JULIO A. VIVARES - versus - ENGR. JOSE J. REYES, G.R. No. 155408. Februar 1!, "008 VELAS#O, JR., J.$ FA#%S$
Severi Severino no Reyes Reyes was the father father of respon responden dentt Jose Jose Reyes Reyes and Torcu Torcuato ato Reyes. Upon the death of Severino, respondent and Torcuato came upon their inheritance consisting of several properties. They had an oral partition of the properties and separately appropriated to themselves said properties. Torcuat Torcuato o died with a last will and testament. testament. Petitione Petitionerr Vivares Vivares was the designated executor of Torcuatos last will and testament, while petitioner gnaling was declared a lawful heir of Torcuato.
!eli !eliev evin ing g that that Torcua rcuato to did did not not rece receiv ivee his his full full shar sharee in the the esta estate te of Severino, petitioners instituted an action for Partition and Recovery of Real Estate "efore Estate "efore the #amiguin RT#, RT#, !ranch $% entitled Julio A. Vivares Vivares,, as executor of the estate of Torcuato J. Reyes and Mila R. Ignaling, as heir v. Engr. Engr. Jose J. Reyes.&ith Reyes .&ith the approval of the trial court, the parties agreed that properties from the estate of Severino, which were already transferred in the names of respondent and Torcuato prior to the latters death on 'ay ($, ())$, shall "e excluded from litigation. n short, what was "eing contested were the properties that were still in the name of Severino.
*or the purpose purpose of collating collating the common common properties properties that were disputed, disputed, the trial trial court court direct directed ed the formati formation on of a three+ three+man man commis commissio sion n with with due representation from "oth parties, and the third mem"er, appointed "y the trial trial court, court, shall shall act as chairp chairpers erson. on. The disput disputed ed proper propertie tiess were were then then annota annotated ted with with notic notices es of lis penden pendenss upon upon the the inst instan ance ce of peti petiti tion oner ers. s. petitioners filed a 'otion to Place Properties in itigation under Receivership "efore the trial court alleging that to their pre-udice respondent had, without prior court approval and without petitioners nowledge, sold to third parties and transferred in his own name several common properties. They They furth further er clai claime med d that that respo respond nden entt was was and and is in posse possess ssio ion n of the the common properties in the estate of Severino, and exclusively en-oying the fruits and income of said properties and without rendering an accounting on them and turning over the share pertaining to Torcuato. Thus, petitioners prayed to place the entire disputed estate of Severino under receivership. The The tria triall cour courtt issu issued ed a Reso Resolu luti tion on,, deny denyin ing g resp respon onde dent ntss moti motion onss to discharge receiver and cancel the notice of lis pendens . pendens .
The #/ rendered the assailed 0ecision, sustaining respondents position and granted relief.n reversing the trial court, the #/ reasoned that the court a uo failed uo failed to o"serve the well+settled rule that allows the grant of the harsh
-udicial remedy of receivership only in extreme cases when there is an imperative necessity for it. The #/ thus held that it is proper that the appointed receiver "e discharged on the filing of a counter"ond pursuant to Sec. 1, Rule 2) of the ())3 Revised Rules on #ivil Procedure. ISSUE$ &45 Receivership is proper. RULING$
Petitioners misera"ly failed to adduce clear, convincing, and hard evidence to show the alleged fraud in the transfers and the antedating of said transfers. 'oreover, respondent has adduced documentary proof that Torcuato himself similarly conveyed several lots in the estate of Severino "ased on the oral partition "etween the si"lings. To lend credence to the transfers executed "y Torcuato "ut distrust to those made "y respondent would "e highly ine6uita"le as correctly opined "y the court a uo.
ndeed, receivership is a harsh remedy to "e granted only in extreme situations. /s early as ()(7, the #ourt already enunciated the doctrinal pronouncement in Velasco ! "o. v. #ochuico ! "o. that courts must use utmost circumspection in allowing receivership, thus8 The power to appoint a receiver is a delicate one and should "e exercised with extreme caution and only under circumstances re6uiring summary relief or where the court is satisfied that there is imminent danger of loss, lest the in-ury there"y caused "e far greater than the in-ury sought to "e averted. The court should consider the conse6uences to all of the parties and the power should not "e exercised when it is liely to produce irrepara"le in-ustice or in-ury to private rights or the facts demonstrate that the appointment will in-ure the interests of others whose rights are entitled to as much consideration from the court as those of the complainant.
Petitioners cannot now impugn the oral partition entered into "y Torcuato and respondent and hence cannot also assail the transfers made "y respondent of the lots which were su"-ect of said agreement, considering that Torcuato also sold properties "ased on said ver"al arrangement. ndeed, the parties agreed that the civil action does not encompass the properties covered "y the oral partition. n this factual setting, petitioners cannot convince the #ourt that the alleged fraudulent transfers of the lots made "y respondent, which purportedly form part of his share in Severinos estate "ased on the partition, can provide a strong "asis to grant the receivership. $econd , petitioner is willing to post a counter"ond in the amount to "e fixed "y the court "ased on Sec. 1, Rule 2) of the ())3 Rules of #ivil Procedure, which reads8
Sec. 1. %enial of application or discharge of receiver .The application may "e denied, or the receiver discharged, when the adverse party files a "ond executed to the applicant, in an amount to "e fixed "y the court, to the effect that such party will pay the applicant all damages he may suffer "y reason of the acts, omissions, or other matter specified in the application as ground for such appointment. The receiver may also "e discharged if it is shown that his appointment was o"tained without sufficient cause.
/nchored on this rule, the trial court should have dispensed with the services of the receiver, more so considering that the alleged fraud put forward to -ustify the receivership was not at all esta"lished.
Petitioners advance the issue that the receivership should not "e recalled simply "ecause the adverse party offers to post a counter"ond. /t the outset, we find that this issue was not raised "efore the #/ and therefore proscri"ed "y the doctrine that an issue raised for the first time on appeal and not timely raised in the proceedings in the lower court is "arred "y estoppel. 9ven if we entertain the issue, the contention is nevertheless devoid of merit. The assailed #/ decision supported the discharge of the receiver with several reasons including the posting of the counter"ond. &hile the #/ made a statement that the trial court should have discharged the appointed receiver on the "asis of the proposed counter"ond, such opinion does not -i"e with the import of Sec. 1, Rule 2). The rule states that the application may "e denied or the receiver discharged. n statutory construction, the word may has always "een construed as permissive. f the intent is to mae it mandatory or ministerial for the trial court to order the recall of the receiver upon the offer to post a counter"ond, then the court should have used the word shall. Thus, the trial court has to consider the posting of the counter"ond in addition to other reasons presented "y the offeror why the receivership has to "e set aside.
