SECOND DIVISION 5.

That Petitioner was not notified of the application filed with

public respondent Community Environment & Natural
G.R. No. 208197, January 10, 2018 Resource Officer nor any notice of hearings of proceedings as
ARACELI MAYUGA, SUBSTITUTED BY MARILYN MAYUGA required by law, being a co-heir and party- in-interest.
SANTILLAN FOR AND ON BEHALF OF ALL THE xxxx
HEIRS, Petitioner, v. ANTONIO ATIENZA, REPRESENTING
THE HEIRS OF ARMANDO* ATIENZA; BENJAMIN ATIENZA, Thus, she prayed [for],
JR., REPRESENTING THE HEIRS OF BENJAMIN A.
ATIENZA, SR., Respondents. xxxx

DECISION 1. The recall and cancellation of FPA (NRD-IV-21) 11636

dated February 28, 1992 issued to Antonio L. Atienza.
CAGUIOA, J.:
2. The recall and cancellation of FPA (NRD-IV-21) 11637
This is a petition for review on certiorari1 (Petition) under Rule dated February 28, 1992 issued to Benjamin A. Atienza.
45 of the Rules of Court assailing the Decision2 dated July 8,
2013 of the Court of Appeals3 (CA) in CA-G.R. CV No. 95599 3. [The division of] the two lots into three (3) equal parts
which granted the appeal by the respondents Antonio among the three (3) forced heirs, namely: the Petitioner,
Atienza4 and Benjamin Atienza, Jr.5 and reversed and set Benjamin A. Atienza and Armando A. Atienza.
aside the Decision6 dated April 27, 2010 of the Regional Trial xxxx
Court, Fourth Judicial Region, Branch 82, Odiongan, Romblon
(RTC) in Civil Case No. OD-489. On June 19, 2000, defendants filed a motion for bill of
particulars because the allegations of manipulation and
Facts and Antecedent Proceedings misrepresentation were general, vague and ambiguous on
As culled from the CA Decision, the antecedents are as which they could not make an intelligent answer. In the Order
follows: dated June 22, 2000, plaintiff was directed to submit a bill of
particulars.
On May 4, 2000, Araceli Mayuga (Araceli, for short), as
plaintiff, instituted a petition for Cancellation and Recall of Plaintiff submitted a Reply to Motion for Bill of Particulars,
Free Patent Application (FPA) No. 11636 and FPA No. 11637 stating that the allegations on paragraph 4 in her petition are
[and Reconveyance] against Antonio Atienza, representing based on the following considerations:
the heirs of Armando Atienza, Benjamin Atienza, Jr., xxxx
representing the heirs of Benjamin Atienza, Sr., Community
Environment and Natural Resource Officer and Register of 1. That petition/application for title filed by Respondents
Deeds of Romblon, as defendants. The petition, docketed as before the Bureau of Lands dated June 22, 1973 was based
Civil Case No. OD-489, was raffled to the Regional Trial Court on a "Confirmation Affidavit of Distribution of Real Estate,"
(RTC) of Odiongan, Romblon, Branch 82[.] allegedly executed by Perfecto Atienza, allegedly confirming
[an] alleged partition of 1960, was misrepresented to Perfecto
In her Petition, Araceli, alleged, that [she, Benjamin A. Atienza as mere compliance of Presidential Decree No. 76 of
Atienza, Sr. and Armando A. Atienza are the surviving December 6, 1972 for Real Estate Tax purposes;
legitimate, legal and forced heirs of the late Perfecto Atienza
who died intestate on June 1, 19787, and:] 2. That the Bureau of Lands [had] never notified the
Petitioner, being one of the Compulsory/Forced heirs about
xxxx the petition/application for issuance of title and the hearing
3. That the said deceased Perfecto Atienza left estates, to wit: thereon;

