SECOND DIVISION

[G.R. No. 121027. July 31, 1997.]

CORAZON DEZOLLER TISON and RENE R. DEZOLLER , petitioners, vs .

COURT OF APPEALS and TEODORA DOMINGO , respondents.

Benjamin P. Quitoriano for petitioners.

Ramoso Law Office for private respondent.

SYLLABUS

1. CIVIL LAW; FAMILY CODE; FILIATION; LEGITIMACY; GENERAL

PRESUMPTION THAT CHILDREN BORN IN WEDLOCK ARE LEGITIMATE; ISSUE THEREOF
CANNOT BE ATTACKED COLLATERALLY. — There is no presumption of the law more
rmly established and founded on sounder morality and more convincing reason than the
presumption that children born in wedlock are legitimate. And well settled is the rule that
the issue of legitimacy cannot be attacked collaterally. The issue whether petitioners are
the legitimate children of Hermogenes Dezoller cannot be properly controverted in the
present action for re-conveyance. This is aside from the further consideration that private
respondent is not the proper party to impugn the legitimacy of herein petitioners. The
presumption consequently continues to operate in favor of petitioners unless and until it is
rebutted.
2. ID.; ID.; ID.; ID.; ID.; BURDEN OF PROOF. — The burden of proof rests not on
herein petitioners who have the bene t of the presumption in their favor, but on private
respondent who is disputing the same. The presumption of legitimacy is so strong that it
is clear that its effect is to shift the burden of persuasion to the party claiming illegitimacy.
And in order to destroy the presumption, the party against whom it operates must adduce
substantial and credible evidence to the contrary. Where there is an entire lack of
competent evidence to the contrary, and unless or until it is rebutted, it has been held that
a presumption may stand in lieu of evidence and support a nding or decision. Perforce, a
presumption must be followed if it is uncontroverted. This is based on the theory that a
presumption is prima facie proof of the fact presumed, and unless the fact thus
established prima facie by the legal presumption of its truth is disproved, it must stand as
proved. Indubitably, when private respondent opted not to present countervailing evidence
to overcome the presumption, by merely filing a demurrer to evidence instead, she in effect
impliedly admitted the truth of such fact.
3. REMEDIAL LAW; EVIDENCE; TESTIMONIES; EXCEPTION TO THE HEARSAY
RULE; DECLARATION ABOUT PEDIGREE; CONDITIONS. — The primary proof to be
considered in ascertaining the relationship between the parties concerned is the testimony
of Corazon Dezoller Tison to the effect that Teodora Dezoller Guerrero in her lifetime
categorically declared that the former is Teodora's niece. Such a statement is considered
a declaration about pedigree which is admissible, as an exception to the hearsay rule,
under Section 39, Rule 130 of the Rules of Court, subject to the following conditions: (1)
that the declarant is dead or unable to testify; (2) that the declarant be related to the
person whose pedigree is the subject of inquiry; (3) that such relationship be shown by
evidence other than the declaration; and (4) that the declaration was made ante litem
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 motam, that is, not before the commencement of the suit involving the subject matter of
the declaration, but before any controversy has arisen thereon.
4. ID.; ID.; ID.; ID.; ID.; SUFFICIENCY DISCUSSED. — American jurisprudence has it
that a distinction must be made as to when the relationship of the declarant may be
proved by the very declaration itself, or by other declarations of said declarant, and when
men It must be supported by evidence aliunde. The general rule is that where the party
claiming seeks recovery against a relative common to both claimant and declarant, but not
from the declarant himself or the declarant's estate, the relationship of the declarant's
estate, the relationship of the proved by the declaration itself. There must be some
independent proof of this fact. As an exception, the requirement that there be other proof
than the declarations of the declarant as to the relationship, does not apply where it is
sought to reach the estate of the declarant himself and not merely to establish a right
through his declarations to the property of some other member of the family.
5. ID.; ID.; ID.; ID.; ID.; REQUIRES NO FURTHER EVIDENCE IN CASE AT BAR. — The
present case is one instance where the general requirement on evidence aliunde may be
relaxed. Petitioners are claiming a right to part of the estate of the declarant herself.
Conformably, the declaration made by Teodora Dezoller Guerrero that petitioner Corazon
is her niece, is admissible and constitutes su cient proof of such relationship,
notwithstanding the fact that there was no other preliminary evidence thereof, the reason
being that such declarant is rendered competent by virtue of the necessity of receiving
such evidence to avoid a failure of justice. More importantly, there is in the present case an
absolute failure by all and sundry to refute that declaration made by the decedent. Where
the subject of the declaration is the declarant's own relationship to another person. it
seems absurd to require, as a foundation for the admission of the declaration, proof of the
very fact which the declaration is offered to establish. The preliminary proof would render
the main evidence unnecessary.
6. ID.; ID.; RULES OF ADMISSIBILITY; DOCUMENTARY EVIDENCE;
INSUFFICIENCY ADMITTED WHEN NOT TIMELY OBJECTED. — While the documentary
evidence submitted by petitioners do not strictly conform to the rules on their
admissibility, we are however of the considered opinion that the same may be admitted by
reason of private respondent's failure to interpose any timely objection thereto at the time
they were being offered in evidence. It is elementary that an objection shall be made at the
time when an alleged inadmissible document is offered in evidence, otherwise, the
objection shall be treated as waived, since the right to object is merely a privilege which
the party may waived. The proper time is when from the question addressed to the
witness, or from the answer thereto, or from the presentation of the proof, the
inadmissibility of the evidence is, or may be inferred. Thus, a failure to except to the
evidence because it does not conform with the statute is a waiver of the provisions of the
law. That objection to a question put to a witness must be made at the time the question is
asked. An objection to the admission of evidence on the ground of incompetency, taken
after the testimony has been given, is too late. Thus, for instance, failure to object to parol
evidence given on the stand, where the party is in a position to object, is a waiver of any
objections thereto.
7. ID.; CIVIL PROCEDURE; JUDGMENT ON DEMURRER TO EVIDENCE. — Private
respondent may no longer be allowed to present evidence by reason of the mandate under
Section I of revised Rule 38 of the Rules of Court which provides that "if the motion is
granted but on appeal the order of dismissal is reversed he shall be deemed to have
waived the right to present evidence."
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 DECISION

