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[ G.R. No. 138708. July 28, 1999]

PACITA KHO-BERNUS, et al vs. BLANCA RAMOS-KHO, et al.

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information is a resolution of this Court dated JUL 28, 1999.

G.R. No. 138708 (Pacita Kho-Bernus and Benjamin Bernus, Nelly Kho-Cimafranca and Bernardito Cimafranca and Myrna Kho-Bucita and Guillermo Bucita vs. Blanca Ramos-Kho, Virgilio R. Kho, Rogelio R. Kho, Clarita Kho-Debil, Louie R. Kho, and Edgar R. Kho.)

Petitioners assail the decision of the Court of Appeals which affirmed the decision of the Regional Trial Court, thus declaring that the Mutual Agreement between petitioners and Emilio Kho, the deceased father of private respondents, null and void because of the absence of one of the requisites for a valid contract.

The present controversy stemmed from an action for the recovery of possession of portions of certain parcels of land located in Negros Oriental. Likewise sought was the annulment of the above mentioned agreement which is the basis of petitioners' possession of the disputed land.

The regional trial court decided in favor of private respondents, declaring that petitioners are not entitled to participate in the division of the estate of Leopoldo Rivera Kho because they failed to establish their filiation with the former.

Upon appeal, the Court of Appeals affirmed.

Thus, the instant petition which must necessarily fail.

Initially, the Court notes that the petition was filed late on June 2, 1999, due date being May 18, 1999, the motion for extension to file the same having been denied.

But even if the Court were minded to ignore this lapse, the petition must still fail.

Article 1318 of the Civil Code provides:

Article 1318 - There is no contract unless the following requisites concur

1. Consent of the contracting parties.

2. Object certain which is the subject matter of the contract.

3. Cause of the obligation which is established.

The cause for the extension mutual agreement is the alleged filiation of petitioner with Leopoldo Rivera Kho. The vinculum of filiation was found by the trial court to be non-existent at the time the subject agreement was executed. Hence, the requisite of a valid or consideration is absent, rendering the contract void (Vda. De Portugal vs. IAC, 166 SCRA 281 [1988]).

Anent petitioners' claim of prescription, Article 1410 of the Civil Code provides that an action or defense for the declaration of the inexistence of a contract does not prescribed (Arsenal vs. IAC, 143 SCRA 40 [1986]). The defect of a void or inexistent contract is permanent. Mere lapse of time cannot give it efficacy, neither can the right to set up the defense of illegality be waived (Fornilda vs. Branch 164 RTC, IVth Judicial Region, 166 SCRA 281 [1988]).

WHEREFORE, the Court resolved to DENY the petition.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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