DEFINITION AND DISTINCTION BETWEEN SPECIAL PROCEEDING AND ORDINARY CIVIL

ACTION

LUISA KHO MONTAER, G.R. No. 174975

ALEJANDRO MONTAER, JR.,
LILLIBETH MONTAER-BARRIOS,
AND RHODORA ELEANOR
MONTAER-DALUPAN, Present:
Petitioners,
PUNO, C.J., Chairperson,
CARPIO,
- versus - CORONA,
AZCUNA, and
LEONARDO-DE CASTRO, JJ.
SHARIA DISTRICT COURT,
FOURTH SHARIA JUDICIAL
DISTRICT, MARAWI CITY, LILING
DISANGCOPAN, AND ALMAHLEEN
LILING S. MONTAER, Promulgated:
Respondents.

JANUARY 20, 2009

x-----------------------------------------------------------------------------------------x

This Petition for Certiorari and Prohibition seeks to set aside the Orders of the Sharia District
Court, Fourth Sharia Judicial District, Marawi City, dated August 22, 2006[1]and September 21,
2006.[2]

On August 17, 1956, petitioner Luisa Kho Montaer, a Roman Catholic, married Alejandro Montaer,
Sr. at the Immaculate Conception Parish in Cubao, Quezon City.[3] Petitioners Alejandro Montaer,
Jr., Lillibeth Montaer-Barrios, and Rhodora Eleanor Montaer-Dalupan are their children.[4] On May
26, 1995, Alejandro Montaer, Sr. died.[5]

On August 19, 2005, private respondents Liling Disangcopan and her daughter, Almahleen Liling
S. Montaer, both Muslims, filed a Complaint for the judicial partition of properties before the Sharia
District Court.[6] In the said complaint, private respondents made the following allegations: (1) in
May 1995, Alejandro Montaer, Sr. died; (2) the late Alejandro Montaer, Sr. is a Muslim; (3)
petitioners are the first family of the decedent; (4) Liling Disangcopan is the widow of the
decedent; (5) Almahleen Liling S. Montaer is the daughter of the decedent; and (6) the estimated
value of and a list of the properties comprising the estate of the decedent.[8] Private respondents
prayed for the Sharia District Court to order, among others, the following: (1) the
partition of the estate of the decedent; and (2) the appointment of an administrator for
the estate of the decedent.[9]

On November 22, 2005, the Sharia District Court dismissed the private respondents complaint.
The district court held that Alejandro Montaer, Sr. was not a Muslim, and its jurisdiction extends
only to the settlement and distribution of the estate of deceased Muslims.[11]

In its first assailed order dated August 22, 2006, the Sharia District Court reconsidered its
order of dismissal dated November 22, 2005.[17] The district court allowed private respondents to
adduce further evidence.[18] In its second assailed order dated September 21, 2006, the Sharia
District Court ordered the continuation of trial, trial on the merits, adducement of further evidence,
and pre-trial conference.[19]

Seeking recourse before this Court, petitioners raise the following issues:

I.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY LACKS JURISDICTION OVER

PETITIONERS WHO ARE ROMAN CATHOLICS AND NON-MUSLIMS.

II.

RESPONDENT SHARIA DISTRICT COURT MARAWI CITY DID NOT ACQUIRE

JURISDICTION OVER THE ESTATES AND PROPERTIES OF THE LATE
ALEJANDRO MONTAER, SR. WHICH IS NOT A NATURAL OR JURIDICAL
PERSON WITH CAPACITY TO BE SUED.

Jurisdiction: Settlement of the Estate of Deceased Muslims

Petitioners first argument, regarding the Sharia District Courts jurisdiction, is dependent on
a question of fact, whether the late Alejandro Montaer, Sr. is a Muslim. Inherent in this argument
is the premise that there has already been a determination resolving such a question of fact. It
bears emphasis, however, that the assailed orders did not determine whether the decedent is a
Muslim. The assailed orders did, however, set a hearing for the purpose of resolving this issue.

Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code of
Muslim Personal Laws of the Philippines, provides that the Sharia District Courts have
exclusive original jurisdiction over the settlement of the estate of deceased Muslims:
 ARTICLE 143. Original jurisdiction. (1) The Shari'a District Court shall have exclusive
original jurisdiction over:

xxxx

(b) All cases involving disposition, distribution and settlement of the estate of
deceased Muslims, probate of wills, issuance of letters of administration or
appointment of administrators or executors regardless of the nature or the aggregate
value of the property.

The determination of the nature of an action or proceeding is controlled by the averments and
character of the relief sought in the complaint or petition.[21] The designation given by parties to
their own pleadings does not necessarily bind the courts to treat it according to the said
designation. Rather than rely on a falsa descriptio or defective caption, courts are guided by the
substantive averments of the pleadings.[22]

We cannot agree with the contention of the petitioners that the district court does
not have jurisdiction over the case because of an allegation in their answer with a
motion to dismiss that Montaer, Sr. is not a Muslim. Jurisdiction of a court over the
nature of the action and its subject matter does not depend upon the defenses set forth
in an answer[25]or a motion to dismiss.[26] Otherwise, jurisdiction would depend almost
entirely on the defendant[27] or result in having a case either thrown out of court or its proceedings
unduly delayed by simple stratagem.[28] Indeed, the defense of lack of jurisdiction which is
dependent on a question of fact does not render the court to lose or be deprived of its
jurisdiction.[29]

The Sharia District Court has the authority to hear and receive evidence to determine
whether it has jurisdiction, which requires an a priori determination that the deceased is a Muslim.
If after hearing, the Sharia District Court determines that the deceased was not in fact a Muslim,
the district court should dismiss the case for lack of jurisdiction.

Special Proceedings

The underlying assumption in petitioners second argument, that the proceeding

before the Sharia District Court is an ordinary civil action against a deceased person,
rests on an erroneous understanding of the proceeding before the court a quo. Part of
the confusion may be attributed to the proceeding before the Sharia District Court, where the
parties were designated either as plaintiffs or defendants and the case was denominated as a
special civil action. We reiterate that the proceedings before the court a quo are for the
issuance of letters of administration, settlement, and distribution of the estate of the
deceased, which is a special proceeding. Section 3(c) of the Rules of Court (Rules)
defines a special proceeding as a remedy by which a party seeks to establish a status, a
right, or a particular fact. This Court has applied the Rules, particularly the rules on
special proceedings, for the settlement of the estate of a deceased Muslim.[31] In a petition
for the issuance of letters of administration, settlement, and distribution of estate, the applicants
seek to establish the fact of death of the decedent and later to be duly recognized as
among the decedents heirs, which would allow them to exercise their right to participate
in the settlement and liquidation of the estate of the decedent.[32] Here, the respondents
seek to establish the fact of Alejandro Montaer, Sr.s death and, subsequently, for private
respondent Almahleen Liling S. Montaer to be recognized as among his heirs, if such is the case
in fact.

Petitioners argument, that the prohibition against a decedent or his estate from being a
party defendant in a civil action[33] applies to a special proceeding such as the settlement of the
estate of the deceased, is misplaced. Unlike a civil action which has definite adverse parties,
a special proceeding has no definite adverse party. The definitions of a civil action and a
special proceeding, respectively, in the Rules illustrate this difference. A civil action, in which a
party sues another for the enforcement or protection of a right, or the prevention or
redress of a wrong[34] necessarily has definite adverse parties, who are either the
plaintiff or defendant.[35] On the other hand, a special proceeding, by which a party seeks
to establish a status, right, or a particular fact,[36] has one definite party, who petitions
or applies for a declaration of a status, right, or particular fact, but no definite adverse
party. In the case at bar, it bears emphasis that the estate of the decedent is not being sued for
any cause of action. As a special proceeding, the purpose of the settlement of the estate of
the decedent is to determine all the assets of the estate,[37] pay its liabilities,[38] and to
distribute the residual to those entitled to the same.[39]

IN VIEW WHEREOF, the petition is DENIED. The Orders of the Sharia District Court, dated
August 22, 2006 and September 21, 2006 respectively, are AFFIRMED. Cost against petitioners.
SO ORDERED.
 CIRCUMSTANCES WHEN RULES OF
SPEC PRO WILL APPLY IN SPECIAL
PROCEEDING

G.R. No. 157912

ALAN JOSEPH A. SHEKER,

Petitioner,

Present:

YNARES-SANTIAGO, J.,

- versus - Chairperson,

AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

ESTATE OF ALICE O. SHEKER, REYES, JJ.