(a) Lot 9819 Csd 341-D (known as Lot 61-A) with an area of 3. That Respondents took advantage of the absence of
294 square meters, and Petitioner in the Philippines, who was in the United States
then when they filed the Petition/Application for issuance of
(b) Lot 9820 Csd 341-D (known as Lot 61-B) with an area of title in the year 1989.
280 square meters,
xxxx
or a total area of 574 square meters, both lots are located at
Budiong, Odiongan, Romblon to which the three (3) On August 18, 2000, the RTC issued an Order admitting the
compulsory/forced heirs are entitled to an equal share of 1/3 Reply to Bill of Particulars.
[each]. In their Answer, defendants denied the material allegations of
4. That through manipulation and misrepresentation with the complaint, and by way of affirmative defenses, averred
intent to defraud a co-heir, respondent Antonio L. Atienza[, that, the petition is moot and academic; the Free Patent Titles
son of deceased Armando Atienza,8] was able to secure Free have become indefeasible after the lapse of one year from its
[P]atent (NRDN-21) 11636 while respondent Benjamin A. issuance in 1992; fraud as a ground for review of title under
Atienza was able to secure Free Patent (NRDN- 21) 11637, Section 38 of Act 496 is not applicable to a case where a
both patents dated February 28, 1992. certificate of title was issued in pursuance of a patent
application; that they and their predecessors-in-interest have
been in open, public, continuous possession of the subject SO ORDERED.
property for over 30 years; the basis for their Application for
Free Patent with the CENRO is a Confirmation Affidavit of xxxxx
Distribution of Real Estate executed by their father, Perfecto Defendants filed a motion for reconsideration but the same
Atienza, confirming partition in 1960. was denied in the Order dated July 29, 2010.
Defendant Community Environment and Natural Resources Aggrieved, defendants interposed an appeal [before the Court
Officer (CENRO, for short) also filed an Answer, alleging that, of Appeals] assailing the decision of the RTC. 9
Free Patent No. 045909-92-141P was issued by then
Provincial Environment and Natural Resources Officer The CA granted the appeal. It reversed and set aside the RTC
(PENRO), Dionico F. Gabay on February 28, 1992 by virtue of Decision dated April 27, 2010, and dismissed the Amended
the Free Patent Application No. (NRD-IV-21)-11636 filed by Complaint for Recall and Cancellation of Free Patent
Antonio L. Atienza at the CENRO Office in Odiongan, Application (FPA) No. 11636 and FPA No. 11637 and Action
Romblon covering Lot No. 9819, Cad. 341-D, Odiongan for Reconveyance.10
Cadastre which is identical to Lot 61-A, Csd-04-008722-D;
On the procedural aspect of the appeal, the CA ruled that the
while Free Patent Application No. (NRD-IV-21)11637 filed by
RTC erred in not dismissing the Amended Complaint for
Benjamin A. Atienza with the CENRO Office covering Lot
failure to append a certification against non-forum
9820, Cad. 341-D, Odiongan Cadastre which is identical to
shopping.11 On the substantive aspects of the appeal, the CA
Lot 61-B, Csd-04-008722-D; it has no participation
ruled that the free patents issued in favor of the respondents
whatsoever in the processing and issuance of free patents
can no longer be assailed under the rule of indefeasibility and
and/or titles in the names of Antonio L. Atienza and Benjamin
incontrovertibility of the certificate of title upon the expiration
A. Atienza. It also prayed that it be excluded as a defendant in
of one year from and after the date of the entry of the decree
the case.
of registration pursuant to Section 32 of Presidential Decree
On July 9, 2001, plaintiff filed an Amended Complaint to No. 1529.12 The CA further ruled that the RTC erred in its
implead the Heirs of Armando A. Atienza, namely, Antonio L. finding that fraud and misrepresentation attended the
Atienza, Mae Atienza-Apostol, Susan Atienza-Sumbeling and respondents' applications for free patents.13 It noted that the
