilCode.Theimplicationisthattherulesoncompulsory
recognitionofnaturalchildrenareapplicabletospuriouschildren.
Spuriouschildrenshouldnotbeinabetterpositionthannatural
children.Therulesonproofoffiliationofnaturalchildrenorthe
rulesonvoluntaryandcompulsoryacknowledgmentfornatural
childrenmaybeappliedtospuriouschildren.
Thatdoesnotmeanthatspuriouschildrenshouldbeacknowledged,
asthattermisusedwithrespecttonaturalchildren.Whatissimply
meantisthatthegroundsorinstancesfortheacknowledgmentof
naturalchildrenareutilizedtoestablishthefiliationofspurious
children.

Aspuriouschildmayprovehisfiliationbymeansofarecordof
birth,awill,astatementbeforeacourtofrecord,orinanyauthentic
writing.Thesearethemodesofvoluntaryrecognitionofnatural
children.
Incasethereisnoevidenceonthevoluntaryrecognitionofthe
spuriouschild,thenhisfiliationmaybeestablishedbymeansofthe
circumstancesorgroundsforcompulsoryrecognitionprescribedin
theaforementionedarticles283and284.
Theprescriptiveperiodforfilingtheactionforcompulsory
recognitioninthecaseofnaturalchildren,asprovidedforinarticle
285oftheCivilCode,appliestospuriouschildren.[22](Citations
omitted,italicssupplied)
Thus, under the Civil Code, natural children have
superior successional rights
over
spurious
ones.
[23]
However, Rovira treats them as equals with respect to other
rights, including the right to recognition granted by Article 285.
To emphasize, illegitimate children who were still minors
at the time the Family Code took effect and whose putative
parent died during their minority are thus given the right to
seek recognition (under Article 285 of the Civil Code) for a
period of up to four years from attaining majority age. This
vested right was not impaired or taken away by the passage of
the Family Code.
Indeed, our overriding consideration is to protect the
vested rights of minors who could not have filed suit, on their
own, during the lifetime of their putative parents. As
respondent aptly points out in his Memorandum,[24] the State
as parens patriae should protect a minors right. Born in
1981, Adrian was only seven years old when the Family Code

148
took effect and only twelve when his alleged father died in
1993. The minor must be given his day in court.

[2]

Special
First
Division;
penned
by J. Jesus
M. Elbinias (presiding justice and Division chairman);
concurred
in
by JJ Delilah Vidallon Magtolis and Edgardo P.
Cruz
(members).

[3]

Rollo, pp. 33-37.

[4]

Rollo, p.
18. J. Andres
B.
Reyes
for J. Magtolis who was on leave.

[5]

Assailed Decision, p. 5; Rollo, p. 37.

[6]

Assailed Decision, pp. 1-2; Rollo, pp. 33-34.

[7]

This case was deemed submitted for decision on August 16,

2000, upon this Courts receipt of petitioners
Memorandum signed by Atty. Jose Allan M. Tebelin.
Respondents Memorandum, signed by Attys. Felix
D. Carao Jr. and R.A.V. Saguisag, was received by this
Court on August 14, 2000.

[8]

Rollo, pp. 103-116; original underscored and in upper case.

[9]

Memorandum for petitioner, p. 4; Rollo, p. 106.

Third Issue: Failure to Implead the CA

Under Section 4(a) of Rule 45 of the current Rules of
Court, it is no longer required to implead the lower courts or
judges x x x either as petitioners or respondents. Under
Section 3, however, the lower tribunal should still be furnished
a copy of the petition. Hence, the failure of petitioner
to implead the Court of Appeals as a party is not a reversible
error; it is in fact the correct procedure.
WHEREFORE, the Petition is hereby DENIED and the
assailed Decision and Resolution AFFIRMED. Costs against
petitioner.
SO ORDERED.
Melo,
JJ., concur.

(Chairman),

Sandoval-Gutierrez, and Carpio,

Vitug, J., no part. Relationship with family.

[1]

Rollo, pp.
3-14.
The
Petition
Atty. Wenceslao B. Trinidad.

was

signed

by

Jr.

signed

[10]

Alicia V. Sempio-Diy, Handbook on the Family Code (1995

ed.), p. 282.

[11]

Reyes v. Commission on Audit, 305 SCRA 512, 518, March

29, 1999, per Pardo, J.

[12]

Medina Investigation & Security Corporation v. Court of

Appeals, GR No. 144074, March 20, 2001,
per Gonzaga-Reyes, J.

