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G.R. No.

156078 March 14, 2008

HEIRS OF CESAR MARASIGAN namely: LUZ REGINA, CESAR JR., BENITO, SANTIAGO,
RENATO, JOSE, GERALDO, ORLANDO, PETER, PAUL, MAURICIO, ROMMEL, MICHAEL,
GABRIEL, and MARIA LUZ, all surnamed MARASIGAN, Petitioners,
vs.
APOLONIO, LILIA, OCTAVIO, JR., HORACIO, BENITO Jr., and MARISSA, all surnamed
MARASIGAN, and the COURT OF APPEALS, Respondents.

DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review under Rule 45 of the Revised Rules of Court, with petitioners praying for
the reversal of the Decision1 of the Court of Appeals dated 31 July 2002 and its Resolution2 dated 13
November 2002 denying the Petition for Certiorari and Prohibition, with prayer for the issuance of a
writ of preliminary injunction and restraining order, in CA- G.R. SP No. 67529. Petitioners are asking
this Court to (a) give due course to their petition; and (b) reverse and set aside, and thus, declare
null and void the Decision of the Court of Appeals in CA-G.R. SP No. 67529. However, petitioners
are asking for the following reliefs in their Memorandum: (a) the dismissal of the complaint for
partition of the estate of the late Alicia Marasigan, docketed as Special Civil Action No. P-77-97, filed
before the Regional Trial Court (RTC) of Pili, Camarines Sur; (b) annulment or rescission of the
public auction sale of petitioners 1/7th undivided share in the estate of Alicia Marasigan, and direct
Apolonio Marasigan to restore the same to petitioners; or (c) in the alternative, allowance of the
physical partition of the entire 496 hectares of Hacienda Sta. Rita.

Central to the instant Petition is the estate of Alicia Marasigan (Alicia).

Alicia was survived by her siblings: Cesar, Apolonio, Lilia, and Benito; Marissa, a sister-in-law; and
the children of her brothers who predeceased her: Francisco, Horacio, and Octavio. She died
intestate and without issue on 21 January 1995.

On 17 December 1997, a Complaint for Judicial Partition of the Estate of Alicia Marasigan was filed
before the RTC by several of her heirs and private respondents herein, namely, Apolonio, Lilia,
Octavio, Jr., Horacio, Benito, Jr., and Marissa, against Cesar, docketed as Special Civil Action No.
P-77-97.

According to private respondents, Alicia owned in common with her siblings 13 parcels of land called
Hacienda Sta. Rita in Pili and Minalabac, Camarines Sur, with an aggregate area of 4,960,963
square meters or 496 hectares, and more particularly described as follows:

ORIGINAL CERTIFICATE OF TITLE NO. 626

"A parcel of land denominated as Lot 516-B of the Subdivision Survey Plan Csd-05-001020, situated
at Sagurong, Pili, Camarines Sur, bounded on the NE., by PNR; on the SE., by Bgy. Road; on the
SW., by Lot 2870; and on the NW., by Lot 512, containing an area of EIGHT THOUSAND SEVEN
HUNDRED TWELVE (8,712) SQUARE METERS, more or less, declared under A.R.P. No. 014 166
and assessed at 12, 860.00."

ORIGINAL CERTIFICATE OF TITLE NO. 627

"A parcel of land denominated as Lot 4237, Cad-291, Pili Cadastre, Plan Cen-05-000006, situated at
Saguron, Pili, Camarines Sur, bounded on the N., by Irr. ditch beyond Lot 445; on the E., by Lots
517 and 518; on the S., by Creek, Lot 468, 467; and on the W., by Lot 2948 and Mun. of Minalabac,
containing an area of EIGHT HUNDRED SIXTY ONE THOUSAND ONE HUNDRED SIXTY THREE
(861,163) SQUARE METERS, more or less, declared under A.R.P. No. 016 268 and assessed at
539,020.00."

ORIGINAL CERTIFICATE OF TITLE NO. 628

"A parcel of land denominated as Lot 2870 Cad. 291, Pili Cadastre Plan Swo-05000607, situated at
Sagurong, Pili, Camarines Sur, bounded on the N., by Binasagan River; on the E., by Lots 512 and
516; on the S., by Barangay Road; and on the W., by Lot 469, containing an area of THIRTEEN
THOUSAND FOUR HUNDRED SIXTY TWO (13,462) SQUARE METERS, mote or less, declared
under A.R.P. No. 014 130 and assessed at 15,180.00."

ORIGINAL CERTIFICATE OF TITLE NO. 629

"A parcel of land denominated as Lot 517-B of the Subdivision Survey Plan Csd-05-001020, situated
at Sagurong, Pili, Camarines Sur, bounded on the NE., by PNR; on the SE., by Lot 519; on the SW.,
by Lots 2025 and 2942; and on the NW., by Brgy. Road, containing an area of THIRTEEN
THOUSAND SEVEN HUNDRED SIXTY FIVE (13,765) SQUARE METERS, more or less, declared
under A.R.P. No. 014 167 and assessed at 20,310.00."

ORIGINAL CERTIFICATE OF TITLE NO. 652

"A parcel of land denominated as Lot 4207-B of the subdivision survey Plan Csd-05-011349-D,
situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4207-C, Lot 6157;
on the SE., by Irr. ditch, Lot 2942; and on the NW., by Lot 4298 (3051-B), containing an area of
FIFTY FOUR (54) SQUARE METERS, mote or less, declared under A.R.P. No. 014 384 and
assessed at 40.00."

ORIGINAL CERTIFICATE OF TITLE NO. 653

"A parcel of land denominated as Lot 4207-A of the subdivision survey Plan Csd-05-011349-D,
situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4205 (I0T 443-A
Csd-05-001019); on the SE., and SW., by Irr. ditch (Lot 2942); on the W., by Lot 4207-C Lot 6157;
and on the NW., by Lot 4208 (Lot 3051-B, Csd-05-001019), containing an area of TWENTY SEVEN
THOUSAND THREE HUNDRED THIRTY SEVEN (27,33) SQUARE METERS, more or less,
declared under A.R.P. No. 014 383 and assessed at 20,150.00."

A.R.P. NO. 014 385

"A parcel of land denominated as Lot 4207-C Lot 6157 of the subdivision survey Plan Csd-05-
001019, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4207-A
Lot 6155; on the SE., by Lot 4207-A Lot 6155; on the SW., by Lot 4207-B Lot 6156 and Irr, ditch;
and on the NW., by Lot 4208 (3051-B), containing an area of THREE HUNDRED SIXTY ONE (361)
SQUARE METERS, more or less, declared under A.R.P. No. 014 385 and assessed at 270.00."

ORIGINAL CERTIFICATE OF TITLE NO. 654

"A parcel of land denominated as Lot 443-A of the subdivision survey Plan Csd-05-001019, situated
at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lots 474, 4019, 4018, 4027,
creek; on the SE., by Hrs. of Benito Marasigan; and on the NW., by Lot 443-B, Ireneo Llorin;
containing an area of TWO HUNDRED FORTY FOUR THOUSAND EIGHT HUNDRED FIFTY
EIGHT (244,858) SQUARE METERS, more or less, declared under A.R.P. No. 014 382 and
assessed at 195,400.00."

ORIGINAL CERTIFICATE OF TITLE NO. 655

"A parcel of land denominated as Lot 2942-A of the subdivision survey Plan Csd-05-010854-D,
situated at Sagurong (San Jose/San Agustin), Pili, Camarines Sur, bounded on the N., by Creek; on
the NE., by Lot 3049; on the SE., by Creek; and on the W., by Lots 3184, 3183, 2942-13, 3183, 3060
and 3177; containing an area of FOUR HUNDRED SIXTY SIX THOUSAND SIX HUNDRED
TWENTY TWO (466,622) SQUARE METERS, more or less, declared under A.R.P. No. 014 386 and
assessed at 287,160.00."

ORIGINAL CERTIFICATE OF TITLE NO. 656

"A parcel of land denominated as Lot 2 Plan Cen-05-000007, situated at San Jose, Pili, Camarines
Sur, bounded on the N., by Lots 509 and 508, Binasagan River; on the E., by Lots 523, 521 and 520;
on the S., by Lot 522; and on the W., by Phil. Natl. Railways; containing an area of ONE HUNDRED
FIVE THOUSAND TWO HUNDRED TWELVE (105,212) SQUARE METERS, more or less, declared
under A.R.P. No. 016 939 and assessed at 524,220.00."

ORIGINAL CERTIFICATE OF TITLE NO. 657


"A parcel of land denominated as Lot 1, Plan Cen-05-000007, situated at San Jose, Pili, Camarines
Sur, bounded on the N., by Lots 525, 526, 527; on the E., by Lots 528-A, 529, 530, 531, 532 and
Natl. Road; on the S., by Lots 533 and 522 pt.; and on the W., by Lots 521, 523; containing an area
of FIFTY SIX THOUSAND SIX HUNDRED FIFTY TWO (56,652) SQUARE METERS, more or less,
declared under A.R.P. No. 016 993 and assessed at 292,090.00"

TRANSFER CERTIFICATE OF TITLE NO. 16841

"A parcel of land denominated as Lots 1 and 2, Plan II-10759, situated at Manapao, Minalabac,
Camarines Sur, bounded on the N., by Lots 3061, 3059, 4119, 3178, 3185, 3186, 3187, 3188,
Borabodan Creek, 4350, 4401; and on the W., by Lots 4380, 3030, 3057. 3286, 3053, 3056;
containing an area of TWO MILLION NINE HUNDRED TWENTY TWO THOUSAND FIFTY NINE
(2,922,059) SQUARE METERS, more or less, declared under A.R.P. No. 014 0372 and assessed at
888,200.00."

TRANSFER CERTIFICATE OF TITLE NO. 16842

"A parcel of land denominated as Lot 443-A of Plan Psu-62335, situated at Manapao, Minalaban,
Camarines Sur (San Jose, Pili, Cam. Sur); bounded on the NE., by Shannon Richmond and Eugenio
Dato; on the E., by Eugenio Dato; on the S., by Eugenio Dato and Creek; and on the SW and NW.,
by Shannon Richmond; containing an area of TWO HUNDRED FORTY THOUSAND SEVEN
HUNDRED SIX (240,706) SQUARE METERS, more or less, declared under A.R.P. No. 014 245 and
assessed at 146,830.00."3

Alicia left behind her 2/21 shares in the afore-described 13 parcels of land.

In answer to the private respondents Complaint, Cesar enumerated Alicias several other properties
and assets which he also wanted included in the action for partition, to wit:

1. 1/8 share in the parcel of land covered by TCT No. 10947 located at Poblacion, San Juan,
Batangas, containing an area of 4,827 square meters, more or less;

2. 1/8 share in the parcel of land with improvements thereon (cockpit arena) located in
Poblacion, San Juan, Batangas covered by TCT No. 0-3255;

3. A parcel of commercial land under property Index No. 024-21-001-25-005 situated in


Poblacion, San Juan Batangas containing an area of 540 square meters, more or less;

4. A parcel of land situated in Yabo, Sipocot, Camarines Sur containing an area of 2,000
hectares and covered by Tax Declaration No. 7546;

5. A parcel of land located at Brgy. Yabo, Sipocot, Camarines Sur with an area of 21,000
square meters, more or less, covered by Tax Declaration No. 6622;

6. A parcel of land located at Brgy. Yabo, Sipocot, Camarines Sur with an area of 2,6750
hectares under Tax Declaration No. 5352;

7. A parcel of land located at Barrio Yabo, Sipocot, Camarines Sur with an area of 2,3750
hectares and covered by Tax Declaration No. 3653, and

8. Shares of Stock in Bolbok Rural Bank, Inc., a family owned rural bank consisting of 3,230
shares at 100.00 per share.4

Cesars request for inclusion was contested by private respondents on the ground that the properties
he enumerated had already been previously partitioned and distributed to the appropriate parties.5

On 4 February 2000, the RTC decided in favor of private respondents and issued an Order of
Partition of the Estate of Alicia Marasigan, decreeing that:

As regards to [sic] the real properties located in Hacienda Sta. Rita in the municipalities of Pili and
Minilabac, Camarines Sur as described in par. 3 of the complaint, the actual area representing the
2/21 pro-indiviso share having been determined consisting of 422,422.65 sq. meters, more or less
(Exhibit 0-2) therefore, the share of each heir of the late Alicia Marasigan is 1/7 or equivalent to
67,496.09 square meters each (Exh. 0-3).

Wherefore, in view of the foregoing, decision is hereby rendered.

1. Ordering the partition of the estate of Alicia Marasigan in Hacienda Sta. Rita located in the
municipalities of Pili and Minalabac, Camarines Sur consisting of 422,422.65 sq. meters
among her surviving brothers and sisters namely: APOLONIO, LILIA, BENITO and CESAR,
all surnamed MARASIGAN who will inherit per capita and her nephews and nieces who are
the children of deceased brothers the children of Francisco Marasigan and children of
Horacio Marasigan who will inherit per stirpes and Octavio Marasigan, Jr., who will inherit by
right of representation of his deceased father, Octavio Marasigan, Sr.

