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DECS v. DEL ROSARIO GR No.

GR No. 146596 Nicolas: witnessed Isaias and then Mayor Ramos sign the deed of donation in favor
Jan 26, 2008 Carpio, J. of the municipality, which was made in the presence of Judge Natividad.
TOPIC IN SYLLABUS: Best Evidence
Rule/Secondary Evidence (Rule 130) De Jesus: In 1991, the barangay council and Isaias’ children had a meeting in the
SUMMARY: Del Rosarios filed a complaint for recovery of possession against presence of Judge Natividad who informed them that the land was donated by their
DECS, alleging that the KPPS was occupying a portion thereof. DECS claims that father. The children agreed but requested that the school be renamed after their
the complainants’ father donated the same to the municipality of Sta. Maria for father. The council tried to secure a copy of the deed from the municipality but,
school site purposes. It presented the testimonies of Nicolas (witness to the according to the people in the municipal hall, the deed got lost when they transferred
signing of the deed), De Jesus (witness as to the loss of the deed) and Judge to the new municipal bldg. The DECS office in Malolos could likewise not find a copy
Natividad, who executed the deed and testified as to the acceptance of the donation of the deed.
through a resolution. RTC ruled in favor of DECS, holding that DECS sufficiently
proved the existence, due execution and loss of the deed. CA reversed. SC affirmed Judge Natividad: In 1961, while he was still a municipal councilor, Isaias, his relative,
the CA stating that the loss of the deed, justifying the application of the secondary came to him and told him that he was willing to donate a portion of the lot for a
evidence rule, was not sufficiently proved. school site, as he saw the plight of small pupils in their place. He also testified that
DOCTRINE: The best or primary evidence of a donation of real property is an he prepared the deed which was signed by Isaias in his residence and accepted by the
authentic copy of the deed of donation with all the formalities required by Article municipality through a resolution, a copy of which could not be found due to the
749 of the Civil Code; When a party wants to prove the contents of a document, transfer of the municipal hall from he old to the new bldg.
the best evidence is the original writing itself. || Secondary evidence of the
contents of a document refers to evidence other than the original document itself; RTC dismissed the complaint, stating that the defense was able to prove the due
The correct order of proof is as follows: existence, execution, loss, contents, execution of the deed of donation and its acceptance, as well as the loss of the same,
although the court in its discretion may change this order if necessary. || Prior to in accordance with Sec. 4, Rule 130. It stated the rule that a recantation/recollection
the introduction of secondary evidence, a party must establish the existence and of witness is a form of secondary evidence to prove the existence/content of a
due execution of the instrument, after which he must prove that the document was document. Since the loss of the deed subject matter of this case was likewise duly
lost or destroyed. proved by the defense, exerting the best possible efforts to locate or secure a copy of
PROCEDURAL ANTECEDENTS: Petition for review to set aside Decision and the same and without bad faith on its part, it is bent to give a greater weight to the
Resolution of the CA reversing the RTC. secondary evidence adduced by the defense vis-à-vis the title in the name of the Del
Rosarios, most particularly in this case, where the they failed to make it appear that
FACTS: other and more secondary evidence is known to DECS and can be produced by them.
Respondents filed a complaint for recovery of possession against DECS, alleging that
they own a property in Kaypombo, Sta. Maria, Bulacan, wherein the Kaypombo CA reversed, holding that DECS failed to prove the existence and due execution of
Primary School Annex (KPPS) was occupying a portion thereof through their and the deed of donation as well as the Resolution of the municipal council accepting the
their predecessors-in-interests’ tolerance. They allege that KPPS refused to vacate donation. It was not fully satisfied that DECS or the Municipality had made a diligent
despite their valid demands to do so. search of the alleged “lost” deed of donation. MR denied.