REGALADO , J : p

The present appeal by certiorari seeks the reversal of the judgment rendered by
respondent Court of Appeals on June 30, 1995 1 which a rmed the Order of December 3,
1992 issued by the Regional Trial Court of Quezon City, Branch 98, granting herein private
respondent's Demurrer to Plaintiff's Evidence led in Civil Case No. Q-88-1054 pending
therein.
The present appellate review involves an action for reconveyance led by herein
petitioners against herein private respondent before the Regional Trial Court of Quezon
City, Branch 98, docketed as the aforesaid Civil Case No. Q-88-1054, over a parcel of land
with a house and apartment thereon located at San Francisco del Monte, Quezon City and
which was originally owned by the spouses Martin Guerrero and Teodora Dezoller
Guerrero. It appears that petitioners Corazon Tison and Rene Dezoller are the niece and
nephew, respectively, of the deceased Teodora Dezoller Guerrero who is the sister of
petitioners' father, Hermogenes Dezoller. Teodora Dezoller Guerrero died on March 5,
1983 without any ascendant or descendant, and was survived only by her husband, Martin
Guerrero, and herein petitioners. Petitioners' father, Hermogenes, died on October 3, 1973,
hence they seek to inherit from Teodora Dezoller Guerrero by right of representation.
The records reveal that upon the death of Teodora Dezoller Guerrero, her surviving
spouse, Martin, executed on September 15, 1986 an A davit of Extrajudicial Settlement 2
adjudicating unto himself, allegedly as sole heir, the land in dispute which is covered by
Transfer Certi cate of Title No. 66886, as a consequence of which Transfer Certi cate of
Title No. 358074 was issued in the name of Martin Guerrero. On January 2, 1988, Martin
Guerrero sold the lot to herein private respondent Teodora Domingo and thereafter,
Transfer Certificate of Title No. 374012 was issued in the latter's name.
Martin Guerrero died on October 25, 1988. Subsequently, herein petitioners led an
action for reconveyance on November 2, 1988, claiming that they are entitled to inherit
one-half of the property in question by right of representation. cdtai