VICTORIA S. MEDINA-

Administratrix, Promulgated:

Respondent. December 13, 2007

x------------------------------------------------x

The undisputed facts are as follows.

The RTC admitted to probate the holographic will of Alice O. Sheker and thereafter issued an order
for all the creditors to file their respective claims against the estate. In compliance therewith,
petitioner filed on October 7, 2002 a contingent claim for agent's commission due him amounting
to approximately P206,250.00 in the event of the sale of certain parcels of land belonging to the
estate, and the amount of P275,000.00, as reimbursement for expenses incurred and/or to be
incurred by petitioner in the course of negotiating the sale of said realties.

The executrix of the Estate of Alice O. Sheker (respondent) moved for the dismissal of said money
claim against the estate on the grounds that (1) the requisite docket fee, as prescribed in
Section 7(a), Rule 141 of the Rules of Court, had not been paid; (2) petitioner failed to
attach a certification against non-forum shopping; and (3) petitioner failed to attach a
written explanation why the money claim was not filed and served personally.

On January 15, 2003, the RTC issued the assailed Order dismissing without prejudice the money
claim based on the grounds advanced by respondent. Petitioner's motion for reconsideration was
denied per Omnibus Order dated April 9, 2003.
ISSUES:

(a) must a contingent claim filed in the probate proceeding contain a certification
against non-forum shopping, failing which such claim should be dismissed?

(b) must a contingent claim filed against an estate in a probate proceeding be

dismissed for failing to pay the docket fees at the time of its filing thereat?

(c) must a contingent claim filed in a probate proceeding be dismissed because of its
failure to contain a written explanation on the service and filing by registered mail?[2]

DEFENSE

Petitioner maintains that the RTC erred in strictly applying to a probate proceeding the rules
requiring a certification of non-forum shopping, a written explanation for non-personal filing, and
the payment of docket fees upon filing of the claim. He insists that Section 2, Rule 72 of the
Rules of Court provides that rules in ordinary actions are applicable to special
proceedings only in a suppletory manner.

HELD:

The petition is imbued with merit.

However, it must be emphasized that petitioner's contention that rules in ordinary
actions are only supplementary to rules in special proceedings is not entirely correct.

Section 2, Rule 72, Part II of the same Rules of Court provides:

Sec. 2. Applicability of rules of Civil Actions. - In the absence of special

provisions, the rules provided for in ordinary actions shall be, as far as practicable,
applicable in special proceedings.

Stated differently, special provisions under Part II of the Rules of Court govern
special proceedings; but in the absence of special provisions, the rules provided for in
Part I of the Rules governing ordinary civil actions shall be applicable to special
proceedings, as far as practicable.

The word practicable is defined as: possible to practice or perform; capable of being
put into practice, done or accomplished.[4] This means that in the absence of special
provisions, rules in ordinary actions may be applied in special proceedings as much as possible
and where doing so would not pose an obstacle to said proceedings. Nowhere in the Rules of Court
does it categorically say that rules in ordinary actions are inapplicable or merely suppletory to
special proceedings.

Thus, the principal question in the present case is: did the RTC err in dismissing
petitioner's contingent money claim against respondent estate for failure of petitioner
to attach to his motion a certification against non-forum shopping?

The Court rules in the affirmative.

