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30 - Caalim-Verzonilla. v. Pascua AC No.6655
30 - Caalim-Verzonilla. v. Pascua AC No.6655
PASCUA
A.C. No. 6655 Complainant further alleges that the two deeds were not presented to
any of them and they came to know of their existence only recently. She
PACITA CAALIM-VERZONILLA, Complainant, further claims that the Community Tax Certificates5 (CTCs) in her name
vs. and in the names of her mother and her sister Marivinia were procured
ATTY. VICTORIANO G. PASCUA, Respondent. only by the vendee Shirley and not by them. Complainant submits the
affidavit6 executed by Edwin Gawayon, Barangay Treasurer of C-8,
Claveria, Cagayan, on August 3, 2002, attesting that the CTCs were
DECISION procured at the instance of Shirley and were paid without the
complainant and her co-heirs personally appearing before him.
VILLARAMA, JR., J.: Gawayon stated that the signatures and thumbmarks appearing on the
CTCs are not genuine and authentic because it can be seen with the
Before the Court is the verified affidavit-complaint1 of Pacita Caalim- naked eyes that the signatures are similar in all three CTCs.
Verzonilla seeking the disbarment of respondent Atty. Victoriano G.
Pascua for allegedly falsifying a public document and evading the Lastly, complainant alleges that the two deeds were used by
payment of correct taxes through the use of falsified documents. respondent and Shirley to annul a previously simulated deed of sale7
dated June 20, 1979 purportedly executed by Lope in favor of the
Complainant alleges that on September 15, 2001, respondent prepared spouses Madki and Shirley Mipanga. Said deed was likewise a complete
and notarized two Deeds of Extra-Judicial Settlement of the Estate of nullity because at that time Shirley Mipanga was only sixteen years old
Deceased Lope Caalim with Sale. The first deed2 was for a consideration and still single.
of P250,000 and appears to have been executed and signed by Lopes
surviving spouse, Caridad Tabarrejos, and her children (complainant, In his comment,8 respondent admits having prepared and notarized the
Virginia Caalim-Inong and Marivinia Caalim) in favor of spouses Madki two disputed Deeds of Extra-Judicial Settlement of the Estate with Sale
and Shirley Mipanga. The second deed3was for a consideration of (subject deeds), but denies any irregularity in their execution. He
P1,000,000 and appears to have been executed by and for the benefit of claims that the preparation and notarization of the subject deeds were
the same parties as the first deed. The two deeds have identical made under the following circumstances:
registration numbers, page numbers and book numbers in the notarial
portion. In the morning of September 15, 2001, complainant, Caridad, Virginia
and Shirley Mipanga went to his house and requested him to prepare a
Complainant avers that both deeds are spurious because all the heirs deed of sale of a residential lot located in Claveria, Cagayan. He was
signatures were falsified. She contends that her sister Marivinia does informed by the parties that the agreed purchase price is P1,000,000
not know how to sign her name and was confined at the Cagayan Valley and was presented the certificate of title to the property. Upon finding
Medical Center, Tuguegarao City, at the time the deeds were allegedly that the registered owner is "Lope Caalim, married to Caridad
signed by her, as shown by a certification4from said hospital. The Tabarrejos" and knowing that Lope already died sometime in the
1980s, he asked for, and was given, the names and personal stated in the deed of sale. He added that the estate taxes due, with
circumstances of Lopes surviving children. He asked where Marivinia interests and surcharges, would also have to be paid. Since the
was, but Caridad told him that Marivinia remained home as she was not consideration for the sale is P1,000,000, the taxes payable was quite
feeling well. As Caridad assured him that they will fetch Marivinia after enormous. Shirley asked him who between the vendor and the vendee
the deed of conveyance is prepared, he proceeded to ask the parties to should pay the taxes, and he replied that under the law, it is the
present their CTCs. Caridad and Pacita, however, told him that they obligation of the vendors to pay said taxes but it still depends upon the
have not secured their CTCs while Virginia forgot to bring hers. So he agreement of the parties. He asked if there was already an agreement
instructed them to get CTCs from Claveria. on the matter, but the parties replied in the negative.