2. Declaring the partition of the San Juan, Batangas properties made by the heirs of Alicia
Marasigan as contained in the minutes of the Board Meeting of the Rural Bank of Bolbok
valid and binding among them.

3. Ordering the partition of the real properties located in San Juan, Batangas as shown and
reflected in Exhibits 1 to 10 inclusive presented by defendant, in the same sharing and
proportion as provided in paragraph one above-cited in this dispositive portion.

4. No pronouncement as to costs.6

As the parties could not agree on how they shall physically partition among themselves Alicias
estate, private respondents filed a Motion to Appoint Commissioners7 following the procedure
outlined in Sections 4, 5, 6 and 7 of Rule 69 of the Rules of Court, citing, among other bases for their
motion:

That unfortunately, the parties could not agree to make the partition among themselves which should
have been submitted for the confirmation of the Honorable Court more so because no physical
division could be had on the 2/21 pro-indiviso shares of the decedent [Alicia] due to different
locations, contours and conditions;

The RTC granted the Motion and appointed Myrna V. Badiong, Assistant Provincial Assessor of
Camarines Sur, as Chairman of the Board of Commissioners.8 Private respondents nominated
Sandie B. Dacara as the second commissioner. Cesar failed to nominate a third commissioner
despite due notice. Upon lapse of the period given, only two commissioners were appointed.

On 26 October 2000, the two Commissioners conducted an ocular inspection of Hacienda Sta. Rita,
together with the Local Assessment Operations Officer IV of the Provincial Assessors Office, the
Barangay Agrarian Reform Committee (BARC) Chairman, and the Marasigans caretaker. However,
Cesar contended that he did not receive any notice from the Commissioners to attend the ocular
inspection and he was, thus, not present on said occasion.

The Commissioners Report9 was released on 17 November 2000 stating the following findings and
recommendations:

The undersigned Commissioners admit the 472,472.65 (47.2472.65) square meters representing the
2/21 pro-indiviso share of the deceased Alicia Marasigan and the 1/7 share of each of the heirs of
Alicia N. Marasigan equivalent to 67,496.09 square meters or 6.7496.09 hectares determined by
Geodetic Engineer Roberto R. Revilla in his Compliance with the Order of the Honorable Court
dated November 18, 1998.

Considering that the physical division of the 2/21 pro-indiviso share of the decedent, Alicia
Marasigan cannot be done because of the different locations and conditions of the properties,
undersigned Commissioners hereby recommend that the heirs may assign their 1/7 share to one of
the parties willing to buy the same (Sec. 5, Rule 69 of the Rules of Court) provided he pays to the
heir[s] willing to assign his/her 1/7 share such amounts the Commissioners have recommended and
duly approved by the Honorable Court.

In consideration of such findings and after a careful and thorough deliberations by the undersigned
on the subject matter, considering the subject properties classification and actual predominant use,
desirability and demand and together with the benefits that may be derived therefrom by the
landowners, we have decided to recommend as it is hereby recommended that the price of the 1/7
share of each of the heir[s] is 700,000.00 per hectare, thus:

700,000.00 x 6.7496.09 hectares = P4,724,726.30 or in words:

FOUR MILLION SEVEN HUNDRED TWENTY FOUR THOUSAND SEVEN HUNDRED


TWENTY SIX AND 30/100 PESOS FOR THE 1/7 SHARE (6.7496.09 HECTARES) OF
EACH OF THE HEIRS.10

Cesar opposed the foregoing findings and prayed for the disapproval of the Commissioners Report.
In his Comment/Opposition to the Commissioners Report, he maintained that:

He does not expect that he would be forced, to buy his co-owners share or to sell his share instead.
Had he known that it would be the recourse he would have appealed the judgment [with petitioners
referring to the RTC Order of Partition]. But the findings of facts in the Decision as well [as]
dispositive do not show that any valid grounds for exception to partition is even present in the instant
case.11

Cesar alleged that the estate is not indivisible just because of the different locations and conditions
of the parcels of land constituting the same. Section 5, Rule 69 of the Rules of Court can only be
availed of if the partition or division of the real properties involved would be prejudicial to the interest
of any of the parties. He asserted that despite the segregation of his share, the remaining parcels of
land would still be serviceable for the planting of rice, corn, and sugarcane, thus evidencing that no
prejudice would be caused to the interests of his co-heirs.

Countering Cesars arguments, private respondents contended that physical division is impossible
because Alicias estate is equivalent to 2/21 shares in Hacienda Sta. Rita, which is composed of 13
parcels under different titles and tax declarations, situated in different barangays and municipalities,
and covers an area of 496 hectares.

After a serious consideration of the matters raised by the parties, the RTC issued an Order dated 22
June 2001 approving in toto the recommendations embodied in the Commissioners Report,
particularly, the recommendation that the property be assigned to one of the heirs at 700,000.00
per hectare or a total amount of 4,724,726.00,12after finding the same to be in accordance with the
Rules of Court and the New Civil Code. Pertinent portions of the Order are reproduced below:

WHEREFORE, in view of all the foregoing, the Commissioners Report dated November 17, 2000 is
hereby approved in toto, more specifically its recommendation to assign the property to any one of
the heirs interested at the price of 700,000.00 per hectare or in the total amount of 4,724,726.00
per share.

Regarding the properties of deceased Alicia Marasigan located at San Juan, Batangas, the herein
Commissioners, Mrs. Myrna V. Badiong and Engr. Sandie B. Dacara are hereby directed to proceed
with utmost dispatch to San Juan, Batangas and inspect said properties (Exhibits 1 to 10 inclusive)
and thereafter to submit a Supplemental Report as to its partition or other disposition with notice to
all parties and their counsels all at the expense of the estate, within a period of thirty (30) days from
receipt hereof.

Dissatisfied, Cesar filed a Motion for Reconsideration,13 which was denied by the RTC for lack of
merit.14

In the meantime, Cesar died on 25 October 2001. He was substituted by his heirs and herein
petitioners, namely, Luz Regina, Cesar, Jr., Benito, Santiago, Renato, Jose, Geraldo, Orlando,
Peter, Paul, Mauricio, Rommel, Michael, Gabriel, and Maria Luz, all surnamed Marasigan.

Upon the denial by the RTC of Cesars Motion for Reconsideration, petitioners elevated their case to
the Court of Appeals via a Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court,
docketed as Special Civil Action No. 67529.15 They claimed that the RTC judge acted with grave
abuse of discretion amounting to lack or excess of jurisdiction in approving the Commissioners
Report although the facts would clearly indicate the following:

(a) The procedure taken by the Commissioners violated the procedure for partition provided
in Section 4, Rule 69 of the 1997 Rules of Procedure because there was no notice sent to
them for the viewing and examination of the properties of the estate; neither were they heard
as to their preference in the portion of the estate, thus depriving them of due process;

(b) The ground used by the Commissioners resulting in their recommendation to assign the
property is not one of those grounds provided under the Rules

(c) Article 492 of the New Civil Code is inapplicable

(d) Assignment of the real properties to one of the parties will not end the co-ownership.

Moreover, petitioners accused the RTC of committing grave abuse of discretion in solely relying on
the testimony of Apolonio to the effect that physical division is impractical because, while other
portions of the land are suitable for agriculture, the others are not, citing the different contours of the
land and unavailability of water supply in some parts.

The Court of Appeals dismissed petitioners Petition for Certiorari and Prohibition in a
Decision16 promulgated on 31 July 2002, and ruled that the RTC acted within its authority in issuing
the Order of 22 June 2001. The Court of Appeals found that petitioners failed to discharge the
burden of proving that the proceedings before the Board of Commissioners were unfair and
prejudicial. It likewise found that the petitioners were not denied due process considering that they
were afforded the opportunity to be heard during the hearing for approval of the Commissioners
Report on 18 January 2001. According to the appellate court, whether or not the physical division of
the estate will cause prejudice to the interests of the parties is an issue addressed to the discretion
of the Commissioners. It further held that it would be absurd to believe that the prejudice referred to
in Section 5, Rule 69 of the Rules of Court does not embrace physical impossibility and
impracticality. It concurred in the finding of the RTC that:

It is not difficult to believe that a physical partition/division of the 2/21 pro-indiviso shares of the
decedent Alicia Marasigan contained in and spread throughout thirteen (13) parcels of the Hacienda
Sta. Rita with a total area of 946 (sic) hectares would be quite impossible if totally impractical. The
said parcels are of different measurements in terms of areas and shapes located in different
barrages of the Municipalities of Pili and Minalabac, Camarines Sur.17

The Court of Appeals also noted that whether or not the RTC correctly applied Section 5, Rule 69 of
the Rules of Court and Article 492 of the New Civil Code, would involve an error of judgment, which
cannot be reviewed on certiorari. Finally, the Court of Appeals found unmeritorious petitioners
argument that the assignment of the estate to one of the parties does not end the co-ownership,
considering that it questions the 4 February 200018 Decision of the RTC which had already become
final and executory.

Petitioners filed a Motion for Reconsideration19 of the foregoing Decision but the same was denied
by the Court of Appeals in a Resolution dated 13 November 2002. Still aggrieved, petitioners filed on
31 December 2002 this Petition for Review under Rule 45 of the Revised Rules of Court, docketed
as G.R. No. 156078.

Pending resolution of the instant Petition by this Court, the RTC granted private respondents Urgent
Motion for Execution on 26 December 2002. The RTC ordered the sale of petitioners 1/7 pro-
indiviso share in Alicias estate upon the urgent motion of private respondents dated 27 September
2002 for the partial execution of the judgment of the Court approving the Commissioners report
pending certiorari.20

Petitioners share in Alicias estate was sold in a public auction on 26 February 2003.21 Based on the
Commissioners Report on the Auction Sale, there were two bidders, Apolonio Marasigan and
Amado Lazaro. Apolonio, with a bid of 701,000.00 per hectare, won over Amado Lazaro, whose
bid was 700,000.00 per hectare. Petitioners 1/7 share as Cesars heirs in Alicias estate was sold
in the public auction for 3,777,689.00.

This amount is lower than the 4,724,726.30 price of the 1/7 share in Alicias estate as earlier
determined by the Commissioners due allegedly to the acquisition by the Department of Agrarian
Reform (DAR) of a portion of Hacienda Sta. Rita located in Minilabac, Camarines Sur which was
placed under Republic Act No. 6657, or the Comprehensive Agrarian Reform Law, with 100.00
hectares thereof compulsorily acquired.
On 24 March 2003, petitioners filed with the RTC a Motion to Declare Failure of Bidding and to Annul
Public Auction Sale.

On 5 May 2003, however, the RTC released an Omnibus Order22 ruling, among other things, that the
objection of petitioners as to the difference of the value of their 1/7 share as determined by the
Commissioners vis--vis the winning bid was no longer an issue since Apolonio Marasigan indicated
his willingness to pay for the deficiency.

Following the public auction and sale of their 1/7 share in the property,23 petitioners filed a Notice of
Appeal24 with the RTC on 26 May 2003 indicating that they were appealing the 5 May 2003 Omnibus
Order of the RTC25 to the Court of Appeals. Thereafter, or on 9 June 2003, petitioners filed a Record
on Appeal26 pursuant to Section 3, Rule 41 of the Rules of Court, praying that it be approved and
transmitted to the Court of Appeals.27

On 2 July 2003, the RTC issued an Order denying due course to petitioners Notice of Appeal on the
ground that the proper remedy is not appeal, but certiorari. Petitioners then filed on 27 August 2003
another Petition before the Court of Appeals for Certiorari and Mandamus,28 docketed as CA-G.R.
SP No. 78912, praying that the RTC be directed to approve their Notice of Appeal and Record on
Appeal, and to forward the same to the appellate court.

In a Resolution29 dated 10 October 2003, the Court of Appeals dismissed CA-G.R. SP No. 78912
outright on the ground that the verification and certificate of non-forum shopping of the petition was
signed by only Cesar Marasigan, Jr., without any accompanying document to prove his authority to
sign on behalf of the other petitioners. Petitioners filed a Motion for Reconsideration but it was
denied by the Court of Appeals in a Resolution30 dated 12 July 2004.31

Cesar G. Marasigan, Jr., in a Petition for Certiorari filed with this Court on 4 September 2004 and
docketed as G.R. No. 164970, prayed for the reversal and setting aside of the Court of Appeals
Resolution dated 10 October 2003 dismissing CA-G.R. SP No. 78912, and Resolution dated 12 July
2004 denying the Motion for Reconsideration thereof. This Court, however, issued a Resolution on
13 October 2004 denying the petition for failure of the petitioner to show that the Court of Appeals
committed a reversible error. The same has become final and executory.

