The Incompetent, CARMEN CAIZA, represented by her legal

guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF

APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his
wife, LEONORA ESTRADA, respondents.
D E C I S I O N
NARVASA, C.J .:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a
spinster, a retired pharmacist, and former professor of the College of Chemistry and
Pharmacy of the University of the Philippines, was declared incompetent by
judgment
[1]
of the Regional Trial Court of Quezon City, Branch 107,
[2]
in a guardianship
proceeding instituted by her niece, Amparo A. Evangelista.
[3]
She was so adjudged
because of her advanced age and physical infirmities which included cataracts in both
eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her
person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On
September 17, 1990, her guardian Amparo Evangelista commenced a suit in the
Metropolitan Trial Court (MetroTC) of Quezon City (Branch 35) to eject the spouses
Pedro and Leonora Estrada from said premises.
[4]
The complaint was later amended to
identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo
Evangelista.
The amended Complaint
[5]
pertinently alleged that plaintiff Caiza was the absolute
owner of the property in question, covered by TCT No. 27147; that out of kindness, she
had allowed the Estrada Spouses, their children, grandchildren and sons-in-law to
temporarily reside in her house, rent-free; that Caiza already had urgent need of the
house on account of her advanced age and failing health, "so funds could be raised to
meet her expenses for support, maintenance and medical treatment;" that through her
guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but
they had refused to do so; and that "by the defendants' act of unlawfully depriving
plaintiff of the possession of the house in question, they ** (were) enriching themselves
at the expense of the incompetent, because, while they ** (were) saving money by not
paying any rent for the house, the incompetent ** (was) losing much money as her
house could not be rented by others." Also alleged was that the complaint was "filed
within one (1) year from the date of first letter of demand dated February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been
living in Caiza's house since the 1960's; that in consideration of their faithful service
they had been considered by Caiza as her own family, and the latter had in fact
executed a holographic will on September 4, 1988 by which she "bequeathed" to the
Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor,
[6]
the
Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of
attorney's fees.
But on appeal,
[7]
the decision was reversed by the Quezon City Regional Trial Court,
Branch 96.
[8]
By judgment rendered on October 21, 1992,
[9]
the RTC held that the "action
by which the issue of defendants' possession should be resolved is accion publiciana,
the obtaining factual and legal situation ** demanding adjudication by such plenary
action for recovery of possession cognizable in the first instance by the Regional Trial
Court."
Caiza sought to have the Court of Appeals reverse the decision of October 21,
1992, but failed in that attempt. In a decision
[10]
promulgated on June 2, 1993, the
Appellate Court
[11]
affirmed the RTC's judgment in toto. It ruled that (a) the proper
remedy for Caiza was indeed an accion publiciana in the RTC, not an accion
interdictal in the MetroTC, since the "defendants have not been in the subject premises
as mere tenants or occupants by tolerance, they have been there as a sort of adopted
family of Carmen Caiza," as evidenced by what purports to be the holographic will of
the plaintiff; and (b) while "said will, unless and until it has passed probate by the proper
court, could not be the basis of defendants' claim to the property, ** it is indicative of
intent and desire on the part of Carmen Caiza that defendants are to remain and are to
continue in their occupancy and possession, so much so that Caiza's supervening
incompetency can not be said to have vested in her guardian the right or authority to
drive the defendants out."
[12]

Through her guardian, Caiza came to this Court praying for reversal of the
Appellate Court's judgment. She contends in the main that the latter erred in (a) holding
that she should have pursued an accion publiciana, and not an accion interdictal; and in
(b) giving much weight to "a xerox copy of an alleged holographic will, which is
irrelevant to this case."
[13]

In the responsive pleading filed by them on this Court's requirement,
[14]
the Estradas
insist that the case against them was really not one of unlawful detainer; they argue that
since possession of the house had not been obtained by them by any "contract, express
or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their
occupancy of the premises could not be deemed one "terminable upon mere demand
(and hence never became unlawful) within the context of the law." Neither could the suit
against them be deemed one of forcible entry, they add, because they had been
occupying the property with the prior consent of the "real owner," Carmen Caiza, which
"occupancy can even ripen into full ownership once the holographic will of petitioner
Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is
beyond the power of Caiza's legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994,
[15]
and her heirs -- the aforementioned
guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew,
respectively -- were by this Court's leave, substituted for her.
[16]

