[G.R. No. 157537. September 7, 2011.]
Whether or not the subject property is
THE HEIRS OF PROTACIO GO, SR. and MARTA
BAROLA, vs ESTER L. SERVACIO and RITO B. GO
FACTS:
Background:
On February 22, 1976, Jesus B. Gaviola sold two
parcels of land to Protacio B. Go, Jr., which the
latter executed an Affidavit of Renunciation and
Waiver stating that the said property was sold to
his father Protacio Go Sr.
On November 25, 1987, Marta Barola Go died.
She was the wife of Protacio, Sr.
On December 28, 1999, Protacio, Sr. and his son
Rito B. Go (joined by Rito's wife Dina B. Go) sold
a portion of the property with an area of 5,560
square meters to Ester L. Servacio.
On March 2, 2001,the petitioners demanded the
return of the property, but Servacio refused to
heed their demand.
PETITIONERS:
The property became conjugal property; and
that the sale of the property to Servacio without
the prior liquidation of the community property
between Protacio, Sr. and Marta was null and
void.
RESPONDENT:
Servacio and Rito countered that Protacio, Sr.
had exclusively owned the property because he
had purchased it with his own money.
Servacio and Rito both argue that Article 130 of
the Family Code was inapplicable; that the want
of the liquidation prior to the sale did not render
the sale invalid, because the sale was valid to
the extent of the portion that was finally
allotted to the vendors as his share; and that the
sale did not also prejudice any rights of the
petitioners as heirs, considering that what the
sale disposed of was within the aliquot portion
of the property that the vendors were entitled
to as heirs.
ISSUE (s):
a.
part of the conjugal property of
Protacio Sr. and Marta Barola
b. Whether or not the failure to liquidate
the conjugal property and dispose the
same is void on its entirety
HELD:
A. YES
There being no dispute that Protacio, Sr. and
Marta were married prior to the effectivity of
the Family Code on August 3, 1988, their
property relation was properly characterized as
one of conjugal partnership governed by the
Civil Code.
Upon Marta's death in 1987, the conjugal
partnership was dissolved, pursuant to Article
175 (1) of the Civil Code, and an implied
ordinary co-ownership ensued among Protacio,
Sr. and the other heirs of Marta with respect to
her share in the assets of the conjugal
partnership pending a liquidation following its
liquidation.
B. NO
A co-owner could sell his undivided share;
hence, Protacio, Sr. had the right to freely sell
and dispose of his undivided interest, but not
the interest of his co-owners.
Consequently, the sale by Protacio, Sr. and Rito
as co-owners without the consent of the other
co-owners was not necessarily void, for the
rights of the selling co-owners were thereby
effectively transferred, making the buyer
(Servacio) a co-owner of Marta's share.
From the foregoing, it may be deduced that
since a co-owner is entitled to sell his undivided
share, a sale of the entire property by one co-
owner without the consent of the other co-
owners is not null and void.

However, only the rights of the co-owner-seller

are transferred, thereby making the buyer a co-
owner of the property. The proper action in
cases like this is not for the nullification of the
sale or for the recovery of possession of the
thing owned in common from the third person
who substituted the co-owner or co-owners
who alienated their shares, but the DIVISION of
the common property as if it continued to
remain in the possession of the co-owners who
possessed and administered it [Mainit v.
Bandoy, supra ].

Thus, it is now settled that the appropriate

recourse of co-owners in cases where their
consent were not secured in a sale of the entire
property as well as in a sale merely of the
undivided shares of entire property is an action
for PARTITION under Rule 69 of the Revised
Rules of Court.

In the meanwhile, Servacio would be a trustee

for the benefit of the co-heirs of her vendors in
respect of any portion that might not be validly
sold to her.