Going back to the Petition at bar, petitioners raise before this Court the following assignment of
errors:

I. THE COURT A QUO HAS DECIDED A QUESTION OF SUBSTANCE NOT THEREFORE


DETERMINED BY THE SUPREME COURT IN FINDING THAT THERE IS NO NEED FOR DUE
NOTICE TO THE PARTIES TO ATTEND THE VIEWING AND EXAMINATION OF THE REAL
ESTATE SUBJECT OF PARTITION WHEN THE COMMISSIONERS HAVE DECIDED NOT TO
PARTITION THE PROPERTY AND SUCH NOTICE UNDER SECTION 4 OF RULE 69 IS
INDISPENSABLE ONLY WHEN THEIR DECISION IS TO PARTITION.

II. THE DECISION OF THE COURT OF APPEALS IS NOT IN ACCORDANCE WITH LAW
PARTICULARLY WITH ARTICLES 494 AND 495 OF THE NEW CIVIL CODE AND SECTIONS 5
RULE 69 OF THE RULES.

III. THAT THE FINDINGS OF THE COURT OF APPEALS OF PHYSICAL IMPOSSIBILITY AND
IMPRACTICALITY IF EMBRACED IN PREJUDICE REFERRED IN SECTION 5, RULE 69 OF THE
RULES SHALL MAKE SAID RULE VIOLATIVE OF THE CONSTITUTIONAL LIMITATIONS ON THE
RULE MAKING POWER OF THE SUPREME COURT THAT ITS RULES SHALL NOT INCREASE,
DECREASE OR MODIFY SUBSTANTIVE RIGHTS.32

In their Memorandum, however, petitioners submitted for resolution the following issues.

I. RESPONDENTS HAVE NO CAUSE OF ACTION FOR PARTITION BECAUSE THE SUBJECT


MATTER OF THE CASE CONSISTS OF UNDIVIDED SHARES WHICH CANNOT BE
PARTITIONED.

II. THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO PARTITION UNDIVIDED OR


UNIDENTIFIED LAND AND HAS NOT ACQUIRED JURISDICTION OVER 496 HECTARES OF
UNDIVIDED LAND WHICH SHOULD BE THE PROPER SUBJECT OF PARTITION.
III. THE JUDGMENT OF PARTITION AND ALL SUBSEQUENT PROCEEDINGS ARE NULL AND
VOID AB INITIO, INCLUDING THE PUBLIC AUCTION SALE OF PETITIONERS SHARES WHICH
HAD NOT RENDERED THIS PETITION MOOT.

IV. EVEN ASSUMING ARGUENDO THAT LACK OF CAUSE OF ACTION AND LACK OF
JURISDICTION, AS DISCUSSED, CAN BE IGNORED, THE PROCEEDINGS BELOW ARE
TAINTED WITH SERIOUS IRREGULARITIES THAT CALL FOR THE EXERCISE OF THE
SUPERVISORY POWERS OF THIS HONORABLE COURT.

V. CERTIORARI AS A SPECIAL CIVIL ACTION UNDER RULE 65 AND APPEAL BY CERTIORARI


UNDER RULE 45, BOTH OF THE 1997 RULES OF CIVIL PROCEDURE, WERE EMPLOYED AS
PROPER REMEDIES IN THIS CASE.33

This Court significantly notes that the first three issues,34 alleging lack of jurisdiction and cause of
action, are raised by petitioners for the first time in their Memorandum. No amount of interpretation
or argumentation can place them within the scope of the assignment of errors they raised in their
Petition.

The parties were duly informed by the Court in its Resolution dated 17 September 2003 that no new
issues may be raised by a party in his/its Memorandum and the issues raised in his/its pleadings but
not included in the Memorandum shall be deemed waived or abandoned. The raising of additional
issues in a memorandum before the Supreme Court is irregular, because said memorandum is
supposed to be in support merely of the position taken by the party concerned in his petition, and the
raising of new issues amounts to the filing of a petition beyond the reglementary period.35 The
purpose of this rule is to provide all parties to a case a fair opportunity to be heard. No new points of
law, theories, issues or arguments may be raised by a party in the Memorandum for the reason that
to permit these would be offensive to the basic rules of fair play, justice and due process.36

Petitioners failed to heed the Courts prohibition on the raising of new issues in the Memorandum.

Moreover, Section 1 of Rule 9 of the Rules of Court provides that:

SECTION 1. Defenses and objections not pleaded. Defenses and objections not pleaded either in
a motion to dismiss or in the answer are deemed waived. However, when it appears from the
pleadings or the evidence on record that the court has not jurisdiction over the subject matter, that
there is another action pending between the same parties for the same cause, or that the action is
barred by a prior judgment or by statute of limitations, the court shall dismiss the claim.

First, it bears to point out that Cesar, petitioners predecessor, did not file any motion to dismiss, and
his answer before the RTC did not bear the defenses/objections of lack of jurisdiction or cause of
action on these grounds; consequently, these must be considered waived. The exception that the
court may still dismiss a case for lack of jurisdiction over the subject matter, although the same is not
pleaded, but is apparent in the pleadings or evidence on record, does not find application to the
present Petition. Second, petitioners arguments37 on the lack of jurisdiction of the RTC over the case
more appropriately pertain to venue, rather than jurisdiction over the subject matter, and are,
moreover, not apparent from the pleadings and evidence on record. Third, the property subject of
partition is only the 47.2 hectare pro-indiviso area representing the estate of Alicia. It does not
include the entire 496 hectares of land comprising Hacienda Sta. Rita.

Even petitioners argument that non-payment of appropriate docket fees by private respondents
deprived the RTC of jurisdiction to partition the entire Hacienda Sta. Rita38 deserves scant
consideration. In National Steel Corporation v. Court of Appeals,39 the Court ruled:

x x x while the lack of jurisdiction of a court may be raised at any stage of an action, nevertheless,
the party raising such question may be estopped if he has actively taken part in the very proceedings
which he questions and he only objects to the courts jurisdiction because the judgment or the order
subsequently rendered is adverse to him.

Irrefragably, petitioners raised the issues of jurisdiction for lack of payment of appropriate docket
fees and lack of cause of action belatedly in their Memorandum before this Court. Cesar and
petitioners were noticeably mum about these in the proceedings before. In fact, Cesar actively
participated in the proceedings conducted before the RTC by seeking affirmative reliefs therefrom,
such as the inclusion of more properties in the partition. Hence, petitioners are already estopped
from assailing the jurisdiction of the RTC on this ground.

It is conceded that this Court adheres to the policy that "where the court itself clearly has no
jurisdiction over the subject matter or the nature of the action, the invocation of this defense may de
done at any time."40 While it is the general rule that neither waiver nor estoppel shall apply to confer
jurisdiction upon a court, the Court may rule otherwise under meritorious and exceptional
circumstances. One such exception is Tijam v. Sibonghanoy,41 which finds application in this case.
This Court held in Tijam that "after voluntarily submitting a cause and encountering an adverse
decision on the merits, it is too late for the loser to question the jurisdiction or power of the court."

This Court further notes that while petitioners filed their last pleading in this case, their
Memorandum, on 26 December 2003, they failed to mention therein that the Court of Appeals had
already dismissed CA-G.R. SP No. 78912.42 To recall, CA-G.R. No. 78912 is a Petition for Certiorari
and Mandamus involving the RTC Order dated 2 July 2003, which denied petitioners Notice of
Appeal. Petitioners intended to appeal the RTC Omnibus Order dated 5 May 2003 sustaining the
public auction and sale of petitioners share in Alicias estate. Petitioners failure to provide this Court
with information on the developments in CA-G.R. SP No. 78912 is not only in violation of the rules
on non-forum shopping, but is also grossly misleading, because they are raising in their
Memorandum in the present case the same issues concerning the public auction and sale of their
share in Alicias estate. The purpose of the rule against forum shopping is to promote and facilitate
the orderly administration of justice.

Forum shopping "occurs when a party attempts to have his action tried in a particular court or
jurisdiction where he feels he will receive the most favorable judgment or verdict." In our jurisdiction,
it has taken the form of filing multiple petitions or complaints involving the same issues before two or
more tribunals or agencies in the hope that one or the other court would make a favorable
disposition. There is also forum shopping when, because of an adverse decision in one forum, a
party seeks a favorable opinion (other than by appeal or certiorari) in another. The rationale against
forum shopping is that a party should not be allowed to pursue simultaneous remedies in two
different fora. Filing multiple petitions or complaints constitutes abuse of court processes, which
tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and
adds to the congestion of the heavily burdened dockets of the courts. Thus, the rule proscribing
forum shopping seeks to promote candor and transparency among lawyers and their clients in the
pursuit of their cases before the courts to promote the orderly administration of justice, prevent
undue inconvenience upon the other party, and save the precious time of the courts. It also aims to
prevent the embarrassing situation of two or more courts or agencies rendering conflicting
resolutions or decisions upon the same issue.43

Petitioners have indeed managed to muddle the issues in the instant case by raising issues for the
first time in their Memorandum, as well as including issues that were already pending before another
tribunal and have eventually been decided with finality, for which reason petitioners are herein
admonished by this Court.

The Court, nonetheless, manages to strip the issues in this Petition down to the singular issue of
whether or not the Court of Appeals erred in affirming in toto the RTC Order adopting the
Commissioners recommendation on the manner of partition of the estate of Alicia Marasigan.

After an exhaustive study of the merits of the case and the pleadings submitted by the parties, this
Court is convinced that the Court of Appeals did not err in affirming the Order of the RTC which
approved the Commissioners recommendations as to the manner of implementing the Order of
Partition of Alicias estate. There is no reason to reverse the Court of Appeals dismissal of
petitioners Petition for Certiorari and Prohibition and ruling that the RTC acted well-within its
jurisdiction in issuing the assailed Order. Nowhere is it shown that the RTC committed such patent,
gross and prejudicial errors of law or fact, or a capricious disregard of settled law and jurisprudence,
as to amount to a grave abuse of discretion or lack of jurisdiction on its part, in adopting and
confirming the recommendations submitted by the Commissioners, and which would have warranted
the issuance of a writ of certiorari.

This petition originated from an original action for partition. It is governed by Rule 69 of the Rules of
Court, and can be availed of under the following circumstances:

Section 1. Complaint in action for partition of real estate. A person having the right to compel the
partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature
and extent of his title and an adequate description of the real estate of which partition is demanded
and joining as defendants all other persons interested in the property.

In this jurisdiction, an action for partition is comprised of two phases: first, the trial court, after
determining that a co-ownership in fact exists and that partition is proper, issues an order for
partition; and, second, the trial court promulgates a decision confirming the sketch and subdivision of
the properties submitted by the parties (if the parties reach an agreement) or by the appointed
commissioners (if the parties fail to agree), as the case may be.44

The delineations of these two phases have already been thoroughly discussed by this Court in
several cases where it explained:

The first phase of a partition and/or accounting suit is taken up with the determination of whether or
not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by
voluntary agreement of all the parties interested in the property. This phase may end with a
declaration that plaintiff is not entitled to have a partition either because a co-ownership does not
exist, or partition is legally prohibited. It may end, upon the other hand, with an adjudgment that a co-
ownership does in truth exist, partition is proper in the premises and an accounting of rents and
profits received by the defendant from the real estate in question is in order. In the latter case, the
parties may, if they are able to agree, make partition among themselves by proper instruments of
conveyance, and the court shall confirm the partition so agreed upon. In either case i.e., either the
action is dismissed or partition and/or accounting is decreed the order is a final one, and may be
appealed by any party aggrieved thereby.

The second phase commences when it appears that "the parties are unable to agree upon the
partition" directed by the court. In that event, partition shall be done for the parties by the court with
the assistance of not more than three (3) commissioners. This second stage may well also deal with
the rendition of the accounting itself and its approval by the court after the parties have been
accorded opportunity to be heard thereon, and an award for the recovery by the party or parties
thereto entitled of their just share in the rents and profits of the real estate in question. Such an order
is, to be sure, final and appealable.45

Trouble arose in the instant petition in the second phase.

Petitioners postulate that the Court of Appeals erred in holding that notice to the heirs regarding the
examination and viewing of the estate is no longer necessary given the circumstances. They aver
that, in effect, the Court of Appeals was saying that such notice is only necessary when the
Commissioners actually distribute the properties, but is not mandatory when the Commissioners
recommend the assignment of the properties to any of the heirs. Petitioners contend that this is
prejudicial to their right to due process since they are deprived of the opportunity to be heard on the
valuation of their share in the estate.

Petitioners opposition is anchored on Section 4 of Rule 69 of the Rules of Court, which reads:

Section 4. Oath and duties of commissioners. Before making such partition, the commissioners shall
take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath
shall be filed in court with the other proceedings in the case. In making the partition, the
commissioners shall view and examine the real estate, after due notice to the parties to attend at
such view and examination, and shall hear the parties as to their preference in the portion of the
property to be set apart to them and the comparative value thereof, and shall set apart the same to
the parties in lots or parcels as will be most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts thereof.

Petitioners insist that the above provision is explicit and does not allow any qualification, contending
that it does not require that the lack of notice must first be proven to have caused prejudice to the
interest of a party before the latter may object to the Commissioners viewing and examination of the
real properties on the basis thereof. They maintain that they were prejudiced by the mere lack of
notice.

