NOTES/FF:

APOLINARIA AUSTRIA-MAGAT, petitioner, vs. HON. COURT

OF APPEALS and FLORENTINO LUMUBOS, DOMINGO
COMIA, TEODORA CARAMPOT, ERNESTO APOLO, SEGUNDA
SUMPELO, MAMERTO SUMPELO and RICARDO
SUMPELO, respondents.
G.R. No. 106755. February 1, 2002
DE LEON, JR., J.:

FACTS:
1. Basilisa Comerciante is a mother of five (5) children, namely, Rosario Austria, Consolacion Austria, herein
petitioner Apolinaria Austria-Magat, Leonardo, and one of herein respondents, Florentino Lumubos.
a. Leonardo died in a Japanese concentration camp at Tarlac during World War II.
2. In 1953 - Basilisa bought a parcel of residential land w/ improvements known as Lot 1, Block 1, Cavite Beach
Subdivision 150 sqm.
3. December 17, 1975 - Basilisa executed a document designated as Kasulatan sa Kaloobpala (Donation).*
4. Basilisa and her said children executed another notarized document denominated as Kasulatan which is
attached to the deed of donation.** The said document states that:
5. Feb 6, 1979 - Basilisa executed a Deed of Absolute Sale of the subject house and lot in favor of herein petitioner
Apolinaria Austria-Magat for P5K.
a. As the result of the registration of that sale, the old TCT was cancelled and a new one was issued.
6. Sept 21, 1983 (respondents) Teodora Carampot, Domingo Comia, and Ernesto Apolo (representing deceased
mother Consolacion Austria), Ricardo, Mamerto and Segunda, all surnamed Sumpelo (representing deceased
mother Rosario Austria) and Florentino Lumubos filed before the RTC v. petitioner for annulment of TCT No. T10434 and other relevant documents, and for reconveyance and damages.
7. RTC - dismissed, ordered them to pay attys fees of 5K. Said:
a. the donation is a donation mortis causa pursuant to Article 728 NCC as it expressly provides that it would
take effect upon the death of the donor;
b. that the provision stating that the donor reserved the right to revoke the donation is a feature of a
donation mortis causa which must comply with the formalities of a will; and
c. as the donation did not follow the formalities pertaining to wills, the same is void and produced no effect
whatsoever.
d. Hence, the sale by the donor of the said property was valid since she remained to be the absolute owner
thereof during the time of the said transaction.
8. CA reversed RTC:
a. The decisive proof that the deed is a donation inter vivos is in the provision that :
Ibinibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at sa kanilang mga tagapagmana, ang
aking lupang residential o tirahan sampu ng aking bahay nakatirik doon xxx.

b.

c.

This is a clear expression of the irrevocability of the conveyance. The irrevocability of the donation is a
characteristic of a donation inter vivos. By the words hindi mababawi, the donor expressly renounced the
right to freely dispose of the house and lot in question. The right to dispose of a property is a right
essential to full ownership. Hence, ownership of the house and lot was already with the donees even
during the donors lifetime. xxx
In the attached document to the deed of donation, the donor and her children stipulated that:
Gayon din ang nasabing titulo ay hindi mapapasangla o maipagbibili ang lupa habang may buhay ang nasabing Basilisa
Comerciante.

d.

The stipulation is a reiteration of the irrevocability of the dispossession on the part of the donor. On the
other hand, the prohibition to encumber, alienate or sell the property during the lifetime of the donor is a
recognition of the ownership over the house and lot in issue of the donees for only in the concept of an
owner can one encumber or dispose a property.

ISSUE: (1) WON the deed was a donation inter vivos.

(2) WON the action has prescribed.
HELD: (1) YES (ratio 1-14) ; (2) NO (ratio 15)

RATIO:
1. Petitioner argues that the CA erred in ruling that the donation was a donation inter vivos.
a. She claims that in interpreting a document, the other relevant provisions therein must be read in
conjunction with the rest.
b. While the document indeed stated that the donation was irrevocable, that must be interpreted in the light
of the provisions providing that the donation cannot be encumbered, alienated or sold by anyone, that the
property donated shall remain in the possession of the donor while she is alive, and that the donation shall
take effect only when she dies.
c. Also, the petitioner claims that the donation is mortis causa for the reason that the contemporaneous and
subsequent acts of the donor, Basilisa Comerciante, showed such intention.
d. Petitioner cites the testimony of Atty. Viniegra, who notarized the deed of donation, that it was the intent of
the donor to maintain control over the property while she was alive; that such intent was shown when she
actually sold the lot to herein petitioner. ~ SC: We affirm the appellate courts decision.

