FIRST DIVISION

G.R. No. 85494 May 7, 1991

CHOITHRAM JETHMAL RAMNANI AND/OR NIRMLA V. RAMNANI and MOTI G. RAMNANI,

petitioners,
vs.
COURT OF APPEALS, SPOUSES ISHWAR JETHMAL RAMNANI, SONYA JETHMAL RAMNANI
and OVERSEAS HOLDING CO., LTD., respondents.

G.R. No. 85496 May 7, 1991

SPOUSES ISHWAR JETHMAL RAMNANI AND SONYA JET RAMNANI, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, ORTIGAS & CO., LTD. PARTNERSHIP, and
OVERSEAS HOLDING CO., LTD., respondents.

Quasha, Asperilla Ancheta, Peña and Nolasco for petitioners Ishwar Jethmal Ramnani & Sonya
Ramnani.
Salonga, Andres, Hernandez & Allado for Choithram Jethmal Ramnani, Nirmla Ramnani & Moti
Ramnani.
Rama Law Office for private respondents in collaboration with Salonga, Andres, Hernandez &
Allado.
Eulogio R. Rodriguez for Ortigas & Co., Ltd.

GANCAYCO, J.:

This case involves the bitter quarrel of two brothers over two (2) parcels of land and its
improvements now worth a fortune. The bone of contention is the apparently conflicting factual
findings of the trial court and the appellate court, the resolution of which will materially affect the
result of the contest.

The following facts are not disputed.

Ishwar, Choithram and Navalrai, all surnamed Jethmal Ramnani, are brothers of the full blood.
Ishwar and his spouse Sonya had their main business based in New York. Realizing the difficulty of
managing their investments in the Philippines they executed a general power of attorney on January
24, 1966 appointing Navalrai and Choithram as attorneys-in-fact, empowering them to manage and
conduct their business concern in the Philippines.1

On February 1, 1966 and on May 16, 1966, Choithram, in his capacity as aforesaid attorney-in-fact
of Ishwar, entered into two agreements for the purchase of two parcels of land located in Barrio
Ugong, Pasig, Rizal, from Ortigas & Company, Ltd. Partnership (Ortigas for short) with a total area of
approximately 10,048 square meters. Per agreement, Choithram paid the down payment and
2

installments on the lot with his personal checks. A building was constructed thereon by Choithram in
1966 and this was occupied and rented by Jethmal Industries and a wardrobe shop called Eppie's
Creation. Three other buildings were built thereon by Choithram through a loan of P100,000.00
obtained from the Merchants Bank as well as the income derived from the first building. The
buildings were leased out by Choithram as attorney-in-fact of Ishwar. Two of these buildings were
later burned.

Sometime in 1970 Ishwar asked Choithram to account for the income and expenses relative to these
properties during the period 1967 to 1970. Choithram failed and refused to render such accounting.
As a consequence, on February 4, 1971, Ishwar revoked the general power of attorney. Choithram
and Ortigas were duly notified of such revocation on April 1, 1971 and May 24, 1971, respectively. 3

Said notice was also registered with the Securities and Exchange Commission on March 29, 1971 4

and was published in the April 2, 1971 issue of The Manila Times for the information of the general
public.
5

Nevertheless, Choithram as such attorney-in-fact of Ishwar, transferred all rights and interests of
Ishwar and Sonya in favor of his daughter-in-law, Nirmla Ramnani, on February 19, 1973. Her
husband is Moti, son of Choithram. Upon complete payment of the lots, Ortigas executed the
corresponding deeds of sale in favor of Nirmla. Transfer Certificates of Title Nos. 403150 and
6

403152 of the Register of Deeds of Rizal were issued in her favor.

Thus, on October 6, 1982, Ishwar and Sonya (spouses Ishwar for short) filed a complaint in the
Court of First Instance of Rizal against Choithram and/or spouses Nirmla and Moti (Choithram et al.
for brevity) and Ortigas for reconveyance of said properties or payment of its value and damages. An
amended complaint for damages was thereafter filed by said spouses.

After the issues were joined and the trial on the merits, a decision was rendered by the trial court on
December 3, 1985 dismissing the complaint and counterclaim. A motion for reconsideration thereof
filed by spouses Ishwar was denied on March 3, 1986.

An appeal therefrom was interposed by spouses Ishwar to the Court of Appeals wherein in due
course a decision was promulgated on March 14, 1988, the dispositive part of which reads as
follows:

WHEREFORE, judgment is hereby rendered reversing and setting aside the

appealed decision of the lower court dated December 3, 1985 and the Order dated
March 3, 1986 which denied plaintiffs-appellants' Motion for Reconsideration from
aforesaid decision. A new decision is hereby rendered sentencing defendants-
appellees Choithram Jethmal Ramnani, Nirmla V. Ramnani, Moti C. Ramnani, and
Ortigas and Company Limited Partnership to pay, jointly and severally, plaintiffs-
appellants the following:

1. Actual or compensatory damages to the extent of the fair market value of the
properties in question and all improvements thereon covered by Transfer Certificate
of Title No. 403150 and Transfer Certificate of Title No. 403152 of the Registry of
Deeds of Rizal, prevailing at the time of the satisfaction of the judgment but in no
case shall such damages be less than the value of said properties as appraised by
Asian Appraisal, Inc. in its Appraisal Report dated August 1985 (Exhibits T to T-14,
inclusive).

2. All rental incomes paid or ought to be paid for the use and occupancy of the
properties in question and all improvements thereon consisting of buildings, and to
be computed as follows:
 a) On Building C occupied by Eppie's Creation and Jethmal Industries from
1967 to 1973, inclusive, based on the 1967 to 1973 monthly rentals paid by
Eppie's Creation;

b) Also on Building C above, occupied by Jethmal Industries and Lavine from

1974 to 1978, the rental incomes based on then rates prevailing as shown
under Exhibit "P"; and from 1979 to 1981, based on then prevailing rates as
indicated under Exhibit "Q";

c) On Building A occupied by Transworld Knitting Mills from 1972 to 1978,

the rental incomes based upon then prevailing rates shown under Exhibit "P",
and from 1979 to 1981, based on prevailing rates per Exhibit "Q";

d) On the two Bays Buildings occupied by Sigma-Mariwasa from 1972 to

1978, the rentals based on the Lease Contract, Exhibit "P", and from 1979 to
1980, the rentals based on the Lease Contract, Exhibit "Q",

and thereafter commencing 1982, to account for and turn over the rental incomes
paid or ought to be paid for the use and occupancy of the properties and all
improvements totalling 10,048 sq. m based on the rate per square meter prevailing in
1981 as indicated annually cumulative up to 1984. Then, commencing 1985 and up
to the satisfaction of the judgment, rentals shall be computed at ten percent (10%)
annually of the fair market values of the properties as appraised by the Asian
Appraisal, Inc. in August 1985 (Exhibits T to T-14, inclusive.)

3. Moral damages in the sum of P200,000.00;

4. Exemplary damages in the sum of P100,000.00;

5. Attorney's fees equivalent to 10% of the award herein made;

6. Legal interest on the total amount awarded computed from first demand in 1967
and until the full amount is paid and satisfied; and

7. The cost of suit. 7

Acting on a motion for reconsideration filed by Choithram, et al. and Ortigas, the appellate court
promulgated an amended decision on October 17, 1988 granting the motion for reconsideration of
Ortigas by affirming the dismissal of the case by the lower court as against Ortigas but denying the
motion for reconsideration of Choithram, et al.8

Choithram, et al. thereafter filed a petition for review of said judgment of the appellate court alleging
the following grounds:

1. The Court of Appeals gravely abused its discretion in making a factual finding not
supported by and contrary, to the evidence presented at the Trial Court.