Heirs of Benjamin M. (sic) Atienza, Sr., namely, Benjamin M. basis for the respondents' application was the Confirmatory
Atienza, Jr., Antonio M. Atienza, Pewrpetuo (sic) M. Atienza, Affidavit of Distribution of Real Estate dated June 22, 1973
Maribel M. Atienza and Cristina Atienza, as defendants. executed by their father, the late Perfecto Atienza during his
lifetime and was at liberty to dispose of his property to anyone
Defendants moved to dismiss the original petition for failure of he desired.14 The said document was duly notarized and the
the plaintiff’s counsels to state their IBP No. and P.T.R. No. petitioner could not impugn its validity by mere self-serving
and the amended complaint for failure to attach a verification allegations.15 Besides, the records negate the claim of the
and certification against forum-shopping but on September petitioner that she was not notified of the free patent
13, 2001, the RTC issued an Order denying the motion to applications because a Notice of Application for Free Patent
dismiss for lack of merit. was "posted in conspicuous place on the land applied for, on
The parties thereafter submitted their respective pre-trial the bulletin board of the barrio where the land is located, and
briefs. A pre-trial conference was conducted and later, trial at the door of [the] municipal building on the 2 nd day of
ensued. January, 1987 and remained posted until the 18 th of
December."16 The respondents presented Romulo Fetalvero,
On April 27, 2010, the RTC ruled in favor of Plaintiff Araceli. It Management Officer III of the PENRO-DENR, Odiongan,
ruled that the application by the defendants for a Free Patent Romblon who testified that they complied with the
with the CENRO is tainted with fraud because said application requirements for the issuance of a free patent. 17 Thus, the
was processed without the plaintiff’s knowledge nor a notice petitioner's allegations of fraud, manipulation and
of hearing of any proceeding was sent to her. In fact, the misrepresentation were unsubstantiated.18
defendants took advantage while the latter was in the United
States. Moreover, the titling of the fraudulently registered real Furthermore, the CA held that the RTC erred in ordering the
property will not bar the action for reconveyance. reconveyance of 1/3 of the subject properties to the petitioner
since she failed to establish her title and ownership over such
Thus, the RTC decreed, that: portion.19 The CA gave due recognition to the tax declarations
dated as early as 1974 presented by the respondents and the
xxxx Report of Investigation by Emilio Firmalo, Deputy Land
WHEREFORE, premises considered, the Register of Deeds Investigator/Inspector, which disclosed that Antonio Atienza
[of] Romblon, Romblon is hereby directed to Cancel the and his predecessors-in-interest had possessed and occupied
Certificates issued pursuant [to] Free Patent No. 11636 in the the subject land since 1962, while Benjamin Atienza and his
name of Antonio L. Atienza and Free Patent No. 11637 in the predecessors-in-interest fully possessed the same since
name of Benjamin A. Atienza. The defendants are hereby 1962.20
ordered to reconvey the 1/3 share of Araceli A. Mayuga as the The dispositive portion of the CA Decision states:
compulsory heir of the late Perfecto Atienza on Lot 9819
which is identical to Lot 61-A and 9820 which is identical to WHEREFORE, premises considered, the appeal
Lot 61-B all located at Budiong, Odiongan, Romblon. is GRANTED. The assailed Decision dated April 27, 2010 of
the Regional Trial Court (RTC) of Odiongan, Romblon,
Branch 82 in Civil Case No. OD-489, and the subsequent The Petition lacks merit.
Order dated July 29, 2010 are REVERSED and SET ASIDE.
The Amended Complaint for Recall and Cancellation of Free To recall, the amended complaint filed by the petitioner was
Patent Application (FPA) No. 11636 and FPA No. 11637 and for "Recall and Cancellation of FPA No. 11636 and FPA No.
Action for Reconveyance is DISMISSED. 11637 and Reconveyance."35