We, on the other hand, find that the scales of justice have remained equal throughout the
proceedings before the RTC and the Commissioners. This Court, in the performance of its
constitutionally mandated duty to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government, is duty-bound to ensure that due process is afforded to all the parties to a case.

As the Court of Appeals declared, due process is not a mantra, the mere invocation of which shall
warrant a reversal of a decision. Well-settled is the rule that the essence of due process is the
opportunity to be heard. In Legarda v. Court of Appeals,46 the Court held that as long as parties to a
case were given the opportunity to defend their interest in due course, they cannot be said to have
been denied due process of the law. Neither do the records show any indicia that the preference of
petitioners for the physical subdivision of the property was not taken into consideration by the
Commissioners.

Petitioners persistent assertion that their rights were prejudiced by the lack of notice is not enough.
Blacks Law Dictionary defines the word prejudice as damage or detriment to ones legal rights or
claims. Prejudice means injury or damage.47 No competent proof was adduced by petitioners to
prove their allegation. Mere allegations cannot be the basis of a finding of prejudice. He who alleges
a fact has the burden of proving it and a mere allegation is not evidence.48

It should not be forgotten that the purpose of the rules of procedure is to secure for the parties a just,
speedy and inexpensive determination of every action or proceeding. 49 The ultimate purpose of the
rules of procedure is to attain, not defeat, substantial justice.50

Records reveal that the parties were given sufficient opportunity to raise their concerns. From the
time the action for partition was filed by private respondents, all the parties, including the late Cesar,
petitioners predecessor, were given a fair opportunity to be heard. Since the parties were unable to
agree on how the properties shall be divided, Commissioners were appointed by the Court pursuant
to Section 3 of Rule 69 of the Rules of Court.

Section 3. Commissioners to make partition when parties fail to agree. - If the parties are unable to
agree upon the partition, the court shall appoint not more than three (3) competent and disinterested
persons as commissioners to make the partition, commanding them to set off to the plaintiff and to
each party in interest such part and proportion of the property as the court shall direct.

While the lack of notice to Cesar of the viewing and examination by the Commissioners of the real
properties comprising Alicias estate is a procedural infirmity, it did not violate any of his substantive
rights nor did it deprive him of due process. It is a matter of record, and petitioners cannot deny, that
Cesar was able to file his Comment/Opposition to the Commissioners Report. And after the RTC
adopted and confirmed the Commissioners recommendations in its Order dated 22 June 2001,
Cesar was able to file a Motion for Reconsideration of the said Order. He had sufficient opportunity
to present before the RTC whatever objections or oppositions he may have had to the
Commissioners Report, including the valuation of his share in Alicias estate.

Petitioners also allege that the ruling of the Court of Appeals -- that physical impossibility and
impracticality are embraced by the word "prejudice," referred to in Section 5 of Rule 69 of the Rules
of Court -- violates the constitutional limitation on the rule-making power of the Supreme Court,
according to which, the Rules of Court shall not increase, decrease or modify substantive rights.

According to petitioners, Section 5 of Rule 69 of the Rules of Court, which provides:

Section 5. Assignment or sale of real estate by commissioners. - When it is made to appear to the
commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the
interests of the parties, the court may order it assigned to one of the parties willing to take the same,
provided he pays to the other parties such amounts as the commissioners deem equitable, unless
one of the interested parties asks that the property be sold instead of being so assigned, in which
case the court shall order the commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine.

should be read in conjunction with Articles 494 and 495 of the New Civil which provide for the
following substantive rights:

Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may
demand at any time the partition of the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-ownership.

Article 495. Notwithstanding the provisions of the preceding article, the co-owners cannot demand a
physical division of the thing owned in common, when to do so would render unserviceable for the
use for which it is intended. But the co-ownership may be terminated in accordance with Article 498.

Article 498 of the New Civil Code, referred to by Article 495 of the same Code, states:

Article 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that it be
allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed.

Evidently, the afore-quoted Civil Code provisions and the Rules of Court must be interpreted so as to
give effect to the very purpose thereof, which is to put to an end to co-ownership in a manner most
beneficial and fair to all the co-owners.

As to whether a particular property may be divided without prejudice to the interests of the parties is
a question of fact. To answer it, the court must take into consideration the type, condition, location,
and use of the subject property. In appropriate cases such as the one at bar, the court may delegate
the determination of the same to the Commissioners.

The Commissioners found, after a viewing and examination of Alicias estate, that the same cannot
be divided without causing prejudice to the interests of the parties. This finding is further supported
by the testimony of Apolonio Marasigan that the estate cannot be divided into smaller portions, since
only certain portions of the land are suitable to agriculture, while others are not, due to the contours
of the land and unavailability of water supply.

The impracticality of physically dividing Alicias estate becomes more apparent, considering that
Hacienda Sta. Rita is composed of parcels and snippets of land located in two different
municipalities, Pili and Minalabac, Camarines Sur. The actual area representing Alicias 2/21 pro-
indiviso shares in Hacienda Sta. Rita is 422,422.65 square meters, more or less. Each of Alicias
heirs is entitled to 1/7 share in her estate equivalent to 67,496.09 square meters or roughly seven
hectares.51 Cesar and his heirs are entitled only to his 1/7 share in the yet unidentified, unsegregated
2/21 pro-indiviso shares of Alicia in each of the 13 parcels of land that comprises Hacienda Sta. Rita.
Dividing the parcels of land even further, each portion allotted to Alicias heirs, with a significantly
reduced land area and widely scattered in two municipalities, would irrefragably diminish the value
and use of each portion, as compared to keeping the entire estate intact. 1avv phi 1

The correctness of the finding of the RTC and the Commissioners that dividing Alicias estate would
be prejudicial to the parties cannot be passed upon by the Court of Appeals in a petition for
certiorari. Factual questions are not within the province of a petition for certiorari. There is a question
of fact when the doubt arises as to the truth or falsity of the alleged facts. As to whether the court a
quo decided the question wrongly is immaterial in a petition for certiorari. It is a legal presumption
that findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent
any strong and cogent reason to the contrary, since it is in a better position to decide the question of
credibility of witnesses.52

The writ of certiorari issues for the correction of errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. The writ of certiorari cannot be legally used for
any other purpose.53 At most, the petition pertains to an error of judgment, and not of jurisdiction, for
clearly under Section 5 of Rule 69, the question of whether a partys interest shall be prejudiced by
the division of the real property is left to the determination and discretion of the Commissioners.

Hence, it is totally unnecessary for this Court to address the issue raised by petitioners concerning
the alleged unconstitutionality of Section 5, Rule 69 of the Rules of Court for having been issued
beyond the constitutional limitation on the rule-making power of this Court. Basic is the principle that
a constitutional issue may only be passed upon if essential to the decision of a case or
controversy.54 A purported constitutional issue raised by petitioners may only be resolved if essential
to the decision of a case and controversy. Even if all the requisites for judicial review are present,
this Court will not entertain a constitutional question unless it is the very lis mota55 of the case or if
the case can be disposed of on some other grounds, such as the application of a statute or general
law. The present problem of partition by co-heirs/co-owners can be resolved without elevating their
case to one of constitutionality.

In the absence of evidence to the contrary, this Court can only presume that the proceedings in
Special Civil Action No. P-77-97 before the RTC, including the recommendation made by the
Commissioners, were fairly and regularly conducted, meaning that both the RTC and the appointed
Commissioners had carefully reviewed, studied, and weighed the claims of all the parties. lavvphil

Petitioners argument that the assignment of the property will not terminate the co-ownership is
specious, considering that partition, in general, is the separation, division, and ASSIGNMENT of a
thing held in common by those to whom it may belong.56

Inasmuch as the parties continued to manifest their desire to terminate their co-ownership, but the
co-heirs/co-owners could not agree on which properties would be allotted to each of them, this Court
finds that the Court of Appeals was correct in ruling that the RTC did not act with grave abuse of
discretion amounting to lack or excess of jurisdiction when it approved the Commissioners
recommendation that the co-heirs/co-owners assign their shares to one of them in exchange for
proper compensation.

This Court has consistently held that one of the purposes for which courts are organized is to put an
end to controversy in the determination of the respective rights of the contending parties. With the
full knowledge that courts are not infallible, the litigants submit their respective claims for judgment,
and they have a right at some time or another to have final judgment on which they can rely over a
final disposition of the issue or issues submitted, and to know that there is an end to the
litigation;57 otherwise, there would be no end to legal processes.58

Finally, petitioners raise before this Court the issue that the public auction sale of their shares is null
and void; at the same time they allege deficiency in the bid price for their 1/7 share in Alicias estate
vis--vis the valuation of the same by the Commissioners. 59 This Court is already barred from ruling
on the validity of the public auction sale. This Courts ruling dated 13 October 2004 in G.R. No.
164970 denying their petition for certiorari lays to rest petitioners questioning of the Court of
Appeals Resolution dismissing their appeal therein of the issue of the validity of the public sale of
their share in Alicias estate. Such decision or order can no longer be disturbed or reopened no
matter how erroneous it may have been.60

Indeed, while it is understandable for petitioners to protect their rights to their portions of the estate,
the correlative rights of the other co-owners/co-heirs must also be taken into consideration to
balance the scales of justice. And, by finding the course of action, within the boundaries of law and
jurisprudence, that is most beneficial and equitable for all of the parties, the courts duty has been
satisfactorily fulfilled.

Thus, contrary to petitioners averments, this Court finds that the Court of Appeals did not err in
ruling that the RTC did not commit grave abuse of discretion amounting to lack or excess of
jurisdiction in adopting and confirming the recommendations of the Commissioners.

WHEREFORE, premises considered, the Petition for Review on Certiorari is hereby DENIED for lack
of merit, and the assailed Decision dated 31 July 2002 of the Court of Appeals in docket no. CA-G.R.
SP No. 67529 is hereby AFFIRMED. Costs against petitioners.

SO ORDERED.
FIRST DIVISION

G.R. No. 196403, December 07, 2016

ARSENIO TABASONDRA, FERNANDO TABASONDRA, CORNELIO TABASONDRA, JR., MIRASOL


TABASONDRA-MARIANO, FAUSTA TABASONDRA-TAPACIO, GUILLERMO TABASONDRA, MYRASOL
TABASONDRA-ROMERO, AND MARLENE TABASONDRA-MANIQUIL, Petitioners, v.SPOUSES
CONRADO CONSTANTINO AND TARCILA TABASONDRA-CONSTANTINO,* PACITA ARELLANO-
TABASONDRA AND HEIRS OF SEBASTIAN TABASONDRA, Respondents.

DECISION

BERSAMIN, J.:

This case for partition and accounting concerns a property owned in common, and focuses on the right of
two of the co-owners to alienate their shares before the actual division of the property. chanrob lesvi rtua llawlib ra ry

The Case

Under appeal is the adverse decision promulgated on November 30, 20101 whereby the Court of Appeals
(CA) modified the judgment rendered on September 22, 2008 by the Regional Trial Court (RTC), Branch 64,
in Tarlac City ordering the partition of all the three parcels of land owned in common among the
parties.2 The modification by the CA, which expressly recognized the alienation by the two co-owners of
their shares, consisted in limiting the partition of the property owned in common to only the unsold portion
with an area of 33,450.66 square meters. chanro blesvi rt uallawl ibra ry

Antecedents

The parties herein were the children of the late Cornelio Tabasondra from two marriages. The respondents
Tarcila Tabasondra-Constantino and the late Sebastian Tabasondra were the children of Cornelio by his first
wife, Severina; the petitioners, namely: Arsenio Tabasondra, Fernando Tabasondra, Cornelio Tabasondra,
Jr., Mirasol Tabasondra-Mariano, Fausta Tabasondra-Tapacio, Myrasol Tabasondra-Romero, Marlene
Tabasondra-Maniquil, and Guillermo Tabasondra, were children of Cornelio by his second wife, Sotera.

The CA summarized the undisputed factual findings and procedural antecedents as follows: c hanRoblesv irtual Lawlib rary

Cornelio, Valentina, and Valeriana, all surnamed Tabasondra. were siblings. They were also the registered
owners of the three (3) parcels of land located at Dalayap, Tarlac City, identified as Lot No. 2536, containing
an area of seventy-seven thousand one hundred and forty-seven (77,147) sq. m.; Lot No. 3155, with an
area of thirteen thousand six hundred fifty-nine (13,659) sq. m.; and, Lot No. 3159, with an area of nine
thousand five hundred forty-six (9,546) sq. m., covered by Transfer Certificate of Title (TCT) No. 106012.

xxxx

Cornelio died on March 15, 1991, while Valentina and Valeriana both died single on August 19, 1990 and
August 4, 1998, respectively. They all died intestate and without partitioning the property covered by TCT
No. 106012. Thus, the Plaintiffs-Appellees and the Defendants-Appellants, as descendants of Cornelio,
possessed and occupied the property.