2. The Court of Appeals acted in excess of jurisdiction in awarding damages based

on the value of the real properties in question where the cause of action of private
respondents is recovery of a sum of money.
 ARGUMENTS

THE COURT OF APPEALS ACTED IN GRAVE ABUSE OF ITS DISCRETION IN

MAKING A FACTUAL FINDING THAT PRIVATE RESPONDENT ISHWAR
REMITTED THE AMOUNT OF US $150,000.00 TO PETITIONER CHOITHRAM IN
THE ABSENCE OF PROOF OF SUCH REMITTANCE.

II

THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AND

MANIFEST PARTIALITY IN DISREGARDING THE TRIAL COURTS FINDINGS
BASED ON THE DIRECT DOCUMENTARY AND TESTIMONIAL EVIDENCE
PRESENTED BY CHOITHRAM IN THE TRIAL COURT ESTABLISHING THAT THE
PROPERTIES WERE PURCHASED WITH PERSONAL FUNDS OF PETITIONER
CHOITHRAM AND NOT WITH MONEY ALLEGEDLY REMITTED BY
RESPONDENT ISHWAR.

III

THE COURT OF APPEALS ACTED IN EXCESS OF JURISDICTION IN AWARDING

DAMAGES BASED ON THE VALUE OF THE PROPERTIES AND THE FRUITS OF
THE IMPROVEMENTS THEREON. 9

Similarly, spouses Ishwar filed a petition for review of said amended decision of the appellate court
exculpating Ortigas of liability based on the following assigned errors

THE RESPONDENT HONORABLE COURT OF APPEALS COMMITTED GRAVE

ERROR AND HAS DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD
WITH LAW AND/OR WITH APPLICABLE DECISIONS OF THIS HONORABLE
COURT—

A) IN PROMULGATING THE QUESTIONED AMENDED DECISION (ANNEX

"A") RELIEVING RESPONDENT ORTIGAS FROM LIABILITY AND
DISMISSING PETITIONERS' AMENDED COMPLAINT IN CIVIL CASE NO.
534-P, AS AGAINST SAID RESPONDENT ORTIGAS;

B) IN HOLDING IN SAID AMENDED DECISION THAT AT ANY RATE NO

ONE EVER TESTIFIED THAT ORTIGAS WAS A SUBSCRIBER TO THE
MANILA TIMES PUBLICATION OR THAT ANY OF ITS OFFICERS READ
THE NOTICE AS PUBLISHED IN THE MANILA TIMES, THEREBY
ERRONEOUSLY CONCLUDING THAT FOR RESPONDENT ORTIGAS TO
BE CONSTRUCTIVELY BOUND BY THE PUBLISHED NOTICE OF
REVOCATION, ORTIGAS AND/OR ANY OF ITS OFFICERS MUST BE A
SUBSCRIBER AND/OR THAT ANY OF ITS OFFICERS SHOULD READ
THE NOTICE AS ACTUALLY PUBLISHED;
 C) IN HOLDING IN SAID AMENDED DECISION THAT ORTIGAS COULD
NOT BE HELD LIABLE JOINTLY AND SEVERALLY WITH THE
DEFENDANTS-APPELLEES CHOITHRAM, MOTI AND NIRMLA RAMNANI,
AS ORTIGAS RELIED ON THE WORD OF CHOITHRAM THAT ALL ALONG
HE WAS ACTING FOR AND IN BEHALF OF HIS BROTHER ISHWAR
WHEN IT TRANSFERRED THE RIGHTS OF THE LATTER TO NIRMLA V.
RAMNANI;

D) IN IGNORING THE EVIDENCE DULY PRESENTED AND ADMITTED

DURING THE TRIAL THAT ORTIGAS WAS PROPERLY NOTIFIED OF THE
NOTICE OF REVOCATION OF THE GENERAL POWER OF ATTORNEY
GIVEN TO CHOITHRAM, EVIDENCED BY THE PUBLICATION IN THE
MANILA TIMES ISSUE OF APRIL 2, 1971 (EXH. F) WHICH CONSTITUTES
NOTICE TO THE WHOLE WORLD; THE RECEIPT OF THE NOTICE OF
SUCH REVOCATION WHICH WAS SENT TO ORTIGAS ON MAY 22, 1971
BY ATTY. MARIANO P. MARCOS AND RECEIVED BY ORTIGAS ON MAY
24, 1971 (EXH. G) AND THE FILING OF THE NOTICE WITH THE
SECURITIES AND EXCHANGE COMMISSION ON MARCH 29,1971 (EXH.
H);

E) IN DISCARDING ITS FINDINGS CONTAINED IN ITS DECISION OF 14

MARCH 1988 (ANNEX B) THAT ORTIGAS WAS DULY NOTIFIED OF THE
REVOCATION OF THE POWER OF ATTORNEY OF CHOITHRAM, HENCE
ORTIGAS ACTED IN BAD FAITH IN EXECUTING THE DEED OF SALE TO
THE PROPERTIES IN QUESTION IN FAVOR OF NIRMLA V. RAMNANI;

F) IN SUSTAINING RESPONDENT ORTIGAS VACUOUS REHASHED

ARGUMENTS IN ITS MOTION FOR RECONSIDERATION THAT IT WOULD
NOT GAIN ONE CENTAVO MORE FROM CHOITHRAM FOR THE SALE
OF SAID LOTS AND THE SUBSEQUENT TRANSFER OF THE SAME TO
THE MATTER'S DAUGHTER-IN-LAW, AND THAT IT WAS IN GOOD FAITH
WHEN IT TRANSFERRED ISHWAR'S RIGHTS TO THE LOTS IN
QUESTION.

II

THE RESPONDENT HONORABLE COURT OF APPEALS HAS SO FAR

DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDING WHEN IT HELD IN THE QUESTIONED AMENDED DECISION OF
17 NOVEMBER 1988 (ANNEX A) THAT RESPONDENT ORTIGAS & CO., LTD., IS
NOT JOINTLY AND SEVERALLY LIABLE WITH DEFENDANTS-APPELLEES
CHOITHRAM, MOTI AND NIRMLA RAMNANI IN SPITE OF ITS ORIGINAL
DECISION OF 14 MARCH 1988 THAT ORTIGAS WAS DULY NOTIFIED OF THE
REVOCATION OF THE POWER OF ATTORNEY OF CHOITHRAM RAMNANI. 10

The center of controversy is the testimony of Ishwar that during the latter part of 1965, he sent the
amount of US $150,000.00 to Choithram in two bank drafts of US$65,000.00 and US$85,000.00 for
the purpose of investing the same in real estate in the Philippines. The trial court considered this
lone testimony unworthy of faith and credit. On the other hand, the appellate court found that the trial
court misapprehended the facts in complete disregard of the evidence, documentary and testimonial.
Another crucial issue is the claim of Choithram that because he was then a British citizen, as a
temporary arrangement, he arranged the purchase of the properties in the name of Ishwar who was
an American citizen and who was then qualified to purchase property in the Philippines under the
then Parity Amendment. The trial court believed this account but it was debunked by the appellate
court.