At the pre-trial conference, the following issues were presented by both parties for
resolution:
(1) whether or not the plaintiffs (herein petitioners) are the nephew and
niece of the late Teodora Dezoller;
(2) whether or not the plaintiffs are entitled to inherit by right of
representation from the estate of the late Teodora Dezoller;
(3) whether or not defendant (herein private respondent) must
reconvey the reserved participation of the plaintiffs to the estate of the late
Teodora Dezoller under Section 4, Rule 74 of the Rules of Court which was duly
annotated on the title of the defendant;

(4) whether or not the plaintiffs are entitled to damages, moral and
exemplary, plus attorney' s fees for the willful and malicious refusal of defendant
to reconvey the participation of plaintiffs in the estate of Teodora Dezoller,
despite demands and knowing fully well that plaintiffs are the niece and nephew
of said deceased; and
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 (5) whether or not the subject property now in litigation can be
considered as conjugal property of the spouses Martin Guerrero and Teodora
Dezoller Guerrero. 3

During the hearing, petitioner Corazon Dezoller Tison was presented as the lone
witness, with the following documentary evidence offered to prove petitioners' liation to
their father and their aunt, to wit: a family picture; baptismal certi cates of Teodora and
Hermogenes Dezoller; certi cates of destroyed records of birth of Teodora Dezoller and
Hermogenes Dezoller; death certi cates of Hermogenes Dezoller and Teodora Dezoller
Guerrero; certification of destroyed records of live birth of Corazon and Rene Dezoller; joint
a davits of Pablo Verzosa and Meliton Sitjar attesting to the parents, date and place of
birth of Corazon and Rene Dezoller; joint a davit of Juliana Cariaga and Manuela Cariaga
attesting to the fact of marriage between Martin Guerrero and Teodora Dezoller; and the
marriage certi cate of Martin and Teodora Guerrero. 4 Petitioners thereafter rested their
case and submitted a written offer of these exhibits to which a Comment 5 was led by
herein private respondent.
Subsequently, private respondent led a Demurrer to Plaintiff's Evidence on the
ground that petitioners failed to prove their legitimate liation with the deceased Teodora
Guerrero in accordance with Article 172 of the Family Code. It is further averred that the
testimony of petitioner Corazon Dezoller Tison regarding her relationship with her alleged
father and aunt is self-serving, uncorroborated and incompetent, and that it falls short of
the quantum of proof required under Article 172 of the Family Code to establish liation.
Also, the certi cation issued by the O ce of the Local Civil Registrar of Himamaylan,
Negros Occidental is merely proof of the alleged destruction of the records referred to
therein, and the joint a davit executed by Pablo Verzosa and Meliton Sitjar certifying to
the date, place of birth and parentage of herein petitioners is inadmissible for being
hearsay since the affiants were never presented for cross-examination. 6
On December 3, 1992, the trial court issued an order granting the demurrer to
evidence and dismissing the complaint for reconveyance. 7
In upholding the dismissal, respondent Court of Appeals declared that the
documentary evidence presented by herein petitioners, such as the baptismal certi cates,
family picture, and joint a davits are all inadmissible and insu cient to prove and
establish filiation. Hence, this appeal.
We find for petitioners.
The bone of contention in private respondent's demurrer to evidence is whether or
not herein petitioners failed to meet the quantum of proof required by Article 172 of the
Family Code to establish legitimacy and liation. There are two points for consideration
before us: first is the issue on petitioner's legitimacy, and second is the question regarding
their filiation with Teodora Dezoller Guerrero.
I. It is not debatable that the documentary evidence adduced by petitioners,
taken separately and independently of each other, are not per se su cient proof of
legitimacy nor even of pedigree. It is important to note, however, that the rulings of both
lower courts in the case are basically premised on the erroneous assumption that, in the
rst place, the issue of legitimacy may be validly controverted in an action for
reconveyance, and, in the second place, that herein petitioners have the onus probandi to
prove their legitimacy and, corollarily, their filiation. We disagree on both counts.
It seems that both the court a quo and respondent appellate court have regrettably
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 overlooked the universally recognized presumption on legitimacy. There is no presumption
of the law more rmly established and founded on sounder morality and more convincing
reason than the presumption that children born in wedlock are legitimate. 8 And well
settled is the rule that the issue of legitimacy cannot be attacked collaterally.
The rationale for these rules has been explained in this wise:
"The presumption of legitimacy in the Family Code . . . actually xes a civil
status for the child born in wedlock, and that civil status cannot be attacked
collaterally. The legitimacy of the child can be impugned only in a direct action
brought for that purpose, by the proper parties, and within the period limited by
law.
The legitimacy of the child cannot be contested by way of defense or as a
collateral issue in another action for a different purpose. The necessity of an
independent action directly impugning the legitimacy is more clearly expressed in
the Mexican Code (Article 335) which provides: 'The contest of the legitimacy of a
child by the husband or his heirs must be made by proper complaint before the
competent court; any contest made in any other way is void.' This principle
applies under our Family Code. Articles 170 and 171 of the code con rm this
view, because they refer to "the action to impugn the legitimacy." This action can
be brought only by the husband or his heirs and within the periods xed in the
present articles.