An hour later, Caridad and Shirley came back with the CTCs of Caridad, Shirley then told the vendors that they should shoulder the payment of
Virginia, complainant and Marivinia. After he finished typing the deed taxes. Caridad and her co-vendors, however, refused and said that a big
and the details of the CTCs, Caridad said that she will bring the deed portion of the P1,000,000 paid to them was already used by them to
with her to Claveria for her daughters to sign. He then told them that it pay and settle their other obligations. Shirley then offered to pay one-
was necessary for him to meet them all in one place for them to half of whatever amount the BIR will assess, but Caridad insisted that
acknowledge the deed before him as notary public. It was agreed upon another document be prepared stating a reduced selling price of only
that they will all meet at the house of the Mipangas between 11:00 a.m. P250,000 so that they need not contribute to the payment of taxes since
and 12:00 noon on that same day. Shirley was anyway already willing to pay one-half of the taxes based
on the selling price stated in the first deed. This resulted in a heated
Respondent arrived at the Mipanga residence shortly before 12:00 discussion between the parties, which was, however, later resolved by
noon. There he saw Shirley, Caridad, complainant, Pacita and Marivinia an agreement to execute a second deed. The prospect of preparing an
with two other persons whom he later learned were the instrumental additional deed, however, irritated respondent as it meant additional
witnesses to the execution of the document. Upon being informed that work for him. Thus, respondent went home.
the parties have already affixed their signatures on the deed, he
examined the document then inquired from the heirs if the signatures Later, the parties visited respondent at his house and pleaded with him
appearing therein were theirs and if they were truly selling the to prepare the second deed with the reduced selling price. Moved by his
property for P1,000,000. The heirs answered in the affirmative, thereby humane and compassionate disposition, respondent gave in to the
ratifying and acknowledging the instrument and its contents as their parties plea.
own free and voluntary act and deed. Thus, he notarized the document
and then gave the original and two carbon copies to Shirley while In the presence of all the heirs, the vendees and the instrumental
leaving two in his possession. witnesses, respondent prepared and notarized the second deed
providing for the lower consideration of only P250,000. He used the
Respondent adds that Shirley thereafter asked him what steps were same document number, page number and book number in the notarial
needed to effect registration of the deed and transfer of the title in her portion as the first deed because according to him, the second deed was
and her husbands name. He replied that all the unpaid land taxes intended by the parties to supplant the first.
should be paid including the capital gains tax, documentary stamp taxes
and estate tax to the Bureau of Internal Revenue (BIR) which will then Respondent denies complainants assertions that the two deeds are
issue the necessary clearance for registration. When asked how much simulated and falsified, averring that as stated above, all the parties
taxes are payable, he replied that it depends on the assessment of the acknowledged the same before him. Likewise, he and his clients, the
BIR examiner which will be based on the zonal value or selling price spouses Madki and Shirley Mipanga, presented the subject deeds as
exhibits in Civil Case No. 2761-S also pending before the Regional Trial On June 26, 2007, the IBP Board of Governors adopted and approved
Court (RTC), Branch 12, of Sanchez Mira, Cagayan. Commissioner Fernandos report and recommendation but imposed a
higher penalty on respondent. Its Resolution No. XVII-2007-285 reads:
As to the allegation that Marivinia did not appear before him as she was
allegedly under confinement at the Cagayan Valley Medical Center on RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and
September 15, 2001, respondent cites a medical certificate9stating that APPROVED, the Report and Recommendation of the Investigating
Marivinia was confined in said hospital from May 3, 1999 to August 10, Commissioner of the above-entitled case, herein made part of this
1999. He also points out that Marivinia is one of the plaintiffs in Civil Resolution as Annex "A;" and, finding the recommendation fully
Case No. 2836-S pending before the RTC, Branch 12, Sanchez Mira, supported by the evidence on record and the applicable laws and rules,
Cagayan, for the annulment of the subject deeds, and nothing in the and considering Respondents violation of Notarial Law and for his
complaint states that she is mentally or physically incapacitated. participation to a transaction that effectively defrauded the
Otherwise, her co-plaintiffs would have asked the appointment of a government, Atty. Victoriano G. Pascua is hereby SUSPENDED from the
guardian for her. practice of law for two (2) years and SUSPENSION of his Notarial
Commission for two (2) years with Warning that a similar violation in
By Resolution10 dated August 10, 2005, this Court referred the case to the future will be dealt with severely.12
the Integrated Bar of the Philippines (IBP) for investigation, report and
recommendation. The above resolution is well taken.
