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G.R. No. L-63915

April 24, 1985


INC. [MABINI], petitioners,
HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS,
in his capacity as Deputy Executive Assistant to
the President , MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacaang Records Office,
and FLORENDO S. PABLO, in his capacity as
Director, Bureau of Printing, respondents.
Invoking the people's right to be informed on matters of
public concern, a right recognized in Section 6, Article IV
of the 1973 Philippine Constitution, as well as the
principle that laws to be valid and enforceable must be
published in the Official Gazette or otherwise effectively
promulgated, petitioners seek a writ of mandamus to
compel respondent public officials to publish, and/or
cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of
implementation and administrative orders.
The respondents, through the Solicitor General, would
have this case dismissed outright on the ground that
petitioners have no legal personality or standing to bring
the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally
and directly affected or prejudiced by the alleged nonpublication of the presidential issuances in question said
petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3,
Rule 65 of the Rules of Court.
Upon the other hand, petitioners maintain that since the
subject of the petition concerns a public right and its
object is to compel the performance of a public duty,
they need not show any specific interest for their
petition to be given due course.
Art. 2. Laws shall take effect after fifteen
days following the completion of their
publication in the Official Gazette, unless
it is otherwise provided, ...
In a long line of decisions, this Court has ruled that
publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its
effectivity date-for then the date of publication is
material for determining its date of effectivity, which is
the fifteenth day following its publication-but not when
the law itself provides for the date when it goes into


Considered in the light of other statutes applicable to the

issue at hand, the conclusion is easily reached that said
Article 2 does not preclude the requirement of
publication in the Official Gazette, even if the law itself
provides for the date of its effectivity.
The clear object of the above-quoted provision is to give
the general public adequate notice of the various laws
which are to regulate their actions and conduct as
citizens. Without such notice and publication, there
would be no basis for the application of the maxim
"ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice
whatsoever, not even a constructive one.
The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise
impose a burden on the people, such as tax and revenue
measures, fall within this category. Other presidential
issuances which apply only to particular persons or class
of persons such as administrative and executive orders
need not be published on the assumption that they have
been circularized to all concerned.
It is needless to add that the publication of presidential
issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule
of law that before a person may be bound by law, he
must first be officially and specifically informed of its
The Court therefore declares that presidential
issuances of general application, which have not
been published, shall have no force and effect.
presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past
cannot always be erased by a new judicial declaration ...
that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."
In Pesigan vs. Angeles, the Court, through Justice Ramon
Aquino, ruled that "publication is necessary to apprise
the public of the contents of [penal] regulations and
make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the
manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations
of criminal laws until the same shall have been published
in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take
effect immediately.
respondents to publish in the Official Gazette all
unpublished presidential issuances which are of
general application, and unless so published, they
shall have no binding force and effect.

Senates website, satisfies the due process requirement

of law.
G.R. No. 170338

December 23, 2008


REFORMS, respondents.

The Court does not agree. The absence of any

amendment to the rules cannot justify the Senates
defiance of the clear and unambiguous language of
Section 21, Article VI of the Constitution. The organic law
instructs, without more, that the Senate or its
committees may conduct inquiries in aid of legislation
only in accordance with duly published rules of
procedure, and does not make any distinction whether
or not these rules have undergone amendments or
revision. The constitutional mandate to publish the
said rules prevails over any custom, practice or
tradition followed by the Senate.
Justice Carpios response to the same argument raised
by the respondents is illuminating:

Tapes ostensibly containing a wiretapped conversation
purportedly between the President of the Philippines and
a high-ranking official of the Commission on Elections
(COMELEC) surfaced. The tapes, notoriously referred to
as the "Hello Garci" tapes, allegedly contained the
Presidents instructions to COMELEC Commissioner
Virgilio Garcillano to manipulate in her favor results of
the 2004 presidential elections. These recordings were
to become the subject of heated legislative hearings
conducted separately by committees of both Houses of
Intervenor Sagge alleges violation of his right to due
process considering that he is summoned to attend the
Senate hearings without being apprised not only of his
rights therein through the publication of the Senate
Rules of Procedure Governing Inquiries in Aid of
Legislation, but also of the intended legislation which
underpins the investigation. He further intervenes as a
taxpayer bewailing the useless and wasteful expenditure
of public funds involved in the conduct of the questioned
The respondents in G.R. No. 179275 admit in their
pleadings and even on oral argument that the Senate
Rules of Procedure Governing Inquiries in Aid of
Legislation had been published in newspapers of general
circulation only in 1995 and in 2006. With respect to the
present Senate of the 14 th Congress, however, of which
the term of half of its members commenced on June 30,
2007, no effort was undertaken for the publication of
these rules when they first opened their session.
Respondents justify their non-observance of the
constitutionally mandated publication by arguing that
the rules have never been amended since 1995 and,
despite that, they are published in booklet form available
to anyone for free, and accessible to the public at the
Senates internet web page.
Whether or not publication of the Rules of Procedures
Governing Inquiries in Aid of Legislation through the

The publication of the Rules of Procedure in the

website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under
the Taada v. Tuvera ruling which requires
publication either in the Official Gazette or in a
newspaper of general circulation. The Rules of
Procedure even provide that the rules "shall
take effect seven (7) days after publication in
two (2) newspapers of general circulation,"
precluding any other form of publication.
Publication in accordance with Taada is
mandatory to comply with the due process
requirement because the Rules of Procedure
put a persons liberty at risk. A person who
violates the Rules of Procedure could be
arrested and detained by the Senate.
The invocation by the respondents of the provisions of
R.A. No. 8792, otherwise known as the Electronic
Commerce Act of 2000, to support their claim of valid
publication through the internet is all the more incorrect.
R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a
written document only for evidentiary purposes. In other
words, the law merely recognizes the admissibility in
evidence (for their being the original) of electronic data
messages and/or electronic documents. It does not
make the internet a medium for publishing laws,
rules and regulations.
Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative
inquiry subject of these consolidated cases. The conduct
of inquiries in aid of legislation by the Senate has to be
deferred until it shall have caused the publication of the
rules, because it can do so only "in accordance with its
duly published rules of procedure."
Very recently, the Senate caused the publication of the
Senate Rules of Procedure Governing Inquiries in Aid of
Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this
fact, the recent publication does not cure the infirmity of
the inquiry sought to be prohibited by the instant
petitions. Insofar as the consolidated cases are
concerned, the legislative investigation subject thereof
still could not be undertaken by the respondent Senate