Three issues have to be resolved: (a) whether or not an ejectment action is the
appropriate judicial remedy for recovery of possession of the property in dispute; (b)
assuming desahucio to be proper, whether or not Evangelista, as Caiza's legal
guardian had authority to bring said action; and (c) assuming an affirmative answer to
both questions, whether or not Evangelista may continue to represent Caiza after the
latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court
has jurisdiction over it, are the allegations of the complaint and the character of the relief
sought.
[17]
An inquiry into the averments of the amended complaint in the Court of origin
is thus in order.
[18]

The amended Complaint alleges:
[19]

"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and
lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this
complaint;
** ** **
9. That the defendants, their children, grandchildren and sons-in-law, were
allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of
her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the defendants,
for them to vacate the said house, but the two (2) letters of demand were ignored and
the defendants refused to vacate the same. **
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made
another demand on the defendants for them to vacate the premises, before Barangay
Captain Angelina A. Diaz of Barangay Laging Handa, Quezon City, but after two (2)
conferences, the result was negative and no settlement was reached. A photocopy of
the Certification to File Action dated July 4, 1990; issued by said Barangay Captain is
attached, marked Annex "D" and made an integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to vacate
the house, but they still refused to vacate the premises, and they are up to this time
residing in the said place;
13. That this complaint is filed within one (1) year from the date of first letter of
demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by
her legal guardian -- Amparo Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the possession of
the house in question, they are enriching themselves at the expense of the
incompetent plaintiff, because, while they are saving money by not paying any rent
for the house, the plaintiff is losing much money as her house could not be rented by
others;
15. That the plaintiff's health is failing and she needs the house urgently, so that
funds could be raised to meet her expenses for her support, maintenance and medical
treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias,
Quezon City, the plaintiff, through her legal guardian, was compelled to go to court
for justice, and she has to spend P10,000.00 as attorney's fees."
Its prayer
[20]
is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen
Caiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to
this Honorable Court, to render judgment in favor of plaintiff and against the
defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and other
persons claiming under them, to vacate the house and premises at No. 61 Scout
Tobias, Quezon City, so that its possession can be restored to the plaintiff, Carmen
Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:
1) that the Estradas were occupying Caiza's house by tolerance -- having been
"allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health ** (was) failing
and she ** (needed) funds ** to meet her expenses for her support, maintenance and
medical treatment;"
3) that through her general guardian, Caiza requested the Estradas several times,
orally and in writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house to
Caiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is
settled that in an action for unlawful detainer, it suffices to allege that the defendant is
unlawfully withholding possession from the plaintiff is deemed sufficient,
[21]
and a
complaint for unlawful detainer is sufficient if it alleges that the withholding of
possession or the refusal to vacate is unlawful without necessarily employing the
terminology of the law.
[22]