As to the issue of whether of not spouses Ishwar actually sent US$150,000.00 to Choithram
precisely to be used in the real estate business, the trial court made the following disquisition —

After a careful, considered and conscientious examination of the evidence adduced

in the case at bar, plaintiff Ishwar Jethmal Ramanani's main evidence, which centers
on the alleged payment by sending through registered mail from New York two (2)
US$ drafts of $85,000.00 and $65,000.00 in the latter part of 1965 (TSN 28 Feb.
1984, p. 10-11). The sending of these moneys were before the execution of that
General Power of Attorney, which was dated in New York, on January 24, 1966.
Because of these alleged remittances of US $150,000.00 and the subsequent
acquisition of the properties in question, plaintiffs averred that they constituted a trust
in favor of defendant Choithram Jethmal Ramnani. This Court can be in full
agreement if the plaintiffs were only able to prove preponderantly these remittances.
The entire record of this case is bereft of even a shred of proof to that effect. It is
completely barren. His uncorroborated testimony that he remitted these amounts in
the "later part of 1965" does not engender enough faith and credence. Inadequacy of
details of such remittance on the two (2) US dollar drafts in such big amounts is
completely not positive, credible, probable and entirely not in accord with human
experience. This is a classic situation, plaintiffs not exhibiting any commercial
document or any document and/or paper as regard to these alleged remittances.
Plaintiff Ishwar Ramnani is not an ordinary businessman in the strict sense of the
word. Remember his main business is based in New York, and he should know
better how to send these alleged remittances. Worst, plaintiffs did not present even a
scum of proof, that defendant Choithram Ramnani received the alleged two US dollar
drafts. Significantly, he does not know even the bank where these two (2) US dollar
drafts were purchased. Indeed, plaintiff Ishwar Ramnani's lone testimony is unworthy
of faith and credit and, therefore, deserves scant consideration, and since the
plaintiffs' theory is built or based on such testimony, their cause of action collapses or
falls with it.

Further, the rate of exchange that time in 1966 was P4.00 to $1.00. The alleged two
US dollar drafts amounted to $150,000.00 or about P600,000.00. Assuming the cash
price of the two (2) lots was only P530,000.00 (ALTHOUGH he said: "Based on my
knowledge I have no evidence," when asked if he even knows the cash price of the
two lots). If he were really the true and bonafide investor and purchaser for profit as
he asserted, he could have paid the price in full in cash directly and obtained the title
in his name and not thru "Contracts To Sell" in installments paying interest and thru
an attorney-in fact (TSN of May 2, 1984, pp. 10-11) and, again, plaintiff Ishwar
Ramnani told this Court that he does not know whether or not his late father-in-law
borrowed the two US dollar drafts from the Swiss Bank or whether or not his late
father-in-law had any debit memo from the Swiss Bank (TSN of May 2, 1984, pp. 9-
10).11

On the other hand, the appellate court, in giving credence to the version of Ishwar, had this to say —
While it is true, that generally the findings of fact of the trial court are binding upon
the appellate courts, said rule admits of exceptions such as when (1) the conclusion
is a finding grounded entirely on speculations, surmises and conjectures; (2) when
the inferences made is manifestly mistaken, absurd and impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of
facts and when the court, in making its findings, went beyond the issues of the case
and the same are contrary to the admissions of both appellant and appellee (Ramos
vs. Court of Appeals, 63 SCRA 33; Philippine American Life Assurance Co. vs.
Santamaria, 31 SCRA 798; Aldaba vs. Court of Appeals, 24 SCRA 189).

The evidence on record shows that the t court acted under a misapprehension of
facts and the inferences made on the evidence palpably a mistake.

The trial court's observation that "the entire records of the case is bereft of even a
shred of proof" that plaintiff-appellants have remitted to defendant-appellee
Choithram Ramnani the amount of US $ 150,000.00 for investment in real estate in
the Philippines, is not borne by the evidence on record and shows the trial court's
misapprehension of the facts if not a complete disregard of the evidence, both
documentary and testimonial.

Plaintiff-appellant Ishwar Jethmal Ramnani testifying in his own behalf, declared that
during the latter part of 1965, he sent the amount of US $150,000.00 to his brother
Choithram in two bank drafts of US $65,000.00 and US $85,000.00 for the purpose
of investing the same in real estate in the Philippines. His testimony is as follows:

ATTY. MARAPAO:

Mr. Witness, you said that your attorney-in-fact paid in your behalf. Can you
tell this Honorable Court where your attorney-in-fact got the money to pay
this property?

ATTY. CRUZ:

Wait. It is now clear it becomes incompetent or hearsay.

COURT:

Witness can answer.

A I paid through my attorney-in-fact. I am the one who gave him the money.

ATTY. MARAPAO:

Q You gave him the money?

A That's right.

Q How much money did you give him?

A US $ 150,000.00.
 Q How was it given then?

A Through Bank drafts. US $65,000.00 and US $85,000.00 bank drafts. The

total amount which is $ 150,000.00 (TSN, 28 February 1984, p. 10; Emphasis
supplied.)

xxx xxx xxx

ATTY. CRUZ:

Q The two bank drafts which you sent I assume you bought that from some
banks in New York?

A No, sir.

Q But there is no question those two bank drafts were for the purpose of
paying down payment and installment of the two parcels of land?

A Down payment, installment and to put up the building.

Q I thought you said that the buildings were constructed . . . subject to our
continuing objection from rentals of first building?

ATTY. MARAPAO:

Your Honor, that is misleading.

COURT;

Witness (may) answer.

A Yes, the first building was immediately put up after the purchase of the two
parcels of land that was in 1966 and the finds were used for the construction
of the building from the US $150,000.00 (TSN, 7 March 1984, page 14;
Emphasis supplied.)

xxx xxx xxx

Q These two bank drafts which you mentioned and the use for it you sent
them by registered mail, did you send them from New Your?

A That is right.

Q And the two bank drafts which were put in the registered mail, the
registered mail was addressed to whom?

A Choithram Ramnani. (TSN, 7 March 1984, pp. 14-15).

On cross-examination, the witness reiterated the remittance of the money to his

brother Choithram, which was sent to him by his father-in-law, Rochiram L.
Mulchandoni from Switzerland, a man of immense wealth, which even defendants-
appellees' witness Navalrai Ramnani admits to be so (tsn., p. 16, S. Oct. 13, 1985).
Thus, on cross-examination, Ishwar testified as follows:

Q How did you receive these two bank drafts from the bank the name of
which you cannot remember?

A I got it from my father-in-law.

Q From where did your father- in-law sent these two bank drafts?

A From Switzerland.

Q He was in Switzerland.

A Probably, they sent out these two drafts from Switzerland.

(TSN, 7 March 1984, pp. 16-17; Emphasis supplied.)

This positive and affirmative testimony of plaintiff-appellant that he sent the two (2)
bank drafts totalling US $ 150,000.00 to his brother, is proof of said remittance. Such
positive testimony has greater probative force than defendant-appellee's denial of
receipt of said bank drafts, for a witness who testifies affirmatively that something did
happen should be believed for it is unlikely that a witness will remember what never
happened (Underhill's Cr. Guidance, 5th Ed., Vol. 1, pp. 10-11).

That is not all. Shortly thereafter, plaintiff-appellant Ishwar Ramnani executed a

General Power of Attorney (Exhibit "A") dated January 24, 1966 appointing his
brothers, defendants-appellees Navalrai and Choithram as attorney-in-fact
empowering the latter to conduct and manage plaintiffs-appellants' business affairs
in the Philippines and specifically—

No. 14. To acquire, purchase for us, real estates and improvements for the
purpose of real estate business anywhere in the Philippines and to develop,
subdivide, improve and to resell to buying public (individual, firm or
corporation); to enter in any contract of sale in oar behalf and to enter
mortgages between the vendees and the herein grantors that may be needed
to finance the real estate business being undertaken.

Pursuant thereto, on February 1, 1966 and May 16, 1966, Choithram Jethmal
Ramnani entered into Agreements (Exhibits "B' and "C") with the other defendant.
Ortigas and Company, Ltd., for the purchase of two (2) parcels of land situated at
Barrio Ugong, Pasig, Rizal, with said defendant-appellee signing the Agreements in
his capacity as Attorney-in-fact of Ishwar Jethmal Ramnani.