149
[13]

81 Phil. 648, March 8, 1949.

[14]

Ibid., pp. 649-650, per Tuason, J.

[15]

295 SCRA 470, 492, September 16, 1998.

[16]

Ibid., p. 492, per Regalado, J.

[17]

178 SCRA 684, October 26, 1989.

[18]

254 SCRA 711, March 13, 1996.

[19]

251 SCRA 206, December 12, 1995.

[20]

Ibid., p. 212, per Romero, J.

[21]

72 SCRA 307, August 10, 1976.

[22]

Ibid., pp. 314-315, per Aquino, J. (later CJ).

[23]

Cf.

[24]

Pages 12-15.

Jose C. Vitug, Compendium of Civil

Jurisprudence, (1993 rev. ed.), p.218.

Law

and

FIRST DIVISION
G.R. No. 143989

July 14, 2003

ISABELITA S. LAHOM, petitioner,

vs.

150
JOSE MELVIN SIBULO (previously referred to as "DR.
MELVIN S. LAHOM"), respondent.
VITUG, J.:
The bliss of marriage and family would be to most less than
complete without children. The realization could have likely
prodded the spouses Dr. Diosdado Lahom and Isabelita
Lahom to take into their care Isabelita's nephew Jose Melvin
Sibulo and to bring him up as their own. At the tender age of
two, Jose Melvin enjoyed the warmth, love and support of the
couple who treated the child like their own. Indeed, for years,
Dr. and Mrs. Lahom fancied on legally adopting Jose Melvin.
Finally, in 1971, the couple decided to file a petition for
adoption. On 05 May 1972, an order granting the petition was
issued that made all the more intense than before the feeling
of affection of the spouses for Melvin. In keeping with the court
order, the Civil Registrar of Naga City changed the name "Jose
Melvin Sibulo" to "Jose Melvin Lahom."
A sad turn of events came many years later. Eventually, in
December of 1999, Mrs. Lahom commenced a petition to
rescind the decree of adoption before the Regional Trial Court
(RTC), Branch 22, of Naga City. In her petition, she averred
"7. That x x x despite the proddings and pleadings of
said spouses, respondent refused to change his
surname from Sibulo to Lahom, to the frustrations of
petitioner particularly her husband until the latter died,
and even before his death he had made known his
desire to revoke respondent's adoption, but was
prevented by petitioner's supplication, however with his
further request upon petitioner to give to charity
whatever properties or interest may pertain to
respondent in the future.

xxx

xxx

xxx

"10. That respondent continued using his surname

Sibulo to the utter disregard of the feelings of herein
petitioner, and his records with the Professional
Regulation Commission showed his name as Jose
Melvin M. Sibulo originally issued in 1978 until the
present, and in all his dealings and activities in
connection with his practice of his profession, he is
Jose Melvin M. Sibulo.
xxx

xxx

xxx

"13. That herein petitioner being a widow, and living

alone in this city with only her household helps to
attend to her, has yearned for the care and show of
concern from a son, but respondent remained
indifferent and would only come to Naga to see her
once a year.
"14. That for the last three or four years, the medical
check-up of petitioner in Manila became more frequent
in view of a leg ailment, and those were the times when
petitioner would need most the care and support from a
love one, but respondent all the more remained callous
and utterly indifferent towards petitioner which is not
expected of a son.
"15. That herein respondent has recently been jealous
of petitioner's nephews and nieces whenever they
would find time to visit her, respondent alleging that
they were only motivated by their desire for some
material benefits from petitioner.
"16. That in view of respondent's insensible attitude
resulting in a strained and uncomfortable relationship

151
between him and petitioner, the latter has suffered
wounded feelings, knowing that after all respondent's
only motive to his adoption is his expectancy of his
alleged rights over the properties of herein petitioner
and her late husband, clearly shown by his recent filing
of Civil Case No. 99-4463 for partition against
petitioner, thereby totally eroding her love and affection
towards respondent, rendering the decree of adoption,
considering respondent to be the child of petitioner, for
all legal purposes, has been negated for which reason
there is no more basis for its existence, hence this
petition for revocation,"1
Prior to the institution of the case, specifically on 22 March
1998, Republic Act (R.A.) No. 8552, also known as the
Domestic Adoption Act, went into effect. The new statute
deleted from the law the right of adopters to rescind a decree
of adoption.
Section 19 of Article VI of R.A. No. 8552 now reads:
"SEC. 19. Grounds for Rescission of Adoption. Upon
petition of the adoptee, with the assistance of the
Department if a minor or if over eighteen (18) years of
age but is incapacitated, as guardian/counsel, the
adoption may be rescinded on any of the following
grounds committed by the adopter(s): (a) repeated
physical and verbal maltreatment by the adopter(s)
despite having undergone counseling; (b) attempt on
the life of the adoptee; (c) sexual assault or violence; or
(d) abandonment and failure to comply with parental
obligations.
"Adoption, being in the best interest of the child, shall
not be subject to rescission by the adopter(s).
However, the adopter(s) may disinherit the adoptee for