The Controversy:

On August 22, 2002, the Plaintiffs-Appellees filed the complaint below against the Defendants-Appellants. In
essence, they claimed that the parcels of land are owned in common by them and the Defendants-
Appellants but the latter does not give them any share in the fruits thereof. Hence, they asked for partition
but the Defendants-Appellants refused without valid reasons. They maintained that they tried to amicably
settle the dispute before the Lupon, but to no avail. Thus, their filing of the suit praying that the subject land
be partitioned, that new titles be issued in their respective names, that the Defendants-Appellants be
ordered to render an accounting on the fruits thereon, and that such fruits also be partitioned.

In their Answer, the Defendants-Appellants averred that they do not object to a partition provided that the
same should be made only with respect to Cornelio's share. They contended that they already own the
shares of Valentina and Valeriana in the subject land by virtue of the Deed of Absolute Sale that the said
sisters executed in their favor on August 18, 1982. Moreover, they alleged that the Plaintiffs-Appellees are
the ones who should account for the profits of the property because it is the latter who enjoy the fruits
thereof. By way of counterclaim, they, thus, prayed that the Plaintiffs-Appellees be ordered to render an
accounting and to pay for damages.

After the issues were joined and the pre-trial conference was conducted, a full blown trial followed in view of
the parties' failure to settle amicably.

On September 22, 2008, the RTC rendered the assailed disposition, the fallo of which reads: chanRoblesv irtual Lawlib rary

WHEREFORE, on the basis of the foregoing considerations, judgment is hereby rendered in favor of the
plaintiffs, ordering [the] partition of the three (3) parcels of land covered by TCT No. 16012 among the
compulsory and legal heirs of Cornelio, Valentina[,] and Valeriana, all surnamed Tabasondra. Sotero Duenas
Tabasondra shall be entitled to 3,040 square meters while plaintiffs and defendants shall be entitled to
6,690 square meters each.

SO ORDERED.3
chanrobles law

Dissatisfied, the respondents appealed the judgment of the RTC to the CA, assigning the following as the
reversible errors, to wit: chanRo blesvi rtua lLawl ib rary

I.

THE HONORABLE COURT A- [sic] QUO GRAVELY ERRED AND COMMITTED A REVERSIBLE ERROR IN NOT
CONSIDERING AND APPRECIATING THE FACT THAT THE DEED OF ABSOLUTE SALE EXECUTED BY THE
DECEASED VALENTINA TABASONDRA AND VALERIANA TABASONDRA, IN FAVOR OF DEFENDANTS TARCILA
TABASONDRA AND SEBASTIAN TABASONDRA, WAS VALID AND SUBSISTING AT THE TIME THE COURT
CONSIDERED IT TO HAVE NO VALID LEGAL FORCE AND EFFECT[.]

II.

THE HONORABLE COURT A-[sic] QUO GRAVELY ERRED AND COMMITTED A REVERSIBLE ERROR IN
ORDERING FOR THE PARTITION OF THE PROPERTY IN QUESTION WITHOUT ANY LEGAL AND VALID
GROUNDS[.]4
chanrobles law

On November 30, 2010, the CA promulgated the decision under review,5 disposing: cha nRoble svirt ual Lawlib rary

WHEREFORE, the appeal is GRANTED. The assailed disposition is AFFIRMED with MODIFICATION in
that the partition and the accounting is ordered to be made only with respect to a thirty-three thousand four
hundred fifty point sixty-six (33,450.66) sq.m. portion of the property. With costs.

SO ORDERED.6
chanrobles law

The petitioners moved for reconsideration,7 but the CA denied their motion on April 4, 2011.8

Hence, this appeal. chanro blesvi rtua llawli bra ry

Issues

The petitioners submit in support of their appeal: cha nRoblesv irt ual Lawlib rary

1. THAT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
EXCESS OR LACK OF JURISDICTION IN SUMMARILY DISMISSING THE NEW MATTERS OF
SUBSTANCE RAISED IN MOTION FOR RECONSIDERATION

2. THAT THE COURT OF APPEALS IN SUMMARILY DISMISSING MOTION FOR RECONSIDERATION OF


PLAINTIFFS-PETITIONERS RENEGED IN ITS DUTY TO RESOLVE LEGAL AND FACTUAL ISSUES OF
SUBSTANCE IN A WAY NOT PROBABLY IN ACCORD WITH LAW OR APPLICABLE DECISIONS OF THE
SUPREME COURT; ChanRoblesVirt ualawli bra ry

3. THAT THE COURT OF APPEALS DECISION IN DECLARING THE QUESTIONED DEED OF SALE VALID
AND IN SUMMARILY DISMISSING PLAINTIFFS-PETITIONERS['] MOTION FOR RECONSIDERATION
RAISING NEW ARGUMENTS AND MATTERS OF SUBSTANCE NOT RAISED IN THE APPEAL BY
DEFENDANTS-RESPONDENTS, ARE CONTRARY TO LAW, JURISPRUDENCE, ADMISSIONS OF
FACTS/TESTIMONY OF TARCILA TABASONDRA, ONLY WITNESS FOR DEFENDANTS-RESPONDENTS
AND EVIDENCE PRESENTED BY PLAINTIFFS-PETITIONERS AT THE TRIAL; ChanRoblesVirtualawl ibra ry

4. THAT SUCH COURSE OF ACTION TAKEN BY THE COURT OF APPEALS OR DEPARTURE THEREFROM
IN EXERCISING OR FAILING TO EXERCISE ITS POWER OF JUDICIAL REVIEW CERTAINLY CALLS FOR
THE EXERCISE BY THE SUPREME COURT OF ITS POWER OF JUDICIAL REVIEW TO AFFORD
COMPLETE RELIEF TO PARTIES IN THIS CASE AND TO AVOID MULTIPLICITY OF SUITS.9

In other words, did the CA correctly order the partition and accounting with respect to only 33,450.66
square meters of the property registered under TCT No. 10612?

Ruling of the Court

The appeal lacks merit.

There is no question that the total area of the three lots owned in common by Cornelio, Valentina and
Valeriana was 100,352 square meters; and that each of the co-owners had the right to one-third of such
total area.

It was established that Valentina and Valeriana executed the Deed of Absolute Sale,10 whereby they
specifically disposed of their shares in the property registered under TCT No. 10612 in favor of Sebastian
Tabasondra and Tarcila Tabasondra as follows: chanRoble svi rtual Lawli bra ry

NOW, THEREFORE, for and in consideration of the sum of TEN THOUSAND PESOS (10,000.00), Philippine
Currency, to us in hand paid, receipt whereof is hereby acknowledged in full to our entire satisfaction, by
SEBASTIAN TABASONDRA and TARCILA TABASONDRA, married to Pacita Arellano and Conrado Constantino,
respectively, both of legal ages, Filipinos, and residents of Dalayap, Tarlac, Tarlac, we do hereby SELL,
CEDE, TRANSFER and CONVEY, by way of ABSOLUTE SALE, unto the said Sebastian Tabasondra and Tarcila
Tabasondra, their heirs and assigns, all our shares, rights, interests and participations in the above-
described parcel of land free from liens and incumbrances. That we hereby certify that the herein
VENDEES are the actual tillers or tenants of the above-described parcel of land subject matter of this deed
of absolute sale and, as such, have the prior right of pre-emption and redemption, under the Land Reform
Code. (Bold underscoring supplied for emphasis)
chanrobles law

We uphold the right of Valentina and Valeriana to thereby alienate their pro indiviso shares to Sebastian and
Tarcila even without the knowledge or consent of their co-owner Cornelio because the alienation covered the
disposition of only their respective interests in the common property. According to Article 493 of the Civil
Code, each co-owner "shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involved," but "the effect of the alienation or the mortgage,
with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division
upon the termination of the co-ownership." Hence, the petitioners as the successors-in-interest of Cornelio
could not validly assail the alienation by Valentina and Valeriana of their shares in favor of the
respondents.11

Accordingly, the Court declares the following disposition by the CA to be correct and in full accord with law,
to wit: chanRob lesvi rtual Lawl ibra ry

x x x [T]here is no dispute that the subject property was owned in common by the siblings Cornelio,
Valentina, and Valeria. Corollarily, the records at bench glaringly show that the genuineness and due
execution of the Deed of Absolute Sale executed by Valeriana and Valentina in favor of the Defendants-
Appellants was not rebutted by the Plaintiffs-Appellees. A fortiori, such deed is prima facie evidence that a
contract of sale was, indeed, entered into and consummated between Valeriana and Valentina as sellers and
the Defendants-Appellants as vendors.

The foregoing facts, juxtaposed with the laws and the jurisprudential precepts mentioned elsewhere herein,
lead to no other conclusion but that the sale by Valeriana and Valentina of their pro indiviso shares in favor
of the Defendants-Appellants is valid. As enunciated by the Supreme Court in Alejandrino v. CA, et al.:
x x x Under a co-owners/tip, the ownership of an undivided thing or right belongs to different
persons. Each co-owner of property which is held pro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he shall not injure
the interests of his co-owners. The underlying rationale is that until a division is made, the respective
share of each cannot be determined and every co-owner exercises, together with his co-participants, joint
ownership over the pro indiviso property, in addition to his use and enjoyment of the same.

Although the right of a heir over the property of the decedent is inchoate as long as the estate
has not been fully settled and partitioned, the law allows a co-owner to exercise rights of
ownership over such inchoate right. Thus, the Civil Code provides:
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights are involved But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership.
chanrobles law

With respect to properties shared in common by virtue of inheritance, alienation of a pro indiviso portion
thereof is specifically governed by Article 1088 that provides:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the partition, any
or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of one month from the time they were
notified in writing of the sale by the vendor.
chanrobles law

In the instant case, Laurencia was within her hereditary rights in selling her pro indiviso share in Lot No.
2798. However, because the property had not yet been partitioned in accordance with the Rules of Court, no
particular portion of the property could be identified as yet and delineated as the object of the sale. Thus,
interpreting Article 493 of the Civil Code providing that an alienation of a co-owned property "shall be
limited to the portion which may be allotted to (the seller) in the division upon the termination of the co-
ownership, the Court said:
... (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in the co-
owned property even witlwut the consent of the other co-owners. x x x
chanrobles law

Using the foregoing disquisitions as guidelines, there is no denying that the RTC erred in granting the
complaint and ordering a partition without qualifying that such should not include the shares previously
pertaining to Valeria and Valentina. Simply put, since the aggregate area of the subject property is one
hundred thousand three hundred fifty-two (100,352) sq.m., it follows that Cornelio, Valentina, and Valeriana
each has a share equivalent to thirty-three thousand four hundred fifty point sixty-six (33,450.66) sq. m.
portion thereof. Accordingly, when Valentina and Valeriana sold their shares, the Defendants-Appellants
became co-owners with Cornelio. Perforce, upon Cornelio's death, the only area that his heirs, that is, the
Plaintiffs-Appellees and the Defendants-Appellants, are entitled to and which may be made subject of
partition is only a thirty-three thousand four hundred fifty point sixty-six (33,450.66) sq.m. portion of the
property.

All told, finding the RTC's conclusions to be not in accord with the law and jurisprudence, necessarily, the
same cannot be sustained.12
chanrobles law

As a result of Valentina and Valeriana's alienation in favor of Sebastian and Tarcila of their pro
indiviso shares in the three lots, Sebastian and Tarcila became co-owners of the 100,352-square meter
property with Cornelio (later on, with the petitioners who were the successors-in-interest of Cornelio). In
effect, Sebastian and Tarcila were co-owners of two-thirds of the property, with each of them having one-
third pro indiviso share in the three lots, while the remaining one-third was co-owned by the heirs of
Cornelio, namely, Sebastian, Tarcila and the petitioners.