Again, on January 5, 1972, almost seven (7) years after Ishwar sent the US $
150,000.00 in 1965, Choithram Ramnani, as attorney-in fact of Ishwar entered into a
Contract of Lease with Sigma-Mariwasa (Exhibit "P") thereby re-affirming the
ownership of Ishwar over the disputed property and the trust relationship between
the latter as principal and Choithram as attorney-in-fact of Ishwar.
 All of these facts indicate that if plaintiff-appellant Ishwar had not earlier sent the US
$ 150,000.00 to his brother, Choithram, there would be no purpose for him to
execute a power of attorney appointing his brothers as s attorney-in-fact in buying
real estate in the Philippines.

As against Choithram's denial that he did not receive the US $150,000.00 remitted
by Ishwar and that the Power of Attorney, as well as the Agreements entered into
with Ortigas & Co., were only temporary arrangements, Ishwar's testimony that he
did send the bank drafts to Choithram and was received by the latter, is the more
credible version since it is natural, reasonable and probable. It is in accord with the
common experience, knowledge and observation of ordinary men (Gardner vs.
Wentors 18 Iowa 533). And in determining where the superior weight of the evidence
on the issues involved lies, the court may consider the probability or improbability of
the testimony of the witness (Sec. 1, Rule 133, Rules of Court).

Contrary, therefore, to the trial court's sweeping observation that 'the entire records
of the case is bereft of even a shred of proof that Choithram received the alleged
bank drafts amounting to US $ 150,000.00, we have not only testimonial evidence
but also documentary and circumstantial evidence proving said remittance of the
money and the fiduciary relationship between the former and Ishwar. 12

The Court agrees. The environmental circumstances of this case buttress the claim of Ishwar that he
did entrust the amount of US $ 150,000.00 to his brother, Choithram, which the latter invested in the
real property business subject of this litigation in his capacity as attorney-in-fact of Ishwar.

True it is that there is no receipt whatever in the possession of Ishwar to evidence the same, but it is
not unusual among brothers and close family members to entrust money and valuables to each
other without any formalities or receipt due to the special relationship of trust between them.

And another proof thereof is the fact that Ishwar, out of frustration when Choithram failed to account
for the realty business despite his demands, revoked the general power of attorney he extended to
Choithram and Navalrai. Thereafter, Choithram wrote a letter to Ishwar pleading that the power of
attorney be renewed or another authority to the same effect be extended, which reads as follows:

June 25,1971

MR. ISHWAR JETHMAL

NEW YORK

(1) Send power of Atty. immediately, because the case has been postponed
for two weeks. The same way as it has been send before in favor of both
names. Send it immediately otherwise everything will be lost unnecessarily,
and then it will take us in litigation. Now that we have gone ahead with a case
and would like to end it immediately otherwise squatters will take the entire
land. Therefore, send it immediately.

(2) Ortigas also has sued us because we are holding the installments,
because they have refused to give a rebate of P5.00 per meter which they
have to give us as per contract. They have filed the law suit that since we
have not paid the installment they should get back the land. The hearing of
this case is in the month of July. Therefore, please send the power
 immediately. In one case DADA (Elder Brother) will represent and in another
one, I shall.

(3) In case if you do not want to give power then make one letter in favor of
Dada and the other one in my favor showing that in any litigation we can
represent you and your wife, and whatever the court decide it will be
acceptable by me. You can ask any lawyer, he will be able to prepare these
letters. After that you can have these letters ratify before P.I. Consulate. It
should be dated April 15, 1971.

(4) Try to send the power because it will be more useful. Make it in any
manner whatever way you have confident in it. But please send it
immediately.

You have cancelled the power. Therefore, you have lost your reputation everywhere. What can I
further write you about it. I have told everybody that due to certain reasons I have written you to do
this that is why you have done this. This way your reputation have been kept intact. Otherwise if I
want to do something about it, I can show you that inspite of the power you have cancelled you can
not do anything. You can keep this letter because my conscience is clear. I do not have anything in
my mind.

I should not be writing you this, but because my conscience is clear do you know that if I had
predated papers what could you have done? Or do you know that I have many paper signed by you
and if had done anything or do then what can you do about it? It is not necessary to write further
about this. It does not matter if you have cancelled the power. At that time if I had predated and
done something about it what could you have done? You do not know me. I am not after money. I
can earn money anytime. It has been ten months since I have not received a single penny for
expenses from Dada (elder brother). Why there are no expenses? We can not draw a single penny
from knitting (factory). Well I am not going to write you further, nor there is any need for it. This much
I am writing you because of the way you have conducted yourself. But remember, whenever I hale
the money I will not keep it myself Right now I have not got anything at all.

I am not going to write any further.

Keep your business clean with Naru. Otherwise he will discontinue because he likes to keep his
business very clean. 13

The said letter was in Sindhi language. It was translated to English by the First Secretary of the
Embassy of Pakistan, which translation was verified correct by the Chairman, Department of Sindhi,
University of Karachi.14

From the foregoing letter what could be gleaned is that—

1. Choithram asked for the issuance of another power of attorney in their favor so
they can continue to represent Ishwar as Ortigas has sued them for unpaid
installments. It also appears therefrom that Ortigas learned of the revocation of the
power of attorney so the request to issue another.

2. Choithram reassured Ishwar to have confidence in him as he was not after money,
and that he was not interested in Ishwar's money.
 3. To demonstrate that he can be relied upon, he said that he could have ante-dated
the sales agreement of the Ortigas lots before the issuance of the powers of attorney
and acquired the same in his name, if he wanted to, but he did not do so.

4. He said he had not received a single penny for expenses from Dada (their elder
brother Navalrai). Thus, confirming that if he was not given money by Ishwar to buy
the Ortigas lots, he could not have consummated the sale.

5. It is important to note that in said letter Choithram never claimed ownership of the
property in question. He affirmed the fact that he bought the same as mere agent
and in behalf of Ishwar. Neither did he mention the alleged temporary arrangement
whereby Ishwar, being an American citizen, shall appear to be the buyer of the said
property, but that after Choithram acquires Philippine citizenship, its ownership shall
be transferred to Choithram.

This brings us to this temporary arrangement theory of Choithram.

The appellate court disposed of this matter in this wise

Choithram's claim that he purchased the two parcels of land for himself in 1966 but
placed it in the name of his younger brother, Ishwar, who is an American citizen, as a
temporary arrangement,' because as a British subject he is disqualified under the
1935 Constitution to acquire real property in the Philippines, which is not so with
respect to American citizens in view of the Ordinance Appended to the Constitution
granting them parity rights, there is nothing in the records showing that Ishwar ever
agreed to such a temporary arrangement.

During the entire period from 1965, when the US $ 150,000. 00 was transmitted to
Choithram, and until Ishwar filed a complaint against him in 1982, or over 16 years,
Choithram never mentioned of a temporary arrangement nor can he present any
memorandum or writing evidencing such temporary arrangement, prompting plaintiff-
appellant to observe:

The properties in question which are located in a prime industrial site in

Ugong, Pasig, Metro Manila have a present fair market value of no less than
P22,364,000.00 (Exhibits T to T-14, inclusive), and yet for such valuable
pieces of property, Choithram who now belatedly that he purchased the
same for himself did not document in writing or in a memorandum the alleged
temporary arrangement with Ishwar' (pp. 4-41, Appellant's Brief).

Such verbal allegation of a temporary arrangement is simply improbable and

inconsistent. It has repeatedly been held that important contracts made without
evidence are highly improbable.