causes provided in Article 919 of the Civil Code."

(emphasis supplied)
Jose Melvin moved for the dismissal of the petition, contending
principally (a) that the trial court had no jurisdiction over the
case and (b) that the petitioner had no cause of action in view
of the aforequoted provisions of R.A. No. 8552. Petitioner
asseverated, by way of opposition, that the proscription in R.A.
No. 8552 should not retroactively apply, i.e., to cases where
the ground for rescission of the adoption vested under the
regime of then Article 3482 of the Civil Code and Article 1923 of
the Family Code.
In an order, dated 28 April 2000, the trial court held thusly:
"On the issue of jurisdiction over the subject matter of
the suit, Section 5(c) of R.A. No. 8369 confers
jurisdiction to this Court, having been designated
Family Court in A.M. No. 99-11-07 SC.
"On the matter of no cause of action, the test on the
sufficiency of the facts alleged in the complaint, is
whether or not, admitting the facts alleged, the Court
could render a valid judgment in accordance with the
prayer of said complaint (De Jesus, et al. vs.
Belarmino, et al., 95 Phil. 365).
"Admittedly, Section 19, Article VI of R.A. No. 8552
deleted the right of an adopter to rescind an adoption
earlier granted under the Family Code. Conformably,
on the face of the petition, indeed there is lack of cause
of action.
"Petitioner however, insists that her right to rescind
long acquired under the provisions of the Family Code
should be respected. Assuming for the sake of

152
argument, that petitioner is entitled to rescind the
adoption of respondent granted on May 5, 1972, said
right should have been exercised within the period
allowed by the Rules. From the averments in the
petition, it appears clear that the legal grounds for the
petition have been discovered and known to petitioner
for more than five (5) years, prior to the filing of the
instant petition on December 1, 1999, hence, the action
if any, had already prescribed. (Sec. 5, Rule 100
Revised Rules of Court)
"WHEREFORE, in view of the foregoing consideration,
the petition is ordered dismissed."4
Via a petition for review on certiorari under Rule 45 of the 1997
Rules of Court, petitioner raises the following questions; viz:
1. May the subject adoption, decreed on 05 May 1972,
still be revoked or rescinded by an adopter after the
effectivity of R.A. No. 8552?
2. In the affirmative, has the adopter's action
prescribed?
A brief background on the law and its origins could provide
some insights on the subject. In ancient times, the Romans
undertook adoption to assure male heirs in the family.5 The
continuity of the adopter's family was the primary purpose of
adoption and all matters relating to it basically focused on the
rights of the adopter. There was hardly any mention about the
rights of the adopted.6 Countries, like Greece, France, Spain
and England, in an effort to preserve inheritance within the
family, neither allowed nor recognized adoption.7 It was only
much later when adoption was given an impetus in law and
still later when the welfare of the child became a paramount
concern.8Spain itself which previously disfavored adoption

ultimately relented and accepted the Roman law concept of

adoption which, subsequently, was to find its way to the
archipelago. The Americans came and introduced their own
ideas on adoption which, unlike most countries in Europe,
made the interests of the child an overriding consideration.9 In
the early part of the century just passed, the rights of children
invited universal attention; the Geneva Declaration of Rights of
the Child of 1924 and the Universal Declaration of Human
Rights of 1948,10followed by the United Nations Declarations of
the Rights of the Child,11 were written instruments that would
also protect and safeguard the rights of adopted children. The
Civil Code of the Philippines12 of 1950 on adoption, later
modified by the Child and Youth Welfare Code13 and then by
the Family Code of the Philippines,14 gave immediate statutory
acknowledgment to the rights of the adopted. In 1989, the
United Nations initiated the Convention of the Rights of the
Child. The Philippines, a State Party to the Convention,
accepted the principle that adoption was impressed with social
and moral responsibility, and that its underlying intent was
geared to favor the adopted child. R.A. No. 8552 secured
these rights and privileges for the adopted. Most importantly, it
affirmed the legitimate status of the adopted child, not only in
his new family but also in the society as well. The new law
withdrew the right of an adopter to rescind the adoption decree
and gave to the adopted child the sole right to sever the legal
ties created by adoption.
Petitioner, however, would insist that R.A. No. 8552 should not
adversely affect her right to annul the adoption decree, nor
deprive the trial court of its jurisdiction to hear the case, both
being vested under the Civil Code and the Family Code, the
laws then in force.
The concept of "vested right" is a consequence of the
constitutional guaranty of due process15 that expresses
apresent fixed interest which in right reason and natural justice