Committees, because no published rules governed it, in

clear contravention of the Constitution.

internal agreement between DOJ and Ombudsman at it

neither regulated nor penalizes conduct of persons.
Whether the Ombudsman-DOJ Joint Circular no. 95-001 is
ineffective on the ground that it was not published.
Petitioner's contention that OMB-DOJ Joint Circular No.
95-001 is ineffective on the ground that it was not
published is not plausible. We agree with and adopt the
Ombudsman's dissertation on the matter, to wit:

G.R. No. 159747

April 13, 2004


Senator Gringo Honasan was charged with the crime of
coup detat before DOJ.
Petitioner filed a motion for clarification questioning
DOJ's jurisdiction over the case asserting that since the
imputed acts were committed in relation to his public
office, it is the Office of the Ombudsman and not the DOJ
that has the jurisdiction to conduct the corresponding
preliminary investigation; that should the charge be filed
in court, it is the Sandiganbayan, not the regular courts
that can take cognizance of the case considering that he
belongs to the group of public officials with Salary Grade
He is directed to file a counter-affidavit but instead
Senator Gregorio Honasan filed the herein petition for
certiorari under Rule 65 of the Rules of Court against the
DOJ Panel and its members, CIDG-PNP Director, and
Ombudsman, attributing grave abuse of discretion on
the part of the DOJ Panel in issuing the aforequoted
Order on the ground that the DOJ has no jurisdiction to
conduct the preliminary investigation.
DOJ's contention: DOJ has the jurisdiction to conduct
preliminary investigation pursuant to the Revised
Administrative Code and coup d'etat is not directly
related to his office as a Senator. The jurisdiction of the
DOJ is a statutory grant and is not derived from
provisions of the JOINT CIRCULAR.

Petitioner appears to be of the belief, although NOT

founded on a proper reading and application of
jurisprudence, that OMB-DOJ Joint Circular No. 95-001, an
internal arrangement between the DOJ and the Office of
the Ombudsman, has to be published.
As early as 1954, the Honorable Court has already laid
down the rule in the case of People vs. Que Po Lay, 94
Phil. 640 (1954) that only circulars and regulations which
prescribe a penalty for its violation should be published
before becoming effective, this, on the general principle
and theory that before the public is bound by its
contents, especially its penal provision, a law, regulation
or circular must first be published and the people
officially and specifically informed of said contents and
its penalties: said precedent, to date, has not yet been
modified or reversed. OMB-DOJ Joint Circular No. 95-001
DOES NOT contain any penal provision or prescribe a
mandatory act or prohibit any, under pain or penalty.
What is more, in the case of Tanada v. Tuvera, 146 SCRA
453 (1986), the Honorable Court ruled that:
Interpretative regulations and those merely
internal in nature, that is, regulating only the
personnel of the administrative agency and not
the public, need not be published. Neither is
publication required of the so-called letters of
instructions issued by administrative superiors
concerning the rules or guidelines to be followed
by their subordinates in the performance of their
duties. (at page 454. emphasis supplied)
OMB-DOJ Joint Circular No. 95-001 is merely an internal
circular between the DOJ and the Office of the
Ombudsman, outlining authority and responsibilities
among prosecutors of the DOJ and of the Office of the
Ombudsman in the conduct of preliminary investigation.
OMB-DOJ Joint Circular No. 95-001 DOES NOT regulate
the conduct of persons or the public, in general.
Accordingly, there is no merit to petitioner's submission
that OMB-DOJ Joint Circular No. 95-001 has to be

Ombudsman's contention: DOJ has the jurisdiction

because coup d'etat falls under the Sandiganbayan only
if it is committed in relation to office. The JOINT
CIRCULAR need not be published because it is merely an

Consequently, the enactment of the Family Code,

effective August 3, 1988, will not impair the right of
respondents who are aliens to adopt a Filipino child
because the right has become vested at the time of
filing of the petition for adoption and shall be governed
by the law then in force. "A vested right is one whose
existence, effectivity and extent does not depend upon
events foreign to the will of the holder. The term
expresses the concept of present fixed interest which in
right reason and natural justice should be protected
against arbitrary State action, or an innately just and
imperative right which enlightened free society,
sensitive to inherent and irrefragable individual rights,
cannot deny." 8 "Vested rights include not only legal or
equitable title to the enforcement of a demand, but also
an exemption from new obligations created after the
right has vested.

G.R. No. 125932

April 21, 1999


On July 29, 1988, Spouses Miller, both American citizens,
filed with the RTC, Angeles City a verified petition to
adopt a Filipino child, Michael Magno Madayag, under the
provision of the Child and Youth Welfare Code which
allows aliens to adopt. The natural parents executed
affidavits giving their irrevocable consent to the adoption
and the DSWD recommended approval of the petition on
the basis of its evaluation.
On August 3, 1998, the Family Code became effective,
prohibiting the adoption of a Filipino child by aliens.

As long as the petition for adoption was sufficient in form

and substance in accordance with the law in governance
at the time it was filed, the court acquires jurisdiction
and retains it until it fully disposes of the case. To repeat,
the jurisdiction of the court is determined by the statute
in force at the time of the commencement of the action.
Such jurisdiction of a court, whether in criminal or civil
cases, once it attaches cannot be ousted by a
subsequent happenings or events, although of a
character which would have prevented jurisdiction from
attaching in the first instance.
Therefore, an alien who filed a petition for adoption
before the effective of the Family Code, although denied
the right to adopt under Art. 184 of said Code, may
continue with his petition under the law prevailing before
the Family Code.
Adoption statutes, being humane and salutary, hold the
interests and welfare of the child to be of paramount
consideration. They are designed to provide homes,
parental care and education for unfortunate, needy or
orphaned children and give them the protection of
society and family in the person of the adopter, as well
as childless couples or persons to experience the joy of
parenthood and give them legally a child in the person of
the adopted for the manifestation of their natural parent
instincts. Every reasonable intendment should be
sustained to promote and fulfill these noble and
compassionate objective of the law.

