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9/18/2017 SUPREME COURT REPORTS ANNOTATED VOLUME 657

G.R. No. 157537. September 7, 2011.*

THE HEIRS OF PROTACIO GO, SR. and MARTA


BAROLA, namely: LEONOR, SIMPLICIO, PROTACIO,
JR., ANTONIO, BEVERLY ANN LORRAINNE, TITA,
CONSOLACION, LEONORA and ASUNCION, all
surnamed GO, represented by LEONORA B. GO,
petitioners, vs. ESTER L. SERVACIO and RITO B. GO,
respondents.

Family Code; Conjugal Properties; Any disposition of the


conjugal property after the dissolution of the conjugal partnership
must be made only after the liquidation; otherwise, the disposition
is void.It is clear that conjugal partnership of gains established
before and after the effectivity of the Family Code are governed by
the rules found in Chapter 4 (Conjugal Partnership of Gains) of
Title IV (Property Relations Between Husband And Wife) of the
Family Code. Hence, any disposition of the conjugal property after
the dissolution of the conjugal partnership must be made only
after the liquidation; otherwise, the disposition is void.

PETITION for review on certiorari of a decision of the


Court of Appeals.
The facts are stated in the opinion of the Court.
Malilong, Hupp and Cabatingan for petitioners.
Latras, Heyrosa, Alcazaren, Rusorra for respondent E.
Servacio.

BERSAMIN, J.:
The disposition by sale of a portion of the conjugal
property by the surviving spouse without the prior
liquidation mandated by Article 130 of the Family Code is
not necessarily void if said portion has not yet been
allocated by judicial or extrajudicial partition to another
heir of the deceased spouse. At

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*FIRST DIVISION.

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Heirs of Protacio Go, Sr. and Marta Barola vs. Servacio

any rate, the requirement of prior liquidation does not


prejudice vested rights.

Antecedents

On February 22, 1976, Jesus B. Gaviola sold two parcels


of land with a total area of 17,140 square meters situated
in Southern Leyte to Protacio B. Go, Jr. (Protacio, Jr.).
Twenty three years later, or on March 29, 1999, Protacio,
Jr. executed an Affidavit of Renunciation and Waiver,1
whereby he affirmed under oath that it was his father,
Protacio Go, Sr. (Protacio, Sr.), not he, who had purchased
the two parcels of land (the property).
On November 25, 1987, Marta Barola Go died. She was
the wife of Protacio, Sr. and mother of the petitioners.2 On
December 28, 1999, Protacio, Sr. and his son Rito B. Go
(joined by Ritos wife Dina B. Go) sold a portion of the
property with an area of 5,560 square meters to Ester L.
Servacio (Servacio) for P5,686,768.00.3 On March 2, 2001,
the petitioners demanded the return of the property,4 but
Servacio refused to heed their demand. After barangay
proceedings failed to resolve the dispute,5 they sued
Servacio and Rito in the Regional Trial Court in Maasin
City, Southern Leyte (RTC) for the annulment of the sale of
the property.
The petitioners averred that following Protacio, Jr.s
renunciation, the property became conjugal property; and
that the sale of the property to Servacio without the prior
liquidation of the community property between Protacio,
Sr. and Marta was null and void.6

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1Original records, p. 20.
2Id., at p. 173.
3Id., at pp. 22-24 (the contract was denominated as Deed of Absolute
Sale of a Portion of Real Property).
4Id., at p. 26.
5Id., at p. 27.
6Id., at pp. 1-7.