Upon the expiration of the periods provided in Article 170, the action to
impugn the legitimacy of a child can no longer be brought. The status conferred
by the presumption, therefore, becomes xed, and can no longer be questioned.
The obvious intention of the law is to prevent the status of a child born in wedlock
from being in a state of uncertainty for a long time. It also aims to force early
action to settle any doubt as to the paternity of such child, so that the evidence
material to the matter, which must necessarily be facts occurring during the
period of the conception of the child, may still be easily available.
xxx xxx xxx

Only the husband can contest the legitimacy of a child born to his wife. He
is the one directly confronted with the scandal and ridicule which the in delity of
his wife produces; and he should decide whether to conceal that in delity or
expose it, in view of the moral and economic interest involved. It is only in
exceptional cases that his heirs are allowed to contest such legitimacy. Outside of
these cases, none — even his heirs — can impugn legitimacy; that would amount
to an insult to his memory." 9

The issue, therefore, as to whether petitioners are the legitimate children of

Hermogenes Dezoller cannot be properly controverted in the present action for
reconveyance. This is aside, of course, from the further consideration that private
respondent is not the proper party to impugn the legitimacy of herein petitioners. The
presumption consequently continues to operate in favor of petitioners unless and until it is
rebutted.
Even assuming that the issue is allowed to be resolved in this case, the burden of
proof rests not on herein petitioners who have the bene t of the presumption in their favor,
but on private respondent who is disputing the same. This fact alone should have been
su cient cause for the trial court to exercise appropriate caution before acting, as it did,
on the demurrer to evidence. It would have delimited the issues for resolution, as well as
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 the time and effort necessitated thereby. cdtai