The Solicitor General appealed to the granting of the

petition for adoption by the RTC.
Whether the court may allow aliens to adopt a Filipino
child despite the prohibition under the Family Code,
effective on August 3, 1988 when the petition for
adoption was filed on July 29, 1988, under the provision
of the Child and Youth Welfare Code which allowed aliens
to adopt.
This Court has ruled that an alien qualified to adopt
under the Child and Youth Welfare Code, which
was in force at the time of the filing of the
petition, acquired a vested right which could not
be affected by the subsequent enactment of a new
law disqualifying him.

marrying Tina. Ruby was jailed and he had not heard

from her for more than 20 years.
On July 2, 2002, RTC found Eduardo guilty beyond
reasonable doubt of bigamy under Article 349 of the
Manuel appealed the decision to the CA. He insisted
that conformably to Article 3 of the RPC, there must be
malice for one to be criminally liable for a felony. He
posited that the RTC should have taken into account
Article 390 of the New Civil Code.
On June 18, 2004, the CA rendered judgment affirming
the decision of the RTC with modification. Contrary to the
contention of the appellant, Article 41 of the Family Code
should apply.
Whether or not the CA committed reversible error of law
when it ruled that petitioners first wife cannot be legally
presumed dead under Article 390 of the Civil Code as
there was no judicial declaration of presumptive death
as provided for under Article 41 of the Family Code.
The petitioners sole reliance on Article 390 of the Civil
Code as basis for his acquittal for bigamy is misplaced.

G.R. No. 165842 November 29, 2005

Articles 390 and 391 of the Civil Code provide

EDUARDO P. MANUEL, Petitioner,


Art. 390. After an absence of seven years, it being

unknown whether or not, the absentee still lives, he shall
be presumed dead for all purposes, except for those of


A complaint was filed in the RTC of Baguio City against
Eduardo P. Manuel.
On April 22, 1996, Eduardo P. Manuel, respondent,
contracted a second marriage with Tina GandaleraManuel, complainant, in RTC of Baguio City.
It so
appeared in the marriage contract that Manuel was
Eduardo P. Manuel was previously legally married to
Rubylus Gana without the said marriage having been
legally dissolved before the second marriage.
Tina Gandalera-Manuel did not know the existence of the
first marriage of the respondent to Rubylus Gana.
Their relationship turned sour and Eduardo left.
Thereafter, Tina learned that Eduardo had been
previously married.
Eduardo testified that he declared that he was single
because he believed in good faith that his marriage was
invalid. He said he did not know he had to go to the
court to seek for nullification of his first marriage before

The absentee shall not be presumed dead for the

purpose of opening his succession till after an absence of
ten years. If he disappeared after the age of seventy-five
years, an absence of five years shall be sufficient in
order that his succession may be opened.
Art. 391. The following shall be presumed dead for all
purposes, including the division of the estate among the
(1) A person on board a vessel lost during a sea voyage,
or an aeroplane which is missing, who has not been
heard of for four years since the loss of the vessel or
(2) A person in the armed forces who has taken part in
war, and has been missing for four years;
(3) A person who has been in danger of death under
other circumstances and his existence has not been
known for four years.
The presumption of death of the spouse who had been
absent for seven years, it being unknown whether or not
the absentee still lives, is created by law and arises
without any necessity of judicial declaration. However,

Article 41 of the Family Code, which amended the

foregoing rules on presumptive death, reads:

such declaration, it was held that the remarriage of the

other spouse is bigamous even if done in good faith.

Art. 41. A marriage contracted by any person during the

subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a wellfounded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death
under the circumstances set forth in the provisions of
Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present
must institute a summary proceeding as provided in this
Court for the declaration of presumptive death of the
absentee, without prejudice to the effect of
reappearance of the absent spouse.
With the effectivity of the Family Code, the period of
seven years under the first paragraph of Article 390 of
the Civil Code was reduced to four consecutive years.
Thus, before the spouse present may contract a
subsequent marriage, he or she must institute summary
proceedings for the declaration of the presumptive death
of the absentee spouse, without prejudice to the effect
of the reappearance of the absentee spouse.
The Court rejects petitioners contention that the
requirement of instituting a petition for declaration of
presumptive death under Article 41 of the Family Code is
designed merely to enable the spouse present to
contract a valid second marriage and not for the
acquittal of one charged with bigamy. Such provision
was designed to harmonize civil law and Article 349 of
the Revised Penal Code, and put to rest the confusion
spawned by the rulings of this Court and comments of
eminent authorities on Criminal Law.
The above Article of the Family Code now clearly
provides that for the purpose of the present spouse
contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the
declaration of the presumptive death of the absentee,
without prejudice to the latters reappearance. This
provision is intended to protect the present spouse from
a criminal prosecution for bigamy under Art. 349 of the
Revised Penal Code because with the judicial declaration
that the missing spouses presumptively dead, the good
faith of the present spouse in contracting a second
marriage is already established.
Judicial declaration of presumptive death is now
authorized for purposes of remarriage. The present
spouse must institute a summary proceeding for
declaration of presumptive death of the absentee, where
the ordinary rules of procedure in trial will not be
followed. Affidavits will suffice, with possible clarificatory
examinations of affiants if the Judge finds it necessary
for a full grasp of the facts. The judgment declaring an
absentee as presumptively dead is without prejudice to
the effect of reappearance of the said absentee.
In some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of
presumptive death, which could then be made only in
the proceedings for the settlement of his estate. Before

G.R. No. 112024 January 28, 1999
Petitioner reported a net loss in 1986 and thus declared
no tax payable. On 1987, petitioner requested the
respondent, among others, for a tax credit representing
the overpayment of taxes in the first and second
quarters of 1985.
Thereafter, petitioner filed a claim for refund of
creditable taxes withheld by their lessees from property
rentals in 1985 and in 1986. Pending investigation,
petitioner instituted a Petition for Review before the
Court of Tax Appeals (CTA).