SO ORDERED.21 The RTC considered the said complaint mainly as an action

for declaration of nullity of the free patents and the
Proceedings Before the Court corresponding certificates of title issued to the respondents.
The RTC Decision directed the Register of Deeds of Romblon
Hence, the present Petition was filed after the Court granted to cancel the certificates of title issued pursuant to Free
the petitioner's Motion for Extension of Time to File Petition for Patent No. 11636 in the name of respondent Antonio L.
Review22 in its Resolution23 dated September 16, 2013. Atienza and Free Patent No. 11637 in the name of Benjamin
The respondents filed their Comments (To the Petition for A. Atienza, Sr. and ordered the respondents to reconvey the
Review)24 dated December 16, 2013 (Comment). The alleged 1/3 share of petitioner Araceli A. Mayuga. On the
Comment pointed as procedural flaw the defective verification other hand, the CA considered the separate merits of the
and certification of the Petition on account of the lack of amended complaint's causes of action for declaration of nullity
authority of Marilyn Mayuga Santillan, who verified the of the free patents and reconveyance. The Court will follow
Petition instead of petitioner Araceli Mayuga. The the CA's path.
respondents also argued that the petitioner has not explained The Court in Spouses Galang v. Spouses
the lack of verification and certification against non-forum Reyes,36 citing Heirs of Kionisala v. Heirs of Dacut,37 observed
shopping in the original complaint which was one of the the essential differences among an action for declaration of
reasons for the reversal of the RTC Decision by the CA. 25 As nullity of free patents and the corresponding certificates of
substantive flaws, the respondents argued that their titles titles issued pursuant thereto, an action for reversion and an
have become indefeasible one year after the date of entry of action for reconveyance, viz.:
the decree of registration and the petitioner's complaint for
recall and cancellation of free patent application and An ordinary civil action for declaration of nullity of free patents
reconveyance, having been initiated eight years from the date and certificates of title is not the same as an action for
of the entry in the registration book of the Register of Deeds reversion. The difference between them lies in the allegations
and beyond four years from the discovery of the alleged fraud, as to the character of ownership of the realty whose title is
was filed out of time.26 The respondents further argued that sought to be nullified. In an action for reversion, the pertinent
the petitioner failed to prove that there was fraud or allegations in the complaint would admit State ownership of
misrepresentation in the acquisition of their titles.27 the disputed land. x x x

The petitioner filed a Reply28 dated April 11, 2014. The On the other hand, a cause of action for declaration of nullity
petitioner raised therein that title emanating from free patent of free patent and certificate of title would require allegations
fraudulently obtained does not become indefeasible,29 and the of the plaintiffs ownership of the contested lot prior to the
action for reconveyance was seasonably filed based on issuance of such free patent and certificate of title as well as
implied or constructive trust.30 the defendant's fraud or mistake; as the case may be, in
successfully obtaining these documents of title over the parcel
In a Manifestation31 dated October 30, 2015, the Court was of land claimed by plaintiff. In such a case, the nullity arises
informed of the death of petitioner Araceli Mayuga in strictly not from the fraud or deceit but from the fact that the
September 2015. The Court in its Resolution 32 dated January land is beyond the jurisdiction of the Bureau of Lands to
18, 2016, required the petitioner's counsel to file a motion for bestow and whatever patent or certificate of title obtained
substitution of party together with the death certificate of the therefor is consequently void ab initio. The real party in
petitioner. interest is x x x the plaintiff who alleges a pre-existing right of
The petitioner's counsel filed a Motion for Substitution of Party ownership over the parcel of land in question even before the
and Compliance33 dated March 11, 2016, praying that Marilyn grant of title to the defendant. x x x
Mayuga Santillan be substituted as petitioner on behalf of all xxxx
the heirs of the original petitioner Araceli Mayuga. In the
Court's Resolution34 dated April 20, 2016, the motion for With respect to the purported cause of action
substitution was granted. for reconveyance, it is settled that in this kind of action the
free patent and the certificate of title are respected as
Issue incontrovertible. What is sought instead is the transfer of the
Based on the Petition and the pleadings filed by the parties, property, in this case the title thereof, which has been
the core issue is: wrongfully or erroneously registered in the defendant's name.
All that must be alleged in the complaint are two (2) facts
Whether the CA erred in reversing the RTC Decision and which admitting them to be true would entitle the plaintiff to
dismissing the amended complaint of the petitioner for recover title to the disputed land, namely, (1) that the plaintiff
cancellation of free patent and reconveyance. was the owner of the land and, (2) that the defendant had
illegally dispossessed him of the same.38 (Emphasis omitted,
The Court's Ruling
underscoring in the original)
Given the foregoing differences, an action for reconveyance convincing evidence, with mere preponderance of evidence
and an action for declaration of nullity of the free patent not being adequate. Fraud is a question of fact which must be
cannot be pursued simultaneously. The former recognizes the proved.
certificate of title issued pursuant to the free patent as
indefeasible while the latter does not. They may, however, be In this case, the allegations of fraud were never proven. There
pursued alternatively pursuant to Section 2, Rule 8 of the was no evidence at all specifically showing actual fraud or
Rules of Court on alternative causes of action or defenses. misrepresentation. x x x.43

The action for declaration of nullity of the free patents issued Also, Lopez v. Court of Appeals44 supports the recognition of
in favor of the respondents must fail, as the CA correctly the respondents as the absolute and exclusive owner of the
ruled. disputed lots, being grantees of free patents over them.