2.

The provisions in the subject deed of donation that are crucial for the determination of the class to which the
donation belongs are, as follows:
a.

b.
c.
d.

3.
4.

It has been held that whether the donation is inter vivos or mortis causa depends on whether the donor intended
to transfer ownership over the properties upon the execution of the deed.
[Bonsato v. Court of Appeals] characteristics of a donation mortis causa:
a.
b.
c.

5.
6.

xxx(I)binibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at sa kanilang mga tagapagmana,
ang aking lupang residential o tirahan sampu ng aking bahay nakatirik doon na nasa Bagong Pook din, San Antonio, Lungsod ng
Kabite
xxxx Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na akoy pumanaw sa mundo, xxx.
xxx Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng Bagong Pook na nababanggit sa
nasabing kasulatan, ay mananatili sa poder o possesion ng Ina, na si Basilisa Comerciante habang siya ay nabubuhay at
Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing Basilisa
Comerciante xxx.

It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same
thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;
That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be
provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;
That the transfer should be void if the transferor should survive the transferee.

Significant to the resolution of this issue is the irrevocable character of the donation in the case at bar.
[Cuevas v. Cuevas] when the deed of donation provides that the donor will not dispose or take away the property
donated (thus making the donation irrevocable), he in effect is making a donation inter vivos. He parts away with
his naked title but maintains beneficial ownership while he lives. It remains to be a donation inter vivos despite an
express provision that the donor continues to be in possession and enjoyment of the donated property while he is
alive. In the Bonsato case, we held that:
(W)hat is most significant [in determining the type of donation] is the absence of stipulation that the donor could revoke the
donations; on the contrary, the deeds expressly declare them to be irrevocable, a quality absolutely incompatible with the idea of
conveyances mortis causa where revocability is of the essence of the act, to the extent that a testator can not lawfully waive or
restrict his right of revocation (NCC Art. 828).

7.

Construing together the provisions of the deed of donation, we find and so hold that in the case at bar the
donation is inter vivos.
a.
b.
c.
d.

8.

The express irrevocability of the same (hindi na mababawi) is the distinctive standard that identifies that
document as a donation inter vivos.
The other provisions therein which seemingly make the donation mortis causa do not go against the irrevocable
character of the subject donation.
According to the petitioner, the provisions which state that the same will only take effect upon the death of the
donor and that there is a prohibition to alienate, encumber, dispose, or sell the same, are proofs that the donation
is mortis causa. We disagree. The said provisions should be harmonized with its express irrevocability.
In Bonsato where the donation per the deed of donation would also take effect upon the death of the donor with
reservation for the donor to enjoy the fruits of the land, the Court held that the said statements only mean that
after the donors death, the donation will take effect so as to make the donees the absolute owners of the donated
property, free from all liens and encumbrances; for it must be remembered that the donor reserved for himself a
share of the fruits of the land donated.

[Gestopa v. CA] the prohibition to alienate does not necessarily defeat the inter vivos character of the donation. It
even highlights the fact that what remains with the donor is the right of usufruct and not anymore the naked title
of ownership over the property donated. In the case at bar, the provision in the deed of donation that the donated
property will remain in the possession of the donor just goes to show that the donor has given up his naked title of
ownership thereto and has maintained only the right to use (jus utendi) and possess (jus possidendi) the subject
donated property.
9. Thus, we arrive at no other conclusion in that the petitioners cited provisions are only necessary assurances that
during the donors lifetime, the latter would still enjoy the right of possession over the property; but, his naked title
of ownership has been passed on to the donees; and that upon the donors death, the donees would get all the
rights of ownership over the same including the right to use and possess the same.
10. Furthermore, it also appeared that the provision in the deed of donation regarding the prohibition to alienate the
subject property is couched in general terms such that even the donor is deemed included in the said prohibition
(Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing
Basilisa Comerciante).
a.
b.
c.
d.
e.

Both the donor and the donees were prohibited from alienating and encumbering the property during the lifetime of
the donor.
If the donor intended to maintain full ownership over the said property until her death, she could have expressly
stated therein a reservation of her right to dispose of the same.
The prohibition on the donor to alienate the said property during her lifetime is proof that naked ownership over the
property has been transferred to the donees.
It also supports the irrevocable nature of the donation considering that the donor has already divested herself of the
right to dispose of the donated property.
On the other hand, the prohibition on the donees only meant that they may not mortgage or dispose the donated
property while the donor enjoys and possesses the property during her lifetime. However, it is clear that the
donees were already the owners of the subject property due to the irrevocable character of the donation.