CTA denied the request of petitioner for a tax refund or

credit for 1985 on the ground that it was filed beyond
the two-year reglementary period provided for by law.
The petitioners claim for refund in 1986 was likewise
denied on the assumption that it was automatically
credited by PBCom against its tax payment in the
succeeding year. MR was denied.
CA affirmed the decision in toto hence this petition.
Petitioner argues that the government is barred from
asserting a position contrary to its declared circular if it
would result to injustice to taxpayers. Citing ABS CBN
Broadcasting Corporation vs. Court of Tax Appeals
(1981), petitioner claims that rulings or circulars
promulgated by the Commissioner of Internal Revenue
have no retroactive effect if it would be prejudicial to
Respondent argues that the two-year prescriptive period
for filing tax cases in court concerning income tax
payments of Corporations is reckoned from the date of
filing the Final Adjusted Income Tax Return, which is
generally done on April 15 following the close of the
calendar year. Further, respondent Commissioner
stresses that when the petitioner filed the case before
the CTA on November 18, 1988, the same was filed
beyond the time fixed by law, and such failure is fatal to
petitioners cause of action.
Whether or not the Court of Appeals erred in denying the
plea for tax refund or tax credits on the ground of
prescription, despite petitioner's reliance on RMC No. 785, changing the prescriptive period of two years to ten
After a careful study of the records and applicable
jurisprudence on the matter, we find that, contrary to
the petitioner's contention, the relaxation of revenue
regulations by RMC 7-85 is not warranted as it
disregards the two-year prescriptive period set by law.
Basic is the principle that "taxes are the lifeblood of the
nation." The primary purpose is to generate funds for the
State to finance the needs of the citizenry and to
advance the common weal. Due process of law under
the Constitution does not require judicial proceedings in
tax cases. This must necessarily be so because it is upon
taxation that the government chiefly relies to obtain the
means to carry on its operations and it is of utmost
importance that the modes adopted to enforce the
collection of taxes levied should be summary and
interfered with as little as possible.
From the same perspective, claims for refund or tax
credit should be exercised within the time fixed by law
because the BIR being an administrative body enforced
to collect taxes, its functions should not be unduly
delayed or hampered by incidental matters.
The rule states that the taxpayer may file a claim for
refund or credit with the Commissioner of Internal
Revenue, within two (2) years after payment of tax,
before any suit in CTA is commenced. The two-year

prescriptive period provided, should be computed from

the time of filing the Adjustment Return and final
payment of the tax for the year.
When the Acting Commissioner of Internal Revenue
issued RMC 7-85, changing the prescriptive period of two
years to ten years on claims of excess quarterly income
payments, such circular created a clear
inconsistency with the provision of Sec. 230 of 1977
NIRC. In so doing, the BIR did not simply interpret the
law; rather it legislated guidelines contrary to the statute
passed by Congress.
It bears repeating that Revenue memorandum-circulars
are considered administrative rulings (in the sense of
more specific and less general interpretations of tax
laws) which are issued from time to time by the
Commissioner of Internal Revenue. It is widely accepted
that the interpretation placed upon a statute by the
executive officers, whose duty is to enforce it, is entitled
to great respect by the courts. Nevertheless, such
interpretation is not conclusive and will be ignored if
judicially found to be erroneous. Thus, courts will not
countenance administrative issuances that override,
instead of remaining consistent and in harmony with the
law they seek to apply and implement.
Further, fundamental is the rule that the State cannot be
put in estoppel by the mistakes or errors of its officials or
agents. As pointed out by the respondent courts, the
nullification of RMC No. 7-85 issued by the Acting
Commissioner of Internal Revenue is an administrative
interpretation which is not in harmony with Sec. 230 of
1977 NIRC for being contrary to the express provision of
a statute. Hence, his interpretation could not be given
weight for to do so would, in effect, amend the statute.
It is likewise argued that the Commissioner of Internal
Revenue, after promulgating RMC No. 7-85, is estopped
by the principle of non-retroactively of BIR rulings. Again
We do not agree. The Memorandum Circular, stating that
a taxpayer may recover the excess income tax paid
within 10 years from date of payment because this is an
obligation created by law, was issued by the Acting
Commissioner of Internal Revenue. On the other hand,
the decision, stating that the taxpayer should still file a
claim for a refund or tax credit and corresponding
petition for review within the two-year prescription
period, and that the lengthening of the period of
limitation on refund from two to ten years would be
adverse to public policy and run counter to the positive
mandate of Sec. 230, NIRC, - was the ruling and judicial
interpretation of the Court of Tax Appeals. Estoppel has
no application in the case at bar because it was not the
Commissioner of Internal Revenue who denied
petitioner's claim of refund or tax credit. Rather, it was
the Court of Tax Appeals who denied (albeit correctly)
the claim and in effect, ruled that the RMC No. 7-85
issued by the Commissioner of Internal Revenue is an
administrative interpretation which is out of harmony
with or contrary to the express provision of a statute
(specifically Sec. 230, NIRC), hence, cannot be given
weight for to do so would in effect amend the statute.
Art. 8 of the Civil Code recognizes judicial
decisions, applying or interpreting statutes as
part of the legal system of the country. But
administrative decisions do not enjoy that level of
recognition. A memorandum-circular of a bureau
head could not operate to vest a taxpayer with
shield against judicial action. For there are no

vested rights to speak of respecting a wrong

construction of the law by the administrative
officials and such wrong interpretation could not
place the Government in estoppel to correct or
overrule the same.
Moreover, the non-retroactivity of rulings by the
Commissioner of Internal Revenue is not applicable in
this case because the nullity of RMC No. 7-85 was
declared by respondent courts and not by the
Commissioner of Internal Revenue. Lastly, it must be
noted that, as repeatedly held by this Court, a
claim for refund is in the nature of a claim for
exemption and should be construed in strictissimi
juris against the taxpayer.