As noted by the CA, the respondents satisfactorily complied In Lopez, the homestead application of one Fermin Lopez had
with the requirements for the issuance of a free patent. After unfortunately remained unacted upon up to the time of his
quoting the pertinent portion of the direct examination of death, being neither approved nor denied by the Director of
Romulo Fetalvero, Management Officer III of the PENRO- the (then) Bureau of Lands as the Bureau failed to process it;
DENR, Odiongan, Romblon, on the respondents' compliance the Court ruled that he could not have acquired any vested
with the requirements, the CA stated: rights as a homestead applicant over the property, 45 and his
heirs did not inherit any property right from him.46 The other
From the foregoing, the grant of free patents to defendants- heirs of Fermin had no right to be declared co-owners with
appellants, having been performed in the course of the official Hermogenes Lopez, the eldest child of Fermin, who filed a
functions of the DENR officers, enjoys the presumption of new application after Fermin's death and was granted a
regularity. This presumption of regularity was not successfully homestead patent over the land which was subject of
rebutted by plaintiff-appellee. All told, there is no clear and Fermin's application because the land exclusively pertained to
convincing evidence of fraud and plaintiff-appellee's failure to Hermogenes. The Court reasoned out:
prove it is fatal to [her] own cause. And there being none, We
will have to sustain the issuance of [the] free patents to the The failure of the Bureau of Lands to act on the application of
defendants-appellants.39 Fermin up to the time of his death, however, prevented his
heirs to be subrogated in all his rights and obligations with
Regarding the petitioner's allegation of fraud, the CA correctly respect to the land applied for.
dismissed the same, pointing out that her "averment that [she]
was not notified of [the] applications for the free patent as well Perforce, at the time Hermogenes applied for a homestead
as of the proceedings which transpired leading to the granting grant over the disputed property, it was still part of alienable
and registration of the land in the [respondents'] name is bare public land. As he applied for it in his own name, his
and self-serving,"40 and "the records negate this claim application inures to his sole benefit. After complying with the
because a Notice of Application for Free Patent was 'posted in cultivation and residency requirements, he became a grantee
[a] conspicuous place on the land applied for, on the bulletin of a homestead patent over it, thereby making him its
board of the barrio where the land is located, and at the door absolute and exclusive owner.47
of [the] municipal building on the 2nd day of January, 1987 Thus, the CA did not commit any reversible error in dismissing
and remained posted until the 18th of December.'"41 The CA the complaint for the recall and cancellation of the free patent
was likewise not convinced with the petitioner's allegation of applications of the respondents.
fraud and misrepresentation in the execution of the
Confirmation Affidavit of Distribution of Real Estate dated Proceeding now to the determination of whether the petitioner
June 22, 1973 (Confirmation Affidavit) by the petitioner's has succeeded in proving her cause of action for
father, the late Perfecto Atienza (Perfecto). Being a notarized reconveyance, the petitioner likewise failed in this respect. As
document, the CA imbued it with the legal presumption of correctly pointed out by the CA and stated earlier, an action
validity, its due execution and authenticity not having been for reconveyance involving land that is titled pursuant to a free
impugned by the mere self-serving allegations of the patent is one that seeks to transfer property, wrongfully
petitioner.42 registered by another, to its rightful and legal owner or to one
with a better title.48 As such, two facts must be alleged in the
The petitioner having failed to persuade the Court by clear complaint and proved during the trial, namely: (1) the plaintiff
and convincing evidence that the respondents perpetuated was the owner of the land or possessed it in the concept of
fraud against her, the Court's conclusion in Spouses owner, and (2) the defendant illegally divested him of
Galang finds application in the present case, viz.: ownership and dispossessed him of the land.49
x x x As between these two claims, this Court is inclined to Such facts, as the CA observed, were not only not alleged in
decide in favor of the Galangs who hold a valid and subsisting the amended complaint, the petitioner Araceli Mayuga
title to the property which, in the absence of evidence to the (Araceli50) also failed to prove that she was entitled to 1/3 of
contrary, the Court presumes to have been issued by the the two lots in dispute by succession.
PENRO in the regular performance of its official duty.
Apparently, Araceli had taken the position that being one of
The bottom line here is that, fraud and misrepresentation, as the surviving compulsory heirs of their late father, Perfecto,
grounds for cancellation of patent and annulment of title, she was entitled to 1/3 of the disputed lots on the assumption
should never be presumed, but must be proved by clear and that the decedent left only three legal heirs (his children
Araceli, Benjamin, Sr. and Armando)51 and that the disputed without the formalities of a will? Was that the intention of the
lots were part of the inheritance52 left by their father when he legislature in amending the article from the term "testator" to
died in 1978. Araceli, however, overlooked the fact that "person"? If that is the intention, then property may pass
Perfecto executed the Confirmation Affidavit dated June 22, through the will of the testator without the formalities of a will.
1973 almost five years prior to his death on June 1, 1978. Hence, this will in effect destroy the intention of the legislature
Araceli did not even bother to provide the Court a copy in carefully providing for the formalities of the will so as to
thereof so that the Court could make a determination of its safeguard the testamentary right of a person. Any act inter
legal import. And the CA correctly accorded the Confirmation vivos which will designate under this theory a partition of the
Affidavit the legal presumption of validity, being a duly property will be valid disposition even though it is not a will.