The improbability of such temporary arrangement is brought to fore when we

consider that Choithram has a son (Haresh Jethmal Ramnani) who is an American
citizen under whose name the properties in question could be registered, both during
the time the contracts to sell were executed and at the time absolute title over the
same was to be delivered. At the time the Agreements were entered into with
defendant Ortigas & Co. in 1966, Haresh, was already 18 years old and
consequently, Choithram could have executed the deeds in trust for his minor son.
But, he did not do this. Three (3) years, thereafter, or in 1968 after Haresh had
attained the age of 21, Choithram should have terminated the temporary
arrangement with Ishwar, which according to him would be effective only pending the
acquisition of citizenship papers. Again, he did not do anything.

Evidence to be believed, said Vice Chancellor Van Fleet of New Jersey, must
not only proceed from the mouth of a credible witness, but it must be credible
in itself—such as the common experience and observation of mankind can
approve as probable under the circumstances. We have no test of the truth of
human testimony, except its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the miraculous and is
outside of judicial cognizance. (Daggers vs. Van Dyek 37 M.J. Eq. 130, 132).

Another factor that can be counted against the temporary arrangement excuse is that
upon the revocation on February 4, 1971 of the Power of attorney dated January 24,
1966 in favor of Navalrai and Choithram by Ishwar, Choithram wrote (tsn, p. 21, S.
July 19, 1985) a letter dated June 25, 1971 (Exhibits R, R-1, R-2 and R-3) imploring
Ishwar to execute a new power of attorney in their favor. That if he did not want to
give power, then Ishwar could make a letter in favor of Dada and another in his favor
so that in any litigation involving the properties in question, both of them could
represent Ishwar and his wife. Choithram tried to convince Ishwar to issue the power
of attorney in whatever manner he may want. In said letter no mention was made at
all of any temporary arrangement.

On the contrary, said letter recognize(s) the existence of principal and attorney-in-
fact relationship between Ishwar and himself. Choithram wrote: . . . do you know that
if I had predated papers what could you have done? Or do you know that I have
many papers signed by you and if I had done anything or do then what can you do
about it?' Choithram was saying that he could have repudiated the trust and ran
away with the properties of Ishwar by predating documents and Ishwar would be
entirely helpless. He was bitter as a result of Ishwar's revocation of the power of
attorney but no mention was made of any temporary arrangement or a claim of
ownership over the properties in question nor was he able to present any
memorandum or document to prove the existence of such temporary arrangement.

Choithram is also estopped in pais or by deed from claiming an interest over the
properties in question adverse to that of Ishwar. Section 3(a) of Rule 131 of the
Rules of Court states that whenever a party has, by his own declaration, act, or
omission intentionally and deliberately led another to believe a particular thing true
and act upon such belief, he cannot in any litigation arising out of such declaration,
act or omission be permitted to falsify it.' While estoppel by deed is a bar which
precludes a party to a deed and his privies from asserting as against the other and
his privies any right of title in derogation of the deed, or from denying the truth of any
material fact asserted in it (31 C.J.S. 195; 19 Am. Jur. 603).

Thus, defendants-appellees are not permitted to repudiate their admissions and

representations or to assert any right or title in derogation of the deeds or from
denying the truth of any material fact asserted in the (1) power of attorney dated
January 24, 1966 (Exhibit A); (2) the Agreements of February 1, 1966 and May 16,
1966 (Exhibits B and C); and (3) the Contract of Lease dated January 5, 1972
(Exhibit P).
 . . . The doctrine of estoppel is based upon the grounds of public policy, fair
dealing, good faith and justice, and its purpose is to forbid one to speak
against his own act, representations, or commitments to the injury of one to
whom they were directed and who reasonably relied thereon. The doctrine of
estoppel springs from equitable principles and the equities in the case. It is
designed to aid the law in the administration of justice where without its aid
injustice might result. It has been applied by court wherever and whenever
special circumstances of a case so demands' (Philippine National Bank vs.
Court of Appeals, 94 SCRA 357, 368 [1979]).

It was only after the services of counsel has been obtained that Choithram alleged
for the first time in his Answer that the General Power of attorney (Annex A) with the
Contracts to Sell (Annexes B and C) were made only for the sole purpose of
assuring defendants' acquisition and ownership of the lots described thereon in due
time under the law; that said instruments do not reflect the true intention of the
parties (par. 2, Answer dated May 30, 1983), seventeen (17) long years from the
time he received the money transmitted to him by his brother, Ishwar.

Moreover, Choithram's 'temporary arrangement,' by which he claimed purchasing the

two (2) parcels in question in 1966 and placing them in the name of Ishwar who is an
American citizen, to circumvent the disqualification provision of aliens acquiring real
properties in the Philippines under the 1935 Philippine Constitution, as Choithram
was then a British subject, show a palpable disregard of the law of the land and to
sustain the supposed "temporary arrangement" with Ishwar would be sanctioning the
perpetration of an illegal act and culpable violation of the Constitution.

Defendants-appellees likewise violated the Anti-Dummy Law (Commonwealth Act

108, as amended), which provides in Section 1 thereof that:

In all cases in which any constitutional or legal provision requires Philippine

or any other specific citizenship as a requisite for the exercise or enjoyment
of a right, franchise or privilege, . . . any alien or foreigner profiting thereby,
shall be punished . . . by imprisonment . . . and of a fine of not less than the
value of the right, franchise or privileges, which is enjoyed or acquired in
violation of the provisions hereof . . .

Having come to court with unclean hands, Choithram must not be permitted foist his
'temporary arrangement' scheme as a defense before this court. Being in delicto, he
does not have any right whatsoever being shielded from his own wrong-doing, which
is not so with respect to Ishwar, who was not a party to such an arrangement.

The falsity of Choithram's defense is further aggravated by the material

inconsistencies and contradictions in his testimony. While on January 23, 1985 he
testified that he purchased the land in question on his own behalf (tsn, p. 4, S. Jan.
23, 1985), in the July 18, 1985 hearing, forgetting probably what he stated before,
Choithram testified that he was only an attorney-in-fact of Ishwar (tsn, p. 5, S. July
18, 1985). Also in the hearing of January 23, 1985, Choithram declared that nobody
rented the building that was constructed on the parcels of land in question (tsn, pp. 5
and 6), only to admit in the hearing of October 30, 1985, that he was in fact renting
the building for P12,000. 00 per annum (tsn, p. 3). Again, in the hearing of July 19,
1985, Choithram testified that he had no knowledge of the revocation of the Power of
Attorney (tsn, pp. 20- 21), only to backtrack when confronted with the letter of June
 25, 1971 (Exhibits R to R-3), which he admitted to be in "his own writing," indicating
knowledge of the revocation of the Power of Attorney.

These inconsistencies are not minor but go into the entire credibility of the testimony
of Choithram and the rule is that contradictions on a very crucial point by a witness,
renders s testimony incredible People vs. Rafallo, 80 Phil. 22). Not only this the
doctrine of falsus in uno, falsus in omnibus is fully applicable as far as the testimony
of Choithram is concerned. The cardinal rule, which has served in all ages, and has
been applied to all conditions of men, is that a witness willfully falsifying the truth in
one particular, when upon oath, ought never to be believed upon the strength of his
own testimony, whatever he may assert (U.S. vs. Osgood 27 Feb. Case No. 15971-
a, p. 364); Gonzales vs. Mauricio, 52 Phil, 728), for what ground of judicial relief can
there be left when the party has shown such gross insensibility to the difference
between right and wrong, between truth and falsehood? (The Santisima Trinidad, 7
Wheat, 283, 5 U.S. [L. ed.] 454).