The Estradas' first proffered defense derives from a literal construction of Section 1,
Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful
detainer suit when "the possession of any land or building is unlawfully withheld after
the expiration or termination of the right to hold possession, by virtue of any contract,
express or implied." They contend that since they did not acquire possession of the
property in question "by virtue of any contract, express or implied" -- they having been,
to repeat, "allowed to live temporarily ** (therein) for free, out of ** (Caiza's) kindness" -
- in no sense could there be an "expiration or termination of ** (their) right to hold
possession, by virtue of any contract, express or implied." Nor would an action for
forcible entry lie against them, since there is no claim that they had "deprived (Caiza)
of the possession of ** (her property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy
her house, rent-free, did not create a permanent and indefeasible right of possession in
the latter's favor. Common sense, and the most rudimentary sense of fairness clearly
require that act of liberality be implicitly, but no less certainly, accompanied by the
necessary burden on the Estradas of returning the house to Caiza upon her demand.
More than once has this Court adjudged that a person who occupies the land of another
at the latter's tolerance or permission without any contract between them is necessarily
bound by an implied promise that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against him.
[23]
The situation is not much
different from that of a tenant whose lease expires but who continues in occupancy by
tolerance of the owner, in which case there is deemed to be an unlawful deprivation or
withholding of possession as of the date of the demand to vacate.
[24]
In other words, one
whose stay is merely tolerated becomes a deforciant illegally occupying the land or
property the moment he is required to leave.
[25]
Thus, in Asset Privatization Trust vs.
Court of Appeals,
[26]
where a company, having lawfully obtained possession of a plant
upon its undertaking to buy the same, refused to return it after failing to fulfill its promise
of payment despite demands, this Court held that "(a)fter demand and its repudiation, **
(its) continuing possession ** became illegal and the complaint for unlawful detainer
filed by the ** (plant's owner) was its proper remedy."
It may not be amiss to point out in this connection that where there had been more
than one demand to vacate, the one-year period for filing the complaint for unlawful
detainer must be reckoned from the date of the last demand,
[27]
the reason being that the
lessor has the option to waive his right of action based on previous demands and let the
lessee remain meanwhile in the premises.
[28]
Now, the complaint filed by Caiza's
guardian alleges that the same was "filed within one (1) year from the date of the first
letter of demand dated February 3, 1990." Although this averment is not in accord with
law because there is in fact a second letter of demand to vacate, dated February 27,
1990, the mistake is inconsequential, since the complaint was actually filed on
September 17, 1990, well within one year from the second (last) written demand to
vacate.
The Estradas' possession of the house stemmed from the owner's express
permission. That permission was subsequently withdrawn by the owner, as was her
right; and it is immaterial that the withdrawal was made through her judicial guardian,
the latter being indisputably clothed with authority to do so. Nor is it of any consequence
that Carmen Caiza had executed a will bequeathing the disputed property to the
Estradas; that circumstance did not give them the right to stay in the premises after
demand to vacate on the theory that they might in future become owners thereof, that
right of ownership being at best inchoate, no transfer of ownership being possible
unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had no
legal right to the property, whether as possessors by tolerance or sufferance, or as
owners. They could not claim the right of possession by sufferance, that had been
legally ended. They could not assert any right of possession flowing from their
ownership of the house; their status as owners is dependent on the probate of the
holographic will by which the property had allegedly been bequeathed to them -- an
event which still has to take place; in other words; prior to the probate of the will, any
assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the
circumstances was that involving the Estradas' possession by tolerance, i.e.,
possession de facto, not de jure. It is therefore incorrect to postulate that the proper
remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC or
an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes
her intention that they remain in possession thereof, and legally incapacitated her
judicial guardian, Amparo Evangelista, from evicting them therefrom, since their ouster
would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be
changed or revoked;
[29]
and until admitted to probate, it has no effect whatever and no
right can be claimed thereunder, the law being quite explicit: "No will shall pass either
real or personal property unless it is proved and allowed in accordance with the Rules of
Court" (ART. 838, id.).
[30]
An owner's intention to confer title in the future to persons
possessing property by his tolerance, is not inconsistent with the former's taking back
possession in the meantime for any reason deemed sufficient. And that in this case
there was sufficient cause for the owner's resumption of possession is apparent: she
needed to generate income from the house on account of the physical infirmities
afflicting her, arising from her extreme age.
Amparo Evangelista was appointed by a competent court the general guardian of
both the person and the estate of her aunt, Carmen Caiza. Her Letters of
Guardianship
[31]
dated December 19, 1989 clearly installed her as the "guardian over the
person and properties of the incompetent CARMEN CAIZA with full authority to take
possession of the property of said incompetent in any province or provinces in which it
may be situated and to perform all other acts necessary for the management of her
properties ** "
[32]
By that appointment, it became Evangelista's duty to care for her aunt's
person, to attend to her physical and spiritual needs, to assure her well-being, with right
to custody of her person in preference to relatives and friends.
[33]
It also became her right
and duty to get possession of, and exercise control over, Caiza's property, both real
and personal, it being recognized principle that the ward has no right to possession or
control of his property during her incompetency.
[34]
That right to manage the ward's
estate carries with it the right to take possession thereof and recover it from anyone who
retains it,
[35]
and bring and defend such actions as may be needful for this purpose.
[36]