notarized document, where its validity could not be impugned
by mere self-serving allegations.53 It is submitted that this is not the intention of the legislature. A
distinction must be made between a disposition of property
Assuming that Perfecto owned the disputed lots and the and its partition. The disposition of property must be made in
Confirmation Affidavit was a deed of partition, Perfecto could the manner allowed by law, namely, by will. After the
have legally partitioned his estate during his lifetime. Under designation in the will, then comes the second part, the
Article 1080 of the Civil Code, "[s]hould a person make a division in conformity with that disposition and the testator
partition of his estate by an act inter vivos, or by will, such may make this division in the same will or another will or by
partition shall be respected, insofar as it does not prejudice an act inter vivos.58Hence, in reality, partition is simply making
the legitime of the compulsory heirs." concrete and particular the apportionment already previously
made by the testator in his will. Since our law now does not
Unlike in the old Civil Code, partition inter vivos is expressly require a valid will in order that the partition inter vivos may be
allowed in the present Civil Code. The rationale for the valid and as we submit that the partition cannot make the
change is exhaustively explained by recognized Civil Law designation of heirs or the designation of shares but merely
Commentator, former CA Justice Eduardo P. Caguioa, 54 thus: makes concrete, specific a designation previously made,
xxx This article allows the deceased to make a partition of his according to what designation will this partition inter vivos be
estate before his death which partition shall be respected made if there is no will of the testator? It is submitted that this
insofar as it does not prejudice the legitime of the co-heirs. designation shall be in accordance with the laws of intestacy.
This partition may be made either by an act inter vivos or by Inasmuch as the deceased did not make a will, it is presumed
will. Whether one or the other, however, is followed, the that he wanted the disposition in accordance with law, and
requirements of law as to form must be complied with. 55 If the this apportionment by the law must be interpreted to be the
testator should make it by will, then there is no doubt that the presumed will of the deceased; hence, the partition inter
same is valid and binding on the heirs. It the testator makes a vivos must be in accordance with the designation laid down
partition inter vivos, should such partition be after the making by law in case of intestacy. Said partition shall be valid so
of a will and in accordance therewith or can the testator make long as it does not impair the legitime of the co-heirs. That
a partition inter vivos without any supporting will? Under the there can be a prejudice to the legitime of the co-heirs in
old Civil Code the article employed the term "testator"56 in lieu intestate succession has been previously explained inasmuch
of the term now used which is "person." Interpreting this as whether the succession is testamentary or legal,
provision of law our Supreme Court in line with the opinion of compulsory succession must always take place. From what
the Spanish Supreme Court and Manresa, ruled that the word has been explained, it is clear that should the testator institute
"testator" in the article can have no other meaning than that a stranger as heir, he cannot make a partition inter
there must have been a previous will executed by the vivos without making a designation by a valid will because the
decedent wherein the property was disposed of to the heirs. stranger cannot inherit by the laws of intestacy.
Subsequently, the testator makes a partition by an act inter Since the Civil Code allows partition inter vivos, it is
vivos in accordance with the disposition made in such will. incumbent upon the compulsory heir questioning its validity to
Hence, our Supreme Court ruled that where the testator made show that his legitime is impaired. Unfortunately, Araceli has
a partition inter vivos but the will was declared null and void, not shown to what extent the Confirmation Affidavit prejudiced
the partition was also null and void.57 The word "testator" in her legitime.
the Old Civil Code was changed by the New Civil Code into
the term "person," precisely to do away with the interpretation Araceli could not also claim preterition by virtue of the
given to the article by our Supreme Court, the Supreme Court Confirmation Affidavit on the assumption that the disputed two
of Spain and Manresa. Where the old code uses the specific lots pertained to Perfecto's inheritance, he had only three
term "testator," the New Civil Code uses the broader term legal heirs and he left Araceli with no share in the two lots.
"person." What is the effect of this change? There is no doubt Article 854 of the Civil Code partly provides: "[t]he preterition
that the intention behind the change is to do away with the or omission of one, some, or all of the compulsory heirs in the
interpretation requiring a valid will in order that there be a direct line, whether living at the time of the execution of the
valid partition inter vivos. Consequently, we may say that a will or born after the death of the testator, shall annul the
partition inter vivos may be valid even though there is no institution of heir; but the devises and legacies shall be valid
supporting will. However, in accordance with what disposition insofar as they are not inofficious."
shall said partition be made if made inter vivos? May the
deceased freely, in said partition inter vivos, designate the As explained by Justice Eduardo P. Caguioa:
shares of the heirs granting that the same does not prejudice
the legitime of the co-heirs? If this is so, is not this a will
x x x Preterition consists in the omission in the testator's will of
a compulsory heir in the direct line or anyone of them either
because they are not mentioned therein or although
mentioned they are neither instituted as heir nor expressly
disinherited. The act of totally depriving a compulsory heir of
his legitime can take place either expressly or tacitly. The
express deprivation of the legitime constitutes disinheritance.
The tacit deprivation of the same is called preterition. x x x 59

