DECS v Del Rosario; G.R. No.

146586; January 26, 2005

By: GD

Respondents Julia Del Rosario, Maria Del Rosario, Pacencia Del Rosario and the Heirs of Santos Del
Rosario filed before the trial court a complaint for Recovery of Possession against petitioner Department
of Education, Culture and Sports. The property (1,181 sq. m.) was registered in 1976 under the name of
respondents.

Respondents alleged that the Kaypombo Primary School Annex occupied a portion of the property
because of their tolerance. Now that their tolerance has ended, they want the school, under DECS, to
move out.

DECS claimed that some time in 1959 Isaias, the father of the respondents, donated a portion of the
property to the municipality for school site purposes.

During pre-trial, parties agreed to a reverse trial since there was no dispute that the property was
registered under the names of the respondents. DECS will go first and prove that there was a valid
donation.

Witnesses of DECS:

Ricardo Nicolas: The meeting for the donation was done in his house. The mayor and Isaias signed a
document—that was the deed of donation, but Ricardo did not read it. Municipal councillor, now Judge,
Natividad was also there—he was the notary public.

Vidal de Jesus: The barangay council and the children of Isaias del Rosario had a meeting in the presence
of Judge Natividad, during which, the latter told the children of Isaias del Rosario that the land had been
donated by their father. The children wants the school to be renamed in the honor of their father. The
brgy. tried to get a copy of the deed from the municipality but it was by the municipality after they
transferred to their new bldg. They only got a tax dec under the name of the municipality and a
certification from the mayor that the municipality owns it.

Judge Natividad: He prepared the deed of donation which was signed by Isaias del Rosario in his
residence which was accepted by the municipality of Sta. Maria, Bulacan through a resolution signed in
the office of the secretary and the municipal mayor; that a copy of said resolution could not be found
due to the transfer of the municipal hall from the old to the new building.

Witnesses for the respondents were two of the children. They just said that they didn’t know about any
donation and that the land was only lent by their father to the municipality.

RTC: The defense was able to prove the due execution of the deed of donation and its acceptance, as
well as the loss of the same. A recantation/recollection of witness is a form of secondary evidence to
prove the existence/content of a document. The defense has shown that they exerted diligent efforts to
find it, to no avail. Furthermore, the father was still alive during the construction on 1966. He died on
1976 and the children inherited it. It was only on 1992 that the children filed this case, which lends more
truth to the version that all this time the land was actually donated by their father.
CA: DECS failed to prove the existence and due execution of the deed of donation as well as the
Resolution of the municipal council accepting the donation. The Court of Appeals was not fully satisfied
that DECS or the Municipality had made a diligent search of the alleged lost deed of donation.

Issue: WON DECS was able to prove the existence, due execution of the deed and loss? NO

Ratio:
NCC Art. 749. In order that the donation of an immovable may be valid, it must be made in a public
document, specifying therein the property donated and the value of the charges which the donee must
satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall
not take effect unless it is done during the lifetime of the donor.

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

Article 749 of the Civil Code requires that the donation of real property must be made in a public
instrument. Otherwise, the donation is void. A deed of donation acknowledged before a notary public is
a public document. The notary public shall certify that he knows the person acknowledging the
instrument and that such person is the same person who executed the instrument, acknowledging that
the instrument is his free act and deed.

Best evidence
The best or primary evidence of a donation of real property is an authentic copy of the deed of donation
with all the formalities required by Article 749 of the Civil Code.

A party may prove the donation by other competent or secondary evidence under the exceptions in
Section 3, Rule 130 of the Revised Rules on Evidence.

SEC. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself, except in the
following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror

In relation to this, Section 5 of Rule 130 reads:

SEC. 5. When original document is unavailable. When the original document has been lost or destroyed,
or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its
contents in some authentic document, or by the testimony of witnesses in the order stated.

A party must first present to the court proof of loss or other satisfactory explanation for non-production
of the original instrument. The correct order of proof is as follows: existence, execution, loss, contents,
although the court in its discretion may change this order if necessary.
The testimony of Ricardo Nicolas may have established to some extent the existence of the deed of
donation since he testified that he was present when Isaias and the mayor talked about the donation
and that he witnessed the signing of the document. However, Ricardo Nicolas admitted during cross-
examination 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, Vidal De Jesus testimony does not help to establish the deed of donations existence,
execution and contents. He testified that he never saw the deed of donation. On cross-examination,
Vidal De Jesus admitted that the information that Isaias donated the lot to the Municipality was only
relayed to him by Judge Natividad himself. If at all, DECS offered Vidal De Jesus testimony to establish
the loss of the deed of donation. Vidal de Jesus testified that the barangay council tried to get a copy of
the deed but the Municipality informed the barangay council that the deed was lost when the municipal
office was transferred to a new building. DECS also made a search in the DECS office in Malolos but this
proved futile too.

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.

Sufficiency of Proof of Loss

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.

Under the Notarial Law, Judge Natividad should have a correct copy as part of his records. He should
also provide a certified copy to the RTC of the province each month. After his commission expires, he
should forward his notarial register to the RTC of the province.

DECS should have produced at the trial the notarial register where Judge Natividad as the notary public
should have recorded the deed of donation. Alternatively, DECS should have explained the unavailability
of the notarial register. Judge Natividad could have also explained why he did not retain a copy of the
deed of donation as required by law. As the Court of Appeals correctly observed, there was no evidence
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 Municipality made a diligent search to
obtain a copy of the deed of donation.

DECS also raised for the first time the defense of estoppel by laches—SC said that they will not entertain
it at such a late stage.