Ordinarily, when a fact is presumed, it implies that the party in whose favor the
presumption exists does not have to introduce evidence to establish that fact, and in any
litigation where that fact is put in issue, the party denying it must bear the burden of proof
to overthrow the presumption. 10 The presumption of legitimacy is so strong that it is
clear that its effect is to shift the burden of persuasion to the party claiming illegitimacy. 11
And in order to destroy the presumption, the party against whom it operates must adduce
substantial and credible evidence to the contrary. 12
Where there is an entire lack of competent evidence to the contrary, 13 and unless or
until it is rebutted, it has been held that a presumption may stand in lieu of evidence and
support a nding or decision. 14 Perforce, a presumption must be followed if it is
uncontroverted. This is based on the theory that a presumption is prima facie proof of the
fact presumed, and unless the fact thus established prima facie by the legal presumption
of its truth is disproved, it must stand as proved. 15
Indubitably, when private respondent opted not to present countervailing evidence
to overcome the presumption, by merely filing a demurrer to evidence instead, she in effect
impliedly admitted the truth of such fact. Indeed, she overlooked or disregarded the
evidential rule that presumptions like judicial notice and admissions, relieve the proponent
from presenting evidence on the facts he alleged and such facts are thereby considered as
duly proved.
II. The weight and su ciency of the evidence regarding petitioner's relationship
with Teodora Dezoller Guerrero, whose estate is the subject of the present controversy,
requires a more intensive and extensive examination.
Petitioners' evidence, as earlier explained, consists mainly of the testimony of
Corazon Dezoller Tison, the baptismal, death and marriage certi cates, the various
certi cations from the civil registrar, a family picture, and several joint a davits executed
by third persons all of which she identi ed and explained in the course and as part of her
testimony.
The primary proof to be considered in ascertaining the relationship between the
parties concerned is the testimony of Corazon Dezoller Tison to the effect that Teodora
Dezoller Guerrero in her lifetime, or sometime in 1946, categorically declared that the
former is Teodora's niece. 1 6 Such a statement is considered a declaration about pedigree
which is admissible, as an exception to the hearsay rule, under Section 39, Rule 130 of the
Rules of Court, subject to the following conditions: (1) that the declarant is dead or unable
to testify; (2) that the declarant be related to the person whose pedigree is the subject of
inquiry; (3) that such relationship be shown by evidence other than the declaration; and (4)
that the declaration was made ante litem motam, that is, not only before the
commencement of the suit involving the subject matter of the declaration, but before any
controversy has arisen thereon.
There is no dispute with respect to the rst, second and fourth elements. What
remains for analysis is the third element, that is, whether or not the other documents
offered in evidence su ciently corroborate the declaration made by Teodora Dezoller
Guerrero in her lifetime regarding the pedigree of petitioner Corazon Dezoller Tison or, if at
all, it is necessary to present evidence other than such declaration.
American jurisprudence has it that a distinction must be made as to when the
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 relationship of the declarant may be proved by the very declaration itself, or by other
declarations of said declarant, and when it must be supported by evidence aliunde. The
rule is stated thus:
"One situation to be noted is that where one seeks to set up a claim
through, but not from, the declarant and to establish the admissibility of a
declaration regarding claimant's pedigree, he may not do so by declarant's own
statements as to declarant' s relationship to the particular family. The reason is
that declarant's declaration of his own relationship is of a self-serving nature.
Accordingly there must be precedent proof from other sources that declarant is
what he claimed to be, namely, a member of the particular family; otherwise the
requirement to admissibility that declarant's relationship to the common family
must appear is not met. But when the party claiming seeks to establish
relationship in order to claim directly from the declarant or the declarant's estate,
the situation and the policy of the law applicable are quite different. In such case
the declaration of the decedent, whose estate is in controversy, that he was
related to the one who claims his estate, is admissible without other proof of the
fact of relationship. While the nature of the declaration is then disserving, that is
not the real ground for its admission. Such declarations do not derive their
evidential value from that consideration, although it is a useful, if not an arti cial,
aid in determining the class to which the declarations belong. The distinction we
have noted is su ciently apparent; in the one case the declarations are self-
serving, in the other they are competent from reasons of necessity ." 1 7 (Emphasis
ours.)

The general rule, therefore, is that where the party claiming seeks recovery against a
relative common to both claimant and declarant, but not from the declarant himself or the
declarant's estate, the relationship of the declarant to the common relative may not be
proved by the declaration itself. There must be some independent proof of this fact. 18 As
an exception, the requirement that there be other proof than the declarations of the
declarant as to the relationship, does not apply where it is sought to reach the estate of
the declarant himself and not merely to establish a right through his declarations to the
property of some other member of the family. 19
We are su ciently convinced, and so hold, that the present case is one instance
where the general requirement on evidence aliunde may be relaxed. Petitioners are
claiming a right to part of the estate of the declarant herself. Conformably, the declaration
made by Teodora Dezoller Guerrero that petitioner Corazon is her niece, is admissible and
constitutes su cient proof of such relationship, notwithstanding the fact that there was
no other preliminary evidence thereof, the reason being that such declaration is rendered
competent by virtue of the necessity of receiving such evidence to avoid a failure of
justice. 20 More importantly, there is in the present case an absolute failure by all and
sundry to refute that declaration made by the decedent. cdtai

