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[ G.R. No. 141627. June 7, 2000]

ELENA S. URGELLO vs. CA, et al.

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 7 2000.

G.R. No. 141627 (Elena S. Urgello vs. Court of Appeals, Beatriz S. Avestruz and Fred Avestruz.)

Petitioner assails the decision of the Court affirming the decision of the Regional Trial Court of Cebu thus declaring that there is no reason to declare as rescinded the Project of Partition entered into between petitioner and her sister, private respondent Beatriz Avestruz.

The present controversy sprung from an action for partition, annulment of document and damages with notice of lis pendens filed by petitioner against private respondent. Petitioner alleged, that she and private respondents are the only surviving heirs of their deceased parents who died intestate, leaving them parcels of land located in Cebu City, that sometime in 1947, they entered into a project of partition dividing the subject estate as follows:

(a) To Plaintiff ELENA S. URGELLO, Lot No. 8051 with T.C.T. No. 468 and 4/9 share of Lot No. 2077 with T.C.T. No. 468 with a total area of ONE THOUSAND SIX HUNDRED NINETY (1,690) SQUARE METERS;

(b) To Defendant BEATRIZ S. AVEZTRUZ, Lot No. 6784 with T.C.T. No. 467 with a total area of EIGHT THOUSAND EIGHT HUNDRED SEVENTY FOUR (8,874) SQUARE METERS.

Petitioner claims that Lot No. 6784-A which was adjudicated to private respondent Beatriz Avestruz had an assessed value of P13,370.00 while Lot No. 8051 had an assessed value of only P2, 890.00 and, therefore, there existed a lesion which should be remedied by a repartition.

The regional trial court decided in favor of private respondent.

Upon appeal, the Court of Appeals affirmed.

Thus, the instant petition which must likewise fail.

Article 1098 of the Civil Code provides that:

A partition, judicial or extrajudicial may be rescinded on account of lesion, when any one of the co-heirs received things whose value is less by at least one-fourth (1/4) than the share to which he is entitled, considering the value of the things at the time they were adjudicated.

The law cannot be clearer than this. The basis of the computation is the value of the estate at the time of the partition. The subject Project of Partition, which was prepared by petitioner's lawyer, indicated that in 1946, at the time said partition was executed, Lot No. 6784-A which was adjudicated to private respondent Beatriz Avestruz had an assessed value of only P3,830.00 (Exh. "3-A") while Lot No. 8051 of petitioner had an assessed value of P4,240.00 inclusive of the value of the house erected thereon (Exh. "3-B-1"). It was in fact further stated in said partition that inclusive of the cash amount adjudicated, petitioner had received the total value of P6,664.75 while private respondent received P6,054.73 (Exh. "3-B-2"). Evidently, both heirs had received almost equal amounts. The increase in the assessed value of the adjudicated property in subsequent years will not affect the validity of the partition.

WHEREFORE, petition is denied due course.

SO ORDERED.

Very truly yours,

JULIETA Y. CARREON

Clerk of Court

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