153
is protected against arbitrary state action;16 it includes not only
legal or equitable title to the enforcement of a demand but also
exemptions from new obligations created after the right has
become vested.17 Rights are considered vested when the right
to enjoyment is a present interest,18 absolute, unconditional,
and perfect19 or fixed and irrefutable.
In Republic vs. Court of Appeals,20 a petition to adopt Jason
Condat was filed by Zenaida C. Bobiles on 02 February 1988
when the Child and Youth Welfare Code (Presidential Decree
No. 603) allowed an adoption to be sought by either spouse
or both of them. After the trial court had rendered its decision
and while the case was still pending on appeal, the Family
Code of the Philippines (Executive Order No. 209), mandating
joint adoption by the husband and wife, took effect. Petitioner
Republic argued that the case should be dismissed for having
been filed by Mrs. Bobiles alone and without being joined by
the husband. The Court concluded that the jurisdiction of the
court is determined by the statute in force at the time of the
commencement of the action. The petition to adopt Jason,
having been filed with the court at the time when P.D. No. 603
was still in effect, the right of Mrs. Bobiles to file the petition,
without being joined by her husband, according to the Court
had become vested. In Republic vs. Miller,21spouses Claude
and Jumrus Miller, both aliens, sought to adopt Michael
Madayag. On 29 July 1988, the couple filed a petition to
formalize Michael's adoption having theretofore been taken
into their care. At the time the action was commenced, P.D.
No. 603 allowed aliens to adopt. After the decree of adoption
and while on appeal before the Court of Appeals, the Family
Code was enacted into law on 08 August 1988 disqualifying
aliens from adopting Filipino children. The Republic then
prayed for the withdrawal of the adoption decree. In discarding
the argument posed by the Republic, the Supreme Court ruled
that the controversy should be resolved in the light of the law
governing at the time the petition was filed.

It was months after the effectivity of R.A. No. 8552 that herein
petitioner filed an action to revoke the decree of adoption
granted in 1975. By then, the new law,22 had already
abrogated and repealed the right of an adopter under the Civil
Code and the Family Code to rescind a decree of adoption.
Consistently with its earlier pronouncements, the Court should
now hold that the action for rescission of the adoption decree,
having been initiated by petitioner after R.A. No. 8552 had
come into force, no longer could be pursued.
Interestingly, even before the passage of the statute, an action
to set aside the adoption is subject to the five-year bar rule
under Rule 10023 of the Rules of Court and that the adopter
would lose the right to revoke the adoption decree after the
lapse of that period. The exercise of the right within a
prescriptive period is a condition that could not fulfill the
requirements of a vested right entitled to protection. It must
also be acknowledged that a person has no vested right in
statutory privileges.24 While adoption has often been referred
to in the context of a "right," the privilege to adopt is itself not
naturally innate or fundamental but rather a right merely
created by statute.25 It is a privilege that is governed by the
state's determination on what it may deem to be for the best
interest and welfare of the child.26 Matters relating to adoption,
including the withdrawal of the right of an adopter to nullify the
adoption decree, are subject to regulation by the
State.27 Concomitantly, a right of action given by statute may
be taken away at anytime before it has been exercised.28
While R.A. No. 8552 has unqualifiedly withdrawn from an
adopter a consequential right to rescind the adoption decree
even in cases where the adoption might clearly turn out to be
undesirable, it remains, nevertheless, the bounden duty of the
Court to apply the law. Dura lex sed lex would be the
hackneyed truism that those caught in the law have to live
with. It is still noteworthy, however, that an adopter, while

154
barred from severing the legal ties of adoption, can always for
valid reasons cause the forfeiture of certain benefits otherwise
accruing to an undeserving child. For instance, upon the
grounds recognized by law, an adopter may deny to an
adopted child his legitime and, by a will and testament, may
freely exclude him from having a share in the disposable
portion of his estate.