Nonetheless, we underscore that this was a case for partition and accounting. According to Vda. de Daffon v.
Court of Appeals,13 an action for partition is at once an action for declaration of co-ownership and for
segregation and conveyance of a determinate portion of the properties involved. If the trial court should find
after trial the existence of co-ownership among the parties, it may and should order the partition of the
properties in the same action.14

Although the CA correctly identified the co-owners of the three lots, it did not segregate the 100,352-square
meter property into determinate portions among the several co-owners. To do so, the CA should have
followed the manner set in Section 11, Rule 69 of the Rules of Court, to wit: chanRoblesvi rtua lLawl ibra ry

Section 11. The judgment and its effect; copy to be recorded in registry of deeds. If actual partition of
property is made, the judgment shall state definitely, by metes and bounds and adequate description, the
particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in
each party to the action in severalty the portion of the real estate assigned to him. xxxs (Bold emphasis
supplied.)
chanrobles law

Accordingly, there is a need to remand the case to the court of origin for the purpose of identifying and
segregating, by metes and bounds, the specific portions of the three lots assigned to the co-owners, and to
effect the physical partition of the property in the following proportions: Tarcila, one-third; the heirs of
Sebastian, one-third; and the petitioners (individually), along with Tarcila and the heirs of Sebastian
(collectively), one-third. That physical partition was required, but the RTC and the CA uncharacteristically
did not require it. Upon remand, therefore, the RTC should comply with the express terms of Section 2, Rule
69 of the Rules of Court, which provides: chanRoble svi rtual Lawli bra ry

Section 2. Order for partition, and partition by agreement thereunder. - If after the trial the court finds that
the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in
interest. Thereupon the parties may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance, and the court shall confirm the partition so
agreed upon by all the parties, and such partition, together with the order of the court confirming
the same, shall be recorded in the registry of deeds of the place in which the property is
situated.(2a)

A final order decreeing partition and accounting may be appealed by any party aggrieved thereby. (n)
chanrobles law

Should the parties be unable to agree on the partition, the next step for the RTC will be to appoint not more
than three competent and disinterested persons as commissioners to make the partition, and to command
such commissioners to set off to each party in interest the part and proportion of the property as directed in
this decision.15

Moreover, with the Court having determined that the petitioners had no right in the two-thirds portion that
had been validly alienated to Sebastian and Tarcila, the accounting of the fruits shall only involve the one-
third portion of the property inherited from Cornelio. For this purpose, the RTC shall apply the pertinent
provisions of the Civil Code, particularly Article 500 and Article 1087 of the Civil Code, viz.:
Article 500. Upon partition, there shall be a mutual accounting for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud.
(n)

Article 1087. In the partition the co-heirs shall reimburse one another for the income and fruits which each
one of them may have received from any property of the estate, for any useful and necessary expenses
made upon such property, and for any damage thereto through malice or neglect. (1063)
chanrobles law

WHEREFORE, the Court AFFIRMS WITH MODIFICATION the decision of the Court of Appeals
promulgated on November 30, 2010 in CA-G.R. CV No. 92920 in that the accounting is to be made only with
respect to the fruits of the one-third portion of the property still under the co-ownership of all the
parties; REMANDS the case to the Regional Trial Court, Branch 64, in Tarlac City for further proceedings in
accordance with this decision, and to determine the technical metes and bounds and description of the
proper share of each co-owner of the property covered by Transfer Certificate of Title No. 10612, including
the improvements thereon, in accordance with the Civil Code and Rule 69 of the Rules of
Court; and ORDERS the petitioners to pay the costs of suit.

SO ORDERED. ChanRoblesVirtualawl ibra ry

Sereno, C.J., Leonardo-De Castro, Perlas-Bernabe, and Caguioa, JJ., concur.


G.R. No. 76351 October 29, 1993

VIRGILIO B. AGUILAR, petitioner,


vs.
COURT OF APPEALS and SENEN B. AGUILAR, respondents.

Jose F. Manacop for petitioner.

Siruello, Muyco & Associates Law Office for private respondent.

BELLOSILLO, J.:

This is a petition for review on certiorari seeking to reverse and set aside the Decision of the Court of
Appeals in CA-GR CV No. 03933 declaring null and void the orders of 23 and 26 April, 1979, the
judgment by default of 26 July 1979, and the order of 22 October 1979 of the then Court of First
Instance of Rizal, Pasay City, Branch 30, and directing the trial court to set the case for pre-trial
conference.

Petitioner Virgilio and respondent Senen are brothers; Virgilio is the youngest of seven (7) children
of the late Maximiano Aguilar, while Senen is the fifth. On 28 October 1969, the two brothers
purchased a house and lot in Paraaque where their father could spend and enjoy his remaining
years in a peaceful neighborhood. Initially, the brothers agreed that Virgilio's share in the co-
ownership was two-thirds while that of Senen was one-third. By virtue of a written memorandum
dated 23 February 1970, Virgilio and Senen agreed that henceforth their interests in the house and
lot should be equal, with Senen assuming the remaining mortgage obligation of the original owners
with the Social Security System (SSS) in exchange for his possession and enjoyment of the house
together with their father.

Since Virgilio was then disqualified from obtaining a loan from SSS, the brothers agreed that the
deed of sale would be executed and the title registered in the meantime in the name of Senen. It
was further agreed that Senen would take care of their father and his needs since Virgilio and his
family were staying in Cebu.

After Maximiano Aguilar died in 1974, petitioner demanded from private respondent that the latter
vacate the house and that the property be sold and proceeds thereof divided among them.

Because of the refusal of respondent to give in to petitioner's demands, the latter filed on 12 January
1979 an action to compel the sale of the house and lot so that the they could divide the proceeds
between them.

In his complaint, petitioner prayed that the proceeds of the sale, be divided on the basis of two-thirds
(2/3) in his favor and one-third (1/3) to respondent. Petitioner also prayed for monthly rentals for the
use of the house by respondent after their father died.

In his answer with counterclaim, respondent alleged that he had no objection to the sale as long as
the best selling price could be obtained; that if the sale would be effected, the proceeds thereof
should be divided equally; and, that being a co-owner, he was entitled to the use and enjoyment of
the property.

Upon issues being joined, the case was set for pre-trial on 26 April 1979 with the lawyers of both
parties notified of the pre-trial, and served with the pre-trial order, with private respondent executing
a special power of attorney to his lawyer to appear at the pre-trial and enter into any amicable
settlement in his behalf.1

On 20 April 1979, Atty. Manuel S. Tonogbanua, counsel for respondent, filed a motion to cancel pre-
trial on the ground that he would be accompanying his wife to Dumaguete City where she would be
a principal sponsor in a wedding.

On 23 April 1979, finding the reasons of counsel to be without merit, the trial court denied the motion
and directed that the pre-trial should continue as scheduled.
When the case was called for pre-trial as scheduled on 26 April 1979, plaintiff and his counsel
appeared. Defendant did not appear; neither his counsel in whose favor he executed a special
power of attorney to represent him at the pre-trial. Consequently, the trial court, on motion of plaintiff,
declared defendant as in default and ordered reception of plaintiff's evidence ex parte.

On 7 May 1979, defendant through counsel filed an omnibus motion to reconsider the order of
default and to defer reception of evidence. The trial court denied the motion and plaintiff presented
his evidence.

On 26 July 1979, rendering judgment by default against defendant, the trial court found him and
plaintiff to be co-owners of the house and lot, in equal shares on the basis of their written agreement.
However, it ruled that plaintiff has been deprived of his participation in the property by defendant's
continued enjoyment of the house and lot, free of rent, despite demands for rentals and continued
maneuvers of defendants, to delay partition. The trial court also upheld the right of plaintiff as co-
owner to demand partition. Since plaintiff could not agree to the amount offered by defendant for the
former's share, the trial court held that this property should be sold to a third person and the
proceeds divided equally between the parties.

The trial court likewise ordered defendant to vacate the property and pay plaintiff P1,200.00 as
rentals2 from January 1975 up to the date of decision plus interest from the time the action was filed.

On 17 September 1979, defendant filed an omnibus motion for new trial but on 22 October 1979 the
trial court denied the motion.

Defendant sought relief from the Court of Appeals praying that the following orders and decision of
the trial court be set aside: (a) the order of 23 April 1970 denying defendants motion for
postponement of the pre-trial set on 26 April 1979; (b) the order of 26 April 1979 declaring him in
default and authorizing plaintiff to present his evidence ex-parte; (e) the default judgment of 26 July
1979; and, (d) the order dated 22 October 1979 denying his omnibus motion for new trial.

On 16 October 1986, the Court of Appeals set aside the order of the trial court of 26 April 1979 as
well as the assailed judgment rendered by default., The appellate court found the explanation of
counsel for defendant in his motion to cancel pre-trial as satisfactory and devoid of a manifest
intention to delay the disposition of the case. It also ruled that the trial court should have granted the
motion for postponement filed by counsel for defendant who should not have been declared as in
default for the absence of his counsel.

Petitioner now comes to us alleging that the Court of Appeals erred (1) in not holding that the motion
of defendant through counsel to cancel the pre-trial was dilatory in character and (2) in remanding
the case to the trial court for pre-trial and trial.

The issues to be resolved are whether the trial court correctly declared respondent as in default for
his failure to appear at the pre-trial and in allowing petitioner to present his evidence ex-parte, and
whether the trial court correctly rendered the default judgment against respondent.

We find merit in the petition.

As regards the first issue, the law is clear that the appearance of parties at the pre-trial is
mandatory.3 A party who fails to appear at a pre-trial conference may be non-suited or considered as
in default.4 In the case at bar, where private respondent and counsel failed to appear at the
scheduled pre-trial, the trial, court has authority to declare respondent in default.5

Although respondent's counsel filed a motion to postpone pre-trial hearing, the grant or denial
thereof is within the sound discretion of the trial court, which should take into account two factors in
the grant or denial of motions for postponement, namely: (a) the reason for the postponement and
(b) the merits of the case of movant.6

In the instant case, the trial court found the reason stated in the motion of counsel for respondent to
cancel the pre-trial to be without merit. Counsel's explanation that he had to go to by boat as early as
25 March 1979 to fetch his wife and accompany her to a wedding in Dumaguete City on 27 April
1979 where she was one of the principal sponsors, cannot be accepted. We find it insufficient to
justify postponement of the pre-trial, and the Court of Appeals did not act wisely in overruling the
denial. We sustain the trial court and rule that it did not abuse its discretion in denying the
postponement for lack of merit. Certainly, to warrant a postponement of a mandatory process as pre-
trial would require much more than mere attendance in a social function. It is time indeed we
emphasize that there should be much more than mere perfunctory treatment of the pre-trial
procedure. Its observance must be taken seriously if it is to attain its objective, i.e., the speedy and
inexpensive disposition of cases.

Moreover, the trial court denied the motion for postponement three (3) days before the scheduled
pre-trial. If indeed, counsel for respondent could not attend the pre-trial on the scheduled date,
respondent at least should have personally appeared in order not to be declared as in default. But,
since nobody appeared for him, the order of the trial court declaring him as in default and directing
the presentation of petitioner's evidence ex parte was proper.7

With regard to the merits of the judgment of the trial court by default, which respondent appellate
court did not touch upon in resolving the appeal, the Court holds that on the basis of the pleadings of
the parties and the evidence presented ex parte, petitioner and respondents are co-owners of
subject house and lot in equal shares; either one of them may demand the sale of the house and lot
at any time and the other cannot object to such demand; thereafter the proceeds of the sale shall be
divided equally according to their respective interests.

Private respondent and his family refuse to pay monthly rentals to petitioner from the time their
father died in 1975 and to vacate the house so that it can be sold to third persons. Petitioner alleges
that respondent's continued stay in the property hinders its disposal to the prejudice of petitioner. On
the part of petitioner, he claims that he should be paid two-thirds (2/3) of a monthly rental of
P2,400.00 or the sum of P1,600.00.

In resolving the dispute, the trial court ordered respondent to vacate the property so that it could be
sold to third persons and the proceeds divided between them equally, and for respondent to pay
petitioner one-half (1/2) of P2,400.00 or the sum of P1,200.00 as monthly rental, conformably with
their stipulated sharing reflected in their written agreement.

We uphold the trial court in ruling in favor of petitioner, except as to the effectivity of the payment of
monthly rentals by respondent as co-owner which we here declare to commence only after the trial
court ordered respondent to vacate in accordance with its order of 26 July 1979.

Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-
ownership, and that each co-owner may demand at any time partition of the thing owned in common
insofar as his share is concerned. Corollary to this rule, Art. 498 of the Code states that whenever
the thing is essentially, indivisible and the co-owners cannot agree that it be, allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds accordingly distributed. This is
resorted to (1) when the right to partition the property is invoked by any of the co-owners but
because of the nature of the property it cannot be subdivided or its subdivision would prejudice the
interests of the co-owners, and (b) the co-owners are not in agreement as to who among them shall
be allotted or assigned the entire property upon proper reimbursement of the co-owners. In one
case,8 this Court upheld the order of the trial court directing the holding of a public sale of the
properties owned in common pursuant to Art. 498 of the Civil Code.

However, being a co-owner respondent has the right to use the house and lot without paying any
compensation to petitioner, as he may use the property owned in common long as it is in
accordance with the purpose for which it is intended and in a manner not injurious to the interest of
the other co-owners.9 Each co-owner of property held pro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he shall not injure the
interests of his co-owners, the reason being that until a division is made, the respective share of
each cannot be determined and every co-owner exercises, together with his co-participants joint
ownership over the pro indiviso property, in addition to his use and enjoyment of the
same. 10

Since petitioner has decided to enforce his right in court to end the co-ownership of the house and
lot and respondent has not refuted the allegation that he has been preventing the sale of the
property by his continued occupancy of the premises, justice and equity demand that respondent
and his family vacate the property so that the sale can be effected immediately. In fairness to
petitioner, respondent should pay a rental of P1,200.00 per month, with legal interest; from the time
the trial court ordered him to vacate, for the use and enjoyment of the other half of the property
appertaining to petitioner.
When petitioner filed an action to compel the sale of the property and the trial court granted the
petition and ordered the ejectment of respondent, the co-ownership was deemed terminated and the
right to enjoy the possession jointly also ceased. Thereafter, the continued stay of respondent and
his family in the house prejudiced the interest of petitioner as the property should have been sold
and the proceeds divided equally between them. To this extent and from then on, respondent should
be held liable for monthly rentals until he and his family vacate.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 16
October 1986 is REVERSED and SET ASIDE. The decision of the trial court in Civil Case No. 69.12-
P dated 16 July 1979 is REINSTATED, with the modification that respondent Senen B. Aguilar is
ordered to vacate the premises in question within ninety (90) days from receipt of this and to pay
petitioner Virgilio B. Aguilar a monthly rental of P1,200.00 with interest at the legal rate from the time
he received the decision of the trial court directing him to vacate until he effectively leaves the
premises.