In a Report and Recommendation11 dated May 3, 2007, Commissioner By respondents own account of the circumstances surrounding the
Jose Roderick F. Fernando found respondent administratively liable on execution and notarization of the subject deeds of sale, there is a clear
account of his indispensable participation in an act designed to defraud basis for disciplining him as a member of the bar and as notary public.
the government. He recommended that respondent be suspended from
the practice of law for three months and that his notarial commission, if Respondent did not deny preparing and notarizing the subject deeds.
still existing, be revoked and that respondent be prohibited from being He avers that the true consideration for the transaction is P1,000,000
commissioned as a notary public for two years. as allegedly agreed upon by the parties when they appeared before him
for the preparation of the first document as well as the notarization
According to Commissioner Fernando, respondent did not offer any thereof. He then claimed to have been "moved by his humane and
tenable defense to justify his actions. As a notary, it was his compassionate disposition" when he acceded to the parties plea that
responsibility to ensure that the solemnities of the act of notarization he prepare and notarize the second deed with a lower consideration of
were followed. As a lawyer, it was likewise incumbent upon him that P250,000 in order to reduce the corresponding tax liability. However,
the document he drafted and subsequently notarized was neither as noted by Commissioner Fernando, the two deeds were used by
unlawful nor fraudulent. Commissioner Fernando ruled that respondent and his client as evidence in a judicial proceeding (Civil
respondent failed on both counts since he drafted a document that Case No. 2671-S), which only meant that both documents still subsist
reflected an untruthful consideration that served to reduce unlawfully and hence contrary to respondents contention that the second deed
the tax due to the government. Then he completed the act by likewise reflecting a lower consideration was intended to supersede the first
notarizing and thus converting the document into a public document. deed.
As to the charge of falsification, the Court finds that the documents In Gonzales v. Ramos,14 we elucidated on how important and sacrosanct
annexed to the present complaint are insufficient for us to conclude the notarial act is:
that the subject deeds were indeed falsified and absolutely simulated.