x x x In order that there be preterition, it is essential that the

heir must be totally omitted. This is clear from the wording of
this article in conjunction with Article 90660. x x x61

xxxx

Summarizing, therefore, total omission means that the omitted

compulsory heir receives nothing under the will, whether as
heir, legatee or devisee, has received nothing by way of
donation inter vivos or propter [nuptias], and will receive
nothing by way of intestate succession.62

Although Araceli was a compulsory heir in the direct

descending line, she could not have been preterited. Firstly,
Perfecto left no will. As contemplated in Article 854, the
presence of a will is necessary. Secondly, before his death,
Perfecto had properties in Limon, Rizal which was almost 50
hectares, part of which was developed for residential and
agricultural purposes, and in Odiongan.63 Araceli could not
have been totally excluded in the inheritance of Perfecto even
if she was not allegedly given any share in the disputed two
lots.

If Araceli's share in the inheritance of Perfecto as claimed by

her was indeed impaired, she could have instituted an action
for partition or a settlement of estate proceedings instead of
her complaint for cancellation of free patent and
reconveyance.

Furthermore, as the persons who applied for and were

awarded free patents, the respondents are the rightful, legal
owners of the disputed lots. The free patents having been
issued by the Department of Environment and Natural
Resources on February 28, 1992 and recorded in the Book of
Entries at the Office of the Registry of Deeds in June
1992,64 the respondents' certificates of title have already
become indefeasible pursuant to Section 32 of Presidential
Decree No. 1529 (the Property Registration Decree), which
pertinently provides: "Upon the expiration of said period of
one year [from and after the date of entry of the decree of
registration], the decree of registration and the certificate of
title issued shall become incontrovertible."

Given the foregoing, the resolution of the procedural issues

pertinent to the Petition has become superfluous.

WHEREFORE, the Petition is hereby DENIED for lack of

merit. The Court of Appeals Decision dated July 8, 2013 in
CA-G.R. CV No. 95599 is hereby AFFIRMED.

SO ORDERED.