True, that Choithram's testimony finds corroboration from the testimony of his
brother, Navalrai, but the same would not be of much help to Choithram. Not only is
Navalrai an interested and biased witness, having admitted his close relationship
with Choithram and that whenever he or Choithram had problems, they ran to each
other (tsn, pp. 17-18, S. Sept. 20, 1985), Navalrai has a pecuniary interest in the
success of Choithram in the case in question. Both he and Choithram are business
partners in Jethmal and Sons and/or Jethmal Industries, wherein he owns 60% of the
company and Choithram, 40% (p. 62, Appellant's Brief). Since the acquisition of the
properties in question in 1966, Navalrai was occupying 1,200 square meters thereof
as a factory site plus the fact that his son (Navalrais) was occupying the apartment
on top of the factory with his family rent free except the amount of P l,000.00 a month
to pay for taxes on said properties (tsn, p. 17, S. Oct. 3, 1985).

Inherent contradictions also marked Navalrai testimony. "While the latter was very
meticulous in keeping a receipt for the P 10,000.00 that he paid Ishwar as settlement
in Jethmal Industries, yet in the alleged payment of P 100,000.00 to Ishwar, no
receipt or voucher was ever issued by him (tsn, p. 17, S. Oct. 3, 1983). 15

We concur.
The foregoing findings of facts of the Court of Appeals which are supported by the evidence is
conclusive on this Court. The Court finds that Ishwar entrusted US$150,000.00 to Choithram in 1965
for investment in the realty business. Soon thereafter, a general power of attorney was executed by
Ishwar in favor of both Navalrai and Choithram. If it is true that the purpose only is to enable
Choithram to purchase realty temporarily in the name of Ishwar, why the inclusion of their elder
brother Navalrai as an attorney-in-fact?

Then, acting as attorney-in-fact of Ishwar, Choithram purchased two parcels of land located in Barrio
Ugong Pasig, Rizal, from Ortigas in 1966. With the balance of the money of Ishwar, Choithram
erected a building on said lot. Subsequently, with a loan obtained from a bank and the income of the
said property, Choithram constructed three other buildings thereon. He managed the business and
collected the rentals. Due to their relationship of confidence it was only in 1970 when Ishwar
demanded for an accounting from Choithram. And even as Ishwar revoked the general power of
attorney on February 4, 1971, of which Choithram was duly notified, Choithram wrote to Ishwar on
June 25, 1971 requesting that he execute a new power of attorney in their favor. When Ishwar did
16

not respond thereto, Choithram nevertheless proceeded as such attorney-in-fact to assign all the
rights and interest of Ishwar to his daughter-in-law Nirmla in 1973 without the knowledge and
consent of Ishwar. Ortigas in turn executed the corresponding deeds of sale in favor of Nirmla after
full payment of the purchase accomplice of the lots.

In the prefatory statement of their petition, Choithram pictured Ishwar to be so motivated by greed
and ungratefulness, who squandered the family business in New York, who had to turn to his wife for
support, accustomed to living in ostentation and who resorted to blackmail in filing several criminal
and civil suits against them. These statements find no support and should be stricken from the
records. Indeed, they are irrelevant to the proceeding.

Moreover, assuming Ishwar is of such a low character as Choithram proposes to make this Court to
believe, why is it that of all persons, under his temporary arrangement theory, Choithram opted to
entrust the purchase of valuable real estate and built four buildings thereon all in the name of
Ishwar? Is it not an unconscious emergence of the truth that this otherwise wayward brother of theirs
was on the contrary able to raise enough capital through the generosity of his father-in-law for the
purchase of the very properties in question? As the appellate court aptly observed if truly this
temporary arrangement story is the only motivation, why Ishwar of all people? Why not the own son
of Choithram, Haresh who is also an American citizen and who was already 18 years old at the time
of purchase in 1966? The Court agrees with the observation that this theory is an afterthought which
surfaced only when Choithram, Nirmla and Moti filed their answer.

When Ishwar asked for an accounting in 1970 and revoked the general power of attorney in 1971,
Choithram had a total change of heart. He decided to claim the property as his. He caused the
transfer of the rights and interest of Ishwar to Nirmla. On his representation, Ortigas executed the
deeds of sale of the properties in favor of Nirmla. Choithram obviously surmised Ishwar cannot stake
a valid claim over the property by so doing.

Clearly, this transfer to Nirmla is fictitious and, as admitted by Choithram, was intended only to place
the property in her name until Choithram acquires Philippine citizenship. What appears certain is
17

that it appears to be a scheme of Choithram to place the property beyond the reach of Ishwar should
he successfully claim the same. Thus, it must be struck down.

Worse still, on September 27, 1990 spouses Ishwar filed an urgent motion for the issuance of a writ
of preliminary attachment and to require Choithram, et al. to submit certain documents, inviting the
attention of this Court to the following:

a) Donation by Choithram of his 2,500 shares of stock in General Garments

Corporation in favor of his children on December 29, 1989; 18

b) Sale on August 2, 1990 by Choithram of his 100 shares in Biflex (Phils.), Inc., in
favor of his children; and
19

c) Mortgage on June 20, 1989 by Nirmla through her attorney-in-fact, Choithram, of

the properties subject of this litigation, for the amount of $3 Million in favor of
Overseas Holding, Co. Ltd., (Overseas for brevity), a corporation which appears to
be organized and existing under and by virtue of the laws of Cayman Islands, with a
capital of only $100.00 divided into 100 shares of $1.00 each, and with address at
P.O. Box 1790, Grand Cayman, Cayman Islands. 20

An opposition thereto was filed by Choithram, et al. but no documents were produced. A
manifestation and reply to the opposition was filed by spouses Ishwar.
All these acts of Choithram, et al. appear to be fraudulent attempts to remove these properties to the
detriment of spouses Ishwar should the latter prevail in this litigation.

On December 10, 1990 the court issued a resolution that substantially reads as follows:

Considering the allegations of petitioners Ishwar Jethmal Ramnani and Sonya

Ramnani that respondents Choithram Jethmal Ramnani, Nirmla Ramnani and Moti
G. Ramnani have fraudulently executed a simulated mortgage of the properties
subject of this litigation dated June 20, 1989, in favor of Overseas Holding Co., Ltd.
which appears to be a corporation organized in Cayman Islands, for the amount of $
3,000,000.00, which is much more than the value of the properties in litigation; that
said alleged mortgagee appears to be a "shell" corporation with a capital of only
$100.00; and that this alleged transaction appears to be intended to defraud
petitioners Ishwar and Sonya Jethmal Ramnani of any favorable judgment that this
Court may render in this case;

Wherefore the Court Resolved to issue a writ of preliminary injunction enjoining and
prohibiting said respondents Choithram Jethmal Ramnani, Nirmla V. Ramnani, Moti
G. Ramnani and the Overseas Holding Co., Ltd. from encumbering, selling or
otherwise disposing of the properties and improvements subject of this litigation until
further orders of the Court. Petitioners Ishwar and Sonya Jethmal Ramnani are
hereby required to post a bond of P 100,000.00 to answer for any damages d
respondents may suffer by way of this injunction if the Court finally decides the said
petitioners are not entitled thereto.

The Overseas Holding Co., Ltd. with address at P.O. Box 1790 Grand Cayman,
Cayman Islands, is hereby IMPLEADED as a respondent in these cases, and is
hereby required to SUBMIT its comment on the Urgent Motion for the Issuance of a
Writ of Preliminary Attachment and Motion for Production of Documents, the
Manifestation and the Reply to the Opposition filed by said petitioners, within Sixty
(60) days after service by publication on it in accordance with the provisions of
Section 17, Rule 14 of the Rules of Court, at the expense of petitioners Ishwar and
Sonya Jethmal Ramnani.