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Servacio and Rito countered that Protacio, Sr. had


exclusively owned the property because he had purchased
it with his own money.7
On October 3, 2002,8 the RTC declared that the property
was the conjugal property of Protacio, Sr. and Marta, not
the exclusive property of Protacio, Sr., because there were
three vendors in the sale to Servacio (namely: Protacio, Sr.,
Rito, and Dina); that the participation of Rito and Dina as
vendors had been by virtue of their being heirs of the late
Marta; that under Article 160 of the Civil Code, the law in
effect when the property was acquired, all property
acquired by either spouse during the marriage was
conjugal unless there was proof that the property thus
acquired pertained exclusively to the husband or to the
wife; and that Protacio, Jr.s renunciation was grossly
insufficient to rebut the legal presumption.9
Nonetheless, the RTC affirmed the validity of the sale of
the property, holding that: xxx As long as the portion sold,
alienated or encumbered will not be allotted to the other
heirs in the final partition of the property, or to state it
plainly, as long as the portion sold does not encroach upon
the legitimate (sic) of other heirs, it is valid.10 Quoting
Tolentinos commentary on the matter as authority,11 the
RTC opined:

In his comment on Article 175 of the New Civil Code


regarding the dissolution of the conjugal partnership, Senator
Arturo Tolentino, says [sic]
Alienation by the survivor.After the death of one of
the spouses, in case it is necessary to sell any portion of the
community property in order to pay outstanding obligation
of the partnership, such sale must be made in the manner
and with the formalities established by the Rules of Court
for the

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7 Id., at pp. 31-43.
8 Rollo, pp. 22-25.
9 Id.
10Id.
11Id.

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sale of the property of the deceased persons. Any sale,


transfer, alienation or disposition of said property affected
without said formalities shall be null and void, except as
regards the portion that belongs to the vendor as
determined in the liquidation and partition. Pending the
liquidation, the disposition must be considered as limited
only to the contingent share or interest of the vendor in the
particular property involved, but not to the corpus of the
property.
This rule applies not only to sale but also to mortgages.
The alienation, mortgage or disposal of the conjugal
property without the required formality, is not however,
null ab initio, for the law recognizes their validity so long as
they do not exceed the portion which, after liquidation and
partition, should pertain to the surviving spouse who made
the contract. [underlining supplied]
It seems clear from these comments of Senator Arturo
Tolentino on the provisions of the New Civil Code and the Family
Code on the alienation by the surviving spouse of the community
property that jurisprudence remains the samethat the
alienation made by the surviving spouse of a portion of the
community property is not wholly void ab initio despite Article
103 of the Family Code, and shall be valid to the extent of what
will be allotted, in the final partition, to the vendor. And rightly
so, because why invalidate the sale by the surviving spouse of a
portion of the community property that will eventually be his/her
share in the final partition? Practically there is no reason for that
view and it would be absurd.
Now here, in the instant case, the 5,560 square meter portion
of the 17,140 square-meter conjugal lot is certainly mush (sic) less
than what vendors Protacio Go and his son Rito B. Go will
eventually get as their share in the final partition of the property.
So the sale is still valid.
WHEREFORE, premises considered, complaint is hereby
DISMISSED without pronouncement as to cost and damages.
SO ORDERED.12

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12Id., at pp. 24-25.

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The RTCs denial of their motion for reconsideration13


prompted the petitioners to appeal directly to the Court on

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a pure question of law.

Issue

The petitioners claim that Article 130 of the Family


Code is the applicable law; and that the sale by Protacio,
Sr., et al. to Servacio was void for being made without prior
liquidation.
In contrast, although they have filed separate
comments, Servacio and Rito both argue that Article 130 of
the Family Code was inapplicable; that the want of the
liquidation prior to the sale did not render the sale invalid,
because the sale was valid to the extent of the portion that
was finally allotted to the vendors as his share; and that
the sale did not also prejudice any rights of the petitioners
as heirs, considering that what the sale disposed of was
within the aliquot portion of the property that the vendors
were entitled to as heirs.14

Ruling

The appeal lacks merit.


Article 130 of the Family Code reads:

Article 130. Upon the termination of the marriage by death,


the conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either
judicially or extra-judicially within one year from the death of the
deceased spouse. If upon the lapse of the six month period no
liquidation is made, any disposition or encumbrance involving the
conjugal partnership property of the terminated marriage shall be
void.
Should the surviving spouse contract a subsequent marriage
without compliance with the foregoing requirements, a mandatory

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13Id., at pp. 26-27.
14Id., at p. 65.