Art. 192. The adopters may petition the court for the
judicial rescission of the adoption in any of the following
cases:
(1) If the adopted has committed any act
constituting a ground for disinheriting a
descendant; or

WHEREFORE, the assailed judgment of the court a quo is

AFFIRMED. No costs.

(2) When the adopted has abandoned the home

of the adopters during minority for at least one
year, or, by some other acts, has definitely
repudiated the adoption. (41a, P.D. No. 603)

SO ORDERED.
Davide, Jr., C .J ., Ynares-Santiago, Carpio and Azcuna,
JJ ., concur.

Rollo, pp. 3334.

The Law of Adoption, Morton L. Leavy & Rey

Weinbey, 4th Edition (1979).
6

The Law on Adoption and Surrogate Parenting, Irving

J. Sloan (1988).

Footnotes
1

Rollo, pp. 2526.

Art. 348. The adopter may petition the court for

revocation of the adoption in any of these cases:
(1) If the adopted person has attempted against
the life of the adopter;
(2) When the adopted minor has abandoned the
home of the adopter for more than three years;
(3) When by other acts the adopted person has
definitely repudiated the adoption. (n)

Ibid., p. 7.

Id. The earliest adoption statute was reported in

Mississippi in 1846. In 1850, Texas and Vermont, USA
passed their general adoption statutes, followed by
Massachusetts and New York in 1851.
9

A Comparative Study of the Adoption Law under the

Spanish Civil Code and the Code of Civil Procedure, 4
Phil. L.J. 313323 (1918).
10

United Nation General Assembly, Resolution dated

10 December 1948.

155
11

United Nation General Assembly/44/49 (1989).

12

Presidential Decree No. 386.

22

Presidential Decree No. 603 (10 June 1975), as

amended by P.D. No. 1175 (15 August 1977).

Section, 26. Repealing Clause. Any law,

presidential decree or issuance, executive order, letter
of instruction, administrative order, rule, or regulation
contrary to, or inconsistent with the provisions of this
Act is hereby repealed, or modified, or amended
accordingly.

14

23

13

Executive Order 209 (03 August 1988).

15

16 CJS citing City of Los Angeles vs. Oliver, 283 P.

298, 102 Cal. App. 299.
16

Ayog vs. Cusi, Jr. G.R. No. L-46729, 19 November

1982 (118 SCRA 492).
17

16 Am. Jur. 2d, Constitutional Law, p. 651.

18

Benquet Consolidated Mining Co. vs. Pineda, No. L7231, 28 March 1956 (98 Phil. 711) quoting Pearsall
vs. Great Northern R. Co., 161 U.S. 646.
19

Reyes vs. Commission on Audit, G.R. No. 125129,

29 March 1999 (305 SCRA 512) as cited in Bernabe
vs. Alejo, G.R. No. 140500, 21 January 2002 (374
SCRA 180).
20

G.R. No. 92326, 24 January 1992 (205 SCRA 356).

21

G.R. No. 125932, 21 April 1999 (306 SCRA 183).

SEC. 5. Time within which to file petition. A minor

or other incapacitated person must file the petition for
rescission or revocation of adoption within the five
years following his majority, or if he was incompetent at
the time of the adoption, within the five (5) years
following the recovery from such incompetency.
The adopter must also file the petition to set aside the
adoption within five (5) years from the time the cause
or causes giving rise to the rescission or revocation of
the same took place. (emphasis supplied)
24

Id. at 24, citing Brearly School vs. Ward, 210 NY 358,

40 LRA NS. 1215; also, Cooley, Constitutional
Limitations, 7th Ed. p. 546.
25

Martin vs. Putman (Miss) 427 So 2d 1373; There is

no right of adoption. It is the extension of a
privilege.Eggleston vs. Landrum 210 Miss 645, 50 So
2d 364, 23 ALR2d 696.
26

Browder vs. Harmeyer (Ind App) as cited in AmJur,

2d, Vol. 2.
27

Adoption has also been characterized as a status

created by the state acting as parens patriae, the
sovereign parent. Douglas vs. Harrelson (Ala App) 454
So 2d 984.

156
28

16 CJS citing Robinsons vs. Mchugh, 291 P. 330,

158 Wash. 157.