Petitioner Lorna Pesca, then a student, and respondent

Zosimo Pesca, a seaman got married March 1975 after a
whirlwind courtship. Their union begot 4 children.
However, in 1988, petitioner noticed that her husband
Respondent became violent. On March 1994, respondent
assaulted petitioner.
Petitioner filed a complaint and respondent was
convicted by the MTC of Caloocan for slight physical
injuries and sentenced to 11 days of imprisonment.
Petitioner filed before the RTC for the declaration
of nullity of their marriage invoking psychological
incapacity. On November 1995, RTC decided in favour of
the petitioner.
CA reversed the decision of the trial court, stating that
petitioner had failed to establish that:
(1) respondent showed signs of mental incapacity as
would cause him to be incognitive of the basic marital
covenant as provided in Article 68 of the Family Code;
(2) that incapacity is grave;
(3) preceded the marriage;
(4) is incurable;
(5) that such incapacity is psychological;
(6) that the root cause has been identified
medically/clinically; (7) that it has been proven by an
(8) that such incapacity is permanent and incurable in
Petitioner, in her plea to this Court, would have the
decision of the Court of Appeals reversed on the thesis
that the doctrine enunciated in Santos vs. Court of
Appeals, promulgated on 14 January 1995, as well as the
guidelines set out in Republic vs. Court of Appeals and
Molina, promulgated on 13 February 1997, should have
no retroactive application and, on the assumption that
the Molina ruling could be applied retroactively, the
guidelines therein outlined should be taken to be merely
advisory and not mandatory in nature. In any case,
petitioner argues, the application of the Santos and
Molina dicta should warrant only a remand of the case
to the trial court for further proceedings and not its
Whether or not the guidelines for psychological
incapacity enunciated in the Santos and Molina should
be applied in this case.
The term "psychological incapacity," as a ground for the
declaration of nullity of a marriage under Article 36 of
the Family Code, has been explained by the Court, in
Santos and reiterated in Molina. The Court, in Santos,

G.R. No. 136921

April 17, 2001


ZOSIMO A PESCA, respondent.

"It should be obvious, looking at all the

foregoing disquisitions, including, and most
importantly, the deliberations of the Family
Code Revision Committee itself, that the use
of the phrase 'psychological incapacity'
under Article 36 of the Code has not been
meant to comprehend all such possible
cases of psychoses as, likewise mentioned
by some ecclesiastical authorities, extremely
low intelligence, immaturity, and like

Balumad's 'Void and Voidable Marriages in
the Family Code and their Parallels in Canon
Law,' quoting form the Diagnostic Statistical
Manuel of Mental Disorder by the American
Psychiatric Association; Edward Hudson's
'Handbook II for Marriage Nullity Cases').
Article 36 of the Family. Code cannot be
taken and construed independently of, but
must stand in conjunction with, existing
precepts in our law on marriage. Thus
correlated, 'psychological incapacity' should
refer to no less than a mental (not physical)
incapacity that causes a party to be truly
incognitive of the basic marital covenants
that concomitantly must be assumed and
discharged by the parties to the marriage
which, as so expressed by Article 68 of the
Family Code, include their mutual obligations
to live together, observe love, respect and
fidelity and render help and support. There is
hardly any doubt that the intendment of the
law has been to confine the meaning of
'psychological incapacity' to the most serious
cases of personality disorders clearly
demonstrative of an utter insensitivity or
inability to give meaning and significance to
the marriage. This psychologic condition
must exist at the time the marriage is
The- "doctrine of stare decisis," ordained in Article
8 of the Civil Code, expresses that judicial
decisions applying or interpreting the law shall
form part of the legal system of the Philippines.
The rule follows the settled legal maxim - "legis
interpretado legis vim obtinet" - that the interpretation
placed upon the written law by a competent court has
the force of law. The interpretation or construction
placed by the courts establishes the contemporaneous
legislative intent of the law. The latter as so interpreted
and construed would thus constitute a part of that law as
of the date the statute is enacted. It is only when a prior
ruling of this Court finds itself later overruled, and a
different view is adopted, that the new doctrine may
have to be applied prospectively in favor of parties who
have relied on the old doctrine and have acted in good
faith in accordance therewith under the familiar rule of
"lex prospicit, non respicit."
The phrase "psychological incapacity ," borrowed from
Canon law, is an entirely novel provision in our statute
books, and, until the relatively recent enactment of the
Family Code, the concept has escaped jurisprudential
attention. It is in Santos when, for the first time, the
Court has given life to the term. Molina, that followed,
has additionally provided procedural guidelines to assist
the courts and the parties in trying cases for annulment
of marriages grounded on psychological incapacity.
Molina has strengthened, not overturned, Santos.
At all events, petitioner has utterly failed, both in her
allegations in the complaint and in her evidence, to
make out a case of psychological incapacity on the part
of respondent, let alone at the time of solemnization of
the contract, so as to warrant a declaration of nullity of
the marriage. Emotional immaturity and irresponsibility,
invoked by her, cannot be equated with psychological

G.R. No. 165300

April 23, 2010

ATTY. PEDRO M. FERRER, Petitioner,

and ELIZABETH PANGAN, Respondents.
Petitioner Atty. Ferrer claimed in his original Complaint
that on May 7, 1999, the Diazes, as represented by their
daughter Comandante, through a Special Power of
Attorney (SPA), obtained from him a loan of
P1,118,228.00. The loan was secured by a Real Estate
Mortgage Contract by way of second mortgage over
Transfer Certificate of Title (TCT) No. RT-6604 and a
Promissory Note payable within six months or up to
November 7, 1999. Comandante also issued to petitioner
postdated checks to secure payment of said loan.
Petitioner further claimed that prior to this or on May 29,
1998, Comandante, for a valuable consideration of
P600,000.00, which amount formed part of the
abovementioned secured loan, executed in his favor an
instrument entitled Waiver of Hereditary Rights and
Interests Over a Real Property (Still Undivided).