11. The petitioner argues that the subsequent and contemporaneous acts of the donor would show that her intention
was to maintain control over her properties while she was still living. We disagree.
a.

b.

Respondent Domingo Comia testified that sometime in 1977 or prior to the sale of the subject house and lot, his
grandmother, the donor in the case at bar, delivered the title of the said property to him; and that the act of the
donor was a manifestation that she was acknowledging the ownership of the donees over the property donated.
Moreover, Atty. Viniegra testified that when the donor sold the lot to the petitioner herein, she was not doing so in
accordance with the agreement and intent of the parties in the deed of donation; that she was disregarding the

provision in the deed of donation prohibiting the alienation of the subject property; and that she knew that the
prohibition covers her as well as the donees.

12. Another indication in the deed of donation that the donation is inter vivos is the acceptance clause therein of the
donees.
a.

We have ruled that an acceptance clause is a mark that the donation is inter vivos. Acceptance is a requirement
for donations inter vivos. On the other hand, donations mortis causa, being in the form of a will, are not required to
be accepted by the donees during the donors lifetime.

13. Now, as to whether the donor validly revoked the donation when one of her daughters and donees,
Consolacion Austria, violated the prohibition to encumber the property. When Consolacion Austria mortgaged the
subject property to a certain Baby Santos, the donor, Basilisa Comerciante, asked one of the respondents herein,
Domingo Comia, to redeem the property, which the latter did. After the petitioner in turn redeemed the property
from respondent Domingo, the donor, Basilisa, sold the property to the petitioner who is one of the donees.
14. The act of selling the subject property to the petitioner herein cannot be considered as a valid act of revocation of
the deed of donation for the reason that a formal case to revoke the donation must be filed pursuant to Article 764
of the Civil Code which speaks of an action that has a prescriptive period of four (4) years from non-compliance
with the condition stated in the deed of donation. The rule that there can be automatic revocation without benefit
of a court action does not apply to the case at bar for the reason that the subject deed of donation is devoid of any
provision providing for automatic revocation in event of non-compliance with the any of the conditions set forth
therein. Thus, a court action is necessary to be filed within four (4) years from the non-compliance of the condition
violated. As regards the ground of estoppel, the donor, Basilisa, cannot invoke the violation of the provision on the
prohibition to encumber the subject property as a basis to revoke the donation thereof inasmuch as she
acknowledged the validity of the mortgage executed by the donee, Consolacion Austria, when the said donor
asked respondent Domingo Comia to redeem the same. Thereafter, the donor, Basilisa likewise asked respondent
Florentino Lumubos and the petitioner herein to redeem the same. Those acts implied that the donees have the
right of control and naked title of ownership over the property considering that the donor, Basilisa condoned and
acknowledged the validity of the mortgage executed by one of the donees, Consolacion Austria.
15. As to prescription - on the ground of fraud and/or implied trust has already prescribed.
a.

The sale happened on February 6, 1979 and its registration was made on February 8, 1979 when TCT No. RT-4036 in the name of
the donor was cancelled and in lieu thereof TCT No. T-10434 in the name of the petitioner was issued. Thus, more than four (4)
years have passed since the sale of the subject real estate property was registered and the said new title thereto was issued to the
petitioner. The petitioner contends that an action for reconveyance of property on the ground of alleged fraud must be filed within
four (4) years from the discovery of fraud which is from the date of registration of the deed of sale on February 8, 1979; and that the
same prescriptive period also applies to a suit predicated on a trust relationship that is rooted on fraud of breach of trust.

16. When ones property is registered in anothers name without the formers consent, an implied trust is created by
law in favor of the true owner. Article 1144 of the New Civil Code provides:
Art. 1144. The following actions must be brought within ten years from the time the right of action accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment. (n)

17. Thus, an action for reconveyance of the title to the rightful owner prescribes in ten (10) years from the issuance of
the title. It is only when fraud has been committed that the action will be barred after four (4) years.
a.

However, the four-year prescriptive period is not applicable to the case at bar for the reason that there is no fraud in this case. The
findings of fact of the appellate court which are entitled to great respect, are devoid of any finding of fraud. The records do not show
that the donor, Basilisa, and the petitioner ever intended to defraud the respondents herein with respect to the sale and ownership
of the said property. On the other hand, the sale was grounded upon their honest but erroneous interpretation of the deed of
donation that it is mortis causa, not inter vivos; and that the donor still had the rights to sell or dispose of the donated property and
to revoke the donation.