From the foregoing disquisitions, it may thus be safely concluded, on the sole basis
of the decedent's declaration and without need for further proof thereof, that petitioners
are the niece and nephew of Teodora Dezoller Guerrero. As held in one case, 2 1 where the
subject of the declaration is the declarant's own relationship to another person, it seems
absurd to require, as a foundation for the admission of the declaration, proof of the very
fact which the declaration is offered to establish. The preliminary proof would render the
main evidence unnecessary.
Applying the general rule in the present case would nonetheless produce the same
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 result. For while the documentary evidence submitted by petitioners do not strictly
conform to the rules on their admissibility, we are however of the considered opinion that
the same may be admitted by reason of private respondent's failure to interpose any
timely objection thereto at the time they were being offered in evidence. 22 It is elementary
that an objection shall be made at the time when an alleged inadmissible document is
offered in evidence, 23 otherwise, the objection shall be treated as waived, 24 since the
right to object is merely a privilege which the party may waive. 25
As explained in Abrenica vs. Gonda, et al., 2 6 it has been repeatedly laid down as a
rule of evidence that a protest or objection against the admission of any evidence must be
made at the proper time, otherwise it will be deemed to have been waived. The proper time
is when from the question addressed to the witness, or from the answer thereto, or from
the presentation of the proof, the inadmissibility of the evidence is, or may be inferred.
Thus, a failure to except to the evidence because it does not conform with the
statute is a waiver of the provisions of the law. That objection to a question put to a
witness must be made at the time the question is asked. An objection to the admission of
evidence on the ground of incompetency, taken after the testimony has been given, is too
late. 2 7 Thus, for instance, failure to object to parol evidence given on the stand, where the
party is in a position to object, is a waiver of any objections thereto. 2 8
The situation is aggravated by the fact that counsel for private respondent
unreservedly cross-examined petitioners, as the lone witness, on the documentary
evidence that were offered. At no time was the issue of the supposed inadmissibility
thereof, or the possible basis for objection thereto, ever raised. Instead, private
respondent's counsel elicited answers from the witness on the circumstances and
regularity of her obtention of said documents: The observations later made by private
respondent in her comment to petitioners' offer of exhibits, although the grounds therefor
were already apparent at the time these documents were being adduced in evidence
during the testimony of Corazon Dezoller Tison but which objections were not timely
raised therein, may no longer serve to rectify the legal consequences which resulted
therefrom. Hence, even assuming ex gratia argumenti that these documents are
inadmissible for being hearsay, but on account of herein private respondent's failure to
object thereto, the same may be admitted and considered as su cient to prove the facts
therein asserted. 29
Accordingly, the Certi cate of Marriage (Exhibit S) wherein it is indicated that the
parents of Teodora Dezoller are Isabelo Dezoller and Cecilia Calpo, as well as the
Certi cates of Baptism of Teodora Dezoller 30 (Exhibit H) and Hermogenes Dezoller
(Exhibit J) which both re ect the names of their parents as Isabelo Dezoller and Cecilia
Calpo, to show that Hermogenes Dezoller is the brother of Teodora Dezoller Guerrero; and
the Death Certi cate of Hermogenes Dezoller (Exhibit K) the entries wherein were made by
petitioner Corazon Dezoller Tison as his daughter, together with the Joint A davits of
Pablo Verzosa and Meliton Sitjar (Exhibits N and P), to prove that herein petitioners are the
children of Hermogenes Dezoller — these can be deemed to have su ciently established
the relationship between the declarant and herein petitioners. This is in consonance with
the rule that a prima facie showing is su cient and that only slight proof of the
relationship is required. 31 Finally, it may not be amiss to consider as in the nature of
circumstantial evidence the fact that both the declarant and the claimants, who are the
subject of the declaration, bear the surname Dezoller. 32
III. The following provisions of the Civil Code provide for the manner by which
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 the estate of the decedent shall be divided in this case, to wit:
"Art. 975. When children of one or more brothers or sisters of the
deceased survive, they shall inherit from the latter by representation, if they
survive with their uncles or aunts. But if they alone survive, they shall inherit in
equal portions."

"Art. 995. In the absence of legitimate descendants and ascendants,

and illegitimate children and their descendants, whether legitimate or illegitimate,
the surviving spouse shall inherit the entire estate, without prejudice to the rights
of brothers and sisters, nephews and nieces, should there be any, under Article
1001."

"Art. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitled to one-half of the inheritance and the
brothers and sisters or their children to the other half."