Is a waiver of hereditary rights in favor of another
executed by a future heir while the parents are still living
Pursuant to the second paragraph of Article 1347 of the
Civil Code, no contract may be entered into upon a
future inheritance except in cases expressly authorized
by law. For the inheritance to be considered "future", the
succession must not have been opened at the time of
the contract. A contract may be classified as a contract
upon future inheritance, prohibited under the second
paragraph of Article 1347, where the following requisites
(1) That the succession has not yet
been opened.
(2) That the object of the contract forms
part of the inheritance; and,
(3) That the promissor has, with respect
to the object, an expectancy of a right
which is purely hereditary in nature.
In this case, there is no question that at the time of
execution of Comandantes Waiver of Hereditary Rights
and Interest Over a Real Property (Still Undivided),
succession to either of her parents properties has not
yet been opened since both of them are still living. With
respect to the other two requisites, both are likewise
present considering that the property subject matter of

Comandantes waiver concededly forms part of the

properties that she expect to inherit from her parents
upon their death and, such expectancy of a right, as
shown by the facts, is undoubtedly purely hereditary in
From the foregoing, it is clear that Comandante and
petitioner entered into a contract involving the formers
future inheritance as embodied in the Waiver of
Hereditary Rights and Interest Over a Real Property (Still
Undivided) executed by her in petitioners favor.
In Taedo v. Court of Appeals, we invalidated the
contract of sale between Lazaro Taedo and therein
private respondents since the subject matter thereof was
a "one hectare of whatever share the former shall have
over Lot 191 of the cadastral survey of Gerona, Province
of Tarlac and covered by Title T-13829 of the Register of
Deeds of Tarlac." It constitutes a part of Taedos future
inheritance from his parents, which cannot be the source
of any right nor the creator of any obligation between
the parties.
Guided by the above discussions, we similarly declare in
this case that the Waiver of Hereditary Rights and
Interest Over a Real Property (Still Undivided) executed
by Comandante in favor of petitioner as not valid and
that same cannot be the source of any right or create
any obligation between them for being violative of the
second paragraph of Article 1347 of the Civil Code.
Anent the validity and effectivity of petitioners adverse
claim, it is provided in Section 70 of PD 1529, that it is
necessary that the claimant has a right or interest in the
registered land adverse to the registered owner and that
it must arise subsequent to registration. Here, as no
right or interest on the subject property flows from
Comandantes invalid waiver of hereditary rights upon
petitioner, the latter is thus not entitled to the
registration of his adverse claim. Therefore, petitioners
adverse claim is without any basis and must
consequently be adjudged invalid and ineffective and
perforce be cancelled.

G.R. No. 192383

December 4, 2013


LUCILA C. DELA CRUZ, Respondent.
Petitioner Isabelo C. Dela Cruz (Isabelo) claimed that in
1975 he and his sister, respondent Lucila C. Dela Cruz
and (Lucila) and Cornelia C. Dela Cruz (Cornelia), bought
on installment a 240-square meter land in Las Pias from
Gatchalian Realty, Inc. On the following year, Isabelo
constructed a residential house on the subject lot.
Because of Lucias plea for the siblings to help their
cousin, Corazon L. Victoriano (Corazon), who was in
financial distress, Isabelo agreed to have the lot they
bought used as collateral for the loan that Corazon
planned to secure from the Philippine Veterans Bank. To
make this posible, Lucila paid the P8,000.00 that they
still owed Gatchalian Realty, Inc. On January 18, 1979
the Register of Deeds issued Transfer Certificate of Title
(TCT) S-80735 in Lucilas name and this was mortgaged
for Corazons benefit. But, since Corazon failed to pay
her loan, the bank foreclosed on the property on March
1, 1989 for P286,000.00. Lucila redeemed it on March
27, 1992.
On October 7, 2002 Lucila executed an affidavit of
waiver relinquishing all her share, interest, and
participation to half of the lot to Isabelo and the other
half to her niece, Emelinda C. Dela Cruz (Emelinda). On
even date, Isabelo and Emelinda executed a Kasunduan
acknowledging their respective rights in the property.
Claiming ownership of half of the subject property by
virtue of Lucilas affidavit of waiver, on August 22, 2005
Isabelo filed an action for partition before the Regional
Trial Court (RTC) of Las Pias City in SCA 05-0008,
seeking the segregation of his portion of the land and
the issuance of the corresponding title in his name. But
Lucila countered that the property, including the house
built on it, belonged to her since she paid for the same
out of her income as pawnshop general manager and
from selling jewelry.
She claimed that her affidavit of waiver did not cede
ownership of half of the property to Isabelo since the
affidavit made clear that her waiver would take effect
only if the problems that beset their family were
resolved. Since this condition had not been met, she had
every right to revoke that waiver as in fact she did so on
September 24, 2004 in the Kasulatan ng Pagpawalang
Bisa ng "Affidavit Waiver."


Whether or not Lucilas affidavit of waiver ceding to

Isabelo half of the subject property conveys to him a
right of ownership over that half?
The CA agreed with the RTC that Lucilas affidavit of
waiver did not vest any property right to Isabelo since
the condition she set in that affidavit had not been
fulfilled. This then gave Lucila the right in the meantime
to rescind the waiver, something that she eventually did.
But, contrary to the position that the CA and the RTC had
taken, Lucilas waiver was absolute and contained no
precondition. The pertinent portion of the affidavit of
waiver reads:
That to put everything in proper order, I
hereby waive all my share, interest and
participation in so far as it refer to the one
half portion (120 SQ. M.) of the aboveparcel of land, with and in favor of my
brother ISABELO C. DELA CRUZ, of legal
age, married, Filipino and residing at Las
Pinas City, and the other half portion (120
SQ. M.) in favor of my niece, EMELINDA C.
DELA CRUZ, also of legal age, single,
Filipino and residing at Sto. Rosario
Hagonoy, Bulacan; x x x
Evidently, Lucila would not have used the terms "to put
everything in proper order, I hereby waive" if her
intent was to set a precondition to her waiver covering
the property, half to Isabelo and half to Emelinda. If that
were her intention, she could have stated, "subject to
the condition that everything is put in proper order, I
hereby waive..." or something to that effect. When she
instead said, "That to put everything in proper order, I
hereby waive my share, interest and participation" in the
two halves of the subject property in favor of Isabelo and
Emelinda, Lucila merely disclosed what motivated her in
ceding the property to them. She wanted to put
everything in proper order, thus she was driven to make
the waiver in their favor. Lucila did not say, "to put
everything in proper order, I promise to waive my right"
to the property, which is a future undertaking, one that
is demandable only when everything is put in proper
order. But she instead said, "to put everything in proper
order, I hereby waive" etc. The phrase "hereby waive"
means that Lucila was, by executing the affidavit,
already waiving her right to the property, irreversibly
divesting herself of her existing right to the same. After
he and his co-owner Emelinda accepted the donation,
Isabelo became the owner of half of the subject property
having the right to demand its partition.