Actually, in bringing the action of desahucio, Evangelista was merely discharging
the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly
imposed on her by Section 4, Rule 96 of the Rules of Court, viz.:
"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of
ward. A guardian must manage the estate of his ward frugally and without waste,
and apply the income and profits thereof, so far as maybe necessary, to the
comfortable and suitable maintenance of the ward and his family, if there be any; and
if such income and profits be insufficient for that purpose, the guardian may sell or
encumber the real estate, upon being authorized by order to do so, and apply to such
of the proceeds as may be necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas's defenses in the ejectment
action, that as the law now stands, even when, in forcible entry and unlawful detainer
cases, the defendant raises the question of ownership in his pleadings and the question
of possession cannot be resolved without deciding the issue of ownership, the
Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
nevertheless have the undoubted competence to resolve. "the issue of ownership **
only to determine the issue of possession."
[37]

III
As already stated, Carmen Caiza passed away during the pendency of this appeal.
The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death
automatically terminated the guardianship, Amaparo Evangelista lost all authority as her
judicial guardian, and ceased to have legal personality to represent her in the present
appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is
necessarily terminated by the death of either the guardian or the ward,
[38]
the rule affords
no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one
of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C.
Nevado. On their motion and by Resolution of this Court
[39]
of June 20, 1994, they were
in fact substituted as parties in the appeal at bar in place of the deceased, in
accordance with Section 17, Rule 3 of the Rules of Court, viz.:
[40]

"SEC. 18. Death of a party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and be substituted for the deceased within a period of thirty (30)
days, or within such time as may be granted. If the legal representative fails to appear
within said time, the court may order the opposing party to procure the appointment of
a legal representative of the deceased within a time to be specified by the court, and
the representative shall immediately appear for and on behalf of the interest of the
deceased. The court charges involved in procuring such appointment, if defrayed by
the opposing party, may be recovered as costs. The heirs of the deceased may be
allowed to be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint guardian ad litem for the minor
heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did
not extinguish the desahucio suit instituted by her through her guardian.
[41]
That action,
not being a purely personal one, survived her death; her heirs have taken her place and
now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals
promulgated on June 2, 1993 -- affirming the Regional Trial Court's judgment and
dismissing petitioner's petition for certiorari -- is REVERSED and SET ASIDE, and the
Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35,
in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private
respondents.
SO ORDERED.
Davide, Jr., Melo, Francisco, and Panganiban, JJ., concur.



