Gabriel Vs.

Encarnacion
G.R. No. L-6736
Cesar Clarence D. Contreras
Submitted: 8:30 Am, November 12, 2015
FACTS OF THE CASE
Petitioner is Isabel Gabriel, widow of Eligio Naval whose intestate estate is the source of
contention. Petrita Pascual is co-administratrix of the estate and is the respondent along with
Judge Encarnacion who ruled contested decision in favor of Pascual. Respondent and co-heirs filed
a motion to court praying that the real properties of the intestate be sold for cash at public
bidding. Hearing of this motion was not heard on set date of December 5, 1952 due to absence of
presiding court judge. Petitioner then asked that case be transferred to court holding sessions at
Caloocan and such request was granted.
Respondents in turn, moved that motion for sale and all pending motions and incidents of the
estate be referred to the branch of the court holding sessions at Pasig, Rizal. Petitioner contended
that Pasig branch judges were all vacation judges and thus could not take full cognizance of the
case. Hearing for this motion was set and took place on April 20, 1953. In view of this hearing the
court granted the motion to sell the real properties of the estate.
Petitioners filed a motion that the order was null and void for a violation of the rules of court. They
contended that the motion for sale was not before the court for consideration during the hearing
that took place on April 20, 1953 but it was the motion wherein the respondents prayed for the
intestate case to be referred to the court holding session in Pasig.
Under the rules, when the sale of real estate that will be beneficial to heirs, devisees, legatees and
other interested persons the court may upon application of the executor or administrator and on
written notice to the persons interested in the estate to be sold, authorize the sale(Section 4, rule
90). It also provides that when the court decides to authorize the sale that the same be made
subject to certain regulations. First, that the administrator shall file a written petition setting forth
facts showing that the sale is necessary and that, second, court shall fix a time and place for the
hearing of such petition and issue notice to the persons interested. This regulations are held to be
mandatory and failure to comply will render sale order void.
Issue
Where the regulations followed in the present case and does the use of the word shall make the
regulations mandatory or merely directory?
Held:No the regulations were not followed and yes the regulations are mandatory.
Ratio
Motion filed by respondents for the sale of real properties of the estate has not actually been
heard as it was set for hearing by counsel on December 5, 1952 but the judge was absent so said
motion was not actually heard. After that, the motion was never set for hearing again. It turns
out, respondents explained, that said motion was incidentally discussed at the hearing on April 20
in connection with the motion to transfer the case to Pasig branch of court wherein both parties
had occasion to discuss merits of sale of the estate. This was not the purpose of such hearing as
they went to court to discuss the motion to transfer the case. Thus mandatory regulations
providing that the court must hear the petition for motion of sale was not followed and order
granting sale is consequently null and void. Shall is also seen to generally be mandatory in
nature. The statutory principle relevant here is that in the case of prescribing procedural
requirements shall is construed to denote that it is mandatory and the failure to comply with
certain procedural requirements will render the act done in connection therewith void. The statue
prescribing such requirements is regarded as mandatory even though the language used therein is
permissive in nature

IMPORTANT SECTIONS
Section 4, Rule 90 of the Rules of Court:
When the sale of real estate that will be beneficial to heirs, devisees, legatees and other
interested persons the court may upon application of the executor or administrator and on written
notice to the persons interested in the estate to be sold, authorize the sale.
It also provides that when the court decides to authorize the sale that the same be made subject
to certain regulations. First, that the administrator shall file a written petition setting forth facts
showing that the sale is necessary and that, second, court shall fix a time and place for the
hearing of such petition and issue notice to the persons interested.