THIRD DIVISION

[G.R. No. 110644.  October 30, 1998]

THE HEIRS OF SALUD DIZON SALAMAT, represented by Lucio Salamat and Danilo Salamat, VALENTA DIZON GARCIA, represented by Raymundo D. Garcia, Jr. as Attorney-in-Fact, THE HEIRS OF ANSELMA REYES DIZON, represented by Catalina Dizon Espinosa, petitioners, vs. NATIVIDAD DIZON TAMAYO, THE HEIRS OF EDUARDO DIZON, represented by Angela R. Dizon, THE HEIRS OF GAUDENCIO DIZON, represented by Maria Dizon Jocson, respondents.

D E C I S I O N

ROMERO, J.:

Before us is a petition for certiorari under Rule 45 of the Rules of Court seeking the reversal of the decision rendered by the Court of Appeals dated June 15, 1993.

Agustin Dizon died intestate on May 15, 1942 leaving behind his five children Eduardo, Gaudencio, Salud, Valenta and Natividad as surviving heirs. Among the properties left by the decedent was a parcel of land in Barrio San Nicolas, Hagonoy, Bulacan, with an area of 2,188 square meters covered by Original Certificate of Title No. 10384.[1]

On January 8, 1944, Eduardo sold his hereditary rights in the sum of P3,000 to his sister Salud Dizon Salamat.  The sale was evidenced by a private document bearing the signatures of his sisters Valenta and Natividad as witnesses.[2]

On June 2, 1949, Gaudencio likewise sold his hereditary rights for the sum of P4,000 to his sister Salud. The sale was evidenced by a notarized document which bore the signature of Eduardo Dizon and a certain Angela Ramos as witnesses.[3] Gaudencio died on May 30, 1951 leaving his daughters Priscila D. Rivera and Maria D. Jocson as heirs.

Sometime in 1987, petitioners instituted an action for compulsory judicial partition of real properties registered in the name of Agustin Dizon with the Regional Trial Court, Branch 18 of Malolos, Bulacan. The action was prompted by the refusal of herein respondent Natividad Dizon Tamayo to agree to the formal distribution of the properties of deceased Agustin Dizon among his heirs. Respondent’s refusal stemmed from her desire to keep for herself the parcel of land covered by OCT 10384 where she presently resides, claiming that her father donated it to her sometime in 1936 with the conformity of the other heirs. The subject property is also declared for taxation purposes under Tax Declaration No. 10376 in the name of respondent.

The trial court noted that the alleged endowment which was made orally by the deceased Agustin Dizon to herein respondent partook of the nature of a donation which required the observance of certain formalities set by law. Nevertheless, the trial court rendered judgment in favor of respondent, the dispositive portion of which reads as follows:

“WHEREFORE, finding that the partition of the estate of Agustin Dizon is in order, let a project of partition be drawn pursuant to Sec 2, Rule 69, Rules of Court assigning to each heir the specific share to which he is entitled taking into consideration the disposition made in favor of Salud Dizon Salamat and the adjudication of Lot 2557, Hagonoy Cadastre 304-D owned by Natividad Dizon Tamayo, together with the improvements thereon, in her favor and the house owned by Valenta Dizon Garcia, executing, if necessary, proper instruments of conveyance for confirmation and approval by the Court.

Parties are enjoined to draw the prospect of partition as equitably and equally as possible with the least inconvenience and disruption of those in possession or in actual occupation of the property. Should the parties fail to come up with an acceptable project of partition, the Court will appoint commissioners as authorized by Sec. 3, Rule 69, Rules of Court, who will be guided by the dispositive portion hereof.

All costs and expenses incurred in connection with the partition are to be shared equally by the parties.

SO ORDERED.”

Petitioners contend that Lot 2557, Cad 304-D, described and covered by OCT 10384 in the name of the heirs of Agustin Dizon is part of the Dizon estate while respondent claims that her father donated it to her sometime in 1936 with the consent of her co-heirs.  In support of her claim, respondent Natividad presented a private document of conformity which was allegedly signed and executed by her elder brother, Eduardo, in 1936.

Petitioners, however, question the authenticity of the document inasmuch as it is marred by the unexplained erasures and alterations.

The Court of Appeals, in affirming the decision of the RTC, stated that notwithstanding the unexplained erasures and alterations, a cursory reading of the signed statement of Eduardo Dizon, which execution is undisputed, showed that there was an oral donation of the litigated land from Agustin Dizon to Natividad Dizon Tamayo[4] in 1936.

The Court of Appeals further stated that the attestation by Eduardo, of the oral donation of the subject land made by his father to respondent Natividad, in 1936, coupled with the tax declaration and payment of taxes in respondent’s name would show that the trial court did not err in ruling that the subject land should pertain to Natividad Tamayo as inheritance from her parents.

We reverse.

Art 749 of the Civil Code reads:

In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form and this step shall be noted in both instruments.

It is clear from Article 749 that a transfer of real property from one person to another cannot take effect as a donation unless embodied in a public document.

The alleged donation in the case at bar was done orally and not executed in a public document.  Moreover, the document which was presented by respondent in support of her claim that her father donated the subject parcel of land to her was a mere private document of conformity which was executed by her elder brother, Eduardo in 1956.[5] It may not be amiss to point out that the brothers Eduardo and Gaudencio had already ceded their hereditary interests to petitioner Salud Dizon Salamat even before 1950.

The Court of Appeals, however, placed much reliance on the said document and made the dubious observation that “x x x a cursory reading of the signed statement of Eduardo Dizon, which execution is undisputed, shows that there was an oral donation x x x.”

Significantly, the document relied upon by the Court of Appeals could hardly satisfy the requirements of the rule on ancient documents on accounts of unexplained alterations.