We have previously ruled that a deed of sale that allegedly states a By affixing his notarial seal on the instrument, the respondent
price lower than the true consideration is nonetheless binding between converted the Deed of Absolute Sale, from a private document into a
the parties and their successors in interest.13 Complainant, however, public document. Such act is no empty gesture. The principal function
firmly maintains that she and her co-heirs had no participation of a notary public is to authenticate documents. When a notary public
whatsoever in the execution of the subject deeds. In any event, the certifies to the due execution and delivery of a document under his
issues of forgery, simulation and fraud raised by the complainant in this hand and seal, he gives the document the force of evidence. Indeed, one
proceeding apparently are still to be resolved in the pending suit filed of the purposes of requiring documents to be acknowledged before a
by the complainant and her co-heirs for annulment of the said notary public, in addition to the solemnity which should surround the
documents (Civil Case No. 2836-S). execution and delivery of documents, is to authorize such documents to
be given without further proof of their execution and delivery. A
With his admission that he drafted and notarized another instrument notarial document is by law entitled to full faith and credit upon its
that did not state the true consideration of the sale so as to reduce the face. Courts, administrative agencies and the public at large must be
capital gains and other taxes due on the transaction, respondent cannot able to rely upon the acknowledgement executed before a notary public
escape liability for making an untruthful statement in a public and appended to a private instrument. Hence, a notary public must
document for an unlawful purpose. As the second deed indicated an discharge his powers and duties, which are impressed with public
amount much lower than the actual price paid for the property sold, interest, with accuracy and fidelity.15
respondent abetted in depriving the Government of the right to collect
the correct taxes due. His act clearly violated Rule 1.02, Canon 1 of the Moreover, while respondents duty as a notary public is principally to
Code of Professional Responsibility which reads: ascertain the identity of the affiant and the voluntariness of the
declaration, it is nevertheless incumbent upon him to guard against any
CANON 1 A LAWYER SHALL UPHOLD THE CONSTITUTION, OBEY illegal or immoral arrangement or at least refrain from being a party to
THE LAWS OF THE LAND AND PROMOTE RESPECT FOR LAW AND its consummation.16Rule IV, Section 4 of the 2004 Rules on Notarial
LEGAL PROCESSES. Practice in fact proscribes notaries public from performing any notarial
act for transactions similar to the herein document of sale, to wit:
Xxxx
SEC. 4. Refusal to Notarize. A notary public shall not perform any
Rule 1.02. A lawyer shall not counsel or abet activities aimed at notarial act described in these Rules for any person requesting such an
defiance of the law or at lessening confidence in the legal system. act even if he tenders the appropriate fee specified by these Rules if:
Not only did respondent assist the contracting parties in an activity (a) the notary knows or has good reason to believe that the notarial act
aimed at defiance of the law, he likewise displayed lack of respect for or transaction is unlawful or immoral;
and made a mockery of the solemnity of the oath in an
Acknowledgment. By notarizing such illegal and fraudulent document, xxxx
he is entitling it full faith and credit upon its face, which it obviously
does not deserve considering its nature and purpose.
In this case, respondent proceeded to notarize the second deed despite 2(e) which requires that each instrument or document, executed,
knowledge of its illegal purpose. His purported desire to accommodate sworn to, or acknowledged before the notary public shall be given a
the request of his client will not absolve respondent who, as a member number corresponding to the one in his register. Said rule is not
of the legal profession, should have stood his ground and not yielded to concerned with the validity or efficacy of the document or instrument
the importunings of his clients. Respondent should have been more recorded but merely to ensure the accuracy and integrity of the entries
prudent and remained steadfast in his solemn oath not to commit in the notarial register.
falsehood nor consent to the doing of any.17 As a lawyer, respondent is
expected at all times to uphold the integrity and dignity of the legal A lawyer may be suspended or disbarred for any misconduct showing
profession and refrain from any act or omission which might lessen the any fault or deficiency in his moral character, honesty, probity or good
trust and confidence reposed by the public in the integrity of the legal demeanor.19 Section 27, Rule 138 of the Revised Rules of Court
profession.18 provides:
Respondent also failed to comply with Section 2, Rule VI of the SEC. 27. Disbarment or suspension of attorneys by Supreme Court,
2004Rules on Notarial Practice when he gavethe second document the grounds _herefore. A member of the bar may be disbarred or
same document number, page number and book number as the first: suspended from his office as attorney by the Supreme Court for any
deceit, malpractice, or other gross misconduct in such office, grossly
SEC. 2. Entries in the Notarial Register. x x x immoral conduct, or by reason of his conviction of a crime involving
moral turpitude, of for any violation of the oath which he is required to
xxxx take before admission to practice, or for a willful disobedience
appearing as an attorney for a party to a case without authority so to
(e) The notary public shall give to each instrument or document do. The practice of soliciting cases at law for the purpose of gain, either
executed, sworn to, or acknowledged before him a number personally or through paid agents or brokers, constitutes malpractice.
corresponding to the one in his register, and shall also state on the
instrument or document the page/s of his register on which the same is Xxxx
recorded. No blank line shall be left between entries.