[1]
Petition, Annex "D", Rollo, pp. 41-43.
[2]
Presided over by Judge Delilah Vidallon-Magtolis
[3]
Docketed as SP. PROC. No. Q-89-2603 of Branch 107, entitled "Petition for Guardianship of the Person
and Estate of the Incompetent Carmen Caiza, Amparo A. Evangelista, Petitioner"
[4]
Docketed as Civil Case No. 3410 for Ejectment with Damages
[5]
Petition, Annex "K", Rollo, pp. 55-59
[6]
Petition, Annex "B," Rollo, pp. 33-35.
[7]
Docketed as Civil Case No. Q-92-12554
[8]
Presided Over by Judge Lucas P. Bersamin
[9]
Rollo, pp. 36-40
[10]
Rollo, pp. 27-32
[11]
Special First Division composed of Vailoces, J., ponente, with Lantin and Mabutas, Jr., JJ., concurring.
[12]
CA Decision, p. 4, Rollo, p. 30
[13]
Petition, p. 11, Rollo p. 18
[14]
Rollo, pp. 97-112
[15]
Manifestation dated March 25, 1994
[16]
Second Division Resolution dated June 20, 1994
[17]
Sumulong vs. Court of Appeals, 232 SCRA 372 [1994], citing Abrin vs. Campos, 203 SCRA 420
[1991]; Mariategui vs. Court of Appeals, 205 SCRA 337 [1992]; Abadvs. Court of First Instance,
206 SCRA 567 [1992]; Del Castillo vs. Aguinaldo, 212 SCRA 169 [1992]; Santos vs. Court of
Appeals, 214 SCRA 162 [1992]; Ganadinvs. Ramos, 99 SCRA 6132 (1980); Ramirez v. Chit, 21
SCRA 1364 [1967]; Mediran vs. Villanueva, 37 Phil. 752 [1918]
[18]
Sarmiento vs. Court of Appeals, 150 SCRA 108 [1995]
[19]
Rollo, pp. 56-57, underscoring in original text
[20]
Rollo, pp. 57-58
[21]
Sumulong vs. Court of Appeals, 232 SCRA 372 [1994], citing Maddamu vs. Judge of Municipal Court
of Manila, 74 Phil. 230 [1943]
[22]
Sumulong vs. Court of Appeals, supra, citing Co Tiamco vs. Diaz, 75 Phil. 672 [1946]; Valderama
Lumber Manufacturer's Co. vs. L.S. Sarmiento Co., 5 SCRA 287 [1962, Pangilinan vs. Aguilar, 43
SCRA 136 [1972]
[23]
Yu vs. de Lara, 6 SCRA 785 [1962]; Pangilinan vs. Aguilar, 43 SCRA 136 [1972], Dakudao vs.
Consolacion, 122 SCRA 877 [1983]; Peran vs. Presiding Judge, Br. II, CFI, Sorsogon, 125 SCRA
78 [1983]; Banco de Oro Savings and Mortgage Bank vs. Court of Appeals, 182 SCRA 464
[1990]
[24]
Vda. de Catchuela vs. Francisco, 98 SCRA 172 [1980] citing Calubayan vs. Pascual, 21 SCRA 146,
148 [1967]
[25]
Odsigue vs. Court of Appeals, 233 SCRA 626 [1994]
[26]
229 SCRA 627, 636 [1994]
[27]
Sarmiento vs. Court of Appeals, 250 SCRA 108 [1995] citing Sarona, et al vs. Villegas, et al, 22 SCRA
1257 [1968]
[28]
Peas, Jr. vs. Court of Appeals, 233 SCRA 744 [1994] citing Racaza vs. Susana Realty, Inc. 18 SCRA.
1172 [1966].
[29]
ART. 828, Civil Code
[30]
ART. 838, Civil Code
[31]
Petition, Annex "E", Rollo, p. 44
[32]
Emphasis supplied
[33]
Francisco, The Revised Rules of Court in the Philippines, 1970 Ed., Vol. V-B, p. 457, citing Ex-
parte Fletcher, 142 So. 30; 39 C.J.S. 86
[34]
Francisco, The Revised Rules of Court in the Philippines, 1970 Ed. Vol. V-B, p. 458, citing 39 C.J.S.
114-115.
[35]
Castillo v. Bustamante, 64 Phil. 839 [1937], cited in Moran, Comments on the Rules of Court, Vol. 3,
1980 ed., p. 570
[36]
Conchita Juachon vs. Felix Manalo, G.R. No. L-42, 77 Phil. 1092, [January 20, 1947 unreported], cited
in Moran, Comments on the Rules of court, 1979 Ed., Volume I, p. 176
[37]
Sec. 3, R.A. No. 7691, amending Sec. 33 of B.P. 129; SEE Wilmon Auto Supply Corp. vs. Court of
Appeals, 208 SCRA 108 [1992].
[38]
Francisco, The Revised Rules of Court in the Phils., Vol. V-B, 1970 Ed., citing 25 Am. Jur. 37
[39]
Second Division; SEE footnote 17, supra
[40]
Emphasis supplied
[41]
Vda. de Salazar vs. Court of Appeals, et al., 250 SCRA 305 (Nov. 23, 1995) citing Vda. de
Haberes vs. Court of Appeals, 104 SCRA 534 [1981]; Republic vs. Bagtas, 6 SCRA 242 [1962];
Florendo Jr. vs. Coloma, 129 SCRA 304 [1984].