An ancient document refers to a private document which is more than thirty (30) years old, produced from a custody in which it would naturally be found if genuine, and is unblemished by alterations or circumstances of suspicion.[6]

To repeat, the document which was allegedly executed by Eduardo was marred by unexplained erasures and alterations. While the document was originally penned in black ink, the number thirty-six (36) in blue ink was superimposed on the number fifty-six (56) to make it appear that the document was executed in 1936 instead of in 1956. Moreover, a signature was blotted out with a black pentel pen and the three other signatures[7] of the alleged witnesses to the execution of the document at the lower portion of the document were dated June 1, 1951. This could only mean that the witnesses attested to the veracity of the document 5 years earlier, if the document was executed in 1956 or 15 years later, if we are to give credence to respondent’s claim, that the document was executed in 1936. Curiously, two of the signatories, namely, Priscila D. Rivera and Maria D. Jocson signed the document as witnesses two days after the death of their father Gaudencio, who, as earlier mentioned, had already sold his hereditary rights to his elder sister Salud in 1949.

In any case, assuming that Agustin really made the donation to respondent, albeit orally, respondent cannot still claim ownership over the property.  While it is true that a void donation may be the basis of ownership which may ripen into title by prescription,[8] it is well settled that possession, to constitute the foundation of a prescriptive right, must be adverse and under a claim of title.

Respondent was never in adverse and continous possession of the property. It is undeniable that petitioners and respondent, being heirs of the deceased, are co-owners of the properties left by the latter.  A co-ownership is a form of a trust, with each owner being a trustee for each other[9] and possession of a co-owner shall not be regarded as adverse to other co-owners but in fact is beneficial to them.  Mere actual possession by one will not give rise to the inference that the possession was adverse because a co-owner is, after all, entitled to possession of the property.

In the case of Salvador v. Court of Appeals,[10] we had occasion to state that a mere silent possession by a co-owner, his receipt of rents, fruits or profits from the property, the erection of buildings and fences and the planting of trees thereon and the payment of land taxes, cannot serve as proof of exclusive ownership, if it is not borne out by clear and convincing evidence that he exercised acts of possession which unequivocably constituted an ouster or deprivation of the rights of the other co-owners.

The elements in order that a co-owner’s possession may be deemed adverse to the cestui que trust or the co-owner are: (1) that he has performed unequivocal acts of repudiation amounting to ouster cestui que trust or other co-owners (2) that such positive acts or repudiation have been made known to the cestui que trust or other co-owners and (3) that the evidence thereon must be clear and convincing.[11]

Not one of the aforesaid requirements is present in the case at bar. There are two houses standing on the subject property. One is the house where respondent presently resides while the other is a house built by respondent’s sister Valenta. Records show that the house on Lot 227 where the respondent lives is actually the ancestral house of the Dizons although respondent has remodelled it, constructed a piggery and has planted trees thereon.[12] Respondent herself testified:

“x x x                                  x x x                             x x x

Q    Now, who is in the possession of this particular residential land in Bo. San Nicolas, Hagonoy, Bulacan?

A    I am in possession of that land, Sir.

Q    Do you have your residential house there?

A    Yes, sir.

Q    Now, you said that you have your residential house there, since when have you stayed there?

A    I was born there, Sir.

Q    And you are staying there up to the present?”

A    Yes, sir.

x x x                                    x x x                             x x x.”[13]

It is obvious from the foregoing that since respondent never made unequivocal acts of repudiation, she cannot acquire ownership over said property through acquisitive prescription. The testimony of her son that she merely allowed her sister Valenta to build a house on the lot[14] is pure hearsay as respondent herself could have testified on the matter but chose not to.

Finally, the fact that the subject property is declared for taxation purposes in the name of respondent who pays realty taxes thereon under Tax Declaration No. 14376 is of no moment. It is well settled that tax declarations or realty tax payments are not conclusive evidence of ownership.[15]

As regards the improvements introduced by the respondent on the questioned lot, the parties should be guided by Article 500 of the Civil Code which states that: “Upon partition, there shall be a mutual accounting for benefits received and reimbursements for expenses made. x x x”

WHEREFORE, the decision of the Court of Appeals is hereby REVERSED. Lot 2557, Hagonoy Cadastre 304-D covered by Original Certificate of Title No. 10384 is hereby declared to belong the estate of Agustin Dizon.  No costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Kapunan, Purisima, and Pardo, JJ., concur.



[1] The Original Certificate of Title is presently registered in the name of the Heirs of Agustin Dizon, Exh C.

[2] Exhibit E.

[3] Exh F.

[4] Exh 1.

[5] Respondent however claims it was executed in 1936.

[6] Sec. 21, Rule 132 of the Rules of Court.

[7] Signatories were Valenta D. Garcia, Priscila D. Rivera and Maria D. Jocson.

[8] Pensador v. Pensador, 47 Phil 959 [1924]; Vda de Lima v. Tio 32 SCRA 516 [1970]; Consato v. Fruto, 129 US 182 [1889]; Solis vs. CA, 176 SCRA 678 [1968].

[9] Sotto v. Teves, 86 SCRA 155 [1978].

[10] 243 SCRA 239 (1995).

[11] Ibid.

[12] TSN, June 21, 1990, p. 5; TSN September 19, 1989, p. 5; Rollo, p. 60.

[13] TSN, October 26, 1989, pp. 7-8.

[14] Mr. Florentino Tamayo testified “According to my mother, when this Valenta Garcia got married, my mother offered her to stay or erect her home there.” TSN, June 21, 1990, p. 17.

[15] Rivera v. Court of Appeals, 244 SCRA 218 (1995); Republic v. Intermediate Appellate Court, 224 SCRA 285 (1993); Director of Lands v. Intermediate Appellate Court, 219 SCRA 339 (1993).