The trial court is further directed to take immediate steps to implement this decision conformably with
Art. 498 of the Civil Code and the Rules of Court. This decision is final and executory.

SO ORDERED.

Cruz, Davide, Jr., Quiason, JJ., concur.


G.R. No. 193374, June 08, 2016 - HEIRS OF THE LATE GERRY* ECARMA, NAMELY: AVELINA SUIZA-
ECARMA, DENNIS ECARMA, JERRY LYN ECARMA PENA, ANTONIO ECARMA AND NATALIA ECARMA
SANGALANG, Petitioners, v. COURT OF APPEALS AND RENATO A. ECARMA, Respondents.

THIRD DIVISION

G.R. No. 193374, June 08, 2016

HEIRS OF THE LATE GERRY* ECARMA, NAMELY: AVELINA SUIZA-ECARMA, DENNIS ECARMA,
JERRY LYN ECARMA PENA, ANTONIO ECARMA AND NATALIA ECARMA
SANGALANG, Petitioners, v. COURT OF APPEALS AND RENATO A. ECARMA, Respondents.

DECISION

PEREZ, J.:

We here have another case of heirs quarrelling over inherited properties, some of them refusing their
partition.

Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court assailing the twin Resolutions2of the
Court of Appeals (CA) in CA-G.R. CV No. 92375 for having been issued with grave abuse of discretion
amounting to lack of or in excess of jurisdiction. The appellate court dismissed outright the appeal of
petitioners, heirs of Gerry Ecarma for a number of procedural defects, including failure to comply with
Section 13, Rule 44 of the Rules of Court on the contents of their appellants' brief. Petitioners sought to
appeal the two (2) Orders3 of the Regional Trial Court (RTC), Branch 220, Quezon City in SP PROC. No. Q-
90-6332 which approved the Project of Partition proposed by respondent Renato Ecarma, administrator in
the intestate proceedings to settle the estate of decedent Arminda vda. de Ecarma covering four (4)
properties.

Because of the outright dismissal of their appeal before the CA, we have a dearth of facts we had to glean
from the bare pleadings of petitioners.

The decedent Arminda was married to Natalio Ecarma who predeceased her on 9 May 1970. During their
marriage, they acquired several properties and begat seven (7) children: (1) Angelita; (2) Rodolfo; (3)
respondent Renato; (4) Maria Arminda; (5) Gerry Anthony Ecarma, husband and father respectively of
herein petitioners Avelina Suiza Ecarma, Dennis Ecarma, Gerry Lyn Ecarma Pena, Antonio Ecarma and
Natalia Ecarma Sangalang (collectively petitioners and/or heirs of Gerry Ecarma); (6) Fe Shirley; and (7)
Rolando.

After Natalio's death, his heirs executed an Extrajudicial Settlement of Estate4 covering four (4) properties
designated as Kitanlad, Cuyapo and Lala (consisting of two separate lots), half of which was specifically
noted as pertaining to herein decedent Arminda's share in their property regime of conjugal partnership of
gains. In the same Extrajudicial Settlement of Estate signed by all the heirs, the four (4) properties were
partitioned among them: Arminda was assigned an undivided two-ninth's (2/9's) proportion and all their
children in equal proportion of one-ninth (1/9) each. Significantly, despite the partition agreement, no
physical division of the properties was effected, Natalio's heirs remaining in co-ownership (pro indiviso) even
at the time of their mother's, decedent Arminda's, death on 17 April 1983.

On 18 May 1990, after his petition for the probate of Arminda's will was dismissed by the RTC, Branch 86,
Quezon City, respondent Renato filed the subject intestate proceedings before the RTC, Branch 220.

On 30 January 1991, Renato was appointed Special Administrator by the RTC, Branch 220.

After what appears to be continuing conflict between Gerry Ecarma and the other heirs of Natalio and
Arminda over actual division of their inherited properties, by 9 March 2005, Renato unequivocally moved to
terminate their co-ownership: he filed a Project of Partition of the Kitanlad Property, alleging that:

1. This probate case has been left unresolved for 16 years now because of the incessant opposition by
Oppositor and legal heir, Jerry Ecarma, the only legal heir who stays in Kitanlad, for reasons they had
ventilated already in this Court in their previous pleadings, xxx

2. This, Court has ordered the sale of the assets of the estate in an earlier order, but efforts to sell the
Kitanlad property, the most contentious issue, by the Regular Administrator, [Renato Ecarma |, has been
thwarted by Jerry for reasons already known by this Court, xxx
3. The law frowns on the indivision of property held in common indefinitely. Furthermore, the legal heirs,
except Jerry and perhaps the Oppositor, have expressed their desire to have the Kitanlad property
partitioned. The fairest legal way to partition the property without any legal heir getting a share bigger than
the others is to sell the property and divide the net proceeds, but Jerry's objection to its sale at a price
which will attract interested buyers has rendered nugatory this option. The next best option, with no legal
heir getting an undue advantage over the others, is to divide the property longitudinally from the frontage
down to the other end in seven equal parts. Although this option will render the improvements unusable, it
must be realised that these improvements are now fully depreciated. The. duplex house is 57 years old,
while the apartments are now 40 years old. All seven parts will be equal to each other in all their aspects:
the measurements, length and width, will be the same, each part will have a frontage to the street. Each
legal heir will have complete control over his/her portion. Me/she may keep it if he/she wishes, or sell it if
he/she desires. Allocation of these seven parts will be by lot.5

On 7 April 2005, Renato filed another motion, Omnibus Motion: Project of Partition of the Lala and Cuyapo
Properties.

Finding the motions impressed with merit, the RTC, Branch 220, on 28 July 2005,6 issued a lengthy Order
approving the proposed partition of the properties:

1. That the property be divided longitudinally from the frontage down to the other end in seven (7)
equal parts. The shares of Jerry Ecarma and Rodolfo Ecarma shall be contiguous to each other on
one side of the property nearest the main entrance, while the shares of the other five (5) legal heirs
shall comprise the balance thereof. Following this general guideline, Jerry Ecarma and Rodolfo
Ecarma shall determine among themselves their respective share. Similarly, the five (5) remaining
legal heirs shall determine among themselves by draw of lot their respective shares. They shall
submit to the Petitioner/Regular Administrator their choice of their specific shares not later [than]
fifteen (15) days upon receipt of this Order. Should they fail to comply, the Regular Administrator is
hereby directed to assign the respective share of each legal heir.

xxxx

II. Cuyapo Property

1. The Cuyapo farm lot shall be partitioned into seven (7) equal parts substantially in accordance with
Annex "A" of the "Partial Project of Partition of Estate" dated 22 June 1992. Lots 1 and 2 will be
allocated to Jerry Ecarma and Rodolfo Ecarma, so that the remaining balance will remain contiguous
to one another. The remaining balance, as prayed for, can now be donated by the five (5) other
legal heirs to the Armed Forces of the Philippines (AFP). This manner of partition will effectuate the
desire of the five (5) remaining legal heirs to donate their share to the AFP.

2. The Regular Administrator is hereby directed to cause the partition and titling of the property.

3. Expenses for the partition and titling of the property shall be for the personal account of each legal
heir, which shall be deducted from their share of the estate.

III. Lala Property

1. The Lala Property consisting of two (2) farm lots contiguous to each other, one consisting of more
than six (6) hectares and the other more than 13 hectares shall each be partitioned into seven (7)
equal parts substantially in accordance with Annex "B" of the aforecited "Partial Project of Partition
of Estate" dated 22 June 1992, as submitted by the Regular Administrator. Lots 6 and 7 of the six-
hectare lot will while Lots 1 and 2 of the 13-hectare lot will be likewise allocated to Jerry Ecarma
and each other. The remaining balance can now be donated by the five (5) other legal heirs to the
AFP. This manner of partition will effectuate the desire of the five (5) remaining legal heirs to
donate their shares to the AFP.7

Gerry Ecarma filed a motion for reconsideration on the following grounds: (1) the project of partition of the
Kitanlad properties is not feasible, impractical and detrimental to the interests of the heirs of the Spouses
Natalio and Arminda Ecarma; (2) the planned partition is not in accordance with the wishes of the
decedents, the spouses Natalio and Arminda; and (3) the RTC, Branch 220, as the court settling the
intestate estate of Arminda, has no jurisdiction over part of.the subject properties which do not form part of
Arminda's estate, such undivided share already pertaining to the other heirs as part of their inheritance from
their deceased father, Natalio.

The other oppositor to the partition, Rodolfo Ecarma, likewise filed a Motion for Reconsideration of the 28
July 2005 Order of Partition on the main ground, akin to the 3rd ground raised by Gerry in his motion, that
the RTC, Branch 220 acted without or in excess of jurisdiction by ordering the partition of the subject
properties, portions of which do not belong to the intestate estate of Arminda.
After Renato filed his Comment/Opposition to the two motions for reconsideration, the RTC, Branch 220,
finding no cogent reason to reverse or modify its prior order of partition, issued an Order denying Gerry's
and Renato's motions.

Thereafter, Gerry filed both a Notice of Appeal and a Record on Appeal before the RTC, Branch 220 to bring
up on appeal to the CA the trial court's partition order.

It appears that sometime before 4 May 2009, counsel of Gerry Ecarma filed a Notice of Death of Gerry
Ecarma before the appellate court and was subsequently required by the latter to submit a certified true
copy of Gerry Ecarma's death certificate within a prescribed period.8

Meanwhile, herein petitioners, presumably in substitution of the deceased Gerry Ecarma, filed their
Appellants' Brief pursuant to the order of the appellate court. From this incident of herein petitioners'
Appellants' Brief before the CA, and its contents, the controversy has reached us.

Renato forthwith filed a Motion to Dismiss Appellants' Brief, to which the CA required a comment from
petitioner.9

The Resolutions of the CA finding insufficient herein petitioners' Appellants' Brief are now before us. The CA
ruled that:

The Court xxx finds [petitioners'] submission [that their brief substantially complied with the requirements
under Section 13, Rule 44 of the Rules of Court] to be utterly devoid of merit. Indeed, [petitioners'] brief
does not contain a subject index, table of cases and authorities, statement of case, statement of facts and
page references to the record in violation of Section 13, Rule 44 of the 1997 Rules of Civil Procedure xxx.

xxxx

Non-compliance with these requirements warrants the dismissal of appeal under Section 1(1), Rule 50.

xxxx

[Petitioners] could have easily cured these multiple defects in the same manner their counsel did with his
MCLE compliance and SPA. But, they opted not to. Instead, they stubbornly insist, albeit erroneously, that
their appellants' brief substantially complied with the requirements. They failed, however, to point out with
specificity what part or parts of their brief contain their so-called substantial compliance. Surely, the Court
cannot countenance [petitioners'] careless attitude, if not irreverent disregard, of the procedural rules
intended precisely to ensure orderly administration of justice.

xxxx

Accordingly, the appeal is DISMISSED.10

Petitioners moved for reconsideration of the dismissal of their appeal, attaching a Supplemental Appellants'
Brief11 to their motion. However, the appellate court again deemed the Supplemental Appellants' Brief to be
unsatisfactory and non-compliant with the rules and denied petitioners' motion for reconsideration:

Notably, the new appeal brief, just like the original one, does not contain reference to the relevant portions
of the record pertaining to its statement of facts. Further, the subject index does not contain a summary of
arguments and reference to the specific pages of the brief, and the supporting laws and authorities.12

From that denial, petitioners filed this petition for certiorari under Rule 65 of the Rules of Court almost sixty
(60) days from the time they received the appellate court's denial of their motion for reconsideration.

At the outset, we see through petitioners' obvious ploy to avoid the necessary consequence of their failure
to file, within the required fifteen-day period, the correct remedy of appeal by certiorari under Rule 4513 of
the Rules of Court, from the assailed ruling of the CA. On this score alone, the present petition should have
been dismissed outright.

Petitioners simple allegation of grave abuse of discretion in the CA's dismissal of their appeal cannot
substitute for the correct remedy of a lost appeal.14

Notably, as they have stubbornly done so in the appellate court, petitioners urge us to reverse these
adverse rulings of the appellate court without abiding by the rules therefor.