G.R. No. 138463

October 30, 2006


JOVITO REYES, petitioners,
Isidro Reyes is the owner of the subject property in this
case. He has three children. Victoriana, Telesfora and
Leonardo. Some of the heirs of Leonardo were able to
obtain certificate of title over the subject land, depriving
the heirs of Telesfora and Victoriana (respondents in this
case) of their rights over the property.
Subsequently, three out of the registered co-owners of
the said land executed a Deed of Quitclaim in favor of
the respondents. The rest of the registered co-owners
filed a complaint, contending that the Deed of Quitclaim
is invalid. It is in a form of donation which requires
formal acceptance on the part of donees, who are the
respondents in this case.
The indefeasible rights of a holder of a Torrens
Title may be waived in favor of another whose
equitable rights may have been barred by laches.
Laches is the failure or neglect, for an
unreasonable and unexplained length of time, to
do that which by the exercise of due diligence
could or should have been done earlier.
On the issue of the rights of the heirs of Victoriana and
Telesfora Reyes being barred by the indefeasibility of
petitioners Torrens Title over subject lot, we qualify.
White it is true that the indefeasibility of petitioners title
on the ground of laches bars the rights or interests of the
heirs of Victoriana and Telesfora Reyes over the disputed
lot, still, the indefeasible rights of a holder of a Torrens
Title may be waived in favor of another whose equitable
rights may have been barred by laches.


In Soliva v. The Intestate Estate of Villalba, laches is

defined as:
the failure or neglect, for an unreasonable and
unexplained length of time, to do that which by the
exercise of due diligence could or should have been
done earlier. It is the negligence or omission to assert a
right within a reasonable period, warranting the
presumption that the party entitled to assert it has either
abandoned or declined to assert it.

acknowledged the ownership of and the better right over

the said lot by the heirs of Victoriana and Telesfora
Reyes. Having acquired title over the property in 1954 to
the exclusion of respondents Agalas and Manabans,
through the Deed of Quitclaim executed in 1972, the
three (3) Reyeses merely acknowledged the legal rights
of respondents over their shares in the said lot. In fine,
the Deed of Quitclaim, not being a donation, no formal
acceptance is needed from the Agalas and Manabans.

Under this time-honored doctrine, relief has been

denied to litigants who, by sleeping on their rights
for an unreasonable length of time either by
negligence, folly or inattention have allowed
their claims to become stale. Vigilantibus, sed non
dormientibus, jura subveniunt. The laws aid the vigilant,
not those who slumber on their rights.
Verily, laches serves to deprive a party guilty of it to any
judicial remedies. However, the equitable rights barred
by laches still subsist and are not otherwise
extinguished. Thus, parties guilty of laches retains
equitable rights albeit in an empty manner as they
cannot assert their rights judicially. However, such
equitable rights may be revived or activated by the
waiver of those whose right has ripened due to laches,
and can be exercised to the extent of the right waived.
The standard of a valid waiver requires that it
"not only must be voluntary, but must be
knowing, intelligent, and done with sufficient
awareness of the relevant circumstances and
likely consequences.

G.R. No. 174727

August 12, 2013

The waiver is clear. The recent case of Valderama v.

Macalde reiterated the three (3) essential elements
of a valid waiver, thus:
(a) existence of a right;
(b) athe knowledge of the existence thereof; and
(c) an intention to relinquish such right.


LEONARDO R. VEGA, respondent.

These elements are all present in the case at bar. The

three (3) executors, who were co-owners and titleholders
of the said lot since 1954, were aware of their rights, and
executed the Deed of Quitclaim in clear and
unambiguous language to waive and relinquish their
rights over Lot No. 3880 in favor of the heirs of
Victoriana and Telesfora Reyes. Thus, the existence of a
valid waiver has been positively demonstrated.
Moreover, in People v. Bodoso, cited in Valderama, it was
held that the standard of a valid waiver requires that it
"not only must be voluntary, but must be knowing,
intelligent, and done with sufficient awareness of the
relevant circumstances and likely consequences." In the
instant case, petitioners utterly failed to adduce any
evidence showing that the assailed quitclaim was done
absent such standard. Indeed, we note with approval the
CAs apt application of the presumption "that a person
takes ordinary care of his concerns and that private
transactions have been fair and regular."

One who is merely related by affinity to the decedent

does not inherit from the latter and cannot become a coowner of the decedents property. Consequently, he
cannot effect a repudiation of the co-ownership of the
estate that was formed among the decedents heirs.

A quitclaim is not a donation where those who

executed the same merely acknowledged the
ownership of and better right over the lot f other

In 1997, acting on the claim that one-half of subject

property belonged to him as Romanas surviving heir,
Leonardo filed with the Regional Trial Court (RTC) of
Kalibo, Aklan Civil Case No. 5275 for partition, recovery
of ownership and possession, with damages, against
Gregorias heirs.

