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[ G.R. No. 138229. June 9, 1999]

LILIAN "LILY" TOLENTINO vs. COURT OF APPEALS

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 9, 1999.

G.R. No. 138229 (Lilian "Lily" Tolentino vs. Court of Appeals and Fernando C. Tolentino.)

Before us is a petition for review on certiorari under Rule 45 seeking to set aside the decision of the Court of Appeals which sustained that of the trial court holding that a certain deed of donation cannot be annulled.

The core issue in this case is the validity of the deed of donation which was allegedly executed on April 23, 1992 in favor of private respondent, Fernando C. Tolentino, by his brother, Artemio C. Tolentino, during his lifetime. The real property which is the subject of the controversy is located at the corner of Espa�a and Vicente G. Cruz St., Sampaloc, Manila.

A case for Annulment of Extra-Judicial Settlement of the Estate and/or Specific Performance with damages was initiated by the then plaintiff, now private respondent, against herein petitioner after her refusal to deliver the certificate of title (TCT No. 67968) of the said property.

The refusal of petitioner was anchored on the ground that the Deed of Donation was not valid, it being a fictitious and a forged document, hence not binding on the heirs.

Petitioner, as one of the heirs of Artemio Tolentino assailed the validity of the deed of donation, raising in the main the following issues, to wit:

1. That the Court of Appeals erred when it considered and gave probative value to a mere xerox copy of the deed of donation.

2. That the Court of Appeals erred when it failed to appreciate the existence of forgery.

3. That the Court of Appeals erred when it admitted the deed of donation as valid despite the fact such was only a private document since its acknowledgment before the notary public was not proven.

Anent the first issue, we hold that the Court of Appeals was correct in ruling that the failure of petitioner to object timely to the presentation of secondary evidence such as the xerox copy of the deed of donation is deemed a waiver of her right to do so. It is elementary that an objection should be made at the time when an alleged inadmissible document is offered in evidence, otherwise such objection shall be treated as waived. (Tison vs. Court of Appeals, 276 SCRA 582 [1997]).

As regards the issue of forgery, suffice it to state that the evaluation of whether or not there was indeed a forgery is a factual matter which is beyond the ambit of authority of this Court. The calibration of evidence and the relative weight accorded them are within the exclusive domain of both the trial and appellate court which cannot be set aside by the Supreme Court absent any showing that there is no evidence to support the conclusions therein arrived at. The ruling of the Court of Appeals that there was no forgery seems to be in accord with the evidence presented hence binding on this Court.

However, this Court does not agree with the Court of Appeals when it stated that:

Defendant-Appellant contends that the documents were not notarized since no acknowledgment was made before the notary public, hence, producing no binding effect on the parties thereto. This is not correct. In the absence of an acknowledgment before a notary public, any agreement and or document remains a valid and enforceable document as between the parties thereto and their successors-in-interest and is merely reduced to the status of a provate document.

Although Article 1356 of the Civil Code provides that contracts shall be Civil Code provides that contracts shall be obligatory, in whatever form they may have been entered into, provided that all the essential requisites for their validity are present, the said article also provides that in cases where the law requires that a contract be in some form in order for it to be valid or enforceable, the required form shall be observed. This pertains to formal contracts. A donation of an immovable or real property is a formal contract hence, Article 749 is the applicable law and it is therein provided that for a donation of reality to be valid, such must be contained in a public instrument, otherwise the donation shall be null and void. This is because the donation of real property is a solemn or formal contract. Thus, the Court of Appeals erred when it stated that in the absence of an acknowledgment before a notary public, the document is still valid and enforceable but is merely reduced to the status of a private document. This rule applies to ordinary contracts alone but not to formal contracts such as a donation of real property.

Nevertheless, a thorough review of the record of the case impels us to deny the petition. Petitioner failed to sufficiently substantiate her claim that there was indeed no acknowledgment.

WHEREFORE, petition is denied die course.

The Court further Resolved to NOTE :

(a) the notice of withdrawal of Atty. Olando T. Melchor as counsel for petitioner;

(b) the entry of appearance of Atty. Clarissa Castro-Meris as counsel for petitioner

(c) the supplemental pleading of petitioner.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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