The certification of non-forum shopping is required only for complaints and other
initiatory pleadings. The RTC erred in ruling that a contingent money claim against the estate
of a decedent is an initiatory pleading. In the present case, the whole probate proceeding was
initiated upon the filing of the petition for allowance of the decedent's will. .[5]

Such being the case, a money claim against an estate is more akin to a motion for
creditors' claims to be recognized and taken into consideration in the proper disposition
of the properties of the estate. In Arquiza v. Court of Appeals,[6] the Court explained thus:

x x x The office of a motion is not to initiate new litigation, but to bring a

material but incidental matter arising in the progress of the case in which
the motion is filed. A motion is not an independent right or remedy, but is
confined to incidental matters in the progress of a cause. It relates to some
question that is collateral to the main object of the action and is connected
with and dependent upon the principal remedy.[7] (Emphasis supplied)

A money claim is only an incidental matter in the main action for the settlement of the
decedent's estate; more so if the claim is contingent since the claimant cannot even institute a
separate action for a mere contingent claim. Hence, herein petitioner's contingent money
claim, not being an initiatory pleading, does not require a certification against non-
forum shopping.

On the issue of filing fees, the Court ruled in Pascual v. Court of Appeals,[8] that the trial
court has jurisdiction to act on a money claim (attorney's fees) against an estate for services
rendered by a lawyer to the administratrix to assist her in fulfilling her duties to the estate even
without payment of separate docket fees because the filing fees shall constitute a lien
on the judgment pursuant to Section 2, Rule 141 of the Rules of Court, or the trial court
may order the payment of such filing fees within a reasonable time.[9]After all, the trial
court had already assumed jurisdiction over the action for settlement of the estate. Clearly,
therefore, non-payment of filing fees for a money claim against the estate is not one of
the grounds for dismissing a money claim against the estate.
With regard to the requirement of a written explanation, Maceda v. De
Guzman Vda. de Macatangay[10] is squarely in point. Therein, the Court held thus:

In Solar Team Entertainment, Inc. v. Ricafort, this Court, passing upon Section 11 of
Rule 13 of the Rules of Court, held that a court has the discretion to consider a
pleading or paper as not filed if said rule is not complied with.
.

If only to underscore the mandatory nature of this innovation to our set of adjective
rules requiring personal service whenever practicable, Section 11 of Rule 13
then gives the court the discretion to consider a pleading or paper as not
filed if the other modes of service or filing were not resorted to and no
written explanation was made as to why personal service was not done in
the first place. The exercise of discretion must, necessarily consider the
practicability of personal service, for Section 11 itself begins with the clause
whenever practicable.

We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997
Rules of Civil Procedure, personal service and filing is the general rule, and resort to
other modes of service and filing, the exception. Henceforth, whenever personal
service or filing is practicable, in the light of the circumstances of time, place and
person, personal service or filing is mandatory. Only when personal service or filing
is not practicable may resort to other modes be had, which must then be
accompanied by a written explanation as to why personal service or filing was not
practicable to begin with. In adjudging the plausibility of an explanation, a court shall
likewise consider the importance of the subject matter of the case or the issues
involved therein, and the prima facie merit of the pleading sought to be expunged
for violation of Section 11. (Emphasis and italics supplied)

In the present case, petitioner holds office in Salcedo Village, Makati City, while counsel for
respondent and the RTC which rendered the assailed orders are both in Iligan City.The lower
court should have taken judicial notice of the great distance between said cities and
realized that it is indeed not practicable to serve and file the money claim personally.
Thus, following Medina v. Court of Appeals,[12] the failure of petitioner to submit a
written explanation why service has not been done personally, may be considered as
superfluous and the RTC should have exercised its discretion under Section 11, Rule 13,
not to dismiss the money claim of petitioner, in the interest of substantial justice.

The ruling spirit of the probate law is the speedy settlement of estates of deceased persons
for the benefit of creditors and those entitled to residue by way of inheritance or legacy after the
debts and expenses of administration have been paid
The RTC should have relaxed and liberally construed the procedural rule on the requirement of a
written explanation for non-personal service, again in the interest of substantial justice.

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Iligan City,
Branch 6 dated January 15, 2003 and April 9, 2003, respectively,
are REVERSED and SET ASIDE. The Regional Trial Court of Iligan City, Branch 6, is
hereby DIRECTED to give due course and take appropriate action on petitioner's money claim in
accordance with Rule 82 of the Rules of Court.
No pronouncement as to costs.