Cabana, Adrian C.

Doctrine : Preterition

Case Title : REBECCA VIADO NON, JOSE A. NON and DELIA

VIADO vs THE HONORABLE COURT OF APPEALS,
ALICIA N. VIADO, CHERRI VIADO and FE FIDES
VIADO, G.R. No. 137287, February 15, 2000

FACTS

During their lifetime, Spouses Julian C. Viado and Virginia P. Viado

owned several property, among them a house and lot located in Quezon City.
Surviving the spouses were their children — Nilo, Leah, and petitioners
Rebecca who is married to Jose Non and Delia. Leah and Nilo are already dead.
Nilo left behind as his own heirs respondents Alicia, his wife, and Cherri and
Fe Fides, their children.

Initially, the petitioners and respondents shared a common residence at

the Quezon City property. However, when Rebecca asked Alicia that the
property be equally divided between the two families, tension appeared to have
escalated. Respondents claimed absolute ownership over the entire property
and demanded that petitioners vacate the portion they occupied. They
predicated this claim on 2 documents — a deed of donation executed by Julian
covering his 1/2 conjugal share of the property in favor of Nilo and a deed of
extrajudicial settlement in which Julian, Leah and Rebecca waived in favor of
Nilo their rights and interests over their share of the same property as to the
other 1/2. The Transfer Certificate of Title (TCT) covering the property is in the
name of Nilo’s heirs.

On the other hand, the petitioners, asserting co-ownership over the

property, filed a case for partition. In their action for partition, they attacked
the validity of the instruments mentioned above, contending that Nilo employed
forgery and undue influence to coerce Julian and Rebecca to execute the
documents. Moreover, the exclusion of Delia in the extrajudicial settlement
resulted in the latter's preterition that should warrant its annulment

ISSUE

Whether the partition through the deed of extrajudicial settlement should

be rescinded due to the preterition of Delia as an heir?
RULING

No, The exclusion of Delia from the deed of extrajudicial settlement verily
has the effect of preterition. This kind of preterition, however, in the absence of
proof of fraud and bad faith, does not justify a collateral attack on the TCT. The
relief instead rests on Article 1104 of the Civil Code to the effect that where the
preterition is not attended by bad faith and fraud, the partition shall not be
rescinded but the preterited heir shall be paid the value of the share pertaining
to her.

It must be noted that the CA found the evidence submitted by petitioners

to be utterly wanting in order to sustain the finding of fraud, forgery and
undue influence in procuring the signatures against Nilo. It was not shown
clearly how and in what manner those supposed vices occurred. The
asseveration of Rebecca that she has signed the deed of extrajudicial
settlement on the mistaken belief that the instrument merely pertained to the
administration of the property is too tenuous to accept. Moreover, the fact
alone that the two deeds were registered 5 years after the date of their
execution did not adversely affect their validity nor would such circumstance
alone be indicative of fraud.