In Gonzales, the notary public who notarized the document despite the
Xxxx non-appearance of one of the signatories was meted the penalties of
revocation of his notarial commission and disqualification from re-
Respondent admitted having given the second deed the same document appointment for two years. The notary in Gonzales was likewise
number, page number and book number as in the first deed, reasoning suspended from the practice of law for one year. Said penalty was in
that the second deed was intended to supplant and cancel the first accord with the cases of Bon v. Ziga,20Serzo v. Flores,21Zaballero v.
deed. He therefore knowingly violated the above rule, in furtherance of Montalvan22 and Tabas v. Mangibin.23 The Court found that by
his clients intention of concealing the actual purchase price so as to notarizing the questioned deed, the respondent in Gonzales engaged in
avoid paying the taxes rightly due to the Government. unlawful, dishonest, immoral or deceitful conduct.24
Even assuming that the second deed was really intended to reflect the In the instant case, we hold that respondent should similarly be meted
true agreement of the parties and hence superseding the first deed they the penalty of suspension and revocation of his notarial commission for
had executed, respondent remains liable under the afore-cited Section having violated the 2004 Rules on Notarial Practice. In line with current
jurisprudence, and as recommended by the IBP Board of Governors, the
revocation of his notarial commission and disqualification from re- ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
appointment as notary public for two years is in order. Associate Justice Associate Justice
With respect, however, to his suspension from the practice of law, we TERESITA J. LEONARDO-DE
ARTURO D. BRION
hold that the one-year suspension imposed in Gonzales and the other CASTRO
Associate Justice
cases is not applicable considering that respondent not only failed to Associate Justice
faithfully comply with the rules on notarial practice, he also violated his
oath when he prepared and notarized the second deed for the purpose (On official leave)
of avoiding the payment of correct amount of taxes, thus abetting an DIOSDADO M. PERALTA
LUCAS P. BERSAMIN*
activity aimed at defiance of the law. Under these circumstances, we Associate Justice
Associate Justice
find the two-year suspension recommended by the IBP Board of
Governors as proper and commensurate to the infraction committed by
respondent. (On leave)
MARIANO C. DEL ROBERTO A. ABAD
WHEREFORE, respondent ATTY. VICTORIANO G. PASCUA is hereby CASTILLO** Associate Justice
SUSPENDED from the practice of law for a period of two (2) years. In Associate Justice
addition, his present notarial commission, if any, is hereby REVOKED,
and he is DISQUALIFIED from reappointment as a notary public for a (On official leave)
JOSE CATRAL MENDOZA
period of two (2) years. He is further WARNED that any similar act or JOSE PORTUGAL PEREZ*
Associate Justice
infraction in the future shall be dealt with more severely. Associate Justice
Let copies of this Decision be furnished all the courts of the land MARIA LOURDES P. A.
through the Office of the Court Administrator, as well as the Integrated BIENVENIDO L. REYES
SERENO
Bar of the Philippines, and the Office of the Bar Confidant, and recorded Associate Justice
Associate Justice
in the personal records of the respondent.
WE CONCUR: Footnotes
5 Id. at 11.
18Donato v. Asuncion, Sr., A.C. No. 4914, March 3,
2004, 424 SCRA 199, 205.
6 Id. at 23. 19 Id. at 203.
7 Id. at 44. 20 A.C. No. 5436, May 27, 2004, 429 SCRA 177, 186.
8 Id. at 113-130. 21 A.C. No. 6040, July 30, 2004, 435 SCRA 412, 416.
9 Id. at 131. 22 A.C. No. 4370, May 25, 2004, 429 SCRA 74, 80.
10 Id. at 133. 23A.C. No. 5602, February 3, 2004, 421 SCRA 511, 515-
516.
11 Id. at 158-169.
24 Supra note 14 at 359.
12 Id. at 157.