First. An appeal by certiorari under Rule 45 of the Rules of Court is different from a petition
for certiorari under Rule 65 thereof. A special civil action for certiorari may be availed of only if the lower
tribunal has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and if there is no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law. 5 Simply imputing in a petition that the ruling sought to be reviewed is tainted with
grave abuse of discretion does not magically transform a petition into a special civil action for certiorari.

The appellate court's outright dismissal of therein appellants' appeal was a final order which left it with
nothing more to do to resolve the case.16 That disposition is a final and executory order, appealable to, and
may be questioned before, this Court by persons aggrieved thereby, such as herein petitioners, viaRule 45.
Moreover, the dismissal of therein appellants', herein petitioners', appeal before the CA is expressly allowed
by Section 1(f),17 Rule 50 of the Rules of Court. The appellate court, therefore, cannot be charged with
grave abuse of discretion as there is no showing that, in the exercise of its judgment, it acted in a
capricious, whimsical, arbitrary or despotic manner tantamount to lack of jurisdiction. Absent grave abuse of
discretion, petitioners should have filed a petition for review on certiorari under Rule 45 instead of a petition
for certiorari under Rule 65. The soundness of the ruling dismissing petitioners' appeal before the appellate
court is a matter of judgment with respect to which the remedy of the party aggrieved is a Rule 45 petition.
An error of judgment committed by a court in the exercise of its legitimate jurisdiction is not the same as
grave abuse of discretion. Errors of judgment are correctible by appeal, while those of jurisdiction are
reviewable by certiorari.18

Even if we were to take a liberal stance and consider this present petition as that filed under Rule 45 of the
Rules of Court raising grave error in the appellate courts' ruling, such cannot cure the unavoidable
consequence of dismissal for failure to file an appeal within the reglementary fifteen-day period provided
under Section 219 of Rule 45.

Second. The CA correctly dismissed herein petitioners' Appellants' Brief for failure to comply with the content
requirement specified under Section 1320 of Rule 44.

Petitioners are adamant, however, that they complied with the required content specified in the rules even
attaching a sample copy of an Appellant's Brief found in Guevarra's Legal Forms which was purportedly their
guideline in revising and submitting their Supplemental Appellants' Brief to the appellate court.21

We assiduously went through the Supplemental Appellants' Brief of herein petitioners and as the CA have,
we likewise find it wanting, a lame attempt at compliance through superficial changes, devoid of
substance.22

In fact, the Supplemental Appellants' Brief could only cite Section 1, Rule 74 of the Rules of Court as its sole
legal authority in questioning the RTC, Branch 220's Order of Partition.23 Petitioners, even in their present
petition before us, are unable to grasp the necessity of supporting and anchoring their arguments with legal
basis. They cannot simply cite one section of one rule without expounding thereon.

In the recent case of Lui Enterprises, Inc., v. Zuellig Pharma Corporation, et al. ,24 we reiterated the faithful
adherence to the rules on the specific contents of an Appellant's Brief as provided in Section 14, Rule 44 of
the Rules of Court:

Lui Enterprises did not comply with the


rules on the contents of the appellant's brief

Under Rule 50, Section 1, paragraph (f) of the 1997 Rules of Civil Procedure, the Court of Appeals may, on
its own motion or that of the appellee, dismiss an appeal should the appellant's brief lack specific
requirements under Rule 44, Section 13, paragraphs (a), (c), (d), and (f):
chanRoble svirtual Lawlib ra ry

Section 1. Grounds for dismissal of appeal. - An appeal may be dismissed by the Court of Appeals, on its
own motion or on that of the appellee, on the following grounds:
chanRoble svirtual Lawlib ra ry

xxxx

(f) Absence of specific assignment of errors in the appellant's brief, or of page references to the record as
required in Section 13, paragraphs (a), (c), (d), and (f) of Rule 44[.]
These requirements are the subject index of the matter in brief, page references to the record, and a table
of cases alphabetically arranged and with textbooks and statutes cited:
chanRoble svirtual Lawlib ra ry

Section 13. Contents of the appellant's brief. - The appellant's brief shall contain, in the order herein
indicated, the following:
chanRoble svirtual Lawlib ra ry

(a) A subject index of the matter in brief with a digest of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and statutes cited with references to the pages where they are
cited;

xxxx

(c) Under the heading "Statement of the Case," a clear and concise statement of the nature of the action, a
summary of the proceedings, the appealed rulings and orders of the court, the nature of the controversy,
with page references to the record;

(d) Under the heading "Statement of Facts," a clear and concise statement in a narrative form of the facts
admitted by both parties and of those in controversy, together with the substance of the proof relating
thereto in sufficient detail to make it clearly intelligible, with page references to the record;

xxxx

(f) Under the heading "Argument," the appellant's arguments on each assignment of error with page
references' to the record. The authorities relied upon shall be cited by the page of the report at which the
case begins and the page of the report on which the citation is found;
xxxx

Lui Enterprises' appellant's brief lacked a subject index, page references to the record, and table of cases,
textbooks and statutes cited. Under Rule 50, Section 1 of the 1997 Rules of Civil Procedure, the Court of
Appeals correctly dismissed Lui Enterprises' appeal.

Except for cases provided in the Constitution, appeal is a "purely statutory right."The right to appeal "must
be exercised in. the manner prescribed by law" and requires strict compliance with the Rules of Court on
appeals. Otherwise, the appeal shall be dismissed, and its dismissal shall not be a deprivation of due process
of law.

In Mendoza v. United Coconut Planters Bank, Inc., this court sustained the Court of Appeals' dismissal of
Mendoza's appeal. Mendoza's appellant's brief lacked a subject index, assignment of errors, and page
references to the record. In De Liano v. Court of Appeal, this court also sustained the dismissal of De Liano's
appeal. De Liano's appellant's brief lacked a subject index, a table of cases and authorities, and page
references to the record.

There are exceptions to this rule. In Philippine Coconut Authority v. Corona International, Inc., the Philippine
Coconut Authority's appellant's brief lacked a clear and "concise statement of the nature of the action, a
summary of the proceedings, the nature of the judgment, and page references to the record. However, this
court found that the Philippine Coconut Authority substantially complied with the Rules. Its appellant's brief
apprise[d] [the Court of Appeals] of the essential facts and nature of the case as well as the issues raised
and the laws necessary [to dispose of the case]." This court "[deviated] from a rigid enforcement of the
rules" and ordered the Court of Appeals to resolve the Philippine Coconut Authority's appeal.

In Go v. Chaves, Go's 17-page appellant's brief lacked a subject index. However, Go subsequently filed a
subject index. This court excused Go's procedural lapse since the appellant's brief "[consisted] only of 17
pages which [the Court of Appeals] may easily peruse to apprise it of [the case] and of the relief sought."
This court ordered the Court of Appeals to resolve Go's appeal "in the interest of justice."
In Philippine Coconut Authority and Go, the appellants substantially complied with the rules on the contents
of the appellant's brief. Thus, this court excused the appellants' procedural lapses.

In this case, Lui Enterprises did not substantially comply with the rules on the contents of the appellant's
brief. It admitted that its appellant's brief lacked the required subject index, page references to the record,
and table of cases, textbooks, and statutes cited. However, it did not even correct its admitted "technical
omissions" by filing an amended appellant's brief with the required contents. Thus, this case does not allow
a relaxation of the rules. The Court of Appeals did not err in dismissing Lui Enterprises' appeal.

Rules on appeal "are designed for the proper and prompt disposition.of cases before the Court of Appeals."
With respect to the appellant's brief, its required contents are designed "to minimize the [Court of Appeals']
labor in [examining] the record upon which the appeal is heard and determined."

The subject index serves as the briefs table of contents. Instead of "[thumbing] through the [appellant's
brief]" every time the Court of Appeals Justice encounters an argument or citation, the Justice deciding the
case only has to refer to the subject index for the argument or citation he or she needs. This saves the
Court of Appeals time in reviewing the appealed case. Efficiency allows the justices of the appellate court to
substantially attend to this case as well as other cases.

Page references to the record guarantee that the facts stated in the appellant's brief are supported by the
record. A statement of fact without a page reference to the record creates the presumption that it is
unsupported by the record and, thus, "may be stricken or disregarded altogether."

As for the table of cases, textbooks, and statutes cited, this is required so that the Court of Appeals can
easily verify the authorities cited "for accuracy and aptness."

Lui Enterprises' appellant's brief lacked a subject index, page references to the record, and a table of cases,
textbooks, and statutes cited. These requirements "were designed to assist the appellate court in the
accomplishment of its tasks, and, overall, to enhance the orderly administration of justice." This court will
not disregard rules on appeal "in the guise of liberal construction." For this court to liberally construe the
Rules, the party must substantially comply with the Rules and correct its procedural lapses. Lui Enterprises
failed to remedy these errors.

All told, the Court of Appeals did not err in dismissing Lui Enterprises' appeal. It failed to comply with Rule
44, Section 13, paragraphs (a), (c), (d), and (f) of the 1997 Rules of Civil Procedure on the required
contents of the appellant's brief.

Third. While we sustain the appellate court's dismissal of herein petitioners' appeal, we find it imperative to
rule on the merits of the RTC, Branch 220's Order of Partition to forestall any further delay in the settlement
of decedent Arminda's estate which has been pending since 1990 where Order of Partition of the subject
properties was issued on 28 July 2005. We note also that petitioners themselves pray for a ruling thereon.

There is no quarrel from any of the parties that the subject properties were originally part of the conjugal
partnership of gains property regime of the deceased spouses Natalio and Arminda.25 The nature of these
properties as part of the spouses' conjugal properties was confirmed in the Extrajudicial Settlement of the
Estate of Natalio signed by all his heirs, his spouse Arminda and their children, including predecessor of
herein petitioners, Gerry Ecarma.26

Essentially, pursuant to this Extrajudicial Settlement, Arminda was apportioned two-ninth's (2/9's) share,
while her children were equally ascribed one-ninth (1/9) portion, of the subject properties. Upon Arminda's
death, her heirs' rights to the succession (covering Arminda's share in the subject properties) vested and
their co-ownership over the subject properties has consolidated by operation of law.27Effectively, without a
valid will of Arminda, and as Arminda's compulsory heirs,28 herein parties (specifically Gerry Ecarma prior to
his death and substitution by herein petitioners) all ipso facto co-owned the subject properties in equal
proportion being compulsory heirs of the deceased spouses Natalio and Arminda.29

There appears to be no clear objection, therefore, to the RTC, Branch 220's Order of Partition approving the
proposal of the administrator, herein respondent Renato, for the equal division of the properties:

1. The Kitanlad property: longitudinally from the frontage down to the other end with the shares of the
[oppositors to the partition] Jerry Ecarnia and Rodolfo Ecarma contiguous to each other on one side of the
property nearest to the main entrance; and

xxxx

2. The Cuyapo and Lala properties: partitioned into seven (7) equal parts with Jerry's and Rodolfo's
respective shares contiguous to each other, and the remainder to be donated by the other legal heirs, as
manifested by them, to the Armed Forces of the Philippines (AFP).

Their objection to the actual partition notwithstanding, herein petitioners and even Rodolfo Ecarma cannot
compel the other co-heirs to remain in perpetual co-ownership over the subject properties. Article 494, in
relation to Article 1083, of the Civil Code provides:

Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any
time the partition of the thing owned in common, insofar as his share is concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten
years, shall be valid. This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which shall not exceed twenty years.

Neither shall there be any partition when it is prohibited by law.

No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership.

Art. 1083. Every co-heir has a right to demand the division of the estate unless the testator should have
expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as
provided in Article 494. This power of the testator to prohibit division applies to the legitime.

Even though forbidden by the testator, the co-ownership terminates when any of the causes for which
partnership is dissolved takes place, or when the court finds for compelling reasons that division should be
ordered, upon petition of one of the co-heirs.

The impasse between the parties is due to herein petitioners' persistent objection to proposals for the
partition of the subject properties. The deceased Gerry Ecarma, Rodolfo Ecarma and herein petitioners
consistently opposed the proposed partition of the administrator, respondent Renato, since such is
ostensibly "not feasible, impractical and renders detrimental use of the Kitanlad property." However, it is
apparent that Gerry Ecarma and his heirs (herein petitioners) completely object to any kind of partition of
the subject properties, contravening even the proposed sale thereof.

We note that petitioners have been careful not to proffer that the subject properties are indivisible or that
physical division of thereof would render such unserviceable since Article 49530 of the Civil Code provides the
remedy of termination of co-ownership in accordance with Article 49831 of the same Code, i.e. sale of the
property and distribution of the proceeds. Ineluctably, therefore, herein petitioners' absolute opposition to
the partition of the subject properties which are co-owned has no basis in law. As mere co-owners, herein
petitioners, representing the share of the deceased Gerry Ecarma, cannot preclude the other owners
likewise compulsory heirs of the deceased spouses Natalio and Arminda, from exercising all incidences of
their full ownership.32

Wherefore, the petition is DISMISSED. The Court of Appeal's dismissal of the Appeal in CA-G.R. CV No.
92375 is FINAL. Costs against petitioners.

SO ORDERED. cralawlawlibra ry