Let copies of this resolution be served on the Register of Deeds of Pasig, Rizal, and
the Provincial Assessor of Pasig, Rizal, both in Metro Manila, for its annotation on the
transfer Certificates of Titles Nos. 403150 and 403152 registered in the name of
respondent Nirmla V. Ramnani, and on the tax declarations of the said properties
and its improvements subject of this litigation.
21

The required injunction bond in the amount of P 100,000.00 was filed by the spouses Ishwar which
was approved by the Court. The above resolution of the Court was published in the Manila Bulletin
issue of December 17, 1990 at the expense of said spouses. On December 19, 1990 the said
22

resolution and petition for review with annexes in G.R. Nos. 85494 and 85496 were transmitted to
respondent Overseas, Grand Cayman Islands at its address c/o Cayman Overseas Trust Co. Ltd.,
through the United Parcel Services Bill of Lading and it was actually delivered to said company on
23

January 23, 1991. 24

On January 22, 1991, Choithram, et al., filed a motion to dissolve the writ of preliminary injunction
alleging that there is no basis therefor as in the amended complaint what is sought is actual
damages and not a reconveyance of the property, that there is no reason for its issuance, and that
acts already executed cannot be enjoined. They also offered to file a counterbond to dissolve the
writ.

A comment/opposition thereto was filed by spouses Ishwar that there is basis for the injunction as
the alleged mortgage of the property is simulated and the other donations of the shares of Choithram
to his children are fraudulent schemes to negate any judgment the Court may render for petitioners.

No comment or answer was filed by Overseas despite due notice, thus it is and must be considered
to be in default and to have lost the right to contest the representations of spouses Ishwar to declare
the aforesaid alleged mortgage nun and void.

This purported mortgage of the subject properties in litigation appears to be fraudulent and
simulated. The stated amount of $3 Million for which it was mortgaged is much more than the value
of the mortgaged properties and its improvements. The alleged mortgagee-company (Overseas)
was organized only on June 26,1989 but the mortgage was executed much earlier, on June 20,
1989, that is six (6) days before Overseas was organized. Overseas is a "shelf" company worth only
$100.00. In the manifestation of spouses Ishwar dated April 1, 1991, the Court was informed that
25

this matter was brought to the attention of the Central Bank (CB) for investigation, and that in a letter
of March 20, 1991, the CB informed counsel for spouses Ishwar that said alleged foreign loan of
Choithram, et al. from Overseas has not been previously approved/registered with the CB. 26

Obviously, this is another ploy of Choithram, et al. to place these properties beyond the reach of
spouses Ishwar should they obtain a favorable judgment in this case. The Court finds and so
declares that this alleged mortgage should be as it is hereby declared null and void.

All these contemporaneous and subsequent acts of Choithram, et al., betray the weakness of their
cause so they had to take an steps, even as the case was already pending in Court, to render
ineffective any judgment that may be rendered against them.

The problem is compounded in that respondent Ortigas is caught in the web of this bitter fight. It had
all the time been dealing with Choithram as attorney-in-fact of Ishwar. However, evidence had been
adduced that notice in writing had been served not only on Choithram, but also on Ortigas, of the
revocation of Choithram's power of attorney by Ishwar's lawyer, on May 24, 1971. A publication of
27

said notice was made in the April 2, 1971 issue of The Manila Times for the information of the
general public. Such notice of revocation in a newspaper of general circulation is sufficient warning
28

to third persons including Ortigas. A notice of revocation was also registered with the Securities and
29

Exchange Commission on March 29, 1 971. 30

Indeed in the letter of Choithram to Ishwar of June 25, 1971, Choithram was pleading that Ishwar
execute another power of attorney to be shown to Ortigas who apparently learned of the revocation
of Choithram's power of attorney. Despite said notices, Ortigas nevertheless acceded to the
31

representation of Choithram, as alleged attorney-in-fact of Ishwar, to assign the rights of petitioner

Ishwar to Nirmla. While the primary blame should be laid at the doorstep of Choithram, Ortigas is not
entirely without fault. It should have required Choithram to secure another power of attorney from
Ishwar. For recklessly believing the pretension of Choithram that his power of attorney was still
good, it must, therefore, share in the latter's liability to Ishwar.

In the original complaint, the spouses Ishwar asked for a reconveyance of the properties and/or
payment of its present value and damages. In the amended complaint they asked, among others,
32

for actual damages of not less than the present value of the real properties in litigation, moral and
exemplary damages, attorneys fees, costs of the suit and further prayed for "such other reliefs as
may be deemed just and equitable in the premises . The amended complaint contain the following
33

positive allegations:

7. Defendant Choithram Ramnani, in evident bad faith and despite due notice of the
revocation of the General Power of Attorney, Annex 'D" hereof, caused the transfer
of the rights over the said parcels of land to his daughter-in-law, defendant Nirmla
Ramnani in connivance with defendant Ortigas & Co., the latter having agreed to the
said transfer despite receiving a letter from plaintiffs' lawyer informing them of the
said revocation; copy of the letter is hereto attached and made an integral part hereof
as Annex "H";

8. Defendant Nirmla Ramnani having acquired the aforesaid property by fraud is, by
force of law, considered a trustee of an implied trust for the benefit of plaintiff and is
obliged to return the same to the latter:

9. Several efforts were made to settle the matter within the family but defendants
(Choithram Ramnani, Nirmla Ramnani and Moti Ramnani) refused and up to now fail
and still refuse to cooperate and respond to the same; thus, the present case;

10. In addition to having been deprived of their rights over the properties (described
in par. 3 hereof), plaintiffs, by reason of defendants' fraudulent act, suffered actual
damages by way of lost rental on the property which defendants (Choithram
Ramnani, Nirmla Ramnani and Moti Ramnani have collected for themselves; 34

In said amended complaint, spouses Ishwar, among others, pray for payment of actual damages in
an amount no less than the value of the properties in litigation instead of a reconveyance as sought
in the original complaint. Apparently they opted not to insist on a reconveyance as they are
American citizens as alleged in the amended complaint.

The allegations of the amended complaint above reproduced clearly spelled out that the transfer of
the property to Nirmla was fraudulent and that it should be considered to be held in trust by Nirmla
for spouses Ishwar. As above-discussed, this allegation is well-taken and the transfer of the property
to Nirmla should be considered to have created an implied trust by Nirmla as trustee of the property
for the benefit of spouses Ishwar.35

The motion to dissolve the writ of preliminary injunction filed by Choithram, et al. should be denied.
Its issuance by this Court is proper and warranted under the circumstances of the case. Under
Section 3(c) Rule 58 of the Rules of Court, a writ of preliminary injunction may be granted at any
time after commencement of the action and before judgment when it is established:

(c) that the defendant is doing, threatens, or is about to do, or is procuring or

suffering to be done, some act probably in violation of plaintiffs's rights respecting the
subject of the action, and tending to render the judgment ineffectual.

As above extensively discussed, Choithram, et al. have committed and threaten to commit further
acts of disposition of the properties in litigation as well as the other assets of Choithram, apparently
designed to render ineffective any judgment the Court may render favorable to spouses Ishwar.

The purpose of the provisional remedy of preliminary injunction is to preserve the status quo of the
things subject of the litigation and to protect the rights of the spouses Ishwar respecting the subject
of the action during the pendency of the Suit and not to obstruct the administration of justice or
36
prejudice the adverse party. In this case for damages, should Choithram, et al. continue to commit
37

acts of disposition of the properties subject of the litigation, an award of damages to spouses Ishwar
would thereby be rendered ineffectual and meaningless. 38

Consequently, if only to protect the interest of spouses Ishwar, the Court hereby finds and holds that
the motion for the issuance of a writ of preliminary attachment filed by spouses Ishwar should be
granted covering the properties subject of this litigation.