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Heirs of Protacio Go, Sr. and Marta Barola vs. Servacio

regime of complete separation of property shall govern the


property relations of the subsequent marriage.

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Article 130 is to be read in consonance with Article 105


of the Family Code, viz.:

Article 105. In case the future spouses agree in the marriage


settlements that the regime of conjugal partnership of gains shall
govern their property relations during marriage, the provisions in
this Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to
conjugal partnerships of gains already established
between spouses before the effectivity of this Code,
without prejudice to vested rights already acquired in
accordance with the Civil Code or other laws, as provided
in Article 256. (n) [emphasis supplied]

It is clear that conjugal partnership of gains established


before and after the effectivity of the Family Code are
governed by the rules found in Chapter 4 (Conjugal
Partnership of Gains) of Title IV (Property Relations
Between Husband And Wife) of the Family Code. Hence,
any disposition of the conjugal property after the
dissolution of the conjugal partnership must be made only
after the liquidation; otherwise, the disposition is void.
Before applying such rules, however, the conjugal
partnership of gains must be subsisting at the time of the
effectivity of the Family Code. There being no dispute that
Protacio, Sr. and Marta were married prior to the
effectivity of the Family Code on August 3, 1988, their
property relation was properly characterized as one of
conjugal partnership governed by the Civil Code. Upon
Martas death in 1987, the conjugal partnership was
dissolved, pursuant to Article 175 (1) of the Civil Code,15
and an implied ordinary co-ownership ensued among

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15Article 175. The conjugal partnership of gains terminates:
1. Upon the death of either spouse.
xxx

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Heirs of Protacio Go, Sr. and Marta Barola vs. Servacio

Protacio, Sr. and the other heirs of Marta with respect to


her share in the assets of the conjugal partnership pending
a liquidation following its liquidation.16 The ensuing
implied ordinary co-ownership was governed by Article 493
of the Civil Code,17 to wit:
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Article 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. (399)

Protacio, Sr., although becoming a co-owner with his


children in respect of Martas share in the conjugal
partnership, could not yet assert or claim title to any
specific portion of Martas share without an actual
partition of the property being first done either by
agreement or by judicial decree. Until then, all that he had
was an ideal or abstract quota in Martas share.18
Nonetheless, a co-owner could sell his undivided share;
hence, Protacio, Sr. had the right to freely sell and dispose
of his undivided interest, but not the interest of his co-
owners.19 Consequently, the sale by Protacio, Sr. and Rito
as co-owners without the consent of the other co-owners
was not necessarily void, for the rights of the selling co-
owners were thereby effectively transferred, making the

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16 Dael v. Intermediate Appellate Court, G.R. No. 68873, March 31,
1989, 171 SCRA 524, 532-533.
17 Metropolitan Bank and Trust Co. v. Pascual, G.R. No. 163744,
February 29, 2008, 547 SCRA 246.
18Acabal v. Acabal, G.R. No. 148376, March 31, 2005, 454 SCRA 555,
581.
19Id., at p. 582.

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buyer (Servacio) a co-owner of Martas share.20 This result


conforms to the well-established principle that the binding
force of a contract must be recognized as far as it is legally
possible to do so (quando res non valet ut ago, valeat
quantum valere potest).21
Article 105 of the Family Code, supra, expressly
provides that the applicability of the rules on dissolution of
the conjugal partnership is without prejudice to vested
rights already acquired in accordance with the Civil Code
or other laws. This provision gives another reason not to
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declare the sale as entirely void. Indeed, such a declaration


prejudices the rights of Servacio who had already acquired
the shares of Protacio, Sr. and Rito in the property subject
of the sale.
In their separate comments,22 the respondents aver that
each of the heirs had already received a certain allotted
portion at the time of the sale, and that Protacio, Sr. and
Rito sold only the portions adjudicated to and owned by
them. However, they did not present any public document
on the allocation among her heirs, including themselves, of
specific shares in Martas estate. Neither did they aver that
the conjugal properties had already been liquidated and
partitioned. Accordingly, pending a partition among the
heirs of Marta, the efficacy of the sale, and whether the
extent of the property sold adversely affected the interests
of the petitioners might not yet be properly decided with
finality. The appropriate recourse to bring that about is to
commence an action for judicial partition, as instructed in
Bailon-Casilao v. Court of Appeals,23 to wit:

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20Aguirre v. Court of Appeals, G.R. No. 122249. January 29, 2004, 421
SCRA 310, 324, citing Fernandez v. Fernandez, G.R. No. 143256, August
28, 2001, 363 SCRA 811, 829.
21 Metrobank v. Pascual, supra, note 17, at p. 260, quoting from
Aromin v. Floresca, G.R. No. 160994, July 27, 2006, 496 SCRA 785, 815.
22Rollo, pp. 62-67, 79-83.
23No. L-78178, April 15, 1988, 160 SCRA 738.

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From the foregoing, it may be deduced that since a co-owner is


entitled to sell his undivided share, a sale of the entire
property by one co-owner without the consent of the other
co-owners is not null and void. However, only the rights of the
co-owner-seller are transferred, thereby making the buyer a co-
owner of the property.
The proper action in cases like this is not for the nullification of
the sale or for the recovery of possession of the thing owned in
common from the third person who substituted the co-owner or co-
owners who alienated their shares, but the DIVISION of the
common property as if it continued to remain in the possession of
the co-owners who possessed and administered it [Mainit v.
Bandoy, supra].

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Thus, it is now settled that the appropriate recourse of


co-owners in cases where their consent were not secured
in a sale of the entire property as well as in a sale merely
of the undivided shares of some of the co-owners is an
action for PARTITION under Rule 69 of the Revised Rules
of Court. xxx24

In the meanwhile, Servacio would be a trustee for the


benefit of the co-heirs of her vendors in respect of any
portion that might not be validly sold to her. The following
observations of Justice Paras are explanatory of this result,
viz.:

xxx [I]f it turns out that the property alienated or mortgaged


really would pertain to the share of the surviving spouse, then
said transaction is valid. If it turns out that there really would be,
after liquidation, no more conjugal assets then the whole
transaction is null and void. But if it turns out that half of the
property thus alienated or mortgaged belongs to the husband as
his share in the conjugal partnership, and half should go to the
estate of the wife, then that corresponding to the husband is valid,
and that corresponding to the other is not. Since all these can be
determined only at the time the liquidation is over, it follows
logically that a disposal made by the surviving spouse is not void
ab initio. Thus, it has been held that the sale of conjugal
properties cannot be made by the surviving spouse without the
legal requirements. The sale is void as to the share of

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24Id., at p. 745.

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Heirs of Protacio Go, Sr. and Marta Barola vs. Servacio

the deceased spouse (except of course as to that portion of the


husbands share inherited by her as the surviving spouse). The
buyers of the property that could not be validly sold become
trustees of said portion for the benefit of the husbands other
heirs, the cestui que trust ent. Said heirs shall not be barred by
prescription or by laches (See Cuison, et al. v. Fernandez, et al., L-
11764, Jan. 31, 1959.)25

WHEREFORE, we DENY the petition for review on


certiorari; and AFFIRM the decision of the Regional Trial
Court.
The petitioners shall pay the costs of suit.
SO ORDERED.
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Corona (C.J., Chairperson) Leonardo-De Castro, Del


Castillo and Villarama, Jr., JJ., concur.

Petition denied, judgment affirmed.

Note.If the husband, without knowledge and consent


of the wife, sells conjugal property, such sale is void. If the
sale was with the knowledge but without the approval of
the wife, thereby resulting in a disagreement, such sale is
annullable at the instance of the wife who is given five (5)
years from the date the contract implementing the decision
of the husband to institute the case. (Ravina vs. Villa
Abrille, 604 SCRA 120 [2009])
o0o

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25 I Paras, Civil Code of the Philippines Annotated, Sixteenth Ed., p.
592.

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