DISPOSITIVE: WHEREFORE, the appealed Decision dated June 30, 1989 of the Court of Appeals is hereby AFFIRMED.
No pronouncement as to costs.
DOCUMENTS:
*KASULATANG SA KALOOBPALA
(DONATION)

TALASTASIN NG LAHAT AT SINUMAN:

Na ako, si BASELISA COMERCIANTE, may sapat na gulang, Filipina, balo, at naninirahan sa blg. 809 L. Javier Bagong Pook, San Antonio, Lungsod ng
Kabite, Filipinas, sa pamamagitan ng kasulatang itoy
NAGSASALAYSAY
Na alang-alang sa mabuting paglilingkod at pagtingin na iniukol sa akin ng apat kong mga tunay na anak na sila:
ROSARIO AUSTRIA, Filipina, may sapat na gulang, balo, naninirahan sa 809 L. Javier, Bagong Pook, San Antonio, Lungsod ng Kabite;
CONSOLACION AUSTRIA, Filipina, may sapat na gulang, balo naninirahan sa 809 L. Javier, Bagong Pook, San Antonio, Lungsod ng Kabite;
APOLINARIA AUSTRIA, Filipina, may sapat na gulang, may asawa, naninirahan sa Pasong Kawayan, Hen. Trias, Kabite;
FLORENTINO LUMUBOS, Filipino, may sapat na gulang, asawa ni Encarnacion Magsino, at naninirahan din sa 809 L. Javier, Bagong Pook, San Antonio,
Lungsod ng Kabite; ay
Kusang loob na ibinibigay ko at ipinagkakaloob ng ganap at hindi na mababawi sa naulit ng apat na anak ko at sa kanilang mga tagamagmana , ang
aking isang lupang residential o tirahan sampu ng aking bahay nahan ng nakatirik doon na nasa Bagong Pook din, San Antonio, Lungsod ng Kabite, at
nakikilala bilang Lote no. 7, Block no.1, of Subdivision Plan Psd-12247; known as Cavite Beach Subdivision, being a portion of Lot No. 1055, of the
Cadastral survey of Cavite, GLRO Cadastral Rec. no. 9539; may sukat na 150 metros cuadrados, at nakatala sa pangalan ko sa Titulo Torrens bilang TCTT-3268 (RT-4036) ng Lungsod ng Kabite;
Na ang Kaloob palang ito ay magkakabisa lamang simula sa araw na akoy pumanaw sa mundo, at sa ilalim ng kondision na:
Magbubuhat o babawasin sa halaga ng nasabing lupa at bahay ang anumang magugul o gastos sa aking libing at nicho at ang anumang matitira ay
hahatiin ng APAT na parte, parepareho isang parte sa bawat anak kong nasasabi sa itaas nito upang maliwanang at walang makakalamang sinoman sa
kanila;
At kaming apat na anak na nakalagda o nakadiit sa kasulatang ito ay TINATANGGAP NAMIN ang kaloob-palang ito ng aming magulang na si Basilisa
Comerciante, at tuloy pinasasalamatan namin siya ng taos sa (sic) puso dahil sa kagandahan look niyang ito sa amin.
SA KATUNAYAN, ay nilagdaan o diniitan namin ito sa Nobeleta, Kabite, ngayong ika-17 ng Disyembre taong 1975.
~signatures below. Notarized by Atty. Carlos Viniegra
**KASULATAN
TALASTASIN NG MADLA:
Na kaming mga nakalagda o nakadiit sa labak nito sila Basilisa Comerciante at ang kanyang mga anak na sila:
Rosario Austria, Consolacion Austria, Apolonio Austria, at Florentino Lumubos, pawang may mga sapat na gulang, na lumagda o dumiit sa kasulatang

kaloob pala, na sinangayunan namin sa harap ng Notario Publico, Carlos T. Viniegra, ay nagpapahayag ng sumusunod:
Na ang titulo numero TCT-T-2260 (RT-4036) ng Lungsod ng Kabite, bahay sa loteng tirahan ng Bagong Pook na nababanggit sa nasabing kasulatan, ay
mananatili sa poder o possession ng Ina, na si Basilisa Comerciante habang siya ay nabubuhay at
Gayon din ang nasabing Titulo ay hindi mapapasangla o maipagbibili ang lupa habang maybuhay ang nasabing Basilisa Comerciante.
Sa katunayan ang nagsilagda kaming lahat sa labak nito sa harap ng abogado Carlos T. Viniegra at dalawang saksi.
Nobeleta, Kabite. Ika-17 ng Disyembre, 1975.