Upon the death of Teodora Dezoller Guerrero, one-half of the subject property was
automatically reserved to the surviving spouse, Martin Guerrero, as his share in the
conjugal partnership. Applying the aforequoted statutory provisions, the remaining half
shall be equally divided between the widower and herein petitioners who are entitled to
jointly inherit in their own right. Hence, Martin Guerrero could only validly alienate his total
undivided three-fourths (3/4) share in the entire property to herein private respondent.
Resultantly, petitioners and private respondent are deemed co-owners of the property
covered by Transfer Certi cate of Title No. 374012 in the proportion of an undivided one-
fourth (1/4) and three-fourths (3/4) share thereof, respectively. cdrep

All told, on the basis of the foregoing considerations, the demurrer to plaintiffs'
evidence should have been, as it is hereby, denied. Nonetheless, private respondent may no
longer be allowed to present evidence by reason of the mandate under Section 1 of
revised Rule 3 of the Rules of Court which provides that "if the motion is granted but on
appeal the order of dismissal is reversed he shall be deemed to have waived the right to
present evidence." 3 3
WHEREFORE, the questioned judgment of respondent Court of Appeals is hereby
REVERSED and SET ASIDE, and herein petitioners and private respondent are declared co-
owners of the subject property with an undivided one-fourth (1/4) and three-fourth (3/4)
share therein, respectively.
SO ORDERED.
Romero, Puno and Mendoza, JJ ., concur.
Torres, Jr., J ., is on leave.

Footnotes
1. Penned by Associate Justice Gloria C. Paras, with Associate Justices Quirino Abad
Santos, Jr. and Delilah Vidallon Magtolis, concurring; Annex K, Petition, Rollo, 74.
2. Annex B, id.; ibid., 41.
3. Original Record, 207-208.

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 4. Ibid., 224-229.
5. Ibid., 233-234.
6. Ibid., 259-267.
7. Ibid., 275.
8. Jones, Commentaries on Evidence, Vol. 1, 2nd ed., 118-119.
9. Tolentino, A., Civil Code of the Philippines, Commentaries and Jurisprudence, Vol. 1,
1990 ed., 535-537.
10. Op. cit., 535.
11. Jones on Evidence, Vol. 1, 5th ed., 178.
12. 95 ALR 883.
13. 31A CJS, Evidence, Sec. 114, 195.

14. Ibid., Sec. 119, 216.

15. Brawsell vs. Tindall, 294 SW 2d 685.
16. TSN, February 14, 1992, 5-8.
17. Jones, Commentaries on Evidence, Vol. 3, 2nd ed., 2094-2095.
18. Op. cit., 2096.
19. Op. cit., 2098.
20. In re Clark's Estate, 110 P 828.
21. Hartman's Estate, 107 P 105, cited in Moran, Comments on the Rules of Court, Vol. 5,
1980 ed., 322.
22. On offer of evidence, the Rules of Court pertinently provide:
"Sec. 35. When to make offer. — . . .
Documentary and object evidence shall be offered after the presentation of a
party's testimonial evidence. Such offer shall be done orally unless allowed by the
Court to be done by writing.
"Sec. 36. Objection. — Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor shall become reasonably
apparent."
23. Martin, Rules of Court, Vol. 5, 3rd ed., 611.
24. People vs. De la Cruz, G.R. No. 108180, February 8, 1994, 229 SCRA 754.
25. Moran, Comments on the Rules of Court, Vol. 6, 1980 ed., 125.
26. 34 Phil. 745 (1916).

27. Conlu vs. Araneta, et al., 15 Phil. 387 (1910).

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 28. See Talosig vs. Vda. De Nieba, et al., G.R. No. L-29557, February 29, 1972, 43 SCRA 472.
29. Op. cit., 128.
30. This parochial record is an official document, having been made prior to the passage of
G.O. No. 68 and Act No. 190 (U.S. vs. Evangelista, 29 Phil. 215 (1915), and cases therein
cited).

31. Fulkerson, et al. vs. Holmes, et al., 117 US 389.

32. Francisco, Rules of Court, Vol. 7, 1973 ed., 494.
33. This amendatory provision under the 1997 Rules of Civil Procedure, which took effect
on July 1, 1997, is substantially the same as the antecedent provision in Sec. 1, Rule 35:
"However, if the motion is granted and the order of dismissal is reversed on appeal, the
movant loses his right to present evidence in his behalf."

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