DECS claims that sometime in 1959, Isias Del Rosario, respondents’ father, donated ISSUE(S): WoN DECS failed to prove the the due execution of the DoD and the
a portion of the property to the Municipality of Sta. Maria for school site purposes. resolution of the municipal council accepting the donation, as well as the loss of the
The deed and acceptance was prepared by Atty. Natividad. KPPS started occupying documents as the cause of their unavailability – YES.
the donated site in 1962. Thus, DECS now claims ownership of the donated site. In
fact, It renamed the school as Isaias Del Rosario Primary School. HELD:
Article 749 of the Civil Code requires that the donation of real property must be made
There was no dispute that the property was registered in the name of respondents; in a public instrument. Otherwise, the donation is void.
hence. The parties agreed to a reverse trial with DECS presenting Nicolas, De Jesus
and Judge Natividad as witnesses to prove that there was a valid donation to the The best or primary evidence of a donation of real property is an authentic copy of
municipality. the deed of donation with all the formalities required by Article 749 of the Civil Code.
The duty to produce the original document arises when the subject of the inquiry are
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the contents of the writing in which case there can be no evidence of the contents of
the writing other than the writing itself. Simply put, when a party wants to prove The Notarial Law mandates a notary public to record in his notarial register the
the contents of the document, the best evidence is the original writing itself. necessary information regarding the instrument acknowledged before him. The
Notarial Law also mandates the notary public to retain a copy of the instrument
A party may prove the donation by other competent or secondary evidence under the acknowledged before him when it is a contract. The notarial register is a record of
exceptions in Sec. 3, Rule 130, and Sec. 5, Rule 130 in relation thereto. the notary public’s official acts. Acknowledged instruments recorded in the notarial
register are public documents. If the instrument is not recorded in the notarial
Secondary evidence of the contents of a document refers to evidence other than the register and there is no copy in the notarial records, the presumption arises that the
original document itself. A party may introduce secondary evidence of the contents document was not notarized and is not a public document.
of a written instrument not only when the original is lost or destroyed, but also when
it cannot be produced in court, provided there is no bad faith on the part of the offeror. DECS should have produced at the trial the notarial register where Judge Natividad
However, a party must first satisfactorily explain the loss of the best or primary as the notary public should have recorded the deed of donation. Alternatively, DECS
evidence before he can resort to secondary evidence. A party must first present to the should have explained the unavailability of the notarial register. Judge Natividad
court proof of loss or other satisfactory explanation for non-production of the could have also explained why he did not retain a copy of the deed of donation as
original instrument. The correct order of proof is as follows: existence, execution, required by law. As the Court of Appeals correctly observed, there was no evidence
loss, contents, although the court in its discretion may change this order if necessary. showing that DECS looked for a copy from the Clerk of Court concerned or from the
National Archives. All told, these circumstances preclude a finding that DECS or the
While Nicolas’ testimony may have established to some extent the existence of the Municipality made a diligent search to obtain a copy of the deed of donation.
deed as he witnessed the signing of the document, during cross, Nicolas admitted
that he did not read and did not have personal knowledge of the contents of the
document that Isaias and the mayor supposedly signed.

In the same vein, De Jesus’ testimony does not help to establish the deed of donation’s
existence, execution and contents. He testified that he never saw the deed of donation.
On cross, he admitted that the information that Isaias donated the lot to the
Municipality was only relayed to him by Judge Natividad himself to establish the loss
of the deed of donation.

DECS did not introduce in evidence the municipal council Resolution accepting the
donation. There is also no proof that the donee communicated in writing its
acceptance to the donor aside from the circumstance that DECS constructed the
school during Isaias’ lifetime without objection on his part. There is absolutely no
showing that these steps were noted in both instruments.

Prior to the introduction of secondary evidence, a party must establish the


existence and due execution of the instrument. After a party establishes the
existence and due execution of the document, he must prove that the document
was lost or destroyed.

DECS allegedly made a search in the municipal building and in the DECS Division
Office in Bulacan. The copies of the deed of donation furnished these offices were
purportedly “lost” when these offices transferred to new locations. However, as the
CA correctly pointed out, Judge Natividad who claimed to have notarized the deed
of donation failed to account for other copies of the deed, which the law strictly
enjoins him to record, and furnish to other designated government offices.
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