Section 1, Rule 57 of the Rules of Court provides that at the commencement of an action or at any
time thereafter, the plaintiff or any proper party may have the property of the adverse party attached
as security for the satisfaction of any judgment that may be recovered, in, among others, the
following cases:

(d) In an action against a party who has been guilty of a fraud in contracting the debt
or incurring the obligation upon which the action is brought, or in concealing or
disposing of the property for the taking, detention or conversion of which the action is
brought;

(e) In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; . . .

Verily, the acts of Choithram, et al. of disposing the properties subject of the litigation disclose a
scheme to defraud spouses Ishwar so they may not be able to recover at all given a judgment in
their favor, the requiring the issuance of the writ of attachment in this instance.

Nevertheless, under the peculiar circumstances of this case and despite the fact that Choithram, et
al., have committed acts which demonstrate their bad faith and scheme to defraud spouses Ishwar
and Sonya of their rightful share in the properties in litigation, the Court cannot ignore the fact that
Choithram must have been motivated by a strong conviction that as the industrial partner in the
acquisition of said assets he has as much claim to said properties as Ishwar, the capitalist partner in
the joint venture.

The scenario is clear. Spouses Ishwar supplied the capital of $150,000.00 for the business. They 1âwphi1

entrusted the money to Choithram to invest in a profitable business venture in the Philippines. For
this purpose they appointed Choithram as their attorney-in-fact.

Choithram in turn decided to invest in the real estate business. He bought the two (2) parcels of land
in question from Ortigas as attorney-in-fact of Ishwar- Instead of paying for the lots in cash, he paid
in installments and used the balance of the capital entrusted to him, plus a loan, to build two
buildings. Although the buildings were burned later, Choithram was able to build two other buildings
on the property. He rented them out and collected the rentals. Through the industry and genius of
Choithram, Ishwar's property was developed and improved into what it is now—a valuable asset
worth millions of pesos. As of the last estimate in 1985, while the case was pending before the trial
court, the market value of the properties is no less than P22,304,000.00. It should be worth much
39

more today.

We have a situation where two brothers engaged in a business venture. One furnished the capital,
the other contributed his industry and talent. Justice and equity dictate that the two share equally the
fruit of their joint investment and efforts. Perhaps this Solomonic solution may pave the way towards
their reconciliation. Both would stand to gain. No one would end up the loser. After all, blood is
thicker than water.
However, the Court cannot just close its eyes to the devious machinations and schemes that
Choithram employed in attempting to dispose of, if not dissipate, the properties to deprive spouses
Ishwar of any possible means to recover any award the Court may grant in their favor. Since
Choithram, et al. acted with evident bad faith and malice, they should pay moral and exemplary
damages as well as attorney's fees to spouses Ishwar.

WHEREFORE, the petition in G.R. No. 85494 is DENIED, while the petition in G.R. No. 85496 is
hereby given due course and GRANTED. The judgment of the Court of Appeals dated October 18,
1988 is hereby modified as follows:

1. Dividing equally between respondents spouses Ishwar, on the one hand, and petitioner Choithram
Ramnani, on the other, (in G.R. No. 85494) the two parcels of land subject of this litigation, including
all the improvements thereon, presently covered by transfer Certificates of Title Nos. 403150 and
403152 of the Registry of Deeds, as well as the rental income of the property from 1967 to the
present.

2. Petitioner Choithram Jethmal Ramnani, Nirmla V. Ramnani, Moti C. Ramnani and respondent
Ortigas and Company, Limited Partnership (in G.R. No. 85496) are ordered solidarily to pay in cash
the value of said one-half (1/2) share in the said land and improvements pertaining to respondents
spouses Ishwar and Sonya at their fair market value at the time of the satisfaction of this judgment
but in no case less than their value as appraised by the Asian Appraisal, Inc. in its Appraisal Report
dated August 1985 (Exhibits T to T-14, inclusive).

3. Petitioners Choithram, Nirmla and Moti Ramnani and respondent Ortigas & Co., Ltd. Partnership
shall also be jointly and severally liable to pay to said respondents spouses Ishwar and Sonya
Ramnani one-half (1/2) of the total rental income of said properties and improvements from 1967 up
to the date of satisfaction of the judgment to be computed as follows:

a. On Building C occupied by Eppie's Creation and Jethmal Industries from

1967 to 1973, inclusive, based on the 1967 to 1973 monthly rentals paid by
Eppie's Creation;

b. Also on Building C above, occupied by Jethmal Industries and Lavine from

1974 to 1978, the rental incomes based on then rates prevailing as shown
under Exhibit "P"; and from 1979 to 1981, based on then prevailing rates as
indicated under Exhibit "Q";

c. On Building A occupied by Transworld Knitting Mills from 1972 to 1978, the

rental incomes based upon then prevailing rates shown under Exhibit "P",
and from 1979 to 1981, based on prevailing rates per Exhibit "Q";

d. On the two Bays Buildings occupied by Sigma-Mariwasa from 1972 to

1978, the rentals based on the Lease Contract, Exhibit "P", and from 1979 to
1980, the rentals based on the Lease Contract, Exhibit "Q".

and thereafter commencing 1982, to account for and turn over the rental incomes paid or ought to be
paid for the use and occupancy of the properties and all improvements totalling 10,048 sq. m., based
on the rate per square meter prevailing in 1981 as indicated annually cumulative up to 1984. Then,
commencing 1985 and up to the satisfaction of the judgment, rentals shall be computed at ten
percent (10%) annually of the fair market values of the properties as appraised by the Asian
Appraisals, Inc. in August 1985. (Exhibits T to T-14, inclusive.)
4. To determine the market value of the properties at the time of the satisfaction of this judgment and
the total rental incomes thereof, the trial court is hereby directed to hold a hearing with deliberate
dispatch for this purpose only and to have the judgment immediately executed after such
determination.

5. Petitioners Choithram, Nirmla and Moti, all surnamed Ramnani, are also jointly and severally
liable to pay respondents Ishwar and Sonya Ramnani the amount of P500,000.00 as moral
damages, P200,000.00 as exemplary damages and attorney's fees equal to 10% of the total award.
to said respondents spouses.

6. The motion to dissolve the writ of preliminary injunction dated December 10, 1990 filed by
petitioners Choithram, Nirmla and Moti, all surnamed Ramnani, is hereby DENIED and the said
injunction is hereby made permanent. Let a writ of attachment be issued and levied against the
properties and improvements subject of this litigation to secure the payment of the above awards to
spouses Ishwar and Sonya.

7. The mortgage constituted on the subject property dated June 20, 1989 by petitioners Choithram
and Nirmla, both surnamed Ramnani in favor of respondent Overseas Holding, Co. Ltd. (in G.R. No.
85496) for the amount of $3-M is hereby declared null and void. The Register of Deeds of Pasig,
Rizal, is directed to cancel the annotation of d mortgage on the titles of the properties in question.

8. Should respondent Ortigas Co., Ltd. Partnership pay the awards to Ishwar and Sonya Ramnani
under this judgment, it shall be entitled to reimbursement from petitioners Choithram, Nirmla and
Moti, all surnamed Ramnani.

9. The above awards shag bear legal rate of interest of six percent (6%) per annum from the time
this judgment becomes final until they are fully paid by petitioners Choithram Ramnani, Nirmla V.
Ramnani, Moti C. Ramnani and Ortigas, Co., Ltd. Partnership. Said petitioners Choithram, et al. and
respondent Ortigas shall also pay the costs.

SO ORDERED.