In this factual setting, respondents could have filed an

action for reconveyance to recover their shares in Lot
No. 3880. However, instead of instituting such a suit,
respondents were able to convince Victorino, Luis, and
Jovito, all surnamed Reyes, to execute a Deed of
Quitclaim restoring to them their shares. Therefore, it is
clear that the quitclaim is not a donation for the three
(3) ReyesesVictorino, Luis, and Jovitowho merely


Leon Roldan (Leon), married to Rafaela Menez (Rafaela),

is the owner of a 3,120-square meter parcel of land
(subject property) in Kalibo, Aklan. Leon and Rafaela
died without issue. Leon was survived by his siblings
Romana Roldan (Romana) and Gregoria Roldan Ining
(Gregoria), who are now both deceased.
Herein petitioners, except for Ramon Tresvalles
(Tresvalles) and Roberto Tajonera (Tajonera), are
Gregorias grandchildren or spouses thereof (Gregorias

In their Answer with counterclaim, Teodora, Camilo,

Adolfo, Lucimo Jr. and Herminigildo (Gregoria's heirs)
claimed that Leonardo had no cause of action against
them; that they have become the sole owners of the
subject property through Lucimo Sr. who acquired the


same in good faith by sale from Juan Enriquez

(Enriquez), who in turn acquired the same from Leon,
and Leonardo was aware of this fact; that they were in
continuous, actual, adverse, notorious and exclusive
possession of the property with a just title; that they
have been paying the taxes on the property; that
Leonardos claim is barred by estoppel and laches.
The property was allegedly sold by Leon to Enriquez
through an unnotarized document dated April 4, 1943.
Enriquez in turn allegedly sold the property to Lucimo Sr.
on November 25, 1943 via another private sale
Petitioners were in sole possession of the property for
more than 30 years, while Leonardo acquired custody of
OCT RO-630.
On February 9, 1979, Lucimo Sr. executed an Affidavit of
Ownership of Land claiming sole ownership of the
property which he utilized to secure in his name Tax
Declaration No. 16414 (TD 16414) over the property and
to cancel Tax Declaration No. 20102 in Leons name.
The trial court ruled that There was no prescription.
Prescription began to run not from Leons death in 1962,
but from Lucimo Sr.s execution of the Affidavit of
Ownership of Land in 1979, which amounted to a
repudiation of his co-ownership of the property with
Leonardo. Applying the fifth paragraph of Article 494 of
the Civil Code, which provides that [n]o prescription
shall run in favor of a co- owner or co-heir against his coowners or co-heirs so long as he expressly or impliedly
recognizes the co-ownership.
Whether or not Lucimo Francisco repudiated the coownership only on February 9, 1979.
Leon died without issue; his heirs are his siblings
Romana and Gregoria.
Since Leon died without issue, his heirs are his siblings,
Romana and Gregoria, who thus inherited the property in
equal shares. In turn, Romanas and Gregorias heirs
the parties herein became entitled to the property
upon the sisters passing. Under Article 777 of the Civil
Code, the rights to the succession are transmitted from
the moment of death.
Gregorias and Romanas heirs are co-owners of the
subject property.
Thus, having succeeded to the property as heirs of
Gregoria and Romana, petitioners and respondents
became co-owners thereof. As co-owners, they may use
the property owned in common, provided they do so in
accordance with the purpose for which it is intended and
in such a way as not to injure the interest of the coownership or prevent the other co-owners from using it
according to their rights. They have the full ownership of
their parts and of the fruits and benefits pertaining
thereto, and may alienate, assign or mortgage them,
and even substitute another person in their enjoyment,
except when personal rights are involved. Each co-owner
may demand at any time the partition of the thing
owned in common, insofar as his share is concerned.
Finally, no prescription shall run in favor of one of the co-

heirs against the others so long as he expressly or

impliedly recognizes the co-ownership.
For prescription to set in, the repudiation must be
done by a co-owner.
Time and again, it has been held that "a co-owner
cannot acquire by prescription the share of the
other co-owners, absent any clear repudiation of
the co-ownership.
In order that the title may prescribe in favor of a coowner, the following requisites must concur:
(1) the co-owner has performed unequivocal acts of
repudiation amounting to an ouster of the other coowners;
(2) such positive acts of repudiation have been made
known to the other co-owners; and
(3) the evidence thereof is clear and convincing.
From the foregoing pronouncements, it is clear that the
trial court erred in reckoning the prescriptive period
within which Leonardo may seek partition from the death
of Leon in 1962.
Article 1141 and Article 494 (fifth paragraph) provide
that prescription shall begin to run in favor of a co-owner
and against the other co-owners only from the time he
positively renounces the co-ownership and makes known
his repudiation to the other co-owners.
Lucimo Sr. challenged Leonardos co-ownership of the
property only sometime in 1979 and 1980, when the
former executed the Affidavit of Ownership of Land,
obtained a new tax declaration exclusively in his name,
and informed the latter before the Lupon
Tagapamayapa of his 1943 purchase of the property.
These apparent acts of repudiation were followed later
on by Lucimo Sr.s act of withholding Leonardos share in
the fruits of the property, beginning in 1988, as
Leonardo himself claims in his Amended Complaint.
Considering these facts, the CA held that prescription
began to run against Leonardo only in 1979 or even in
1980 when it has been made sufficiently clear to him
that Lucimo Sr. has renounced the co-ownership and has
claimed sole ownership over the property. The CA thus
concluded that the filing of Civil Case No. 5275 in 1997,
or just under 20 years counted from 1979, is clearly
within the period prescribed under Article 1141.
What escaped the trial and appellate courts
notice, however, is that while it may be argued
that Lucimo Sr. performed acts that may be
characterized as a repudiation of the coownership, the fact is, he is not a co-owner of the
property. Indeed, he is not an heir of Gregoria; he
is merely Antipolos son-in-law, being married to
Antipolos daughter Teodora. Under the Family
Code, family relations, which is the primary basis
for succession, exclude relations by affinity.
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or
half blood.
In point of law, therefore, Lucimo Sr. is not a co-owner of
the property; Teodora is. Consequently, he cannot validly
effect a repudiation of the co-ownership, which he was
never part of. For this reason, prescription did not run


adversely against Leonardo, and his right to seek a

partition of the property has not been lost.
admission and acknowledgment in his pleadings that
Lucimo Sr. was in possession of the property since 1943
should be taken against him, is unavailing. In 1943,
Leon remained the rightful owner of the land, and
Lucimo Sr. knew this very well, being married to Teodora,
daughter of Antipolo, a nephew of Leon. More
significantly, the property, which is registered under the
Torrens system and covered by OCT RO-630, is in Leons
name. Leons ownership ceased only in 1962, upon his
death when the property passed on to his heirs by
operation of law.
In fine, since none of the co-owners made a valid
repudiation of the existing co-ownership, Leonardo could
seek partition of the property at any time.